Headnotes:
In assessing whether the school has taken reasonable steps to ensure that a disabled person receives a free education, the first step is to assess whether the person was enabled to exercise his or her right to free education on an equal basis with others. If the general courts conclude that reasonable measure has not been made by the obliged entity, only then are they to proceed to the next step and assess whether the provision would be disproportionately burdensome for that entity.
The general courts have a duty to weigh very carefully when it is possible to restrict the participation rights of a minor on the grounds that he or she is unable to understand sufficiently the issue at hand. A minor's disability must not in itself be a reason for denying him or her the right to be heard.
Summary:
I. The complainant is a disabled person. During the relevant period, he was a pupil with special educational needs within the meaning of the Education Act. The school counselling centre recommended educational assistance for the complainant. Therefore, before the complainant started school, the headmaster applied to the regional authority for the establishment of a teaching assistant and for the provision of funds for his salary. However, the regional authority provided funding for only part-time. The missing funds were first subsidised by the Labour Office and the city as the school's founder. Over time, the school was no longer able to secure funding for the part-time work previously provided by the regional authority. It therefore entered into a contract with the complainant (the complainant's mother) for the provision of personal assistance. The purpose of the contract was to secure the parent's financial participation in providing assistance for the complainant. As a result, his parent contributed to the remuneration of the assistant.
After some time, the complainant took his claims under the Anti-Discrimination Act to court. He claimed that the school had breached his right to equal treatment by failing to provide a free education and by denying him reasonable adjustments as a disabled person. He sought a written apology and damages, as well as appropriate financial compensation for the harm caused by the school's discriminatory conduct. The District Court dismissed the lawsuit. It found that the school had created conditions for education in a "regular classroom." It had therefore not refused to educate the complainant on account of his disability and to integrate him with the other pupils. Neither the Regional Court nor the Supreme Court upheld the complaint. The main object of the constitutional complaint is the objection that the school did not ensure the complainant's right to free education and that he was subjected to discrimination on the grounds of his disability.
II. The Constitutional Court first emphasized that in assessing whether a reasonable measure within the meaning of Section 3(2) of the Anti-Discrimination Act has been adopted, it must first be assessed whether, as a result of the adoption of a particular measure, it has been achieved that a person with a disability can exercise his or her rights on an equal basis with others. The primary consideration in assessing whether a proportionate measure has been taken is whether that purpose has been achieved.
In the context of the case under review, the Constitutional Court found that the general courts did not address whether the part-time assistant provided by the school and financed by the regional authority covered the individual needs of the complainant's pedagogical assistance to the necessary extent. The courts should have asked themselves, first of all, whether, in a situation where the school provided the services of a teaching assistant only to the extent of the resources provided by the regional authority, the complainant could exercise his right to a free basic education without having to contribute financially to it. If the municipal courts conclude that adequate provision has not been made by the person required, only then are they required to take the next step and assess whether the provision would be unduly burdensome for that person. One of the important factors in assessing whether a particular measure would impose an unreasonable burden on a school is undoubtedly the extent of financial support from both the regional authority and the possibility of funding the measure from other public funding sources (including the effort taken in obtaining those funds).
Only if the school can demonstrate that it has exhausted the available options for raising additional funds and at the same time would be unable to pay for the measure from its budget (without having to cut back on other comparable activities or services), can it be concluded that the adoption of the measure represents a disproportionate burden on the school. In the present case, the Constitutional Court concluded that, by failing to address the question of whether the school had taken reasonable measures to the extent necessary, as recommended by the expert, in assessing whether the conditions of Section 3(2) of the Anti-Discrimination Act were met, the general courts violated the complainant's right to judicial protection.
With regard to the conduct of the proceedings, the Constitutional Court acknowledged that disability may make it difficult to understand the situation or express opinions. However, the mere existence of a disability must not be a ground for denying the right to be heard. The courts have a duty to consider very carefully when it is possible to limit the participation rights of a minor on the grounds that he or she is unable to understand sufficiently the issue under consideration. Children with disabilities have the right to assistance appropriate to their disability and age. They should be able to use any means of communication necessary to facilitate the expression of their views. Courts must ensure that children with disabilities are able to make up their own minds about the content of the proceedings. In the opinion of the Constitutional Court, the restriction of the applicant's rights of participation was not appropriate in the present case. In view of the above, the Constitutional Court quashed the judgments of the District Court and the Regional Court.
III. The judge reporting in the case was Jiří Zemánek. No judge dissented.