Three Strikes and You're Out
By James A. Goldston
Baseball has fans across the globe, but does “three strikes and you’re out,” a famously American phrase, have any meaning in Europe? That question is front and center now that the European Court of Human Rights this week issued its third ruling in as many years striking down school segregation on grounds of race. For those Europeans still in denial about the existence of racism in their midst, the Court’s courageous stand may be as surprising as it is needed. But will Europe’s governments heed the judges’ wake-up call and halt segregated education for Roma and other ethnic minorities?
After decades in which race was a non-issue in Strasbourg, Europe’s highest court has charted a legal revolution of sorts in recent years. In November 2007, in the case of D.H. v. Czech Republic, the Court’s Grand Chamber broke the ice, striking down a nationwide system of racial segregation in Czech schools which left thousands of Roma children in dead-end “special” schools for what the law at the time the case was launched termed the “mentally deficient.” The landmark judgment brought Council of Europe antidiscrimination standards into line with those of the (heretofore more progressive) European Union, expressly recognizing the concept of (and prohibiting) indirect discrimination. It made clear that, though not necessary, statistics are a permissible means of proving discriminatory patterns and provided for a reversal of the burden of proof, once a prima facie case of discrimination is made.
In 2008, the Court followed with Sampanis v. Greece, which found that local authorities had breached Roma children’s fundamental rights by denying them enrollment in a primary school and placing them in special classes located in an annex to the main school building. The authorities were responding, in part, to racist animus from some parents who did not want their (non-Roma) children mixing with Roma.
Now comes Orsus v. Croatia, decided on March 16. In Orsus, the Court’s Grand Chamber was confronted with racial segregation of a different kind. Separate classes, the government argued, were designed to help students who lacked Croatian language fluency. Yet many of the children at issue had received solid marks in Croatian, and there appeared to be no formalized procedure for assessing language skills, let alone any evidence that segregation served to improve them.
To the contrary, the separate classes used an inferior curriculum, and unsurprisingly yielded students ill-prepared for secondary school. The strange coincidence that only Roma children were placed in separate classes gave rise to a reasonable suspicion—that language was being used as a pretext for race—which the Government was unable to rebut.
Though Orsus concerned the Roma, a particularly “disadvantaged and vulnerable” minority who, “as a result of their history … require special protection,” it has implications for the schooling of all racial and ethnic minorities across Europe. In Germany, for example, language is reportedly used as a basis for separate education of Turks and other minorities, who are often tracked into vocational education at an early age.
The Court has now underscored that racial segregation has no place in a modern school system. And yet, such segregation persists in many European countries. This is not just a question of human rights and the rule of law. With economic output well below full employment levels, how long can Europe maintain schooling practices which denigrate thousands of children each year to life-long economic irrelevance? Will national governments act to desegregate their schools? Will Brussels prod them?
James A. Goldston is the executive director of the Open Society Justice Initiative.
