global lawyer
Desegregating
Europe
In a much-anticipated decision, the
European Court of Human Rights
produces its own version of
Brown v. Board of Education.
By Michael D. Goldhaber
ON NOVEMBER 13 THE EUROPEAN
Court of Human Rights settled any doubt
that, in its protection of despised minorities,
it is the rightful heir of the Warren Court. By
a vote of 13 to 4, the European Court held that the Czech
state had discriminated against Roma (Gypsy) children
by quasi-automatically tracking them into schools for the
mentally retarded.
Ironically, D.H. and Others v. The Czech Republic
leaves today’s U.S. Supreme Court isolated in its cramped
views on discrimination. Europe has become the unquestioned leader in a global judicial dialogue on civil rights in
which the United States is only a marginal participant.
The European Court, based in Strasbourg, France,
hears complaints by citizens against the 47 nations that
have signed the 1950 European Convention on Human
Rights. One judge from each nation sits on the court,
but complaints are generally heard in the first instance
by a seven-judge panel; when petitions for rehearing are
accepted, cases go to a “Grand Chamber” of 17 judges,
somewhat resembling an en banc panel of the U.S. Court
of Appeals for the Ninth Circuit, which is similar in size.
In the past generation, this institution has emerged as Europe’s primary expounder of constitutional values. Just as
the Warren Court protected “discrete and insular minorities” (to use the phrase coined by Justice Harlan Fiske
Stone), so the Strasbourg court in D.H. pledges to defend
the “disadvantaged and vulnerable.” But in addition to
grounding its mission in the Roma’s history of persecution, the European Court invokes the contemporary ideal
of diversity. Thus the court identified an emerging European consensus that recognizes an obligation to protect
minorities, both for their sakes and “to preserve a cultural
diversity of value to the whole community.”
The European Roma, who number 10 million by one
estimate, are the continent’s prototypical unpopular minority, facing widespread segregation in housing and ed-
ucation, as well as police brutality and stereotyping. It’s
certainly hard to miss the disadvantage suffered by the
18 Czech Roma children who brought the D.H. case.
When the suit started in 1999, the main advocacy group
behind the case, the George Soros–funded European
Roma Rights Centre, showed that Roma children in the
plaintiffs’ hometown were 27 times more likely than their
peers to be placed in “special schools.” It was enough to
make a Jim Crow school superintendent blush.
Last year, a lower chamber of the court rejected the
children’s pleas on the ground that it was not the court’s
role “to assess the overall social context.” After the case
was accepted for a definitive rehearing by a Grand Chamber of the court, an editorial in The New York Times encouraged the court to “seize the opportunity to modernize
and reverse a decision that has anchored European race
relations today well behind where America was in 1954.”
With no qualms about undertaking a broad social inquiry,
the Grand Chamber grabbed the moment and reversed
in dramatic fashion. At the heart of its opinion, the Grand
Chamber declared that claimants may rely on statistics to
establish a prima facie case of discrimination. Once that
preliminary showing has been made, the burden shifts to
the state to justify the policy to the judges. Such an approach is essential if a court is to invalidate a general policy that falls with disparate impact on a minority.
These discrimination standards bring the European
Court of Human Rights into line with the law of the European Community and the U.N. treaty bodies, to which
the Grand Chamber devoted 12 pages of citations. Sadly,
the one Supreme Court decision cited by the European
Court, Griggs v. Duke Power Co., dates to 1971, and its
permissive test was confined to statutory law. Under U.S.
