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 education, 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. constitutional law, establishing discrimination requires proof of intent, and the justices in Washington have spent the past 20 years retreating from the promise of Brown v. Board of Education. Last June they reached a new low, rejecting the school desegregation plans of Louisville and Seattle.
“The decision underscores the growing divergence between the U.S. and the rest of the world in the field of equality rights,” says one of the plaintiffs’ counsel, James Goldston of the Open Society Justice Initiative, another Soros-funded group. “Since Griggs was decided in 1971, the U.S. Supreme Court has, on the whole, narrowed the scope of protection against racial discrimination, while courts in other countries–including, now most prominently, the ECHR–have steadily broadened it,” Goldston says.
Back in the seventies, it was U.S. law that inspired British and Irish barristers to transform the European Convention on Human Rights into a force for social change through a series of creative lawsuits. One leading early advocate was Anthony Lester, who in 1973, citing the civil rights precedents he had studied at Yale Law School, established that Britain had violated human rights when it effectively revoked the British citizenship of Indians and Pakistanis expelled from the young nations of East Africa. Now a member of Blackstone Chambers and the House of Lords, Lester has continued to fight the good fight as the winning barrister in the Roma desegregation case.
The European Court of Human Rights forms a progressive parallel universe to which the United States has traditionally been oblivious, although that is starting to change. The Supreme Court’s Bowers v. Hardwick decision, which upheld a ban on gay sex in 1986, seemed embarrassingly ignorant of the earlier Dudgeon v. United Kingdom, which reached the opposite result on identical facts in 1981. It was only in 2003’s Lawrence v. Texas that two gay men from Houston, who had been convicted of sodomy, persuaded the Supreme Court to overturn Bowers. Justice Anthony Kennedy’s opinion was especially notable for the respect it accorded the European precedent of Dudgeon. As Justice Ruth Bader Ginsburg observed after that term: “Our ‘island’ or ‘lone ranger’ mentality is beginning to change. Our justices … are becoming more open to comparative and international law perspectives.”
Desegregation and gay rights are only two of many areas in which European constitutional law holds lessons for the U.S. In 1971 a group of suspected Northern Irish terrorists–who became known as “the hooded men”–were subjected by the British military to many of the same techniques of sensory deprivation used at Guantanamo Bay. It’s been 30 years since the Strasbourg court banned this form of psychological warfare as “inhuman or degrading treatment.”
For all of Strasbourg’s pathbreaking, in recent years some commentators have worried that the Roma case was apt to be remembered as the Brown v. Board of Education that wasn’t. The Strasbourg court’s previously timid record on equality generally and Roma claims in particular suggested that the court had lost its reformist drive. One theory held that the court was reflecting the more conservative social mores of the former Communist nations that joined the Council of Europe after the fall of the Berlin Wall. A second theory held that the court was so overwhelmed by its caseload–a victim of its own success–that it was prioritizing administrative efficiency over individual justice. The D.H. ruling lays both fears to rest. “This judgment is a most welcome affirmation,” says Goldston, “that the Strasbourg court remains a dynamic model of progressive rights enforcement and interpretation.”
As America knows well, the real trick is to translate bold judicial action into lasting social change. The D.H. ruling’s direct effect is unclear, because the Czech Republic formally abolished “special schools” in 2004, after the case was filed. But the effectiveness of that reform is highly debatable, and the Grand Chamber opinion has drawn attention to the persistence of Roma school segregation throughout Central and Eastern Europe. So although D.H. may not technically compel further Czech action, it will surely help interested nonprofits to push educational reform in Prague and elsewhere. Where advocates are disappointed with progress in Roma desegregation, they may bring new cases, armed with powerful new law. The same holds true for other European minorities–like Muslims–and for other realms of life that are prone to discrimination, such as housing and criminal justice.
When The American Lawyer visited the Roma shanties of the Czech Republic in 2002, early in the case’s long history, one of the plaintiff schoolgirls said: “I want to be a sweet maker, not a sweet maker’s helper.” It is too late for that girl to retrieve her lost school years. But thanks to the D.H. ruling, the next generation of Roma children may follow their dreams. The day may not be distant when lawyers of Roma origin sit on the European Court of Human Rights.
Michael D. Goldhaber is the author of A People’s History of the European Court of Human Rights (Rutgers University Press, 2007). E-mail: firstname.lastname@example.org.
Gale Document Number:A175287492