Ten Years After: A History of Roma School Desegregation in Central and Eastern Europe

CHAPTER THREE Judicial Policy Making: The Role of the Courts in Promoting School Desegregation

CHAPTER THREE Judicial Policy Making: The Role of the Courts in Promoting School Desegregation IULIUS ROSTAS I Historically, courts played an important role in shaping public policies. Some authors define this process as “judicial policy making” consisting of “a choice among alternative courses of action, which choice binds those subject to the policymaker’s authority.”1 In democratic states, the courts make or shape policies through the interpretation of the constitutional provisions and the extra-constitutional interpretation of sub-constitutional laws and institutions and practices. Thus, judicial review—”the power of a court to void actions of the legislative and executive branches of government”2 —is part of the democratic process through the separation of power doctrine meant to ensure a system of check and balances between the government branches. The judicial policy making varies across democratic countries as democratic arrangements vary. The aim of the chapter is to identify patterns as regards legal arguments and reactions of courts to the issue of school segregation across the region. The chapter will concentrate on the legal instruments available to Roma and human rights activists in the region by analyzing the legal cases brought by them in front of courts or specialized bodies at national level, as well as before the European Court of Human Rights (ECtHR). How did they frame the issue of segregation? What types of arguments did these lawyers make? How did courts define the issue? How did courts decisions influence policy process? Although the first ECtHR judgment on Roma school segregation has been delivered relatively recently, it is interesting to assess the impact the segregation cases had on the larger Roma community and in society. 1 Segal, The Supreme Court in the American Legal System, 4. 2 Ibid., 12. 92 Ten Years After The chapter is divided in three parts. The first part analyzes the decisions of the ECtHR in the three segregation cases brought up by the human rights activists while the second part focuses on cases of segregation at national levels, specifically in Bulgaria, Hungary and Romania. The assessment of courts decisions is made along several characteristics of segregations: as a form of discrimination, as a physical separation, as material inferior conditions, as lower quality education and as sub-financing. The chapter ends with the conclusions around common features in defining segregation in education from a legal perspective in the region and identifying weaknesses and strong points in the legal discourse as regards segregation. The European Court of Human Rights The European Court of Human Rights based in Strasbourg is an international court set up in 1959. It rules on individual or State applications alleging violations of rights set out in the European Convention on Human Rights ratified to date by 47 member states of the Council of Europe. Since 1998, it has sat as a full-time court and individuals can apply to it directly. However, the ECtHR is not a fourth instance court, meaning that it cannot be considered as a court of appeal for decisions at national level. To date the ECtHR had to decide on three cases challenging segregation practices within the educational systems in Central and Eastern Europe. The first case was lodged with the ECtHR on April 18, 2000 by 18 applicants of Roma origin from the Czech Republic.3 They complained that between 1996 and 1999 they were placed in special schools for children with learning difficulties, thus following a limited curriculum compared to the ordinary school curriculum. The decision of their placement in special schools was based on the results of a test administered by the head teacher. After exhausting domestic remedies, the 18 Roma filed an application with the European Court in Strasbourg alleging violations of Articles 3 (prohibition against degrading treatment), 6 (right to a fair trial), and Article 2 of Protocol No. 1 (right to education) taken together with Article 14 (prohibition of discrimination). According to James Goldston , the lawyer representing them, the applicants had suffered severe educational, psychological and emotional harm: “(i) they had been sub3 D.H. and Others v. the Czech Republic, judgment of February 7, 2006 and D.H. and Others v. the Czech Republic, judgment of November 13, 2007 (Grand Chamber). Judicial Policy Making 93 jected to a curriculum far inferior to that in basic schools; (ii) they had been effectively denied the opportunity of ever returning to basic school; (iii) they had been prohibited by law and...