Europe's Highest Court to Hear Landmark Segregation Case

STRASBOURG—The Grand Chamber of the European Court of Human Rights announced last week that it has agreed to review an appeal by 18 Romani children forced to attend segregated schools in the Czech Republic. The grand chamber traditionally reviews only a small proportion of judgments by the court's ordinary chambers that are considered to have significant precedential value. The decision to accept referral of the Czech case gives the continent's supreme judicial body one last chance to make clear that racial segregation has no place in 21st century Europe.

The case, D.H. and Others v. the Czech Republic, is the first challenge at the European level to the practice of educational discrimination— widespread throughout Central and south east Europe—in which Roma children are routinely placed in schools for the mentally disabled regardless of their actual intellectual abilities. The case was first brought before the Strasbourg Court in 2000. In February 2006, the court's second section ruled that although the Roma children suffered from a pattern of adverse treatment, they had not proved the Czech government's intent to discriminate.

Last week's agreement to review the case will allow the grand chamber to address several major issues concerning the prohibition against discrimination in Article 14 of the European Convention of Human Rights. This is particularly important now, when Europe is grappling with the implications of rapidly growing ethnic, racial, and religious diversity.

In their request for grand chamber referral, the applicants argued that the second section's restrictive reading of the concept of discrimination is inconsistent with the European Court's previous jurisprudence and the dominant trends in other leading courts in Europe and beyond. If allowed to stand, it would render the protection given by Article 14 theoretical and illusory. The case of D.H. and Others v. the Czech Republic presents a particularly compelling illustration of this crabbed interpretation of the non-discrimination guarantee, since it involved overwhelming evidence that Roma have been treated less favorably than similarly situated non-Roma for no objective and justifiable reason. The evidence included (i) actual admissions by the Czech government that disproportionate numbers of Roma were sent to special schools—on the basis of tests conceived for non-Roma-even though they were average or above—average in development; (ii) corroborating detailed and comprehensive statistical evidence that Roma in the city of Ostrava are routinely subjected to educational segregation and discrimination; and (iii) consistent findings by numerous intergovernmental bodies concerning discriminatory patterns in schools throughout the Czech Republic as a whole. In short, if this case does not amount to racial discrimination and segregation, it is hard to see what would.

Under the rules of the court, third parties who may wish to submit written comments on issues relevant to the court's consideration of this case have until September 25 to submit a formal request to do so.