Liability and Remedies for School Segregation in the United States and the European Union

Abstract

In 2007, the European Court of Human Rights, the most influential international human rights court in the world, decided what some commentators have referred to as “Europe’s Brown v. Board of Education.” This case, D.H. and Others v. the Czech Republic, was not a unanimous decision and, to this day, the Czech Republic remains involved in an extensive remedy designed to correct the harms identified by the European Court of Human Rights. Thus, through the D.H. case and other subsequent cases, European states are currently creating much of their own school desegregation remedial scheme under the Council of Europe's European Convention on Human Rights. By contrast, in the US, the contours of school desegregation litigation are fairly well-established in large part because the law is mostly settled; recent and remaining debate is at the margins of the issue or about the related issue of voluntary integration as opposed to intentional segregation. Accordingly, informed by the contours of what constitutes illegal discrimination under different legal regimes’ statutes and judge-made law, in this article the authors analyze school desegregation liability and remedies available in the US and the EU (specifically the Czech Republic). Considering the US, we learn from sixty decades of court-ordered desegregation and a litigation movement now in its twilight years. Turning to the EU, we see how an international human rights court is redefining the way national remedies against discrimination are construed.

Keywords: school, education, race, ethnicity, integration, desegregation, African-American, Brown v. Board, Roma, Czech Republic, D.H. v. Czech Republic, European Court of Human Rights