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White Knights On Chargers: Using The US Approach To Promote Roma Rights In Europe?

  • Morag Goodwin

Extract

North Carolina has, like most American states, played its (not always positive) part in the struggle against what Clinton, back in 1997 when the U.S. had more domestic concerns on its mind, called “America's constant curse”. But racial discrimination is not, of course, simply America's curse. Europe, for all its self-righteousness of late, has certainly not escaped it. Despite the prevalence of racial discrimination right across the geographic expression of Europe, this paper shall concentrate on a particular set of countries – those termed Central and Eastern Europe – and on a particular group – the Roma, widely acknowledged as the most marginalised and discriminated in Europe today.

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References

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1 Cited in Katrina Sanders, ‘America's Quest for Racial Tolerance’ 2 Journal of Gender, Race and Justice 99, 99 (1998).

2 I concentrate on Central and Eastern Europe because this is where the majority of Roma live and where the problems that beset them are most acute, as well as because as transition countries they have been more open to external influence. This is not to say, however, that the Roma are not discriminated against in western Europe and a number of such countries have records of abuse to rival CEE countries. For a country-by-country breakdown of the difficulties Roma face, see http://www.errc.org/Factsheets_index.php and for in-depth country reports, http://www.errc.org/cikk.php?cikk=115

3 This acknowledgment that Roma are everywhere at the bottom of the social heap and the victims of discrimination has reached the level of the popular press. See ‘Zigeuners meest gediscrimineerd', de Volkskrant, 11 October 2004.

4 Brown et al. v. Board of Education of Topeka et al., 347 U.S. 493 (1954).

5 Kevin Verney, Black Civil Rights in America (2000), for a concise history.

6 While the pogroms have ceased, incidents of racial violence and police abuse remain frequent. Moreover, a large section of the populations in CEE remain implacably hostile to Roma. For details of such incidents and for an up-to-date record thereof, see ‘Snapshots’ in each edition of Roma Rights, online at http://errc.org The OSCE Report on the Situation of Roma and Sinti in the OSCE Area (2000) also provides a useful overview of the type and prevalence of Roma rights abuse.

7 The Margold Report, drawn up in 1930, established a driving strategic logic for the NAACP, which was, in the words of Jack Greenberg, “that if wherever there was segregation there also was inequality, which was invariably the case, segregation, therefore, was unconstitutional”. From 1950, the NAACP resolved to file only those cases that attacked the Plessy principle head on, rather than also indirectly by highlighting the material failure of separate to be equal. Jack Greenberg, Crusaders in the Courts, 59, Ch. 5 and Ch.7 (1994).

8 The Margold Report, in determining litigation as the main strategic weapon, noted that it would “stir … the spirit of revolt among blacks”. Id., 59.

9 Halpern, Stephen C., On the Limits of the Law. The Ironic Legacy of Title VI of the 1964 Civil Rights Act, 7-9 (1995).

10 Brown v. Board, 347 U.S. 493.

11 In State of Missouri ex rel. Gaines v. Canada (305 U.S. 337 (1938)), the Supreme Court had of course ruled the refusal by the State to admit a black man to its law school where no equivalent facility for African-Americans was available in-State as unconstitutional, and in Sweatt v. Painter (339 U.S. 629 (1948)) it ruled that Texas had failed to provide equal educational opportunities because the whites-only Law School at the University of Texas was simply a better School on any number of grounds.

12 Plessy v. Ferguson, 163 U.S. 537 (1896)

13 E.g. McCleskey v. Kemp, in which the Supreme Court accepted the presentation of statistical evidence to show impact race discrimination.

14 The core of testing is the paired test, in which a member of the majority is paired with a member of a minority group, equal in every other regard such as age, physical appearance, qualifications etc; they are sent in turn to a transaction, whether it be a job application, housing rental, entry to a bar or restaurant or the purchase of an item requiring negotiation, such as a car, and their experiences are reported and documented. Their reports are compared by a third party and any difference is considered to be evidence of differential treatment.

15 Havens Realty Corp. v. Coleman, 445 U.S. 363 (1982).

16 M. Fix and M.A. Turner, ‘Measuring Racial and Ethnic Discrimination in America', in A National Report Card on Discrimination in America: The Role of Testing (Fix/ Turner eds., 1998).

17 Department of Justice, ‘Summary of the Cracker Barrel Consent Order', May 3, 2004, http://www.usdoj.gov/crt/housing/documents/crackerbarrelpr.htm

18 In their own words, their “core work” is “to initiate impact human rights litigation on behalf of Roma before domestic and international courts to achieve the following: a) encourage more interest among local lawyers for Roma rights litigation, b) generate judicial opinions which expand human rights jurisprudence, and c) ultimately, bring about social change on a scale which would benefit Roma throughout Europe.” http://www.errc.org/Archivum_index.php

19 Garland, Gloria Jean, Fighting Discrimination Through the Courts 1-2 Roma Rights (2003). http://lists.errc.org/rr_nr1-2_2003/noteb8.shtml

20 Moreover, the travel is not simply one-way; the Columbia Public Interest Law Initiative played host in 1997 to a Working Group Luncheon, for example, to which Romani rights activists travelled from CEE to hear the insights of prominent U.S. civil rights activists, such as Jack Greenberg and Ted Shaw. A transcript of the meeting is available at http://www.pili.org/publications/roma/luncheon.html

21 ‘School Segregation Declared Unlawful by Hungarian Courts', http://www.errc.org/cikk.php?cikk= 2024

22 For lists of cases pending according to country, see http://www.errc.org/Archivum_index.php and for a consideration of segregation and de-segregation as it relates to Roma, see special issue of Roma Rights 3-4 2002. The volume contains an article in celebration of Brown.

23 Buckley v. the UK, Judgement of 25th September 1996, http://www.echr.coe.int/Hudoc.htm for ECtHR case-law.

24 Judgement of 18th January 2001. See also Luke Clements, ‘An emerging consensus on the special needs of minorities: the lessons of Chapman v. UK’ 2-3 Roma Rights 90 (2001).

25 Judgement of 26th February 2004. For a detailed description of the ERRC amicus brief, Branimir Pleše, ‘The Strasbourg Court Finally Addresses Racial Discrimination’ 1 Roma Rights 109 (2004)

26 The Hungarian Legal Defence Bureau for National and Ethnic Minorities (NEKI) has been applying testing in response to complaints of discrimination by Roma since 1997 and has knocked up a number of victories before Hungarian courts and in out-of-court settlements. Bea Bodrogi, Testing for Discrimination: Identifying and Prosecuting Human Rights Abuses. New Tactics in Human Rights (2003); download http://www.newtactics.org. The US is explicitly recognised as the source of the tool.

27 Moreover, with widespread under-reporting of Romani population numbers by national authorities it is difficult to know their proportion of the wider population, without the inevitable attendant difficulties of deciding who is Romani. See Roma Rights 2/2004 for a special issue on Roma and ethnic statistics.

28 M. Benedick cited in Fix and Turner, ‘Measuring Racial and Ethnic Discrimination in America’ 11.

29 Richard Rorty, Human Rights, Rationality, and Sentimentality, in: On Human Rights (Shute and Hurley eds. 1993).

30 ERRC Press Release, 30 September 2004: ‘First Five Roma Rights Victories under New Bulgarian Equality Law'. http://www.errc.org/cikk.php?cikk=2022

31 Although the US civil rights movement has never, as far as the author is aware, taken a case to a regional or international court, activists were well aware, however, of the benefit of using international public opinion to aid them in their cause. At the height of the Birmingham, Alabama, protests in May 1963, 1400 anti-American commentaries were published in the worldwide media. The propaganda value of oppressed Black citizens to the Soviet Union gave renewed impetus at the highest levels of government to end inequality. Verney, supra, note 5, at 40.

32 Beth A. Ferri and David J. Connor, ‘Special Education and the Subverting of Brown’ 8 Journal of Gender, Race and Justice 57 (2004).

33 Halpern, supra, note 9.

34 For example, Halpern argues that enforcement litigation of Title VI has tended to concentrate not on the substantive rights of the provisions but on the procedures for processing complaints of discrimination; Adams v. Bell, 711 F.2d 179 (D.C. Cir. 1983) changed the way in which the OCR processed complaints of discrimination but did not affect the substantive rights in any way. “The injustice that black children experience… is hardly a procedural injustice. It is substantive… It is the gross inadequacy of the substance, quality, character and end results of the public education provided to the mass of black children that constitutes the central injustice to which they are subjected.” Id., 309.

35 Halpern cites a study by two educational specialists, who found that the poor academic achievement of black children was a combination of any number of factors that included low wages and high unemployment among black men, inappropriate academic evaluation and placement, poverty and poor schools, poor physical health, high rates of teenage pregnancy, instability in home life, social isolation of the black poor from other classes, the physical deterioration of poor urban neighbourhoods, and so on. D.S. Strickland and C. Ascher, ‘Low-income African American Children and Public Schooling', in Handbook of Research on Curriculum. (Philip W. Jackson ed., 1992); cited by Halpern Id. 11-12.

36 Halpern, Id. 295.

37 Victory in Brown, in line with the truism that one gets what one measures, had the consequence that achieving an equal black-white ratio became the real objective, rather than promoting de-segregation as the means to achieving meaningful equality of opportunity.

38 Verney, supra, note 5, at 34.

39 The position of liberals in the media by choosing to cover the Birmingham protests, in which scenes of police violence against peaceful protesters were beamed into the homes of white middle America, turned the public tide in favour of civil rights legislation in a way in which litigation probably could not have done.

40 As part of the 1948 Presidential election, in awareness of the importance of black votes, Truman issued an Executive Order ending segregation in the military; the 66% of African-American votes he secured were crucial in the narrow victory Truman won. Verney, supra, note 5, at 39.

41 Histories of the Black civil rights movement nearly always note the personal attitude of the President as extremely significant in affecting real change, not just in terms of introducing new legislation, as Johnson did with the ‘64 Civil Rights Act, but in terms of changing the attitude of the wider public. Under Roosevelt, lynchings effectively stopped, even though no anti-lynching law was introduced or order given to police forces to crack down on it.

42 For a description and analysis of the project by two of the activists involved: D. Panayotova and E. Evgeniev, ‘Successful Romani Desegregation: The Vidin Case’ 3-4 Roma Rights 44 (2002).

43 Peter Vermeersch, ‘Roma and the politics of ethnicity in Central Europe: a comparative study of ethnic minority mobilisation in the Czech Republic, Hungary and Slovakia in the 1990s.’ (unpublished PhD thesis, University of Leuven, 2002).

44 The argument is often made that legislation and litigation act as a precursor to change and there is a sense in which this is the case. However, the feeling here is that those who suffer today must be the priority, for it is a luxury of those who themselves do not face discrimination to argue that it is better to prioritise spending on a legal strategy that may or may not pay off in the future. Moreover, there is a fear that the ‘precursor to change’ argument masks the fact that the law is sexy in comparison with the dirty, difficult and protracted nature of poverty reduction and political horse-trading.

45 Halpern, supra, note 9, at 310. For a good example of this attitude in relation to Romani rights: James Goldston, Race discrimination litigation in Europe: problems and perspectives, Roma Rights 3 (1998).

* Morag Goodwin is a member of the GLJ Editorial Board and is a Lecturer at the University of Maastricht and Executive Editor of the Maastricht Journal of European and Comparative Law. She is completing a thesis on the Romani claim to non-territorial nation status at the EUI, Florence, and previously worked at the European Roma Rights Center (ERRC) in Budapest. The author wishes to thank Branimir Pleše, ERRC Legal Director, for his helpful input at an early stage of thinking about this paper (although I doubt that he would agree with its conclusion), and the participants at the GLJ workshop at Duke Law School for invigorating discussion throughout.

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