COLUMBIA LAW REVIEW

VOL. 110 MAY 2010 NO. 4

ARTICLES
REPORT ON ROMA EDUCATION TODAY: FROM SLAVERY TO SEGREGATION AND BEYOND
Jack Greenberg*
For much of their histories, the Roma in Eastern Europe and African Americans traversed similar paths. Both endured centuries of slavery and were emancipated, almost simultaneously, during the mid-nineteenth century. Both continued to suffer years of discrimination, poverty, inferior housing, deficient health, and segregated education. During World War II, however, their paths forked. Perhaps 1,500,000 Roma were murdered by the Nazis and their collaborators during the Holocaust. While the post-war period in the United States brought with it the civil rights movement and legal victories striking down segregation, in Eastern Europe the Roma came under Soviet domination. Roma got jobs, apartments, and welfare, but were not equipped to function in modern economies. After the Berlin Wall fell in 1989, the Roma remained at the depths of Eastern European societies. Roma education, essential for climbing out of that abyss, has remained segregated and inferior. Because I was one of the lawyers who argued Brown v. Board of Education and, as head of the NAACP Legal Defense Fund, litigated many school desegregation cases, in 2003 Roma leaders, beginning their own legal campaign to desegregate schools, invited me to Eastern Europe. Since then I have worked to uncover the reality of school segregation in the region. The European Union and national governments have passed laws prohibiting segregation and offered subsidies to promote desegregation. The European Court of Human Rights and national courts have entered a few judgments holding that schools have been illegally segregated. However, no European or national judicial or administrative organ has ordered the cessation of segregation in any school, nor have they addressed the principal
* Alphonse Fletcher, Jr. Professor of Law, Columbia University, A.B. 1945, LL.B. 1948, LL.D. 1984, Columbia University. I am grateful to Judit Szira, my guide on a journey through the complexities of Roma education, which has been not less arduous, but more agreeable than the voyage of Dante Alighieri, Inferno, Canto II, 139–42 (Allen Mandelbaum trans., University of California Press 1980) (n.d.). I am also grateful for advice to my colleague Henry P. Monaghan, students Andrew Brantingham, Mary Kate Johnson, Ryan Keats, Kyle Kolb, Minsun Lee, Jennifer Sokoler, and Christopher Wlach (who provided extraordinary assistance), and friends Gwendolyn Albert, Christian Bodewig, Leslie Hawke, Lilla Farkas, Boyan Konstantinov, Magda Matache, Marian Mandache, Rumyan Russinov, Andr´ s Ujl´ ky, Tudor Velea, and Perry Zizzi. Jessica a a Greenberg diligently took detailed notes of scores of interviews. Adam Carlis gave invaluable editorial support. Open Society Institute paid the expenses of my travel.

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means of evasion, white flight. Instead, they have left corrective action to uncoordinated, unconstrained municipalities. Not only is European and national government initiative lacking, there is no Roma civil rights movement. But there is ground for hope. I encountered schools—-and even districts—-that were taking initial steps to end segregation. A few government initiatives have been designed to encourage further integration. Young, bright Roma aspirants to public office have ventured into politics. In some communities where desegregation has begun, Roma applications to integrated schools outstrip available spots. Foundations, the European community, other nations, and economic necessity exert pressure in the right direction. Success should encourage further proactive steps. In this Report, I report on my research into the current state of Roma school segregation and offer a few words about what might be done to promote integration in the region.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. DEMOGRAPHY AND HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Roma History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Roma Demographics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Social and Economic Conditions . . . . . . . . . . . . . . . . . . . . . 1. The Roma Underclass . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Roma Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Roma Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. European Union Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. Legal Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Litiation in European Courts . . . . . . . . . . . . . . . . . . . . . 2. Litigation in National Courts . . . . . . . . . . . . . . . . . . . . . II. VISITING THE REGION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Budapest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Miskolc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Hajduhadh´ z . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a ´ 4. Szeged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. General Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6. Student Intern Observations . . . . . . . . . . . . . . . . . . . . . C. Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. THE LESSONS OF U.S. DESEGREGATION . . . . . . . . . . . . . . . . . . . . . A. Desegregation in Higher Education . . . . . . . . . . . . . . . . . . B. Desegregation in Elementary and High Schools . . . . . . C. Social and Political Environment of U.S. Desegregation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. A ROMA RIGHTS MOVEMENT? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Advocacy Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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V. SUMMARY OF SEGREGATION IN THE REGION . . . . . . . . . . . . . . . . . VI. WHAT IS TO BE DONE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INTRODUCTION

In 2000, as a condition of admission to the European Union, Eastern European nations pledged to eliminate racial discrimination,1 including widespread segregation of Roma (Gypsy)2 school children. In 2003, Roma rights leaders invited me to share with them my experience in the movement to end school segregation of African American children in the United States from 1954, when I was one of the lawyers who argued Brown

1. See Council Directive 2000/43, art. 13, Race Equality Directive, 2000 O.J. (L 180) 22, 23 (EC), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L: 2000:180:022:0026:EN:PDF (on file with the Columbia Law Review) (“To this end, any direct or indirect discrimination based on racial or ethnic origin as regards the areas covered by this Directive should be prohibited throughout the Community.”). In December 2009, the Treaty of Lisbon, signed by the nations of the European Union, became effective. It contains a Charter of Fundamental Rights which possibly might bear on the Roma rights discussed in this Report. But at this time there appears to be no reason to believe that it has changed the legal situation of the Roma or its implementation. 2. Commonly called Gypsies, many now choose to be known as Roma or Romanies, a name preferred by official and international agencies. Nevertheless, most contemporary official reports and documents I have seen use Roma. A leading NGO calls itself the Roma Education Fund. I usually use Roma because the Roma groups with which I meet use it. For a detailed discussion of nomenclature, see Ian Hancock, We Are the Romani People, ´ at xviii–xxii (2002). G´ bor K´ zdi and Eva Sur´ nyi addressed the same issue this way: a e a In Central and Eastern Europe the name Roma is used, as a noun (Roma plural) and also as an adjective. It is also used by some international organizations and initiatives, such as the Roma Education Fund or the Decade of Roma Inclusion. The United Nations, the U.S. Library of Congress and other international associations use the Romani name for an adjective and a noun as well (Romanies plural). The name Gypsy is used by many non-Roma but not by the Roma: It is a name created by outsiders and is derived from the misconception of Egyptian origin. Similarly to the alternative local names such as Tsigane, Cigany, Gitane or Gitano, the name Gypsy brings negative associations about lifestyle or project [sic] images that are inaccurate for many Roma (e.g. the romantic image of travelers). ´ G´ bor K´ zdi & Eva Sur´ nyi, A Successful School Integration Program 9 n.2 (Roma Educ. a e a Fund, Working Paper No. 2, 2009), available at http://www.romadecade.org/files/ftp/ Successful%20School%20Integration%20Program.pdf (on file with the Columbia Law Review) [hereinafter Roma Education Fund, School Integration]. Ian Hancock speculates that medieval Europeans used Gypsy indiscriminately for a number of foreign populations. Hancock, supra, at 1. Perhaps that Roma differed in appearance from settled groups in Eastern Europe (they usually have darker complexions) suggested that they had originated in Egypt or some exotic region. Cf. id. at 1–2 (suggesting explanations for widespread association of Roma with Egypt). The differences over nomenclature bring to mind controversies over Negro, AfroAmerican, colored, black, and African American, each with a link to a particular historical period, sometimes carrying different connotations to different speakers or listeners.

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v. Board of Education, through 1984, a period during which I participated in a great many school segregation cases.3 I visited Vidin and Montana, Bulgaria, where, with Open Society Institute funding, desegregation had begun successfully: Social workers visited schoolchildren’s families; Roma and non-Roma children participated in joint recreational programs; food, clothing, and transportation were subsidized for Roma children; and political leaders publicly lauded desegregation efforts.4 The contrast between what I saw in Bulgaria and the massive resistance that had confronted United States school desegregation after Brown astonished me. From this promising beginning, I foresaw speedy, comprehensive dismantling of segregation throughout the region. But, alas, the wish was father to that thought. After returning home, I corresponded with Roma rights workers throughout Eastern Europe and scoured the press and internet looking for evidence of further change, but almost none appeared. I had failed to appreciate that the progress I witnessed was part of a foundation-funded pilot program, the nature and location of which had insulated it from the constraints of local and national resistance to integration. Elsewhere, segregation reigned and many efforts to integrate schools were floundering. For example, Hungary initially used financial incentives to encourage desegregation. The Ministry for Education set up and operated the Nationwide Integration Network (Orsz´ gos Integr´ cios H´ lozat) to a a ´ a´ support the distribution of integration funding. The Network, through a system of local representatives, provided educational advice and aid to schools and school districts seeking to desegregate. A great number of municipal schools (probably between 100 and 200) joined the Network during this period. However, the role of the Network (although it still operates) has changed in recent years, and it no longer is a strong force for integration. Funding for integration has decreased as well. As a result, integration efforts in Hungary have not produced much progress. In 2007 and 2008, I returned to Hungary, Bulgaria, and Romania. I also visited the Czech Republic because a few months earlier the European Court of Human Rights had held that the Czech Republic was violating the European Convention on Human Rights by segregating Roma children. I wanted to see what would happen in response to that decision. I also arranged for three Columbia Law School human rights interns to visit the region with the mission of reporting on educational seg-

3. From 1949 to 1961 I was Assistant Counsel and from 1961 to 1984 I was DirectorCounsel of the NAACP Legal Defense and Educational Fund, which participated in the litigation of virtually all the school segregation cases in the United States during that time. In 1984 I joined the Columbia Law School faculty. 4. For a more detailed description of early desegregation in Bulgaria, see Jack Greenberg, Brown v. Board of Education: An Axe in the Frozen Sea of Racism, 48 St. Louis U. L.J. 869, 869–78 (2004).

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regation.5 Three more student researchers visited in 2009. This Report is based on what the interns and I found. I hope to provide a clear picture of the state of school integration in Europe (within the substantial limits of available information), and a few thoughts on how their path towards integration compares to our own. The Report proceeds in six Parts. Part I explores the demography and history of the Roma, with a focus on Eastern Europe. I pay particular attention to the social and political forces that have contributed to their current impoverishment. In Part II, I share my own observations, collected over multiple visits, on modern Eastern European school segregation and the organizations fighting against it. In Part III, I compare desegregation in Eastern Europe to that of the American South, noting key similarities and differences. One of the distinctive features that made American desegregation possible was a vibrant civil rights movement. In Part IV, I investigate whether a Roma rights movement could form in Eastern Europe. Parts V and VI offer concluding thoughts on what I believe to be necessary correctives if the Roma are not to remain mired in poverty and inability to function in a modern economy. I. DEMOGRAPHY
AND

HISTORY

The current socio-economic problems facing the Roma of Eastern Europe have historical origins. This Part begins by exploring that history and explains how it led to the development of the current Roma underclass. Then, after reporting on the current state of Roma education, economy, health, and housing, it investigates the role national and European law plays in maintaining and, one hopes, dismantling segregation. A. Roma History Legends find Roma in Eastern Europe as early as the fourth century, there are references to them dating back to the eleventh century, and substantiated historical documents confirm their presence in the twelfth.6 We know little about the early years of the Roma because until recently most Roma have not had ready access to written history, and some have consciously remained functionally nonliterate in order to insulate Roma culture from alien influences. Ian Hancock, a modern authority on Roma matters, recently wrote that “[w]hile Romani has only been written to any great extent since the twentieth century, it is very rich in oral tradition, and the first Romani-language publication in fact appeared
BCE;

5. Mary Kate Johnson, Jennifer Sokoler, Christopher Wlach (2008); Ryan Keats, Kyle Kolb, Minsun Lee (2009). Some of their findings are incorporated in this Report. 6. David M. Crowe, A History of the Gypsies of Eastern Europe and Russia, at xvii (Palgrave Macmillan 2007) (1994).

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about a hundred years ago.”7 This accounts for gaps, or uncertainty, in the historical record, as with details of the Roma Holocaust, for example. It took centuries for their origins to be uncovered, but, by the 1700s, linguistic evidence established that the Roma had come from northern India.8 After leaving northern India, the largest concentration of the Roma population lived in Wallachia and Moldavia (parts of present-day Romania). There, they were enslaved from the fourteenth century until well into the nineteenth century. As slaves, or robi, they were treated “as no more than cattle.”9 The horrors inflicted on robi were comparable to the worst imposed on the bodies and dignity of African American slaves.10 In the areas where the Roma were not enslaved, oppression still took its toll. David Crowe’s extensive history on the subject recounts how Roma in Hungary, Slovakia, Bulgaria, and elsewhere in Eastern Europe were once employed as smiths, musicians, and soldiers, but during the sixteenth century they began suffering increasing restrictions on their activities.11 To escape these limitations, many of them adopted a nomadic way of life.12 In the early to mid-nineteenth century, the influence of abolitionist movements in the West, and humane principles brought home by children of Eastern European elites who studied there, as well as the industrial revolution, which had made the ownership of slaves less of an asset, contributed to the emancipation of perhaps 600,000 robi. Church- and state-owned slaves were freed in Wallachia and Moldavia between 1842 and 1847. Finally, in 1855, all remaining Roma slaves in the region were freed, followed by full liberty for all peasants eight years later.13 Roma emancipation coincided with the formal end of slavery in the United States. President Lincoln issued the Emancipation Proclamation on January 1, 1863, freeing slaves in Confederate states as a wartime measure designed to deprive those states of slave labor. Many freedmen joined the Union armies, hastening the end of the war. The Thirteenth Amendment, abolishing slavery, was ratified in 1865. Following northern
7. Hancock, supra note 2, at 145. 8. In 1760, a student from Western Hungary at Leiden University in the Netherlands overheard students from India converse about the Sanskrit language. Certain Sanskrit words reminded him of a language used by Roma workers on his father’s estate. Current linguistic evidence suggests that the language used by the workers was that of descendants of high caste groups that had emigrated from northern India around 1300 to escape conflict with Islamic invaders. Id. at 2, 10–15. Recent genetic analysis confirms this conclusion. Id. at 13. 9. Id. at xviii. 10. Id. at 21 (“Punishments for the slaves included flogging, the falague (shredding the soles of the feet with a whip), cutting off the lips, burning with lye, being thrown naked into the snow, hanging over smoking fires and wearing a three-cornered spiked iron collar called a cangue.”). 11. Crowe, supra note 6, at xvii. 12. Id. 13. Hancock, supra note 2, at 22, 25.

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victory in the Civil War, Congress, through a process known as Reconstruction, adopted provisions ensuring civil rights, including the right to vote, to former slaves. Reconstruction was followed by Redemption, an effort by former slaveholders and their supporters to return black citizens to an existence as close to enslavement as possible. As Redemption ascended, abolitionist values, embodied in the Fourteenth Amendment and implementing statutes, became mostly dormant, until around the mid-1900s when the spiritual heirs of the nineteenth-century abolitionists began to realize many of their forebears’ aspirations. Nothing of the sort manifested itself with regard to Roma in Europe. With the outbreak of World War II, the Nazis undertook a program to exterminate the Roma, paralleling their “final solution” for the Jews. Although information is incomplete, one estimate is that the Nazis killed at least 1.5 million in the Roma Holocaust (known in the Roma language as the Baro Porrajmos, or “great devouring”), a number that does not include Roma exterminated by Nazi allied states.14 After the Nazis were defeated in World War II, most Roma residing in Eastern Europe fell under Soviet domination. Roma got jobs, housing, and education. However, their jobs, which required little or no education, were often in inefficient, government-controlled heavy industry. Communist regimes, intending to destroy Roma lifestyle and force assimilation,15 put an end to Roma wanderings and incorporated them into socialist economies. When the Soviet Union dissolved, so did its economy and those of its satellite nations. The Roma were unequipped to survive in the market systems that followed, and they fell upon exceedingly hard times. B. Roma Demographics In recent years, there have been numerous studies of the Roma. The heightened attention reflects economic as well as humanitarian concerns. Throughout the region, Roma birthrates are higher than those of the majority populations, among whom emigration is substantial. Absent a change in economic conditions, continued Roma population growth means that an increasingly larger portion of Eastern Europe will be unskilled and uneducated.16
14. Id. at 34, 48; see also Zoltan D. Barany, Memory and Experience: Anti Roma Prejudice in Eastern Europe 11 (Woodrow Wilson Int’l Ctr. for Scholars, Working Paper No. 50, 1998) (estimating between 200,000 and 1,500,000 Roma were killed during the Holocaust and attributing uncertainty to facts that Roma rarely kept records and governments prohibited gathering information about ethnicity). 15. Carol Silverman, Persecution and Politicization: Roma (Gypsies) of Eastern Europe, 19 Cultural Survival Q. 42 (1995). 16. See United Nations Dev. Programme, The Roma in Central and Eastern Europe: Avoiding the Dependency Trap 25–26 (2002), available at http://roma.undp.sk/ online.php (on file with the Columbia Law Review) (relating trend in Roma birth rates to socio-economic status).

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Despite the attention the issue is starting to receive, much basic information about Roma populations remains unavailable. For example, wherever and whenever I inquired about the population of Roma, the initial response was one of uncertainty. Estimates of the Roma population in Europe include seven to nine million,17 and eight to twelve million,18 among others. This uncertainty about even basic demographic information reveals a huge data gap—one that must be filled in order to engineer and implement a plan to integrate Roma children into school systems. One reason for the uncertainty is that most Eastern European countries do not inquire into or track ethnicity, making official statistics about Roma unreliable.19 In addition, many Roma decline to answer surveys or lie to surveyors, fearful that the information will be used to discriminate—or worse (as during the Nazi era). Consequently, one must rely on sources like NGOs, such as the Roma Education Fund (REF), for credible information. Reasonably reliable population figures, for the countries I visited, are:

17. Dena Ringold, Mitchell A. Orenstein & Erika Wilkens, Roma in an Expanding Europe: Breaking the Poverty Cycle, at xiv (2005). 18. Arno Tanner, The Roma of Eastern Europe: Still Searching for Inclusion (2005), at http://www.migrationinformation.org/Feature/display.cfm?id=308 (on file with the Columbia Law Review). 19. See Roma Educ. Fund, Needs Assessment: Summary Report 4 (2005), available at http://www.romaeducationfund.hu/documents/REFNeedsAssessment.pdf (on file with the Columbia Law Review) [hereinafter Roma Educ. Fund, School Report], for a discussion of the obstacles to data collection: Census data significantly undercount Roma because of the common practice of relying on self-identification. Administrative data on Roma education are also frequently lacking because of privacy legislation which prohibits the collection of data based on ethnicity. For example, Czechoslovakia stopped collecting data on students by ethnicity in 1990, and Hungary followed suit in 1993. Even where administrative data are available, the data may not be complete or accurate. A qualitative study in Bulgaria found that administrative data failed to capture significant numbers of Roma children who had never attended school because Roma households were not registered or because of gaps in school databases. Given the serious limitations of data, a combination of multiple data sources and qualitative information tends to be the most pragmatic approach. Id. (footnote omitted).

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Country Bulgaria20 Hungary21 Romania22 Czech Republic

REPORT ON ROMA EDUCATION TODAY
Total Population 7,761,049 10,077,000 21,680,974 10,501,19723 Roma Population (census) 370,908 (4.8%) 190,046 (1.9%) 535,140 (2.5%) 140,00024 (1.3%)

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Roma Population (expert estimates) 600,000–800,000 (7.7%–10.3%) 400,000–600,000 (4%–5.9%) 1,010,000–2,500,000 (4.6%–11.5%) 160,000–300,00025 (1.6%–3%)

The lack of demographic information often prevents targeted efforts to meet the needs of distinct populations. It is nearly impossible to assess whether or not programs designed to aid Roma citizens are actually working. Throughout this Report, I rely on studies, educated estimates, and my personal observations when hard and fast data are unavailable.26
20. 1 Open Soc’y Inst., Equal Access to Quality Education for Roma 29 (2007), available at http://www.eumap.org/topics/minority/reports/roma_education/reports/ report/vol1.pdf (on file with the Columbia Law Review) [hereinafter Open Soc’y Inst., Equal Access]. “While Bulgarian law permits the collection of personal data with appropriate safeguards, official statistics on education are unreliable, as they rely on schools to report data and there are incentives for schools to inflate their enrolment figures.” Id. at 18. 21. Id. at 200–01. The Hungarian law regulating data collection is Act LXIII of 1992 on the Protection of Personal Data and Public Access to Data of Public Interest, available at http://abiweb.obh.hu/dpc/index.php?menu=gyoker/relevant/national/1992_LXIII (on file with the Columbia Law Review). 22. Open Soc’y Inst., Equal Access, supra note 20, at 342–43. 23. Czech Statistical Office, Total Population 1950–2008, at http://www.czso.cz/eng/ redakce.nsf/i/total_population_1950_2008 (last updated June 22, 2009) (on file with the Columbia Law Review). 24. NationMaster, Czech Language Statistics, at http://www.nationmaster.com/ country/ez-czech-republic/lan-language (last visited Jan. 25, 2010) (on file with the Columbia Law Review). Note that this is the estimate for Roma speaking members of the population. 25. Roma Educ. Fund, Advancing Education of Roma in the Czech Republic 9 (2007), available at www.romaeducationfund.hu/documents/Czech_report.pdf (on file with the Columbia Law Review). This number reflects the fact that Czech Roma are extremely unlikely to declare their Roma identity. 26. The uncertainty produced by difficulty in ascertaining the racial/ethnic identity of Roma provides insight into one aspect of the modern American affirmative action debate. Groups opposing affirmative action have promoted legislation that would prohibit gathering racial statistics. In 2003, California voters defeated the Racial Privacy Initiative, a project promoted by affirmative action opponent Ward Connerly, that would have prohibited the state from compiling information describing anyone’s racial identity. Andy Barlow & Troy Duster, Racial Privacy Initiative: An Invitation to Racial Discrimination, S.F. Chron., May 10, 2002, at A33. If enacted, this type of legislation would hinder efforts to enact civil rights measures, particularly those allowing for or requiring affirmative action (just as it has done in Eastern Europe).

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C. Social and Economic Conditions 1. The Roma Underclass. — A 2006 United Nations Development Programme (UNDP) study concluded: “The Roma more than anyone else lost out in the transition to the market economy in the countries of Central and South Eastern Europe. Their unemployment rate is 100 percent in some rural areas and the Roma’s dependence on government benefits is widespread.”27 While there are variations among countries, regions, and levels of education, Roma unemployment in Bulgaria, the Czech Republic, Hungary, Romania, and Slovakia averages forty percent, while less than ten percent of non-Roma in a recent study expressed difficulty finding employment.28 As a result, Roma poverty rates are staggering.29 Many factors contribute to this condition, including lack of education, few employment opportunities for unskilled laborers, and racism. In Hungary, two-thirds of the jobs that Roma “had occupied under the socialist system were wiped out during the transition.”30 Some Roma
27. Niall O’Higgins & Andrey Ivanov, Education and Employment Opportunities for the Roma, 48 Comp. Econ. Stud. 6, 6 (2006). The execrable conditions under which a very high proportion of Roma live should not obscure the fact that among them there is a very small middle class of graduates of institutions of higher learning, government officials, artists, and musicians. See generally Chad Evans Wyatt, Roma Rising (2005), a richly illustrated volume which documents the achievements of over 100 Roma in the Czech Republic. 28. See United Nations Dev. Programme, supra note 16, at 33. 29. In Romania, the country with the largest Roma population, 75.1% of Roma live in poverty and 52.2% live in severe poverty, compared to non-Roma, of whom 24.4% live in poverty and 9.3% live in severe poverty. Delia Grigore, President, Roma Centre Amare Romentza, Speech at the Closing Conference of the STEP IN Project: The Situation of Roma in Eastern Europe and the Situation for Education of Roma in Romania (Oct. 19–20, 2006), available at http://www.caritas-europa.org/module/FileLib/DeliaGrigore_ RromaChildrenSchoolEducationRomania.pdf (on file with the Columbia Law Review). A 2008 World Bank survey summarized the situation of Roma in “marginalized communities” as not having benefited from the buoyant labor market and suffering continued severe and multiple forms of labor market exclusion. While “[u]nemployment [in the Czech Republic] has fallen to below 5 percent in early 2008 and the employment rate is approaching the [European Union’s] Lisbon target of 70 percent by 2010,” only 27 percent of working age Roma in the marginalized localities are employed, compared with a national average of 66 percent. World Bank, Czech Republic: Improving Employment Chances of the Roma 1, 4, 8 (2008), available at http://siteresources.worldbank.org/ ECAEXT/Resources/258598-1224622402506/CZ_Roma_Employment_Full_Report.pdf (on file with the Columbia Law Review); see also UNICEF: 13 Pct of Roma Children Finish School, Reuters, May 18, 2007, at http://www.b92.net/eng/news/society-article.php?nav_ category=102&mm=5&dd=18&yyyy=2007 (on file with the Columbia Law Review) (“Roma are the largest minority group across the Balkans, but most of them spend their life in poverty, illiterate, underfed and marginalized by society.”). The Reuters article detailed a report that showed most Roma live under the poverty line: 78% of Roma in Albania and 66% in Romania live on less than $4.30 a day. Some 53% of respondents reported going hungry on a regular basis across the region. UNICEF, Breaking the Cycle of Exclusion: Roma Children in South East Europe 20–21, 42 (2007), available at http://www.unicef.org/ceecis/070305-Subregional_Study_Roma_Children.pdf (on file with the Columbia Law Review). 30. United Nations Dev. Programme, supra note 16, at 32.

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whom I met looked back on communism with a sense of loss. They spoke of having had a guaranteed place to live and an assured income. One Roma woman, a schoolteacher, said it was a “paradise.” Certainly, economic conditions for Roma were more favorable. Today, many Roma families rely on state welfare payments to survive. A multi-country survey by the UNDP found that a region-wide average of 46.8% of Roma families receive social assistance, 15.7% receive unemployment benefits, and 56.8% receive child support payments.31 This causes tension with non-Roma, who are often far from affluent and do not receive welfare. They resent Roma, whom they see as being supported by their tax money.32 Further, these costs take on particular significance considering the growth of the Roma population.33 In Romania, for instance, “the total fertility rate (births per woman) for Roma is 2.6, compared to 1.2 for Romanian.”34 Similarly, in Bulgaria, the average ages of the majority and the Roma populations are already markedly different. As a result, there is an ever-increasing need for support in the Roma community. A recent Business Week article explains the potential economic consequences of the Roma underclass: The costs start with jobs. Either because of discrimination or lack of education or skills, Roma unemployment is disproportionately high in Central and Eastern Europe, reaching 70 percent in some countries. At the same time, majority populations are advancing toward wheelchairs faster than tricycles. Labor markets will be short tens of thousands of workers in the coming decades, so smart governments should be trying to capitalize on their inexpensive, available Romani work force. But most aren’t. Instead, countries such as the Czech Republic are recruiting foreign workers to fill the gaps.35
31. Id. at 94. 32. See Open Soc’y Inst., Current Attitudes Toward the Roma in Central Europe: A Report of Research with Non-Roma and Roma Respondents 14 (2005), available at http:// www.soros.org/initiatives/roma/articles_publications/publications/attitudes_20050901/ romasurvey_2005.pdf (on file with the Columbia Law Review) [hereinafter Open Soc’y Inst., Current Attitudes] (quoting one non-Roma as asking “Why should I have such a responsibility [to help the Roma] if I can’t improve my own life first?”); United Nations Dev. Programme, supra note 16, at 42 (“[E]conomic frictions between Roma communities and income-generating non-Roma populations (especially in countries with high social security tax rates) are often behind allegations that ‘employed’ non-Roma populations ‘raise Roma children.’”). 33. See United Nations Dev. Programme, supra note 16, at 25–26. 34. Id. 35. S. Adam Cardais, Eastern Europe’s Roma: ‘Tacit Apartheid,’ BusinessWeek.com, July 28, 2008, at http://www.businessweek.com/globalbiz/content/jul2008/gb20080728_ 953451.htm (on file with the Columbia Law Review). The World Bank has found that “social exclusion of about 50,000 Roma living in marginalised localities alone may have resulted in losses of hundreds of millions of Euros in 2008 . . . [b]ecause the productive contribution of Roma to the economy is a lot lower than it could be.” Tamar Manuelyan Atinc, The

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Because Roma are ill-equipped to contribute to the economy in proportion to their numbers, the region will suffer unless measures are taken to upgrade Roma productivity. There are few studies that attempt to quantify these costs. But, in Hungary, a 2006 Roma Education Fund study found that the long-term benefits of greater investment in Roma education would result in a benefit from 30,000 to 70,000 euros per student.36 In Bulgaria, an Institute for Market Economics 2007 study found that greater government investment in Roma would lead to a net benefit of more than 82,000 euros for each student and “if investment in the education of 30,000 Roma children is made now, it would lead to more than EUR 2.468 billion net budget benefits.”37 Furthermore, a 2007 Open Society Institute study estimates that if Bulgarian schools were integrated, “over 10 years Bulgaria would gain the equivalent of 7 billion to 16 billion euros from full integration and . . . the return on investment would outweigh the cost by a ratio as high as 3to-1.”38 In the Czech Republic, the World Bank recently estimated that the economic burden of the Roma annually costs the country at least 16 billion crowns, or around 600 million euros.39 A single indicator shows the gravity of a complex problem: Perhaps one percent of Roma have a college education. We can trace the roots of this statistic: Very, very few Roma have successfully completed schooling that leads to college; very, very few have literate parents; very, very few come from families that earn a decent living; very, very few enjoy good health or live in conditions that would enable them to study effectively.40 2. Roma Health. — There is little data on Roma health conditions. A 2006 article in The Lancet reports: [t]he published literature on Roma health from 1985 to the present includes about 200 English language articles, half of which are about genetics or phylogenetics rather than medical issues. Only a few addressed public health. A slightly older review
Cost of Marginalisation, E!Sharp, May 26, 2009, at http://www.esharp.eu/Web-specials/ The-cost-of-marginalisation (on file with the Columbia Law Review). To these losses must be added the cost of welfare. Id. 36. G´ bor Kertesi & G´ bor K´ zdi, Expected Long-Term Budgetary Benefits to Roma a a e Education in Hungary 7 (2006), available at http://www.itweb.hu/partners/ RomaEducationFund/documents/Kertesi-Kezdi-BudgetaryBenefits.pdf (on file with the Columbia Law Review). 37. Inst. for Market Econ., Expected Long-Term Budgetary Benefits to Roma Education in Bulgaria 5 (2007), available at http://ime.bg/uploads/3625f8_Final_June_ 2007.pdf (on file with the Columbia Law Review). 38. Cardais, supra note 35. 39. Michal Komarek, Child Write-Offs, Transitions Online, Nov. 26, 2009, available at http://www.tol.cz/look/TOL/article.tpl?IdLanguage=1&IdPublication=4&NrIssue=349& NrSection=3&NrArticle=20998 (on file with the Columbia Law Review). 40. See Roma Educ. Fund, School Report, supra note 19, at 4–16 (discussing state of Roma education).

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noted more articles on the gypsy moth or the gypsy variant of Drosophila than on Roma health.41 Still, it is clear that Roma health outcomes are poor. For example, the overall mortality rate among infants of Romanian parents is approximately 27.1 per 1000; for those born in Romania of Hungarian parents it is approximately 19.8 per 1000, while for Romanian Roma the figure is more than triple, at 72.8 per 1000 live births.42 Similarly, Roma men and women generally live ten to fifteen fewer years than non-Roma from the same region.43 Reasons include diabetes, coronary artery disease, obesity, limited access to medical care, substandard housing conditions, and inadequate nutrition.44 Additionally, many Roma suffer from illnesses traceable to their living conditions. For example, both tuberculosis and irondeficiency abscess, common diseases in developing nations, are ten times more prevalent among Roma than the national average would suggest.45 The incidence of malignant tumors is also higher. These physical ailments are compounded by mental afflictions. Approximately eight percent of Roma suffer from illnesses of psychological origin.46 The vast majority of Roma cannot afford prescription medications, so they tend to use cheap organic dissolvents and other psychoactive substances in an attempt to cure their physical and psychological ailments. As a result, drug-related illnesses are four times more frequent among the Roma than the rest of society.47 3. Roma Housing. 48 — The forced settlement of Roma in Central and Eastern Europe during the Middle Ages partially explains their current distribution in impoverished enclaves. Until the mid-nineteenth century in Romanian Valachia and Moldavia, they were slaves confined to mahalas—restricted areas where, for the local boyar or bishop, they practiced crafts and trades with skills that were in great demand. After the Second World War, the Soviet Union controlled Eastern Europe and made some effort to assimilate Roma who survived the Nazi Holocaust. Assimilation failed, but some collectivist measures did benefit them. New heavy industries employed thousands, and impersonal blocks of flats
41. Kent A. Sepkowitz, Health of the World’s Roma Population, 367 Lancet 1707, 1707 (2006) (citation omitted). 42. Id. 43. Id. at 1708. 44. Id. 45. Dimitrina Petrova, The Roma: Between a Myth and the Future, 70 Soc. Res. 111, 145–46 (2003). 46. Id. 47. Id. at 146. 48. The following discussion of Roma housing draws heavily on one of the few studies of the subject, Samuel Delepine, Housing of Roma in Central and Eastern Europe: Facts and Proposals, in Conference Report, International Conference on the Implementation and Harmonization of National Policies for Roma, Sinti and Travelers (2006), available at http://www.osce.org/item/21545.html (on file with the Columbia Law Review). It also includes my personal observations.

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housed Roma alongside the rest of the working population, providing the Roma with electricity and running water for the first time. After the Berlin Wall fell, many Roma families suffered when the manufacturing industry in the region collapsed. Unemployment was widespread. Many Roma were forced to part with their properties, and others stood by, powerless, as their neighborhoods fell into disrepair. Many old mahalas were uprooted, and makeshift hovels began to occupy the borderline between urban and rural environments. Roma who moved from the city to these shantytowns intermingled with Roma from the countryside who had come in search of a higher standard of living. As non-Roma moved out, the Roma became the majority in many of these overcrowded peripheral areas. Today, most Roma live in Roma neighborhoods in towns and cities along the edges of somewhat “gypsified” enormous estates. These areas make no contribution to local economic life and have few or no links with key dynamic urban areas. Here, Roma generally reside in one-story rural-type houses constructed out of makeshift, flimsy, salvaged materials. Most Roma settlements have no electricity, running water, doors, or even glass in the windows. Many houses appear partly—or completely—gutted. The roads and streets are made of dirt, which often turns to mud. Many of the communities lack a sewage system; a hole in the ground serves as a toilet outside some houses. One almost never encounters a garden or private space of any kind. This disrepair probably reflects the fact that many Roma lack secure title to their dwellings.49 The Roma residents of these communities lack clean clothes and basic hygienic supplies. Perhaps because many settlements are illegal, the government does not pick up trash. In some places garbage at the roadside has been there so long that it has become compacted, sometimes forming what appears to be a thick wall. And, as in many developing nations, dogs and pigpens are found on the streets. But, TV antennas are everywhere. These inaccessible and little-known Roma shantytown “neighborhoods” are gradually increasing in size. All cities and towns of any size in Romania, Bulgaria, the former Yugoslavia, Hungary, the Czech Republic, and Slovakia have at least one. I also visited the homes of Roma who were middle class civil servants, professionals, school teachers, and the like. These resembled the dwellings of those similarly situated in Western Europe or the United States. It is not unheard of to happen upon Roma houses, high-rises, or community centers that appear to be neat and well maintained. There are even a small number of luxury houses built by some of the very few wealthy Roma.
49. James A. Goldston & Mirna Adjami, The Opportunities and Challenges of Using Public Interest Litigation to Secure Access to Justice for Roma Minorities in Central and Eastern Europe 29 (July 2008), available at http://www.lexisnexis.com/documents/pdf/ 20080924043559_large.pdf (unpublished preliminary draft, on file with the Columbia Law Review).

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Within cities, as with the more rural enclaves, segregation is the norm. Once a few buildings within a neighborhood are occupied by Roma residents, the entire area is recast as a “Roma neighborhood.” In these inappropriately named “Roma neighborhoods,” a small number of blocks form Roma enclaves inside an extremely poor area occupied by a wide range of different ethnic groups. One such enclave can be found in Ferentari, a large neighborhood in the southern part of Bucharest. Here, a number of extremely rundown blocks of flats were abandoned by soldiers from nearby barracks and workers from a local company that closed down many years ago. Staircases are in ruins. Basements are awash with filthy water from burst sewage pipes. Only the undersized flats themselves are looked after by the Roma families (all employed) who have taken shelter there. It is hard for many Westerners to imagine the conditions in which these Roma live. In addition to being in disrepair, the buildings are highly unsanitary. Household waste is no longer collected. Refuse litters the ground and is burnt from time to time, filling the whole area with toxic fumes. Unofficial connections to the municipal power lines create unsightly and dangerous tangles of electric cables. Since the families cannot tap into the water supplies, the apartments themselves are without running water. The ongoing restructuring of town centers in Eastern Europe is gradually eliminating the slums taken over by Roma families. However, the restructuring varies in speed and efficiency. While Prague and Budapest hide their Roma populations far away from the gaze of tourists, Bucharest and Sofia still have derelict buildings throughout the urban area squatted in by Roma families. When these buildings are renovated, Roma are evicted and left with no choice but to move to shantytowns. D. Education The Roma Education Fund recently prepared a thorough survey of Roma education. Like other studies of Roma, it suffers from a paucity of hard data, but it clearly depicts Roma education as markedly inferior: Across countries, 70–80 percent of Roma populations have less than a primary school education, while very few have completed primary and secondary education. Some Roma have no education at all and less than 1 percent of Roma continue on to higher education. . . . In Bulgaria, according to the 2001 census, 81 percent of Roma had a primary school education or less. . . . Differences between types of Roma are also important. . . . [T]he share of Roma with less than basic education was 23 percent for the Romungro Roma (whose native language is Hungarian), 42 percent for the Bayash (native language Romanian), and 48 percent for the Wallach Roma (native language is Roma). . . . [T]here is very limited information on enrollments and attendance of Roma students. . . . A 2000 survey of poverty and

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ethnicity found that primary school enrollment rates for Roma in Bulgaria were 33 percent lower than for non-Roma, while in Romania, the difference was 20 percent. In Hungary, where a larger share of Roma continue on to secondary school, the gap in primary enrollments was . . . less than 2 percentage points . . . . . . . In some cases, students may enroll at the beginning of the year but not actually attend school. In addition, enrollment rates indicate only whether children are enrolled in school— and not whether they are enrolled in the appropriate level. A significant share of Roma begin compulsory education late. . . . Pre-school enrollment rates for Roma are very low across countries—estimated at 1 percent of children in Slovakia and 3 percent in Serbia and Montenegro. . . . By 1997, less than 20 percent of Roma children were thought to attend. In Hungary, where pre-school is compulsory for all children at age 5, 11 percent of Roma did not attend school in 1997. Because of the low rates of completion of primary education, few Roma make it on to secondary school, and even fewer complete secondary school. . . . With rare exceptions (such as Hungary), not more than 20–25 percent of Roma continue education after compulsory education. In other countries, the rate is less than 10 percent, in comparison with 60–90 percent in the population as a whole. Those Roma who do go to secondary school most frequently enroll in vocational training schools, and only 1–3 percent attend more general secondary schools which allow students to continue on to university. . . . [T]he share of Roma participating in university and other post-secondary education is negligible at 2 percent in Hungary and less than 1 percent in the other countries. . . . The share of Roma not continuing primary education beyond fourth grade varies across countries, from 15–20 percent in Bulgaria to 69 percent in Montenegro . . . . Hungary is an exception, where dropouts are a more serious issue at the secondary level.50
50. Roma Educ. Fund, School Report, supra note 19, at 8–9 (citations omitted). For other studies comparing Roma to non-Roma education in Bulgaria, see Open Soc’y Inst., Equal Access, supra note 20, at 28–50. In Bulgaria, for the total national population, a survey of the highest level of education completed broke down as follows: 8.7% (primary); 27.28% (basic); 43.74% (secondary); 17.01% (higher education, including college). The comparable percentages for Roma broke down quite differently: 28.28% (primary); 41.83% (basic); 6.46% (secondary); 0.24% (higher education, including college). Id. at 40. The illiteracy rate for the national population is 1.76%, but 14.88% for Roma. Id. For Romania, as with other countries, there are no official statistics, so one must engage in some guesswork. It is clear, however, that the proportion of Roma children in school diminishes as they grow older, with the most substantial decrease occurring around the time students would enter sixth grade. At age 7, 95% of Romanian children and 83% of Roma children are enrolled. By age 12, 88% of Romanian children and 72% of Roma children are enrolled. At 15, 88% of Romanian but only 55% of Roma children remain

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Further, school segregation throughout the region is widespread, but its nature, causes, and solutions are not easily explained. It is difficult to say with precision where segregation exists; whether it is a result of policy or adventitious; whether it exists within individual classrooms or only among them; how it may be undone; and so forth. It is maddening to try to ascertain precise facts, made even more obscure by an absence of records of who is Roma, by the denial by many Roma of their ethnicity, and by flat contradictions among apparently knowledgeable sources. Segregation in Eastern Europe, unlike in the United States prior to Brown, has not been required by statute. Rather, it often has been created by a mix of local official policies—which in the United States would be called “state action”—and more informal forces, such as housing policy, neighborhood homogeneity, and the like—which in the United States would be called “de facto” segregation. While generally not illegal in the region, de facto segregation has been prohibited by statute in Bulgaria.51 Segregation in Eastern Europe takes three principal forms. First, some cities or areas have separate schools restricted to Roma or nonRoma by local practices or tacit understanding. Non-Roma schools tend to be located near non-Roma neighborhoods and often are said to be full when Roma seek to enroll. Despite the extra space in non-Roma schools created by the falling non-Roma population, Roma children are often discouraged from enrolling, or simply denied admission when they apply
enrolled. Id. at 354. Preschool enrollment is 66.1% for the country as a whole. For Roma, it is only 20%. Id. at 346. While 66.1% of Romanian children enroll in preschool, as many as 80% of Roma children do not. Id. As a result, when Roma children enter kindergarten (the first compulsory grade), they begin behind their Romanian peers (who have been to preschool). Id. Most Roma students never make up this ground, and so continue to lag behind their non-Roma peers, leading to intraschool segregation. While preschool is nominally free, high poverty rates and the cost of clothes, food, and school materials tend to keep Roma children out. Id. at 404–05. Later, Roma children who find remunerative work drop out. The population of Roma who have no education is 34.2%, compared to 5.5% of the general population. Id. at 355. Further, 25.6% of Roma aged over ten years are illiterate, compared to 2.6% of the general population. Id. Finally, 10.8% of the general population have had higher education. For Roma, the percentage is only 0.8%. Id. at 357. Several Roma rights workers told me that Roma college students also conceal their ethnicity, so the actual number may be higher still. While school attendance is compulsory, such requirements are not enforced and it is almost guaranteed that a significant number of Roma children will not enroll at all because their parents do not have identity papers. Even enrolled Roma have low attendance rates because of poor or nonexistent roads to Roma communities and lack of public transportation. Id. at 407. To the extent that schools lack course offerings for the many Roma children who do not speak Romanian, the gap is even greater. Id. at 414–15. 51. See Bulgarian statutes discussed infra note 207 and accompanying text (including one requiring Ministry of Education to “take the necessary measures not to allow any racial segregation” in schools). But see infra notes 103–106 and accompanying text (discussing President V´ clav Klaus’s veto of key Czech antidiscrimination bill). a

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(even though the general rule in Eastern Europe is that any child may attend any school, with priority given to those who live closest). Sometimes, after successful integration, “white flight” occurs, and a school which has admitted some Roma students becomes segregated once again.52 Second, school officials spuriously diagnose Roma children as having “light mental retardation,” and then send them to “special” or remedial schools.53 A disproportionate number of pupils enrolled in such schools are Roma.54 The result is entrenched segregation and inferior education. Even though many Roma parents are aware that their children do not belong in these schools, some enroll them for the free meals, clothing, and school supplies unavailable at standard schools. Some schools adopt a third form of segregation: separate classrooms or sections of classrooms.55 This may be called “intraschool segregation” (sometimes referred to as “within-school” segregation). Similarly, Roma children are often segregated into special education classrooms as an almost inevitable result of poor academic and social preparation.56 Romani CRISS, a Romanian NGO, also has encountered “social segregation,” under which a few non-Roma Romanian pupils from poor families are placed in Roma schools or classes as a disciplinary measure. In most Eastern European countries there is also a form of segregation called “private learner status,” in which children are enrolled but do not attend school every day except for consultation and examinations.57 Private learners are disproportionately Roma. All these forms of segregation are further entrenched because many Roma parents want to continue the tradition of sending their children to the same school they had attended. E. European Union Law A vast body of European law prohibits discrimination against the Roma.58 Individual E.U. member states have transposed their require52. Open Soc’y Inst., Equal Access, supra note 20, at 213–14. 53. See id. at 219 (explaining overrepresentation of Roma in schools for students with special needs). 54. This practice was highlighted in a recent case before the European Court of Human Rights. See D.H. v. Czech Republic, App. No. 57325/00, 47 Eur. H.R. Rep. 3 (2007) (finding illegal discrimination against Roma occurs when they are disproportionately enrolled in special schools). 55. Open Soc’y Inst., Equal Access, supra note 20, at 215. 56. Id. at 216. 57. E-mail from Judit Szira, Senior Advisor, Roma Education Fund, to author (Oct. 16, 2009) (on file with the Columbia Law Review); see also Open Soc’y Inst., Equal Access, supra note 20, at 218–19. 58. The European Union provisions that deal with protection of minorities, as well as recommendations for further legislation, are set forth in E.U. Network of Indep. Experts on Fundamental Rights, Thematic Comment No. 3: The Protection of Minorities in the European Union (2005), available at http://ec.europa.eu/justice_home/cfr_cdf/doc/

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ments into domestic law. As a result, both the Framework Convention of 1995, which was joined by five countries with large Roma populations, and the Race Equality Directive59 provide broad rights of equality to national minorities, including the Roma. The Framework Convention does not, however, establish justiciable individual rights. Member states must implement the Convention’s principles through national legislation and governmental policies. Like the Framework Convention, E.U. directives do not generally create enforceable rights for individuals; instead, they create an obligation on the part of member states to implement the directives’ requirements within their domestic law.60 In exceptional circumstances, however, the doctrine of “direct effect” allows an individual to invoke the provisions of a directive, provided that it “grants an individual right and creates for member states ‘a specific unambiguous obligation’ to their nationals.”61 Thus, if a member state fails to implement the directive, individuals may nonetheless invoke it against their state in the national courts.62 The Race Equality Directive prohibits direct and indirect discrimination in education. Through this directive, the European Commission or a member state can sue a non-implementing state in the European Court of Justice.63 Such a step, however, requires a certain amount of political will. Given the almost total lack of Roma participation in national politics, member states have, unsurprisingly, not taken such action in cases of discrimination against Roma. At the international level, nonbinding resolutions have called for increased integration of Roma. For example, in February 2005, nine
thematic_comments_2005_en.pdf (on file with the Columbia Law Review). For an early argument as to why European law protection is necessary, see Edo Banach, The Roma and the Native Americans: Encapsulated Communities Within Larger Constitutional Regimes, 14 Fla. J. Int’l L. 353, 388 (2002). 59. Council Directive 2000/43, 2000 O.J. (L 180) 22 (EC), available at http://eur-lex. europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:180:022:0026:EN:PDF (on file with the Columbia Law Review). 60. See Raphael Won-Pil Suh & Richard Bales, German and European Employment Discrimination Policy, 8 Or. Rev. Int’l L. 263, 287–91 (2006) (discussing E.U. directives as form of antidiscrimination law). 61. Gr´ inne de Burca & Oliver Gerstenberg, The Denationalization of Constitutional a ´ Law, 47 Harv. Int’l L.J. 243, 257 n.46 (2006) (quoting Case 26/62, N.V. Algemene Transp.en Expeditie Onderneming van Gend & Loos v. Nederlandse Administratie de Belastingen, 1963 E.C.R. 1, 7). 62. See Ursula R. Kubal, Comment, U.S. Multinational Corporations Abroad: A Comparative Perspective on Sex Discrimination Law in the United States and the European Union, 25 N.C. J. Int’l L. & Com. Reg. 207, 215 (1999) (“[I]f a Member State has not yet adopted implementing national legislation or has done so improperly, individuals may bring claims to enforce the directive against their Member States in their national court systems.”). 63. See European Union, The Court of Justice, EUROPA, at http://europa.eu/ institutions/inst/justice/index_en.htm (last visited Feb. 27, 2010) (on file with the Columbia Law Review) (discussing Court of Justice’s composition, functions, and procedures).

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Eastern European countries joined in a program and declaration called the Decade of Roma Inclusion.64 The declaration states: [W]e pledge that our governments will work toward eliminating discrimination and closing the unacceptable gaps between Roma and the other members of society, as identified in our Decade Action Plans. We declare the years 2005–2015 to be the Decade of Roma Inclusion and we commit to support the full participation and involvement of national Roma communities in achieving the Decade’s objectives and to demonstrate progress by measuring outcomes and reviewing experiences in the implementation of the Decade’s Action Plans.65 While this program manifests political resolve, it does not equip victims of discrimination with a practical means of righting grievances. F. Legal Remedies Not long after the European Union adopted the Race Equality Directive, Roma rights groups began a litigation campaign against school segregation that has resulted in about a dozen court cases.66 Because current laws, if fully enforced, would almost certainly prohibit school segregation, this litigation campaign seeks to have courts either acknowledge these existing laws or force lawmaking bodies to draft new substantive laws fully protecting the right of Roma students to attend integrated schools. The results have been mixed: Even as courts find for the Roma plaintiffs, they fail to enforce effective remedies against the offending schools. Therefore, apart from slight acquiescence to the rulings by some
64. Decade of Roma Inclusion 2005–2015, Decade Declaration (Feb. 1–2, 2005), available at http://ncedi.government.bg/decade-Image1.pdf (on file with the Columbia Law Review) [hereinafter Decade Declaration]. For texts of the various decade action plans and general information on the Decade, see Open Soc’y Inst., Decade of Roma Inclusion 2005–2015, at http://www.romadecade.org (last visited Feb. 10, 2010) (on file with the Columbia Law Review). 65. Decade Declaration, supra note 64. 66. On the origins of the campaign, see Goldston & Adjami, supra note 49, at 4–21. Three European Court of Human Rights (ECHR) decisions deal with school segregation: D.H. v. Czech Republic, App. No. 57325/00, 47 Eur. H.R. Rep. 3 (2007), Sampanis v. Greece, App. No. 32526/05 (Eur. Ct. H.R. 2008), available at http://cmiskp.echr.coe.int/ tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=32526/05%20%7C%2032 526/05&sessionid=50450662&skin=hudoc-en (on file with the Columbia Law Review), and Or˘u˘ v. Croatia, App. No. 15766/03 (Eur. Ct. H.R. 2008), available at http://cmiskp. s s echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=15766/03& sessionid=50450594&skin=hudoc-en (on file with the Columbia Law Review). One case in a national supreme court, Chance for Children Found. v. Town of Hajduhadh´ z, Legfelsobb a ´ ¨ B´ros´ g [Supreme Court], Pvf.IV. 20. 936/2008/4 (Hung. 2008), is published only in ı ´ a Hungarian. A handful of lower court cases have been decided throughout the region, all in national languages, most of which I have had translated. I am unaware of any source containing all the cases that deal with Roma school segregation. I have come upon these cases by searching the web and through Roma rights lawyers and activists with whom I’m acquainted.

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schools and school districts, the legal victories have not translated into tangible gains for the Roma. 1. Litigation in European Courts. — The litigation campaign’s principal success has been the European Court of Human Rights’ (ECHR) November 2007 decision in D.H. v. Czech Republic.67 In D.H., plaintiffs challenged the use of “special schools” which had been used to enforce segregation in the Czech Republic. The Czech Republic did not claim a right to segregate students; rather, it denied that it segregated on racial grounds.68 Its defense was that the placement of Roma children in separate “special” schools was justified because (1) the Roma students placed in those schools were mentally impaired; (2) their parents had consented to the placements;69 and (3) plaintiffs relied on flawed statistical analysis to show disparate impact.70 The court rejected all three of these arguments, pointing out that both a disproportionately large number of special school students were Roma, and a disproportionate number of Roma students were placed in special schools (now renamed “practical schools”).71 The language and tone of the court’s decision amounted to a thorough condemnation of discrimination against Roma school children, regardless of the form of that discrimination. D.H. applied Article 1472 and Article 2 of Protocol No. 173 of the European Convention on Human Rights. The court noted widespread anti-Roma discrimination in education,74 and responded to the Czech Republic’s claim that parents had consented to their children’s place67. D.H., 47 Eur. H.R. Rep. 3. 68. Id. ¶ 26 (noting Ministry of Education denied allegations of discrimination). 69. Id. (“[T]he special schools concerned pointed out that all the applicants had been enrolled . . . with the consent of their representatives.”). 70. Id. ¶ 148 (summarizing government’s argument against validity of statistical data provided by plaintiffs). 71. Id. ¶ 193 (“[E]ven if the exact percentage of Roma children in special schools . . . remains difficult to establish, their number was disproportionately high. Moreover, Roma pupils formed a majority of the pupils in special schools.”). 72. Convention for the Protection of Human Rights and Fundamental Freedoms art. 14, Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953) [hereinafter Convention for the Protection of Human Rights]. Article 14 provides: “The enjoyment of rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 73. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 2, Mar. 20, 1952, 213 U.N.T.S. 262 (entered into force May 18, 1954) [hereinafter Protocol No. 1]. Article 2 of Protocol No. 1 provides: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” 74. D.H., 47 Eur. H.R. Rep. ¶ 166 (noting position by multiple human rights bodies that “no objective and reasonable justification could legitimise the disadvantage faced by Roma children in the field of education”).

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ment in separate schools by holding that the right to be free from discrimination may not be waived.75 It employed a disparate impact standard,76 under which courts invalidate practices having a disproportionate effect on members of a protected group unless a close relationship to performance of the relevant task or job validates the challenged practice. In D.H., the intelligence tests being used excluded almost all Roma from ordinary schools and assigned them to schools for mentally impaired children. However, the Czech Republic was unable to show that the tests reliably determined whether a child required such education. As a result, the court invalidated the tests as a standard for placement in the “special” or “practical” schools. Despite invalidating the tests, the court did not take the further step of requiring the defendant schools to correct their errors, make the plaintiffs whole, or even cease inflicting the same harm on others. After seven years of litigation, plaintiffs won only an order requiring the defendant to pay = 4,000 to each plaintiff and the costs of the action.77 C After D.H. was decided, many European lawyers and Roma rights advocates referred immediately and primarily to Brown v. Board of Education.78 They hailed the decision as Brown’s European equivalent. Brown, however, overturned Plessy v. Ferguson, which had held racial segregation constitutional under the Equal Protection Clause of the Fourteenth Amendment.79 This distinction is subtle, but important: Where Brown directly confronted the legal underpinnings of segregation in or75. Id. ¶ 204 (“[N]o waiver of the right not to be subjected to racial discrimination can be accepted.”). 76. The one American case cited was Griggs v. Duke Power Co., 401 U.S. 424 (1971), a case interpreting section 703 of the 1964 Civil Rights Act (Title VII), 42 U.S.C. § 2000e-2 (2006). Griggs held that Title VII prohibits using employment standards that, while neutral in terms, have a disparate impact on a minority group, unless the practice is justified by the nature of the task. Griggs, 401 U.S. at 432. Duke Power had refused to hire Griggs, who was black, as a coal handler because he had not attained a minimum IQ score or had a high school diploma. Griggs v. Duke Power Co., 292 F. Supp. 243, 245–46 (M.D.N.C. 1968), aff’d in part and rev’d in part, 420 F.2d 1225 (4th Cir. 1970), rev’d, 401 U.S. 424 (1971). Neither qualification was necessary for handling coal, and blacks were less likely than whites to meet them. Griggs, 401 U.S. at 430–31. 77. D.H., 47 Eur. H.R. Rep. ¶ 217. 78. Brown v. Bd. of Educ., 347 U.S. 483 (1954). Curiously, the European court did not mention Brown. When counsel for D.H. referred to it during oral argument, the court told him that it was not interested. The reason could not have been disinclination to wander beyond what the court absolutely had to say. Brown was twelve pages long; D.H. ran for eighty-seven pages. Was it that high U.S. officials had disparaged “old Europe,” see ‘Old Europe’ Hits Back at Rumsfeld, CNN.com, Jan. 24, 2003, at http://www.cnn.com/ 2003/WORLD/europe/01/24/france.germany.rumsfeld/ (on file with the Columbia Law Review) (“German and French politicians and media across the political spectrum have hit back angrily at criticism by U.S. officials that the two countries belonged to ‘old Europe’ and were isolated in their opposition to war in Iraq.”), and at least one member of the U.S. Supreme Court, Justice Scalia, spoke contemptuously of citing foreign law in deciding cases in the U.S. Supreme Court? 79. Plessy v. Ferguson, 163 U.S. 537, 552 (1896).

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der to change the law, D.H. was an attempt to compel the Czech Republic to apply favorable law already in place. The Czech government’s response to D.H. has been a series of studies, but no action. Its initial report unsurprisingly stated that “Roma children often display low rates of scholastic achievement . . . . It is also possible to infer that Roma children living in socially excluded environments or in environments at risk of social exclusion are most harmed by these low rates of scholastic achievement.”80 The government continues to await the outcome of further studies before acting. A 2010 Report by Amnesty International, conducted in the wake of D.H., sums up the current status of Roma children in the Czech Republic.81 It found: Romani children are disproportionately represented in former special schools, now called “practical” elementary schools, and classes teaching a curriculum for pupils with “mild mental disabilities.” In some parts of the Czech Republic Romani children account for more than 80 per cent in those schools; Criteria for the placement of pupils in such schools are opaque, the oversight of placement decisions is inadequate, and mechanisms for integrating children erroneously placed in these schools remain ineffective. Assessments of Romani children fail to factor in cultural and linguistic differences, and there is a lack of adequate safeguards in relation to placement in these schools and for the review of placements; Frequently Romani children are placed in practical elementary schools not because they have any mental disability, but because they come from socially disadvantaged backgrounds and confront discriminatory attitudes. The reintegration of these children into mainstream education has not been a priority for the school system; Meanwhile Romani children attending mainstream elementary schools face other forms of discrimination and segregation.
80. Report of the Government of the Czech Republic on General Measures Related to the Execution of the Judgment of the European Court of Human Rights in Case No. 57325/00—D.H. and Others v. the Czech Republic (2009), at http://www.msmt.cz/socialniprogramy/zprava-vlady-ceske-republiky-o-obecnych-opatrenich-k-vykonu?lred=1 (on file with the Columbia Law Review). Thus far, an amendment to the existing School Act, designed to ensure students with special needs are able to access the help they need within a normal school setting, has been proposed. E-mail from Gwendolyn Albert, to author (Feb. 11, 2009) (on file with the Columbia Law Review). Additionally, the government has conducted research into the number of “practical elementary schools” and the distribution of Roma in them. Id. There have also been plans to establish a Center for Inclusive Education (CPIV), which will provide a “support team” for schools, assisting them in designing inclusion programs and accessing E.U. funding for them. Id. The CPIV is also supposed to produce a report on inclusion in general. Id. 81. Amnesty Int’l, Injustice Renamed: Discrimination in Education of Roma Persists in the Czech Republic 4 (2010), available at http://indigenouspeoplesissues.com/ attachments/3555_RomaChildren_CzechRepublic.pdf (on file with the Columbia Law Review).

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The mainstream elementary school system remains ill equipped and unwilling to provide adequate support for the education of pupils who come from different ethnic and social backgrounds, as well as of students with different abilities. Segregation continues in Roma-only elementary schools (those predominantly or exclusively attended by Romani children) and in Roma-only classes, where they often receive an inferior education. The failure to introduce measures in mainstream elementary schools to support integration of Romani children results in stark choices for parents between segregated and inferior education, and a difficult, often discriminatory and non-supportive schooling environment in mainstream elementary schools.82 Unsurprisingly, teachers in the special/practical schools constitute an interest group that is fighting to keep those schools open. They have written to the Minister of Education to urge that their schools (and their jobs) be retained.83 At the same time the Ministry has issued a statement asserting that it has added millions of crowns to support Roma pupils. But Roma rights advocates say that this is a one-time injection of E.U. funds “for equal opportunities in education . . . not just for promoting equal opportunities for the Roma, but for every other minority, for women, for the disabled, etc.”84 They believe that the more “politically acceptable options will receive funding most easily and will have the greatest chance of seeing this funding continue past 2013. The Roma are never a politically acceptable target group.”85 In Sampanis v. Greece,86 the ECHR, in its second major case dealing with Roma school segregation, ruled that allowing Roma to attend a nonRoma school, but placing them in a separate annex, violated Article 14 (prohibition of discrimination) in conjunction with Article 2 of Protocol No. 1 (right to education) as well as Article 13 (right to an effective remedy) of the European Convention.87 In Sampanis, non-Roma parents protesting the integration of their children’s schools barred Roma children
82. Id. 83. E-mail from Gwendolyn Albert to author (Feb. 12, 2009) (on file with the Columbia Law Review). Practical school teachers, administrators and an Education Ministry official in charge of practical schools are resisting closing the schools or assigning large numbers of Roma children to regular schools. E-mail from Gwendolyn Albert to author (Feb. 25, 2010) (on file with the Columbia Law Review); see also Official: Most Roma Placed in “Special” Schools Rightfully, Prague Daily Monitor, Feb. 24, 2010, at http://prague monitor.com/2010/02/25/official-most-roma-placed-special-schools-rightfully (on file with the Columbia Law Review). 84. E-mail from Gwendolyn Albert to author (Feb. 25, 2010) (on file with the Columbia Law Review). 85. Id. 86. Sampanis v. Greece, App. No. 32526/05 (Eur. Ct. H.R. 2008), available at http:// cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=3252 6/05%20%7C%2032526/05&sessionid=50450662&skin=hudoc-en (on file with the Columbia Law Review). 87. Id. ¶ 97. As of July 1, 2009, the Roma children had not returned to the town school.

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from entering. When the school relented and sent the Roma to a prefabricated annex a few miles away, the protesters covered it with racist graffiti and burned it to the ground. In a related incident, a Roma pupil was attacked. As a result, many Roma children withdrew from classes. The court required the defendant school to pay = 6,000 to each plaintiff and C the costs of the action, but, as in D.H., did not require the school administration to do anything to end the segregated conditions. On March 16, 2010, in Or˘u˘ v. Croatia,88 the Grand Chamber of the s s European Court of Human Rights decided that Croatia violated the Convention by segregating fifteen Roma children on the ground that they were not competent in the Croatian language. It ordered payment of = 4,500 damages to each plaintiff, plus a joint award of = 10,000 to all C C plaintiffs for costs and expenses. But, as in similar cases, it issued no order to require Croatia, or the schools involved in the case, to desegregate. Importantly, when courts assess damages in a case like this, the person (or entity) who pays may not be the one who made the initial decision to segregate the schools. If the official or officials who made the initial decision to segregate are not required to pay the damages, which are instead paid by the municipality or successor officials, the legal consequences of the decision to segregate are unlikely to serve as an effective deterrent to those tasked with making similar choices in the future. Even if the courts later decide that such officials violated the law, someone else will pay the price. 2. Litigation in National Courts. — Victors in national courts fare no better when it comes to obtaining meaningful remedies. For example, after eight years of litigation the Supreme Court of Hungary finally decided Chance for Children Foundation v. Town of Hajduhadhaz.89 In the only ´ ´
88. App. No. 15766/03 (Eur. Ct. H.R. 2010), available at http://cmiskp.echr.coe.int/ tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Orsus&sessionid=496708 03&skin=hudoc-en (on file with the Columbia Law Review). 89. Chance for Children Found. v. Town of Hajduhadh´ z, Legfelsobb B´ros´ g a ı ´ a ´ ¨ [Supreme Court], Pvf.IV. 20. 936/2008/4 (Hung. 2008). A summary of the facts of the case and its background was furnished by Andr´ s Ujl´ ky, President of the NGO Chance for a a Children Foundation, which sponsored the case: Hajduhadh´ z is a provincial town of about 12,000 inhabitants of whom about a ´ 3500 are Roma. . . . Roma lost their jobs when local agricultural cooperatives and nearby heavy industries providing menial jobs closed. They are overwhelmingly uneducated, some illiterate. The town has two primary schools (teaching children between 6 and 14): Foldi with 928 pupils of which 236 are Roma and ¨ Bocskay with 917 children of which 397 are Roma. Both schools operate main buildings for overwhelmingly (but not exclusively) majority children and two [to] three separate buildings for Roma children. We claim that not only are most of the Roma children enrolled in the separate buildings they are also provided with a different, far inferior curriculum. The local Roma community leaders (who are quite unusually represented in the Municipal Council) demanded desegregation for more than 11 years. We sued the Municipality and two schools of Hajduhadh´ z in a public interest case (i.e. we have no individual plaintiffs). We a ´ used public statistics, municipal documents and an expert opinion as evidence and benefited from the reversal of the burden of proof. The case now ended in a

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decision by a national Supreme Court dealing with Roma school segregation, Hajduhadh´ z was found to have illegally segregated Roma students. a ´ However, the court failed to require the defendant “white” (non-Roma) school to desegregate. The “white” school and Chance for Children, the NGO representing the plaintiffs in the case, are currently negotiating a desegregation plan, for which the plaintiffs are trying to raise funds.90 But, in anticipation of this integration, white students have been transferring from Hajduhadh´ z’s all-white school to schools in other towns.91 a ´ In a second case, Chance for Children Foundation v. Local Council of Miskolc, a Hungarian intermediate appellate court (the Debrecen Appeals Court) upheld a judgment requiring the merger of school catchment areas in Miskolc in order to end segregation in that town.92 However, the opinion rejected plaintiff’s plea for an order requiring that the school actually desegregate, concluding that “a judgment containing such a provision would be uncontrollable and impossible.”93 It added that “the latter claim possesses more of public law content, with which the tools of civil law are ill-suited to comply.”94 Nevertheless, as a result of this ruling some Roma children now attend the non-Roma school. It is expected that more will attend in the future, despite the fact that the court did not require defendant schools to do anything. Similarly, in European Roma Rights Centre v. Ministry of Education and Science, a Bulgarian

very famous and full victory. We are waiting for the proposed measures for desegregation. In the meantime CFCF agreed with a local Roma NGO to jointly hire consultants for planning a comprehensive long term desegregation program, aiming to provide the Roma children (as well) with quality education (and look for funding for the planning work). The court case was sponsored/funded by OSI (core funding for our activities) and the Sigrid Rausing Trust (specifically for this case) who did not however participate in the preparatory and legal work. E-mail from Andr´ s Ujl´ ky, President, Chance for Children Found., to author (Nov. 7, a a 2008) (on file with the Columbia Law Review). 90. E-mail from Lilla Farkas, Plaintiff’s Counsel, to author (Aug. 13, 2009) (on file with the Columbia Law Review). 91. Id. 92. Chance for Children Found. v. Local Council of Miskolc, Pf.I.20.683/2005/7 (Debrecen App. Ct. 2005), available at http://www.cfcf.hu/miskolc1_en.html (on file with the Columbia Law Review). 93. Id. 94. The opinion states that “Plaintiff [the NGO Chance for Children] requested the court to oblige Respondent local Council of Miskolc [of which defendant school board was a constituent part] . . . to implement an integration program by involving central and member schools.” Id. The court also rejected the request on several grounds, including that the “claim submitted in this form could not have been identified with any of the sanctions listed in Article 84 of the Civil Code.” Id.

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trial court held that the school in question had segregated, but ordered no relief, not even payment of costs.95 In neither of the above cases nor, indeed, any school segregation case in the region that I know of, have courts shown awareness of Article 13 of the European Convention on Human Rights, which provides that “[e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority.”96 Instead, courts have awarded nominal (in view of the severe consequences) damages and otherwise left the parties to drift. In response to courts’ failure to order effective remedies, the Committee of Ministers of the Council of Europe has called upon member states to create “efficient domestic capacity for rapid execution of judgments of Parliamentary Assembly Recommendation 1764 (2006)— Implementation of the judgments of the European Court of Human Rights.”97 This would seem to require member states, or at least defendants who lose school segregation cases, to end school segregation. Nevertheless, the Recommendation bows in the direction of national independence by acknowledging that “the respondent state remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention to abide by the final judgments of the Court.”98 It concludes with a nod (but no more) to Article 13: “[W]here required by a significant persistent problem in the execution process, [the respondent state must] ensure that all necessary remedial action be taken at high level, political if need be.”99 Recently, the Chance for Children Foundation (CFCF) began seeking orders requiring termination of injury in segregation cases. By prohibiting segregation, such orders would effectively require desegregation.100 It is too soon to tell whether this strategy will be effective. Despite the absence of court orders requiring compliance with judgments, it would be wrong to assert that the law has been without effect. In Hajduhadhaz and Miskolc, defendants allowed some Roma children to ´ ´ enter the white schools. However, many non-Roma students responded to these early, minimal desegregation efforts by transferring to other nonRoma schools. This is reminiscent of a phase in U.S. school desegrega95. European Roma Rights Ctr. v. Ministry of Educ. & Sci., Case No. 11630/2004 (Sofia Regional Ct. 2005), available at http://infoportal.fra.europa.eu/InfoPortal/ caselawDownloadFile.do?id=9 (on file with the Columbia Law Review). 96. Convention for the Protection of Human Rights, supra note 72, at art. 13. 97. Committee of Ministers to Member States on Efficient Domestic Capacity for Rapid Execution of Judgments of the European Court of Human Rights, Recommendation CM/Rec (2008) 2 (adopted on Feb. 6, 2008), available at https://wcd.coe.int/ViewDoc. jsp?id=1246081&Site=COE (on file with the Columbia Law Review) [hereinafter Committee of Ministers Recommendation]. 98. Id. 99. Id. 100. E-mail from Lilla Farkas, Plaintiff’s Counsel, to author (Aug. 13, 2009) (on file with the Columbia Law Review).

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tion when southern segregated schools transitioned to “freedom of choice” plans, which, instead of requiring integration, permitted students to attend the school of their choice. The result was substantial segregation brought about by the momentum of prior racial assignments. The U.S. Supreme Court, during a period in which it firmly insisted on desegregation, struck down such arrangements.101 No similar steps have been taken by any European court. II. VISITING
THE

REGION

To investigate firsthand the state of Roma education, I visited Hungary, Romania, Bulgaria, and the Czech Republic in 2003, 2007, and 2008. I interviewed more than sixty people, including government officials, teachers, Roma rights activists, journalists, and lawyers.102 Three summer human rights interns from Columbia Law School visited the region following my 2008 trip; three others visited in summer 2009 to gather additional information. Some of my observations, and those of the students, follow. Their reports contain useful material I have not seen elsewhere. Below are excerpts from, and observations about, these reports. Perhaps atypical as legal writing, this format seems to be the best way to utilize this unique access to facts about Roma education. A. Czech Republic I arrived in the Czech Republic on April 19, 2008. At that time, it was the only E.U. member state yet to enact an antidiscrimination statute transposing E.U. Race Directive 43/2000 into domestic law. (Absent extraordinary circumstances,103 E.U. Directives must be re-enacted, or “transposed,” within nations in order to be enforceable.) Soon afterwards, the Czech Republic finally passed such a law, but President V´ clav a Klaus vetoed it in May 2008, declaring it “useless, counter-productive and of low quality and its consequences very problematic.”104 He also stated that existing legal protection against discrimination in the Czech Repub101. Green v. County Sch. Bd., 391 U.S. 430 (1968). 102. Jessica Greenberg (full disclosure, she is my granddaughter), a student at Columbia College, took notes of all my interviews to which this Report refers. Information and quotations drawn from these interviews are hereinafter cited as “Jessica’s Notes” and remain on file with the Columbia Law Review. An article about the project, including photographs, appeared in Columbia College Today. See Press Release, Columbia Law Sch., Professor Jack Greenberg Turns His Attention to the Plight of the Roma (July 14, 2008), at http://www.law.columbia.edu/media_inquiries/news_events/2008/july2008/Roma (on file with the Columbia Law Review). 103. See supra note 60 and accompanying text (discussing member states’ obligation to implement such Directives). 104. Letter from Dimitrina Petrova, Director, The Equal Rights Trust, to Miloslav Vl` ek, Chairperson of the Chamber of Deputies, Czech Parliament (May 30, 2008), e available at http://www.equalrightstrust.org/ertdocumentbank/Microsoft Word - letter to Speaker of the Czech Chamber of Deputies.pdf (on file with the Columbia Law Review).

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lic was adequate.105 With its President taking one position and Parliament another, the Czech Republic’s policy towards Roma school segregation was, at best, conflicted. The Parliament overrode Klaus’s veto on June 17, 2009.106 Today, the antidiscrimination law is enforced by the Ombudsman Head, Otakar Motejil, said to be the most popular political figure in the Czech Republic. Should he proceed against school segregation, some think the effect would be substantial. But whether he will remains uncertain. Underneath the political division between Parliament and the President, public animosity towards Roma civil rights remains strong. One factor contributing to the anti-Roma sentiment is a high level of neoNazi activity in the Czech Republic.107 As a result, the Czech Republic is an inhospitable place for Roma. Soon after Canada lifted visa requirements for Czech travelers in November 2007, Czech Roma, most of whom sought asylum, began fleeing there. In 2008, 853 Roma arrived in Canada from the Czech Republic. In the first seven months of 2009, 673 Roma completed that same journey.108 Although the Czech Republic has yet to take meaningful steps towards compliance with D.H., the Roma I met greeted the decision as a sign of better times to come. One Roma woman who worked in the Education Ministry considered it to be “an incredible breakthrough.” She noted that “other states in the region, such as Germany, are now taking steps to review their practices.”109 I spoke with Miroslava Kopicova, who, at the time, was the education advisor to Czech Prime Minister Miroslav Topol´ nek and Director of the a National Training Fund. Today, she serves as the Czech Education Minister. During our conversation, I asked her why the Czech government did not simply integrate the schools. She replied: “We are reluctant to make regulations here. This is the general approach of society because for so many years under communism we were told what to do, so
105. Id. 106. Czech Parliament Overrides Anti-Discrimination Law Veto, Monsters and Critics, June 17, 2009, at http://www.monstersandcritics.com/news/europe/news/article_1484 190.php (on file with the Columbia Law Review). 107. See Czech Republic Becoming a Paradise for Racists and Neo-Nazis, Former Ku Klux Klan Head to Visit, Romea.cz, Apr. 11, 2009, at http://romea.cz/english/index.php? id=detail&detail=2007_1187 (on file with the Columbia Law Review). During my visit, one Roma schoolteacher said: “Neo-Nazi protests are allowed and lots of crimes are committed against the Roma. Roma go and hide, don’t fight back, and get the feeling they have no protection from the state. It is demoralizing.” Jessica’s Notes, supra note 102, at 6. In February, 2010, a Czech court banned the far-right Nazi Workers’ Party. Dan Bilefsky, Czech Court Bans Far-Right Party, N.Y. Times, Feb. 18, 2010, at A12. 108. Lesley Ciarula Taylor, Refugee Advocates Criticize Minister: Fear Crackdown Looms After Influx of Roma from Czech Republic, TheStar.com, July 4, 2009, at http:// www.thestar.com/news/canada/article/660846 (on file with the Columbia Law Review). 109. Jessica’s Notes, supra note 102, at 1.

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now we would rather discuss and advise.”110 She placed responsibility for segregation on Roma parents: I have seen goodwill but it usually isn’t enough because of lack of motivation of the Roma to become integrated. We still give the tests to the children, but they don’t really matter: the students can pick where they want to go to schools. The special schools are bad for the Roma children because no differentiation goes on between how to teach the retarded and the Roma. However, parents often like these schools because they have smaller classes and more attention can be given to each child. They think their children will achieve more there than in the back of the normal class.111 Vera Czesana, head of the National Observatory and an official at the NGO National Training Fund, partly blamed Roma parents for the low enrollment of Roma children in preschool. She said that, while “the socially disadvantaged can get support . . . Roma families prefer to keep their children at home. The parents don’t work, and they like spending time with their kids.”112 Ms. Czesana had little hope for heightened Roma activism on the issue, a sentiment echoed by a number of the Roma educators and civil rights leaders with whom I spoke. Along with such disheartening assessments, there is another sentiment held by some Roma—particularly the most disadvantaged—that I heard on more than one occasion: Communism had been a “paradise,” with housing, work, and welfare for Roma.113 Many Roma long for the employment opportunities that state industries had brought to their communities. Despite the fond memories, the Roma experience under communism may contribute to the lack of Roma activism today. Olga Fecova, a Roma educator, observed that “under communism it didn’t pay to get a higher education. There was no point because you’d make about the same amount of money anyway. So for the general society it’s taking a long time to sink in how this kind of community works.”114 As a result, she continued, “only ten percent of the people go on to higher education. . . . People are still learning how to function in a market economy.”115 As a result, there are only a handful of Roma leaders capable of sustaining a movement.
110. Id. at 17. 111. Id. at 17–18. 112. Id. at 18. 113. In a discussion with Olga Fecova, she said: Under communism Roma were in the school system, Roma got apartments, Roma got jobs. When communism ended the Roma had to sell every bit of property they had acquired . . . . These days are good for millionaires . . . and everyone else is just weeds. There is lots of homelessness among the normal people. Id. at 7. 114. Id. at 5. 115. Id.

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One of the few Roma who has heeded Ms. Fecova’s call for participation in higher education is Gabriela Hrabanova. When I interviewed Ms. Hrabanova, she was a Roma student attending the Anglo-American College of International Relations and working on “The Decade of Roma Inclusion” as Director of ATHINGANOI, a Roma student organization. Ms. Hrabanova is now Director of the Office of the Government Council for Roma Community Affairs. She stressed the need for Roma to become involved in politics, especially in local governments, which run schools and “sign grants.” She said: “It is very undemocratic that there aren’t many Roma in the government. It makes it seem like there are no Roma [in the country], but there are. Parties are afraid of losing votes by putting Roma on the ballot.”116 Unlike the non-Roma officials, Ms. Hrabanova did not blame Roma families for the lack of educational attainment in the Roma community. Kyle Kolb,117 a Columbia student who visited the Czech Republic in 2009, reported signs of willingness among some non-Roma to embrace nonsegregation. However, this may have only been courageous pioneering by a disempowered minority. The evidence on the ground indicates that even initial moves toward desegregation have not been sustained. Kyle visited the Pøemysla Pittra (P. Pittra) school in Ostrava. The school was founded in 1993 as a multicultural school, with a goal of fifty percent Roma enrollment. From the beginning, Roma parents eagerly enrolled their children. White flight quickly occurred. When Kyle visited, sixteen years after the school’s founding, only three of the 300 students in attendance were non-Roma. Similar efforts to integrate other schools have been unsuccessful, in part due to resistance from non-Roma parents, and in part because many majority schools are at full capacity. A recent effort to integrate two Roma students into a majority primary school resulted in five majority students being pulled out by their parents. The school director does not want the school to continue as a Roma school but feels powerless to either stop white flight or build sufficient community support for integration.118 Another school director tried to integrate education in Vala˘sk´ s e Meziø´e´. The plan was to start in the fall of 2009 with one white track ı `ı and one Roma. The Roma track would work to bring students up to standard, at which point the two tracks would be abolished and the students mixed. After negative media and NGO attention, the town cancelled the program. Deputy Minister of Education Klara Lauren` ´kova stated that eı the school had an admirable intent, but was going about it in a discriminatory manner. Next fall, the school will try again. Its first grade class
116. Id. at 14. 117. For his complete report, see Kyle Kolb, 2009 Report on Czech Republic (2009) (on file with the Columbia Law Review). 118. For further detail, see id. at 59–61.

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will have sixteen students, ten of whom are Roma. If no problems arise, integration will continue, grade by grade.119 ` Roma rights advocate Michael Eerm´ k identified and explained ana other approach to small-scale school integration. He described tacit agreements often formed between mainstream schools and Roma parents. Instead of dealing with a discrimination claim and attendant publicity, the school quietly accepts one or two Roma students. While this does not lead to full-scale integration, it does provide benefits for those few Roma students lucky enough to attend the non-Roma school. And, given the small, contained numbers, it is less likely to cause the white flight experienced elsewhere.120 Schools attempting to integrate often try to keep their programs secret. Svitavy-La` nov, a formally all-white school that is actively seeking to e integrate, attempts to head off white flight by keeping the program hidden from majority parents and the media. The school has been successfully integrated for four years without major conflict. Students and staff both seem to thrive, despite keen awareness of the difficulties integration creates.121 The story of Svitavy-La` nov, however, is unique and may be depene dent on the town’s demographics. The school is located in the town of Svitavy (population 20,000), which lies between Prague and Olomouc. The school was started four years ago by a private citizen, Radka Renzov´ , a largely out of her own willpower and determination. She gathered political backing for the project after the town’s prior school closed. Because the mayor did not want socially-disadvantaged children to be a problem for future generations, he supported the integration program. With the mayor’s support, Mrs. Renzov´ started the school anew. Unlike practia cally every other integrated school, no NGO is backing the project. While it does receive some outside grants, the school gets most of its funding from the same place as other public schools: the government.122 Despite its success, many in the town have stigmatized the school as a “Romani school.” All involved believe this stigma, and the general public opinion towards Roma, has become much worse since national discourse has focused on the question of ending segregation. If the school can fight back successfully, it could serve as a model for other integration efforts in the area. At this point, however, it is unclear whether simply keeping a low profile is a viable strategy for achieving integration. Radka Renzov´ ’s fear that white flight could hamper progress at a Svitavy-La` nov is grounded in experience. In Brno (the Czech Republic’s e second largest city), a non-Roma school merged with a neighboring Roma school in order to reduce administrative costs. Non-Roma parents
119. 120. 121. 122. Id. at 67. Id. at 64. For substantially further detail about Kyle Kolb’s visit, see id. at 51–81. Id. at 74.

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signed a petition opposing the measure and threatened to pull their children if the city went through with the plan. The director had to consult with the city council, which was opposed integration, about the problem. For financial reasons, the merger went ahead and, within the first few months of integration, the school lost over 200 non-Roma students.123 NGOs have created other programs with the potential to act as change agents. For example, the F´ rov´ Skola (FS) school certification e a ˇ program is working towards a more inclusive education system. Started a ` year ago by Michael Eerm´ k, while he was working at the League of a Human Rights, FS hopes to reward schools that do not discriminate by certifying them as “fair.” A school is “fair” if it does not automatically send all Roma, mentally or physically handicapped, and non-Roma minority children to practical schools. But, no desegregation has so far occurred as a result of this program. Ms. Olga Kus´ , who works for FS, argues that, to be successful, proa grams designed to increase integration cannot be labeled as for “Roma integration.” Instead, they must be part of a larger program for all children with special education needs. This both facilitates marketing the program to non-Roma and secures benefits for all students in need. Banning special schools does not seem realistic to Ms. Kus´ . Instead, she a advocates a more comprehensive approach designed to ensure that students receive a good education.124 After the Czech Parliament passed a no-confidence vote against the Prime Minister’s majority coalition in March 2009, there has been political upheaval. Until things settle down, and perhaps not even then, there will be few signs of progress on Roma integration. Nevertheless, Mr. ` Eerm´ k hopes that, in ten years, the Czech Republic will be fully a integrated. B. Hungary In 2002, Hungary amended its Public Education Act in order to encourage integration.125 Since that time, it has enacted requirements that schools integrate, as well as set benchmarks by which to measure integration. On April 22, 2008, I went to Budapest in order to assess the progress of these, and other, integration efforts. Despite the strong initial steps, Roma rights activists say that the potential scope of Hungary’s integration program has been watered down.126 This is in part because the educational administration is decentralized, which means that each segregated school among Hungary’s
123. Id. at 62–63. 124. Id. at 70. 125. Jessica’s Notes, supra note 102, at 21. Hungary’s school integration and related laws are discussed and collected in Roma Educ. Fund, School Integration, supra note 2, at 35–40, 133–47. 126. E-mail from Judit Szira, Senior Adviser, Roma Educ. Fund, to author (Oct. 16, 2009) (on file with the Columbia Law Review); e-mail from Andr´ s Ujl´ ky, President, a a

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3,000 school districts must be dealt with separately. As a result, national education administrators, scholars, and Roma rights groups have been unable to easily determine where all of the segregation exists.127 This has made targeting specific districts and schools much more difficult. Another barrier to integration comes from a fear of white flight. To qualify for government subsidy under the Public Education Act, integration has to be initiated by local governments. But political leaders often fear the financial repercussions created by objecting non-Roma. This is because schools in the region are funded on a per capita basis;128 white flight costs school administrators the income provided by white students. To date, Hungary’s most important measures have been to appropriate funds to implement desegregation. In 2003 the country began allocating additional funds to schools for each socially-disadvantaged child that they enroll.129 While the measure does not specifically target Roma children—under state law, officials are not supposed to know who is Roma and who is not—it has the effect of encouraging Roma integration. This is because Roma make up approximately half of all socially-disadvantaged children in Hungary. Big cities and villages looking for desegregation funding may also apply to national agencies responsible for distribution of E.U. funds. A 2008 decree directed that the money from a generous desegregation subsidy could be used for a wide range of purchases, including for clothes, shoes, and bathing suits.130 Before receiving this funding, the municipality must have a plan for enhancing equal opportunities in public education.131 In May 2008, the Hungarian Parliament took the additional step of requiring all local school authorities to formulate equal opportunity plans.132 This law also encourages poor children to attend kindergarten
Chance for Children Found., to author (Oct 16, 2009) (on file with the Columbia Law Review). 127. Open Soc’y Inst., Equal Access, supra note 20, at 226–36 (describing Hungary’s educational program). NAACP lawyers who launched the attack on segregation faced a similar situation in that once a school was equalized in a physical sense, it became nearly impossible to keep up with changes. 128. At this writing, Bulgarian schools were not so funded. But, I am told, there are plans to convert to that basis in the near future. 129. Open Soc’y Inst., Equal Access, supra note 20, at 231–32 (discussing subsidies through National Network of Educational Integration’s OOIH program). 130. Cf. id. at 273–77 (discussing per pupil grants). 131. Hungarian law requires a plan for enhancing equal opportunities in public education if a municipality is to receive money from a tender for educational purposes financed by the E.U. or the Hungarian government. On Equal Treatment and the Promotion of Equal Opportunities, Act no. CXXV of 2003, para. 35, available at www2.ohchr.org/english/bodies/cescr/docs/E.C.12.HUN.3-Annex3.pdf (on file with the Columbia Law Review). In order to receive this money, a school need not have desegregated, but it must have a plan for desegregation. 132. U.S. Dep’t of State, 2008 Human Rights Report: Hungary (2009), available at http://www.state.gov/g/drl/rls/hrrpt/2008/eur/119083.htm (on file with the Columbia

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by paying parents 20,000 Ft ($105) upon enrollment and 10,000 Ft ($52.50) for each semester. While free, public preschool133 is available for the two years prior to kindergarten, kindergarten attendance incurs expenses for transportation, school-suitable clothing, and food. This law aims to alleviate some of those hardships for poor families, and therefore increase the likelihood that Roma children will attend school beginning in kindergarten. Furthermore, there are a number of means for proceeding against educational institutions which discriminate on racial or ethnic grounds. The National Public Education Evaluation and Examination Centre (OKEV), the Equal Treatment Authority, the Commissioner for Educational Rights, the Educational Mediation Service, any one of four Parliamentary Commissioners, and other governmental bodies, including the Constitutional Court, are all supposed to be supporting an end to racial and ethnic discrimination.134 However, I have not encountered any official action taken against segregation. Even the Hajduhadhaz and ´ ´ Miskolc cases were initiated privately, and not supported by any official body (although they had some influence on individual conduct). Similarly, while it remains a crime in Hungary to discriminate against a child, there has been no report of a fine having been levied for such an offense. 1. Budapest. — In Budapest I met Szilvia Pallaghy Hegyi, Head of the Unit for Equal Opportunity at the Ministry of Education. She reported that about 800 of Hungary’s 3,000 schools are enrolled in the national program that allocates funds to schools attempting desegregation. Surprisingly, there has been some push back from the Roma community, which has concerns about cultural assimilation. In response, Ms. Hegyi confirmed that Roma culture would be preserved, for “there are multicultural activities in school” and funds are available for “special classes in Romanes and Roma history.”135 Based on her expertise, Ms. Hegyi has concluded that “Roma [in Hungary] are not assimilating.”136 She further asserted that the government programs have provided needed funds in support of school integration. The inevitable disagreement was not long in coming. Next, I met Szilvia Nemeth, a researcher at Tarki-Tudok (a Budapest research institute) who has conducted a study, not yet published, which contradicts Ms. Hegyi’s assertions. Nemeth claimed that almost none of the municipaliLaw Review) (“On May 2, the National Assembly adopted a law requiring local authorities operating schools to draw up an equal opportunity plan against segregation. Noncompliant schools were prohibited from bidding for EU funds. Local governments which submit a plan but fail to fulfill their obligations must return EU funds.”). 133. Roma preschool enrollment remains low, which a government official I met attributed to a parental preference for keeping young children at home, but cost likely also plays a role. 134. See Roma Educ. Fund, School Integration, supra note 2, at 144–47 (discussing role and authority of these organizations). 135. Jessica’s Notes, supra note 102, at 22. 136. Id.

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ties that have taken government money to desegregate have actually used it for that purpose.137 When Nemeth’s study was described to a member of the National Integration Network, she responded: I have a positive outlook on the situation. I think it’s mostly going well. . . . It’s very likely that [Szilvia Nemeth] talked to a teacher that has a bad attitude towards the changes and because the program is new we need to wait longer before seeing big changes. I think all the schools in the program are actually desegregating. . . . Like cooperative learning, the students come together a lot better and individual competency levels are up (as seen by testing). . . . White parents fear that if the poor Roma are integrated [then] the white performance will go down. Yet the opposite is happening.138 It is nearly impossible to tell who is correct. There is no administrative center to carry out desegregation or gather information about it. I visited G´ bor K´ zdi, an economist at Central European University and a a e widely cited scholar who studies Roma education. He agreed that there is no way to know for sure how much integration exists in Hungary and whether it is effective. K´ zdi conducted his own small-scale study to determine whether gove ernment money was being used to desegregate. He examined a small intensive program of 5,000 students and their parents from sixty schools across the country. Contrary to Nemeth’s study, K´ zdi concluded that e schools that obtain funding to integrate usually do use it for that purpose. And, according to K´ zdi’s study, the program is working. Non-Roma stue dents in integrated schools show reduced stereotyping and anti-Roma sentiment, while integrated Roma children have higher self-esteem and better grades.139 Professor K´ zdi and Eva Sur´ nyi recently wrote a more extensive e a description and evaluation of school desegregation in Hungary.140 The following is an excerpt: [T]he program increases the level of integration within schools, and it leads to a shift in the direction of student-centered education, higher levels of student autonomy and a widespread use of cooperative group work. The study finds that students of the program schools achieve somewhat higher grades, their reading skills are also somewhat better, and they are more likely to pursue further education in secondary schools that provide a graduating examination . . . than peers in control schools. The effects on cognitive and academic development are largest for the Roma students; it is positive, if often modest, for all student groups.
137. 138. 139. 140. Id. at 23. Id. at 25. Id. at 23. See generally Roma Educ. Fund, School Integration, supra note 2.

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The effect on non-cognitive skills is also positive and larger than on cognitive skills and achievements. Program school students have more internal locus of control (they are more likely to believe that they themselves are responsible for their successes or failures), they have more positive self-esteem (especially in terms of general, external, and school-related items of self-esteem[)]. Some of the effects are larger for Roma, others for non-Roma students, but again, they are positive for all student group[s] analyzed. Ethnic prejudice against the Roma is also positively affected by the program. Non-Roma students of program schools see the Roma in a less stereotyped way, they keep a smaller social distance from them, and they think less in terms of social hierarchy. Finally, students of program schools are characterized by lower levels of social dominance orientation and social anxiety.141 Notwithstanding recent gains, K´ zdi concludes, as shown in the graph e below, that ethnic segregation of Roma has “sped up” since 1992.142 FIGURE 1. BETWEEN-SCHOOL ETHNIC SEGREGATION 1980 TO 2006
Segregation index .3
IN

HUNGARY,

.2

.1

0 1980 1989 1992 2006 Within small regions, average

National Within towns/cities, average

141. Id. at 129–30. 142. G´ bor Kertesi & G´ bor K´ zdi, Segregation in the Primary School System in a a e Hungary: Causes and Consequences 44 (2005), available at http://www.romaeducation fund.hu/documents/Kertesi_Kezdi_Segregation_REF_2.doc (on file with the Columbia Law Review).

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Furthermore, Roma continue to be severely underrepresented in the most prestigious gymnasia. There is some evidence that Roma secondary school students are more likely to drop out or transfer to lower prestige schools.143 And, fewer than two percent of Roma students have been going to university (affirmative action has increased the Roma proportion to three percent). Bernard Rorke, head of OSI’s Roma Participation Program, was not surprised by the lack of evidence of desegregation that I found. He believes that some schools are desegregating only on paper. When I continued my inquiry into whether Roma activism might produce change, he listed language and geographic isolation as two of the main barriers to forming the social movement necessary to bring about change. Not only is it difficult to sustain a movement across ten countries, but Roma in different countries remain unconnected due to language barriers. At a meeting with the National Integration Network, for instance, it was pointed out that “[t]here is a group of Roma that speaks Romanes, another that speaks another Romany language, and a third that speaks neither, just the language of the country.”144 As a result, talk of a Roma “movement” is wishful thinking: There is no singular movement. 2. Miskolc. — In Miskolc, not far from Budapest, an all-Roma school and an all-white school had been located close together. Chance for Children sued to put an end to the segregation.145 The court decided that illegal segregation existed. The schools responded by merging the two schools into one. But the merger was in name only: Roma children continued to attend the building they had attended prior to the decision, and non-Roma continued to attend school in the other building. Andr´ s a Ujl´ ky, President of Chance for Children, reported that when the Roma a and non-Roma schools “merged,” they left the catchment areas unmerged. Later, the schools’ leadership corrected what they called the “technical mistake” and merged the catchment areas, but not the entire student bodies. Over the past term, at least one group of Roma students was permitted to attend classes, made up mostly of Roma children, at the formerly all-white school. The Roma school remains in place, and Chance for Children has an ongoing case, which “is dragging very slowly,” to close it down. Meanwhile, the municipality decided not to start a first grade class at the Roma school during its 2008–2009 school year. If this continues, “the Roma school will vanish in a few years time.”146
143. G´ bor Kertesi & G´ bor K´ zdi, A roma es nem roma fiatalok koz´ piskolai a a e ´ ¨ e tov´ bbtanul´ sa [Secondary education of Roma and Non-Roma children], in T´ rsadalmi a a a Riport (Tam´ s Kolosi & Istv´ n G. Toth eds., 2008). a a ´ 144. Jessica’s Notes, supra note 102, at 25. 145. Chance for Children Found. v. Local Council of Miskolc, Pf.I.20.683/2005/7 (Debrecen App. Ct. 2005), available at http://www.cfcf.hu/miskolc1_en.html (on file with the Columbia Law Review). 146. E-mail from Andr´ s Ujl´ ky, President, Chance for Children Found., to author a a (June 29, 2009) (on file with the Columbia Law Review).

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3. Hajduhadhaz. — Following a Supreme Court of Hungary decision ´ ´ that declared school segregation in Hajduhadh´ z illegal,147 the parties a ´ entered into negotiations regarding the implementation and financing of a desegregation plan. Andr´ s Ujlaky, President of Chance for Children a and plaintiff in this case, wrote: We applied for funds to prepare the plan. We do not think that the Municipality has the vision, the motivation and the professional capability to devise such a plan. While being involved in preparing the plan, regularly talking to the Municipality we could maintain our involvement and present a good practice from identifying the problem through winning the court case to actually achieve the purpose of the exercise. . . . [W]e agreed with a few people to prepare a long term comprehensive desegregation and school improvement plan for the town and applied for funds (initially just for the plan) to REF (Roma Education Fund). Hajduhadh´ z, of course, will never have the funds to a ´ fulfill the plan, but we would undertake to help them fund raising from other sources subject they cooperate in planning.148 4. Szeged. — Szeged is an apparently prosperous university town, 200 kilometers from Budapest at the Serbian-Romanian border. Its population of 160,000 includes 8,000–10,000 Roma, who live in two settlements.149 Szeged began to desegregate in September of 2007 with the help of $36,000 in financial assistance from the Roma Education Fund. Thus far, desegregation has been limited to two Roma per classroom. The decision to desegregate had been made a year before I visited. It was evident that students in the upper grades were having the most difficulty. After seven or eight years in the Roma school they were too far behind to transition smoothly into the integrated school. Most were happy to be in an integrated school, but needed considerable time to catch up. It also appeared that the older students, and their parents, were far less academically motivated than families of younger children.150 A Roma rights activist who has visited the schools in Szeged worried that students in the sixth grade or higher will end up going back to special schools.151 On the other hand, when integration begins early in a child’s academic career, the likelihood for success increases and these students seem to acclimate quite quickly, academically and socially. This view is supported by the experience of the principal of a newly integrated school
147. Chance for Children Found. v. Town of Hajduhadh´ z, Legfelsobb B´ros´ g a ı ´ a ´ ¨ [Supreme Court], Pvf.IV. 20. 936/2008/4 (Hung. 2008). 148. E-mail from Andr´ s Ujl´ ky, President, Chance for Children Found., to author a a (May 23, 2009) (on file with the Columbia Law Review) (emphasis omitted). 149. Jessica’s Notes, supra note 102, at 32. 150. Id. 151. Id. at 36.

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who said that she had never had a problem with Roma students who started in the first grade.152 This principal had worked to support the development of social relationships between the Roma and non-Roma children and had provided two school mentors to help facilitate the transition of Roma into their new academic setting. One of the mentors assists children with basic skill development, providing each child with two hours of tutoring per week. The second mentor works directly with two students. A total of eleven schools in Szeged have participated in the desegregation process. Much of its success is due to the small scale of the program and the proactive steps taken by the school district to allay the fears of non-Roma parents. For example, meetings prepared non-Roma parents to deal with issues Roma children might present. As a result, there has been no white flight. I discussed the genesis of Szeged’s integration with Peter Czirok of LIFE Association, other Roma rights professionals, and representatives from the mayor of Szeged’s office.153 Its origin illustrates the complexity of the political, organizational, and familial relationships that may underlie integration programs. I had heard that the integration program originated with the Minority Self-Government (MSG).154 Mr. Czirok set me straight. “First,” he said, “I just want to say that my organization is a totally different one [from the MSG] and we have different views. I am not a member so it’s hard to say anything about it.”155 He added: “We can give them the credit for coming up with the idea, but my organization gathered the
152. Id. at 32. 153. Id. at 33–34. 154. Hungarian law provides for establishing Minority Self-Governments, which serve as parallel political authorities in all communities where there are significant numbers of members of minority groups. Thirty people from a minority group must register and vote in an election. While not designed primarily for Roma, or originally intended as a tool for integration, Hungary’s minority self government (MSG) system has become one of the more controversial mechanisms for protecting Romani rights, and promoting civic and political participation. . . . [T]he MSG system in Hungary allows for any of the country’s 13 recognized minorities to establish local, regional, and national self-governments . . . . parallel to mainstream institutions, [that] have the right to make decisions in the areas of local education, language use in public institutions, printed and electronic media, and the protection of their traditions and culture. The local MSG representatives have the right to provide input on all public policy matters through guaranteed access to local council committee meetings . . . . In 2006, 1,118 local Romani MSGs were formed. Nat’l Democratic Inst., The Hungarian Minority Self-Government System as a Means of Increasing Romani Political Participation 4–5 (2006), available at www.accessdemocracy. org/library/2163_hu_roma_self_assessment_100106.pdf (on file with the Columbia Law Review) [hereinafter Nat’l Democratic Inst., Hungarian Minority System] (footnote omitted). 155. The following discussion about minority self government is taken from Jessica’s Notes, supra note 102, at 32–34.

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signatures for the petition.” He deprecated the MSG, asserting that “in reality students took the initiative to integrate the schools. But the municipality asked the Roma minority self-government to officially ask for it so that the Roma community wouldn’t turn to them angrily and say ‘Hey! Why are you closing our schools?’”156 The tension between the MSG and LIFE was palpable. Mr. Czirok stated that “[t]he minority self-government is rich and doesn’t really work for the good of the people.”157 I asked how members of the MSG are chosen: If they live in a big family, they can easily get enough votes. Also, not many Roma are politically active. There are 4000 Roma living in Szeged, but they don’t register to vote. [Others claim the Roma population is 8000 to 10,000]. Only 200 registered. There are no literacy tests or other barriers stopping them. There are two national Roma groups. The left wing one is MCF Hungary Gypsy Forum and the right wing, pseudo-Nazi, group [others say that, while right wing, it is not extremely so] is Lungo Drom [“long way” in Romanes]. In my opinion, there is no use for the Roma Minority Self Government. Here’s an example of corrupt behavior: When we were trying to close the ghetto school, the Minority Self Government played it two-faced. They said they supported closing the school, but then they were trying to convince parents to oppose it.158 According to Mr. Czirok, the MSG is opposed to closing the all-Roma schools because “many children registered there but many do not attend. And since a school gets per capita money, they got lots of extra money for children that weren’t really there.” While Czirok believes that the Roma MSG stands in opposition to integration, Viktoria Mohacsi, a member of the European Parliament between 2004 and 2009, holds a different view. During her time in Parliament, Mohacsi, who is Roma, stood at the forefront of the Hungarian government’s efforts at integration. She credits the MSG for that country’s relatively advanced pro-integration policy.159 Thus, no consensus exists over who is most responsible for the advancement of integration efforts in Hungary. Mr. Czirok went on to suggest that Roma support of the integration efforts varies according to their economic circumstances. “The very poor ones can’t even figure out what they’re going to eat today so they can’t think about tomorrow. Many times their kids leave the [eighth] grade not knowing how to read and write.”160 5. General Observations. — Hungary passed an Ombudsman Act in 1993. I met with the Ombudsman (Parliamentary Commissioner for the
156. 157. 158. 159. 160. Id. at 34. Id. Id. Id. at 39. Id.

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Rights of the National and Ethnic Minorities), Erno Kallai, and his associate educational specialist.161 I quickly discovered that his position is purely advisory: The real power remains with the legislature. Mostly the NGOs or the minority governments, not individual Roma, bring problems to the Ombudsman. Kallai prepares cases and returns them to NGOs, with which he has a close link, for further action. Kallai told me that desegregation is proceeding slowly. One reason he identified was a lack of commitment from the society to end segregation: “It’s just political experiments right now; the society isn’t backing it. The Hungarian educational system is decentralized. The same ideas are not applied everywhere. Defining and carrying out aims in the educational system is the task of the municipality. That’s the reason for uneven success.”162 As to whether, on the whole, integration has been successful, Kallai could not point to any serious breakthroughs: “The government is trying to do something, but society is not behind it or not informed. The majority think integration is only in the interest of the minority and do not understand that it is in fact in the interest of the whole society.”163 Kallai sees integration as an issue for political debate. He believes that disadvantaged children in a class should not exceed a certain number because teachers cannot handle too many: “Mainstream parents don’t like their children to go to school with the Roma because the level of education drops.”164 As a result, integration remains a political quagmire. Kallai believes that “the Miskolc mayor understands that integration is necessary, but because he is pushing for it he will almost certainly lose popularity.”165 Orsolya Szendrey, a consultant for the Roma Education Fund, is an independent expert who used to administer structural funds in Hungary. She said that important laws have been passed, but no one knows if they are being implemented correctly: The Hungarian education system is decentralized and maintained by local authorities. The state has very little control. After communism, Hungary tried to create a very liberal system that gave local communities a great deal of power and freedom. While perhaps a good idea in theory, it has actually been harmful.166 Financial incentives are not monitored strictly. Although they make the schools better for the Roma who attend, they do not seem to help Roma integrate and excel. And, since the semi-integrated schools receive financial benefits regardless of the completeness of the integration, there
161. 162. 163. 164. 165. 166. Id. Id. Id. Id. Id. Id. at 35–37. at 36. at 37. at 37–38.

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is little reason for them to accept sufficient numbers of Roma students to force the closing of the all-Roma school. The extent of integration in Hungry remains unclear, as does support for integration found at various levels of the government. Still, there are indications that more information will be available in the future. Orsolya informed me that over the past year approximately 800 cities have received and returned documents that may provide some answers. Initial data indicate that some of the Roma Education Fund’s projects are beginning to have some effect, and, in February 2009, the Roma Education Fund stretched its data collection from central Hungary to six additional regions. In addition, the Ministry of Education has trained eighty experts to do compliance analysis. These experts went to 400 cities to complete documents with the municipalities. If a municipality has over forty percent disadvantaged children, it gets an expert for free. If a municipality does not agree to integrate, or has any problem with integration, it will not receive E.U. money. Since September 2007, the Education Integration Network has had contracts with schools that get integration funding.167 According to the Network, there is no organized or parliamentary opposition to integration: The prime minister supports it and even set up a Round Table Education program to consult about it. Maybe parliament does not understand what is going on. They may have thought it was just another document. After they see that integration is happening, there may be more debate and opposition.168 In Budapest, Rumyan Russinov, the Deputy Director of the Roma Education Fund, assessed the status of regional desegregation: I wouldn’t say it’s not doing well. In Bulgaria it’s gone from the bottom up, starting with the people and with the grass roots organizations. Here in Hungary, it’s gone top to bottom, starting with the government. . . . Hungary is decentralized. The Roma are not engaged in Hungary like they are in Bulgaria. There are no activists. It’s not a disaster here. It’s successful, a good beginning. A good example is Szeged.169 Mr. Russinov had further observations: Local authorities have more power than the national government. They have the right to refuse a policy and money from the central government. The Catholic Church is a big problem, playing a very conservative role and putting up barriers to integration. [It] supports the highest strata and has a lot of influ167. Id. at 38. 168. Id. at 39. 169. Id. at 28.

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ence. Like the universities, the Church also supports “elite” schools.170 This statement was echoed by Mr. Czirok, who also pointed out that both the universities and the Church supported segregated schools out of a fear that integration would cause them to lose their “elite” status. Mr. Russinov also explained that: [A]nother factor is the increase in stratification of society. After communism, where everyone was more or less middle class, stratification showed up in schooling. It is much more present in Hungary than in Bulgaria. What needs to happen here is that grassroots movements need to be more active, and Roma parents need to be more concerned and motivated and encourage their children to go to school and do their homework. There needs to be all three parts: the Roma children, the Roma parents, and the schools, all working together . . . .171 To compound these problems, opening new schools is difficult because building owners often refuse to rent space to Roma. Nevertheless, a few schools have sprouted up. One day we visited the Ambedkar school, a successful charter school (government-funded “private school”) for approximately fifty Roma between the ages of sixteen and thirty.172 It is a religious school, maintained by a church. Another school like it is nearby. These schools are necessary because many regular high schools still refuse to take Roma students. Janos Orsos, a Roma head of the community Jhai Bhim, provided an example. Janos had called a school about admitting his nephew, but did not mention that he was Roma. Whomever he spoke to said it was a great school that would be happy to take his nephew. A few days later Janos went to the school for a meeting. They asked him who he was and what he wanted. When Janos explained that he was the man who had called a day or two earlier, the school made excuses for not being able to take the boy: He was too old, he had to start at a lower grade, and all the classes were full, etc.173 I asked Mr. Russinov what the white population thought about the desegregation efforts. According to him, in Bulgaria there is more tolerance between the ethnic groups and not as much negativity towards the Roma as there is in Hungary: We don’t love each other, but we tolerate each other and can live together. Forty-six percent don’t want desegregation, but there isn’t a lot of white flight. There is no love, but a level of acceptance. You don’t see it in the surveys, but you see it in reality. Two communities can work together. The stronger the Roma participation and initiative, the better the results.174
170. 171. 172. 173. 174. Id. Id. Id. at 30. Id. Id. at 29.

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I remarked that in the United States, white participation in the civil rights movement was very important. A powerful part of the Democratic Party had fought for civil rights. Harry Truman was elected with an overwhelming percentage of the black vote. Hubert Humphrey (later Vice President and candidate for President), one of the most influential Democratic leaders, was a strong civil rights advocate. He responded that white participation in Hungary is passive. While certain intellectual circles might discuss and deal with the issues, the main society does not.175 On the printed page, Hungary is second to none in opposing segregation and promoting integration. It has encouraged desegregation through ministerial guidance and special budgetary allocations. But when I visited in 2007, I was told that no school district had accepted desegregation funding that year because of a fear of white flight. According to Lilla Farkas, the principal litigator against school segregation in Hungary, local governments do not take advantage of central budgetary funding for desegregation, at least not at the primary school level.176 Furthermore, official reports about desegregation are questionable because the government has not inspected schools to find out whether they are segregating. Ms. Farkas believes that the Ministry of Education sees itself as a rule maker, not as a monitoring or enforcing entity. She observes that the fundamental difference between the United States and Eastern Europe is that “we have the legislation on desegregation, but the state organs fail to enforce or implement it.”177 She believes that the government acts as though it suffers from a “legitimacy deficit” traceable to the political changeover from communism. 6. Student Intern Observations. — My 2007 and 2008 visits to Eastern Europe focused on government officials, Roma rights leaders, scholars, and some of the few schools that were in the process of desegregating. The Columbia student interns went to many more schools. Most of those schools were maintaining the racial status quo, although some were beginning to desegregate at the time.178 The proportion of Roma at the schools visited by the interns varied from 20% to 99%. A number were 40% Roma. While it would be impossible to detail all the students’ findings here, some conspicuous observations convey the essence of their reports. The interns found Budapest’s Deak Diak primary school (405 students, 20%–25% disadvantaged, presumably Roma), located in heavily Roma District VIII, to have been successfully integrated (at least for the
175. Id. 176. E-mail from Lilla Farkas, Plaintiff’s Counsel, to author (Aug. 13, 2009) (on file with the Columbia Law Review). 177. Id. 178. Minsun Lee, 2009 Report on Budapest 82, 86 (on file with the Columbia Law Review). Desegregation was difficult because of persistent opposition. Id. at 87. (noting desegration was hampered at one school because the principal appeared to be not personally committed to integration).

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present). It was attended by many non-Roma from outside the District who enrolled under the national free choice plan. The principal was concerned, however, about the tipping point: He believed that Roma enrollment above one-third might lead to white flight. At Leovey Kl´ ra Trade School of Economy (615 students, 20%–30% a ¨ Roma), another District VIII school, the student interns found pervasive intraschool segregation. They attributed this to differing levels of achievement in primary school as well as the school’s location in a primarily Roma area. The principal blamed the segregation on both prejudice in the nonRoma community and Roma traditions and customs. She observed, “on the one hand they want to integrate but at the same time they want to preserve their identity.” According to her, a “dilemma . . . emerges from the Roma way of thinking.” She believed that their desire to integrate often conflicts with their goal of preserving Roma identity. Still, the school has made no special efforts to facilitate integration.179 The specter of white flight was said to maintain District VIII Lakatos Menyh´ rt Elementary School at ninety-nine percent Roma. Community e leaders feared that integration, which would require Roma students to be shifted to other primary schools in the district, would lead to white flight from those schools.180 While the interns met faculty and principals who enthusiastically supported integration,181 the overall picture is mixed: Progress towards integration is spotty, teachers and school administrators are not universally behind integration, and the interrelatedness of the racial composition of neighboring schools would seem to necessitate some sort of centralized management of integration at the municipal, if not the national, level. This could point to a role for Roma self-government, but whenever that subject arose, the reaction was negative. C. Romania In July 2007, the Romanian Ministry of Education, Research, and Youth issued an order “regarding the prevention and elimination of school segregation of Roma children.”182 In extraordinary detail it describes and prohibits practices that lead to Roma segregation and discrimination, while also providing means to combat segregation and promote integration. These few excerpts show its seriousness: Art. 2 (2) of Annex No. 1 to the Ministerial Order reads:
179. Jennifer Sokoler, 2008 Report on Hungary 98–99 (2008) (on file with the Columbia Law Review). 180. Id. at 106. 181. Id. at 114. 182. Ministerul Educa¸iei, Cerce¸arii si Tineretului, Ordin Nr. 1540 (2007) [Ministry t tˇ of Education, Research, and Youth, Order No. 1540], available at http://www.edu.ro/ index.php/articles/8318 (on file with the Columbia Law Review).

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School segregation of Roma pupils is the physical separation of Roma pupils in groups/classes/buildings/schools/other facilities, so that their percentage, out of the total number of pupils in the school/class/group, is disproportionate in rapport to the percentage that the school-age Roma children represent out of the total of the school-age population in the respective territorial-administrative unit. Art. 3 (3) creates an exception for Roma-language and bilingual classrooms, stating: There is no segregation when there are made groups/classes/ schools out of mainly or exclusively Roma pupils with the view of teaching Romani language or in a bilingual system (e.g. Romanian-Romany/Hungarian-Romany).183 Art. 5 calls for specific actions to be taken to rectify segregation, such as: Forming mixed groups/classes in the preschool, primary and secondary school. The organisation of mixed classes is mandatory, starting with school year 2007–2008, for the 1st and 5th grades. For the other classes, the mixed organising is done progressively. Art. 6 details enforcement measures explaining that: The pre-university school units and county school inspectorates will analyse the cases in which the percentage of Roma children out of the total of pupils in the school is disproportionate in rapport to the percentage that school-aged-Roma children represent out of the total of school-age population from that territorial-administrative unit and they shall initiate a plan of measures in view of desegregation. 184 The 2007 Ministry order has been in effect for almost three years. So far, enforcement has a long way to go. A 2008 survey of school segregation in Romania by Romani CRISS, the leading Roma rights NGO in Romania, reported a high incidence of segregation, taking various forms.185 Without official statistics, as in Hungary and elsewhere, such
183. Section II (3) is the only exception provided by law. It makes clear that “mother tongue” education (widely used by the Hungarian minority) is not segregation. Id. 184. Id. at Annex 1 (emphasis added). Under this order, persons who consider themselves discriminated against are entitled to administrative, administrative-judiciary, and judiciary procedures. NGOs whose objective is to protect human rights, or whose interest is to fight discrimination, can act as plaintiff if discrimination is manifested in their field of work and injures a community or a group of people. At the request of a natural person who has been a victim of discrimination they may also act as a plaintiff. If an anti-segregation judgment is issued, it can be enforced in accordance with the general civil or criminal procedural rules. There are, however, no specific procedural rules for the enforcement of an anti-segregation judgment. There is also no mechanism for enforcement of a large-scale anti-segregation judgment, although the Ombudsman would be most suited to pursue remedies reaching beyond individual plaintiffs. 185. Roma are segregated in 67% of the schools in the sample (ninety schools), either at the school or class level. The 2007 Ministry order is not applied in 63% of the total number of schools in the sample (seventy-seven schools), in part this is due to the

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privately conducted studies are all that we have, but they are sufficient to demonstrate the pervasiveness of segregation. Marian Mandache of Romani CRISS says the Order is merely a paper tiger. According to him: Romani CRISS has documented tens of segregated schools and identified patterns of segregation in classes, buildings, schools and special schools. . . . [S]egregation by school is common and usually exists when a school is in the vicinity of a compact Roma community . . . . School buildings that are mainly or exclusively Roma often are in bad shape, teaching material is outdated, running water and heating systems are missing or in poor state . . . . [Q]uality of education is much lower, teachers to a higher degree [are] unqualified and inexperienced. They change more often. White flight, the significant distance between hamlets of the same village, [and] reluctance to close schools, which would entail firing teachers, are among the obstacles in combating this type of segregation.186 Stop Prejudices Against Ethnic Roma (SPER), a Romanian governmental program, reports that, before adoption of the new order, “25% of Roma pupils learn[ed] in classrooms with a majority of Roma children, and 28% learn[ed] in classes [with about] half Roma children . . . . The remaining 47% learn[ed] in classrooms with a majority of non-Roma.”187 They conclude that the “[p]robability of educational segregation is increased by residence in a poor district and in an ‘unkempt’ neighborhood, but not [merely] by residence in Roma districts or neighborhoods. It is also increased by urban residence and decreased by household wealth.”188
ignorance of schools’ staffs. Sixty percent of the segregated schools are located at a distance between one and three kilometers from schools of similar grade level, meaning integration would be feasible. Therefore, for most of the segregated schools, isolation of Roma communities is not the cause of school segregation. The facilities in all-Roma segregated schools are poor. Eighteen percent of them lack running water, and 57% don’t have central heating. Additionally, 56% lack specialized laboratories and 37% are without a school library. In the segregated schools every fifth teacher is unskilled, and in the schools with segregated classes of Roma every seventh teacher is unskilled. In the segregated schools 57% of the teachers are commuters. Every third teacher in the segregated schools and every fifth teacher in the schools with segregated classes has changed his/her work place during the last school year. The rate of success of Roma pupils in segregated schools at the capacity exam in the last school year was 14%. In 28% of the segregated schools, the rate of success at the capacity exam was 0%. 186. E-mail from Marian Mandache, Attorney, Romani CRISS, to author (July 6, 2009) (on file with the Columbia Law Review). 187. S.P.E.R., Come Closer: Inclusion and Exclusion of Roma in Present-Day Romanian Society 174 (G´ bor Fleck & Cosima Rughini¸ eds., 2008), available at http:// a c www.sper.org.ro/pdf/cercetare/engleza/final_reports/Come_Closer.pdf (on file with the Columbia Law Review). 188. Id.

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Dezideriu Gergely, a lawyer at National Council for Combating Discrimination (NCCD), reports that, notwithstanding widespread segregation and a clear, legal (albeit unenforced) requirement to integrate, only a few of its cases—approximately three percent—deal with school segregation. Each of those few cases has been heard before an administrative body, rather than a court. Mr. Gergely has not seen any segregated schools or classes in Bucharest, but says that does not mean they do not exist.189 Another difficulty in ending segregation is that, while the vast majority of Roma approve of desegregation, a vocal minority are opposed. This is particularly true where opposition among non-Roma is strong and raises fear of violence against Roma children. In at least one case in which NCCD forced desegregation, both Roma and non-Roma parents threatened to take their children out of school. NCCD has also encountered an argument against desegregation not heard elsewhere: Roma students need to stay in compact groups in order to perform well. Even within desegregated schools, the socio-economic status of most Roma works against them. Many teachers teach sparingly during regular school sessions and make their best effort as paid tutors after school, a service that most Roma cannot afford. As with many aspects of Roma education, no hard numerical measures are available on the extent of this practice, but it seems to be a significant factor in the academic underachievement of Roma students in Romania. Outside of Bucharest, in big cities like Brashov and small suburbs like Glina, segregation is much more dramatic.190 The difficulty there is not merely educational; it involves the complexity of the Roma socio-economic situation. When the NCCD tried to desegregate Brashov, for example, there was widespread white flight.191 Integration attempts by

189. Jessica’s Notes, supra note 102, at 41–43. One of the NCCD decisions involved the town of Cehei. Following is an extract from the reported decision: There are two buildings that belong to the Cehei School. The main building hosts grades I–VIII that are exclusively comprised of Romanian children. Since the beginning of the second semester of academic year 2002–2003 the main building also hosts grades VII–VIII comprised of Roma children. The annex building hosts grades V–VI which are comprised of Roma children. This division in different grades has not been done in accordance with the children’s academic achievements over the years. The Roma children in classes V–VIII are from Pusta Valea, Salaj county. Regarding grades I–VIII that comprise Romanian children from Cehei, the educational staff stated that these grades include a very small number of Roma children, also from Cehei, who deny being Roma. Educational facilities in the main building are better than in the annex building. The Board of Directors Rules: Cehei school will be sanctioned with a warning. Nat’l Council for Combating Discrimination, Decision No. 218 (June 23, 2003) (on file with the Columbia Law Review). 190. Jessica’s Notes, supra note 102, at 51. 191. Id. at 42.

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PHARE192 were also unsuccessful. Part of the difficulty comes from the lack of support from Roma parents. I met with the National Agency for Roma, or NAR.193 It is a governmental organization, but serves as a dialogue partner with Roma groups and lobbies on behalf of Roma interests. We discussed integration at Cetatea de Balta in Alba, where socio-economic forces overwhelmed educational considerations. The village closed a ghetto school, remodeled the white school, then put Roma in the white school, resulting in a population of about 50 Roma and 200 white students.194 As a result, white parents threatened to kill Gruia Bumbu, NAR’s President. Teachers were also upset. The team that administered the desegregation had to talk with every parent and teacher in order to explain the desegregation process and attempt to assuage fears. The success of the integration at Cetatea de Balta was ephemeral at best. Although PHARE was able to provide needy children with food and clothing thanks to = 50,000 in funding, the financial support quickly C dried up. In less than six months, the team left and stopped funding the integration efforts. As a result, forty percent of the Roma children left the integrated school.195 There is also intraschool segregation in Bucharest, but it is hard to prove. If the school knows a visitor is coming, they hide it. This kind of deliberate obfuscation is commonplace. The order that outlaws segregation requires that a school prepare a plan to desegregate, and schools generally do. But, many schools simply do not implement the plans.196 Similarly, Roma rights workers informed me that many schools have parallel Roma and non-Roma classes. These classes are mixed just before an inspector comes to check on integration, and then resegregated shortly thereafter. Much of the pressure to keep the classes separate comes from the non-Roma parents. As to residential segregation, usually there is one big village with three or four schools, one for grades one through eight, and a few others in the outer regions of town for grades one through four. Within these towns, Roma generally live in segregated communities. As a result, distance frequently makes getting to a good school difficult. Even if busing were available, access would remain tenuous because the children would have to wake up much earlier to attend school. There are transport costs
192. Although originally created by the European Union in 1989 as Poland and Hungary: Assistance for Restructuring their Economies (PHARE), it has since expanded to other countries. 193. I met with Gruia Bumbu, President and State Secretary; Cerasela Banica, Director; Plebis Florea, expert; Buceanu Mariana, expert; and Daniel Radulescu. 194. Jessica’s Notes, supra note 102, at 43. 195. A family of five, for example, with both parents unemployed, receives thirty euros per month in welfare. Children must beg or try to get a job to contribute to family income. 196. Jessica’s Notes, supra note 102, at 42.

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as well. This problem is magnified in the countryside, where the distance between communities and schools is greater, but can be fixed by closing the ghetto schools and replacing them with schools that are geographically accessible to both Roma and non-Roma students. This remedy, however, remains unpopular because teachers lose jobs. Complicating the geographical limits to busing is a unanimous sentiment that two-way integration (Roma to non-Roma schools, non-Roma to Roma schools) would be completely unacceptable.197 (In America, black children would not participate in one-way integration, which places the entire burden of travel on them and implicitly disparages black neighborhoods.) This may, in part, be a recognition that the all-Roma schools are in such a state of disrepair that no students, Roma or not, should be forced to attend them. To see an integrated classroom in action, I visited Vilor High School, a vocational school where students learn how to be a waiter, cook, vendor, etc. Enrollment at the school is open to anyone who lives in Bucharest. The school’s Roma population is approximately five percent, nearly mirroring their population in the city. The Roma students who enroll, however, are there partly as a result of an affirmative action quota system which reserves twenty-four places for Roma in each grade, ninetysix places in all (out of a total school population of 1,600 students). One hundred students study Romany language and Roma history, classes in which some non-Roma are also interested. I asked why the class was made up almost exclusively of girls. The answer was that girls are more open to trying new things. I inquired whether it is typical to have five percent of the student population made up of Roma. The vice principal did not think so. He said that many Roma came to the school specifically because of its vocational training programs, which appealed to Roma seeking a job directly out of high school. Roma appear less attracted to regular high schools, in part because they are poor and need to prepare themselves for employment more quickly than their non-Roma peers.198 During my discussion with Vilor High School officials about the state of Roma segregation, there was an interesting colloquy between a school teacher and the vice principal: Roma Teacher: I have taught in other schools and seen that integration is indeed possible. The children eat together, play together, work together. Vice Principal: I think that Romania is a place where people respect the law heavily. I have never seen segregated classes. And I think and hope it doesn’t happen. [An REF staff member who was with me then informed her of the reality of segregated schools.] I don’t believe in the power of words. I believe in good practices and leading examples. Politicians are all about
197. Id. at 46. 198. Id. at 48.

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words, but I am a woman of action. The minority needs to take steps forward and the majority needs to take bigger steps forward and they need to meet in the middle, both putting in effort. Otherwise it won’t work. The minority cannot only demand and say “I need . . . you must give me . . . .” [T]hey need to mobilize and do something themselves.199 I met several times with Leslie Hawke, an American expatriate. Having completed a Peace Corps enlistment, she lives in Bucharest, where she founded Asociatia Ovidiu Rom, a nonprofit which concentrates on supporting Roma education by raising funds to contribute to the meager budgets of Roma schools. She also supports publicity campaigns within Romania designed to combat prejudice and extol the importance of education.200 Ms. Hawke has a fundamental disagreement with other Roma rights groups in that she believes that there is no school segregation of Roma. Instead, she sees predominately non-Roma and Roma schools as merely a product of residential segregation. Her assertion is partly true, but partly a matter of semantics. She would say an all-Roma school is not segregated even though its students could, without excessive travel, attend a completely non-Roma school. Moreover, her view does not take account of widely reported intraschool segregation. The remedy she favors is better education for Roma at the schools they now attend. This view was widely held in the United States before Brown and remains the view of some American civil rights advocates today.201 Ovidiu Rom has recently completed a fundraising campaign within Romania, principally among Romanians and Romanian businesses, for support of Roma education. Among its activities has been the enlistment of Romanian and international celebrities to advocate among Roma on the importance of education.202 I continued my inquiries about Roma activism in order to get a sense of whether there was more of a religiously-based political movement in Romania than in other countries. Florin Nasture, an REF staff member, remarked that there are Pentecostal and Baptist churches. But, according to Nasture, there is no community or unity between them or within them; they are “selfish” organizations.203 As a result, there is no religious base from which the Roma can organize. Nasture said it is hard to gather people for a protest. He explained:
199. Id. 200. E-mail from Leslie Hawke, Co-Founder, Ovidiu Rom Ass’n, to author (Aug. 27, 2009) (on file with the Columbia Law Review). 201. See, e.g., Derrick Bell, Dissenting, in What Brown v. Board of Education Should Have Said 185–200, 205–07 (Jack M. Balkin ed., 2002) (“More important than striking down Plessy v. Ferguson is the need to reveal its hypocritical underpinnings by requiring its full enforcement.”). 202. E-mail from Leslie Hawke, Co-founder, Ovidiu Rom Ass’n, to author (Aug. 7, 2009) (on file with the Columbia Law Review) (quoting from Romanian TV guide). 203. Jessica’s Notes, supra note 102, at 44.

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We need an MLK [referring to Dr. Martin Luther King, Jr.]. We have no vision and there is a lack of participation. We are continuously dependent on other people’s willingness to help us. Plebis [Florea] ran for EU Parliament. She didn’t win. She thinks that projects can only solve isolated problems and the real way out of the disaster is to be “upstairs.” That is where the decisions are made, in parliament. The civil society is nationalistic, or bad. The mentality has to change. This is a long process.204 D. Bulgaria In 1999, Bulgaria adopted the Framework Program for Equal Integration of Roma into Bulgarian Society.205 It stressed the need for integrated schools, but did not enact or define any concrete measures. Instead, it merely assigned children to schools within the municipal school district in which they lived. A child who lived in a Roma community would go to a Roma school in that community. As a result, the framework was ineffective in securing integration and, given residential segregation, is now largely seen as outdated.206 Today, Roma children in Bulgaria can attend schools some distance from where they live. This alone offers the possibility of ending school segregation based on residential segregation, but lack of transportation and a kind of “family tradition” have kept most Roma students from attending schools outside of their isolated communities. In 2003, the national government passed a comprehensive law against discrimination under which the Ministry of Education “shall take the necessary measures not to allow any racial segregation” in schools.207 The Ministry established national curricula and educational levels and
204. Id. 205. Bulgarian Council of Ministers, Framework Program for Equal Integration of Roma in Bulgarian Society (1999), available at http://www.ncedi.government.bg/en/ RPRIRBGO-English.htm (on file with the Columbia Law Review). 206. Open Soc’y Inst., Equal Access, supra note 20, at 52. 207. Law on Protection Against Discrimination, SG 68/2006, ch. 2, § 2, art. 29 (2004), available at http://www.stopvaw.org/sites/3f6d15f4-c12d-4515-8544-26b7a3a5a41e/up loads/anti-discrimination_law_en.pdf (on file with the Columbia Law Review). Under this law, directors of schools are required to “take effective measures.” The law establishes an independent Commission for Combating Discrimination. Victims of discrimination may file complaints before the Commission or a regular court. The Commission may impose sanctions, and issue recommendations to revoke discriminatory laws. Although some Roma rights advocates believe the Commission may provide a better forum for vindicating Roma rights to integrated education, there do not appear to have been any educationrelated actions before the Commission. Other statutes are also potentially available for combating segregation, but none appear to have been used for that purpose. In 2005, Bulgaria enacted an action plan for the Decade of Roma Inclusion 2005–2015. Republic of Bulg., National Action Plan, Roma Inclusion Decade 2005–2015 (2005), available at http://ncedi.government.bg/en/ NAP_REPUBLIC%20OF%20BULGARIA.htm (on file with the Columbia Law Review). It does not provide concrete mechanisms, nor is it binding on the government.

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became responsible for ensuring compliance. The Ministry appoints Regional Inspectorates who, ideally, could help eliminate segregation in schools they monitor. But, in the summer of 2008, an observer found that these inspectorates generally ignored school segregation.208 Since 2004, Bulgaria has also had a strong antidiscrimination law that prohibits direct and indirect discrimination.209 But, again, it appears to lie dormant. Injured parties may challenge racial and ethnic discrimination, including segregation, in the courts or through a commission, which hears close to 1,000 cases each year. In October 2005, Romani Baht, the leading NGO in Bulgaria that promotes school desegregation, won a school case, European Roma Rights Center v. Ministry of Education & Science, in Sofia District Court against the Bulgarian Ministry of Education, the Sofia Municipality, and Sofia School 103.210 The list of sponsors of the case— Romani Baht, the European Roma Rights Centre (ERRC), the U.K. Foreign and Commonwealth Office—is noteworthy for the absence of the Bulgarian government, a feature made all the more conspicuous in light of the U.K.’s participation. Like dozens of similar schools, Sofia School 103 was exclusively Roma. The court accepted that the segregation had been caused by the residential segregation of an all-Roma neighborhood, obstacles to enrollment in other schools, and fear of racist abuse by non-Roma children. Even though none of these factors were directly traceable to actions taken by the school district, the court held that the defendants had violated the prohibition of racial segregation and unequal treatment, and thus had acted contrary to Bulgarian and international law. In reference to the court’s opinion, Dimitrina Petrova, Executive Director of the ERRC, said, “After a period of fifty-one years, the soul of [Brown v. Board of Education] crossed the Atlantic and was reborn in Europe. For the first time, a civil court in a European country, Bulgaria, found that separate by coercion means unequal.”211 But the case is more noteworthy in that it failed to order the desegregation of School 103. Furthermore, the court did not award damages or plaintiffs’ fees and expenses. In its refusal to order relief, the court’s decision resembles D.H., Sampanis, and Or˘u˘ in the European Court of Human Rights, and the s s
208. See, e.g., Christopher Wlach, 2008 Report on Bulgaria 22–58 (on file with the Columbia Law Review). 209. See Law on Protection Against Discrimination, supra note 207. 210. European Roma Rights Ctr. v. Ministry of Educ. & Sci., Case No. 11630/2004 (Sofia Reg’l Ct. July 22, 2005), available at http://infoportal.fra.europa.eu/InfoPortal/ caselawDownloadFile.do?id=9 (on file with the Columbia Law Review). The case was filed by the European Roma Rights Centre (ERRC) and funded by the United Kingdom Foreign and Commonwealth Office. 211. Press Release, ERRC, Desegregation Court Victory: ERRC Prevails in Court Against Bulgarian Ministry of Education on School Segregation of Roma, at http:// www.errc.org/cikk.php?cikk=2411 (last updated Feb. 28, 2006) (on file with the Columbia Law Review) (internal quotation marks omitted).

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Miskolc case in Hungary. Two other Bulgarian lower court cases may further discourage Bulgarian Roma from turning to the courts. Both seem to have been dismissed on somewhat vague and probably pretextual grounds.212 After the decision, the Ministry of Education renovated School 103, now said to be one of the “nicest” schools in Bulgaria. The renovations, however, did not lead to integration. In fact, the court’s opinion, despite its inspirational language, has had no direct effect on segregation. When I visited the office of Romani Baht, they reported that some Bulgarian schools accept Roma students and that those who begin attending integrated schools in first grade do well. But, those who switch schools later have problems adjusting. As was the case throughout the region, older Roma students, having been educated for more years in inferior institutions, are considerably further behind their peers than those who have only been educated in higher-quality schools.213 Romani Baht offers bus transportation, paid for by the Roma Education Fund, to facilitate Roma students’ attendance at integrated schools. It buys books and school supplies for Roma students in the first through sixth grades, and offers them breakfast and extracurricular activities. Since September 2007, the local Sofia municipality has taken responsibility for Roma inclusion (Romani Baht fought for three years for this result). In addition, Romani Baht provides school mediators, usually one or two per school, who help kids feel more comfortable in class, allay the fears of Roma and white parents, assist teachers in relating to their students, and help Roma children with their homework. The mediators also keep track of drop-outs, behavior, and grades of all students. They pre212. Stefanova v. Blagoevgrad County, Case. No. 20041210100012 (Blagoevgrad Dist. Ct. Aug. 16, 2004); see also Found. Romani Baht v. Dist. Inspectorate of Educ. to the Ministry of Educ. & Sci., Case No. 20041210100017 (Blagoevgrad Dist. Ct. Feb. 24, 2005). In the first case, three parents sued the city of Blagoevgrad for intraschool segregation: Roma students were housed in one section of the school because they did poorly on a language test. The court found the plaintiffs had no legal grounds for suit and dismissed the claims. It ordered the parents to pay defendants’ attorneys’ fees. In the second case, Romani Baht sued a school and the Ministry of Education alleging segregation and discrimination. They apparently didn’t allege any specific action that caused the challenged segregation, only that defendants were responsible for it and had been discriminating against Roma students. The court dismissed the case, primarily because of plaintiffs’ failure to state specific actions or non-actions of the defendants, but also on a few other procedural grounds. 213. Summer schools prepare the Roma children for the relative rigor of the integrated schools by improving their math and language skills, as well as offering the opportunity to become accustomed to the necessary discipline. Romani Baht staff informed me that one-third of Roma drop out of segregated schools. But the proportion of Roma student drop-outs in integrated schools is less than the overall drop-out rate of Sofia. Baht staff attributed many of the drop outs to the schools’ inability to reach Roma students. They said that, to bring about Roma equality, Bulgaria will have to promote Roma culture, raise self-esteem, and shorten the educational gap between Roma in integrated schools and Roma in segregated schools.

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sent this information to Baht to provide a clear picture of how integration is running. Other programs are run by the Center of Integration of the Ministry of Education. The Ministry finances projects for the purpose of “creating a multicultural environment.”214 It currently has more than 120 projects: sports, music, literature, and school mediation, to name a few. Despite these efforts, school segregation persists, driven in large part by residential segregation. While white Bulgarians are increasingly moving to Sofia, Roma remain in outlying villages, leading to all-Roma neighborhoods and schools. Surrounding Sofia, the situation is not much better. For example, in Kransnapulian, a suburb of Sofia, there are 601 Roma children in five integrated schools, while 1,300 Roma attend segregated schools.215 Toni Tashev, country facilitator for the Roma Education Fund, and Krassimir Kanev, chairman of the Bulgarian Helsinki Committee and board member of the ERRC, said that, while NGOs actively promote desegregation (as in Vidin and other towns) and the official Bulgarian policy is desegregation, not much is happening. The state and international donors direct funds to Roma and the government maintains a “Center for Educational Integration for Ethnic Minorities.” However, it is unclear how the money for education is actually spent. Thus far, the focus has been on preschool projects. In Bulgaria, children may receive noncompulsory preschool education from ages three through six. For Roma to succeed in integrated schools, it is important that they attend preschool, as most non-Roma children do. According to a 1995 study by the World Bank, only twelve percent of Roma were in preschool compared to a national average of sixty-five percent.216 One reason for this difference is that preschool, which incurs expenses for clothes, transportation, and food, costs more than Roma parents can pay. Children who miss preschool miss the acculturation that comes with handling reading and writing materials and interacting in classroom settings. As a result, they lag behind classmates in academic achievement and become segregated by academic performance. This is exacerbated by the fact that Roma children are not likely to have parents or siblings who can help with school work. Despite the importance of early childhood education and the clear need among Roma for financial assistance to pay for preschool, the government has limited social welfare payments to eighteen months. In January 2008, it cut welfare by 11,000 people. Those who are cut also lose free medical insurance. The policy is based on the belief that cutting welfare will force people to go to work, but many Roma cannot find work.
214. Jessica’s Notes, supra note 102, at 57. 215. Data collection on Roma segregation is difficult because many Roma do not identify themselves as Roma. 216. UNICEF Innocenti Research Ctr., Education for All? 35 (1998).

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As a result, many Roma can no longer afford to send their children to preschool. It is also difficult for Roma children to attend kindergarten, even though it is free. In a very poor town, such as Sliven, perhaps fifty of the 1,000 Roma children who should attend are actually able to, partly because there is not enough space, and partly because of discrimination. Additionally, in order to attend school, a child must be officially registered with the government, which requires a verifiable address. This places a unique burden on the Roma, many of whom do not have a government-recognized address because their communities have been built illegally. As a result, many Roma children are not officially registered and so are not allowed to attend school. Some of the barriers to kindergarten attendance should be alleviated soon, as the government and the World Bank plan to spend = 42 million to establish new kindergartens in Roma C and non-Roma communities.217 Christopher Wlach, one of the Columbia law students who spent ten weeks in Eastern Europe in 2008, visited ten Bulgarian school districts (all but one of the districts in the country that are desegregating).218 He reports that Roma children who have enrolled in non-Roma schools are doing well academically, some exceedingly well. A number are at the top of their classes. Almost all Roma in desegregated schools are doing better than children in all-Roma schools. He also confirms that those students integrated into formerly all-white schools at an early age do better than those integrated after the first or second grade. Although overall integration is going well, there have been minor conflicts between Roma and non-Roma parents, and there has been some anti-Roma discrimination. For example, some teachers have restricted Roma children’s use of computers. Resistance also comes from the former all-Roma schools. Because schools are funded on a per pupil basis, integration’s drain on segregated school enrollment leads to decreases in funding, which, in turn, provokes opposition from them and some Roma. With a single exception—the town of Lom—NGO-administered desegregation consists of integrating a few Roma students, usually two or three per class, but occasionally four or five, into formerly all-white schools. The Roma students are simply withdrawn from the all-Roma school and sent to a nearby formerly non-Roma school. The NGOs administering the programs justify these small numbers with various rationales, including that more Roma would form cliques, promote intraschool segregation, and alarm non-Roma parents who would then withdraw their children. Additionally, there is fear that poorly prepared
217. World Bank, Report No. 38604-BG, Project Appraisal Document on a Proposed Loan in the Amount of Euro 40 Million (US $59 Million Equivalent) to the Republic of Bulgaria for a Social Inclusion Project, Oct. 8, 2008. 218. He visited schools in Vidin, Montana, Lom, Berkovitsa, Pazardzik, Kyustendil, Sliven, Plovdiv, Stara Zagora, and Sofia.

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Roma children will drain teaching resources away from non-Roma students and white flight would follow, creating a newly segregated school. Notwithstanding these arguments for limited desegregation, demand among Roma for non-segregated education may be reaching a point at which it cannot be denied much longer. For example, in Plovdiv, around eighty Roma parents recently sought desegregation for their children, but only about sixty could be accommodated under the limitations currently in place. In response to this growing pressure, all but one of the ten districts Wlach visited are desegregating with assistance and funding by an NGO. NGOs also provide invaluable assistance by furnishing afterschool sessions to help Roma with their schoolwork.219 With some small exceptions, neither national nor local governments fund desegregation. The European Union has contributed to perhaps only one town. Among municipalities, only Lom’s government provides substantial financial support for integration. A few other governments have donated gasoline for busing, or promised to donate next year, but only in Lom is the support significant. Lom differs from other towns in that one of the non-Roma schools has 30% Roma enrollment. One of Lom’s Roma schools has 10% nonRoma enrollment. One hundred and twenty Roma attend the best high school in Lom and one high quality preschool is half Roma. This exceptionalism is perhaps explained by the fact that half of Lom’s population is Roma and Roma occupy positions in the local government—a fact that distinguishes Lom’s government from local governments elsewhere in Bulgaria. Ryan Keats, a Columbia student who visited Bulgarian schools in Spring 2009, reported that despite the success of integration in Lom and elsewhere, many Roma and non-Roma insisted that successful integration depended on keeping the Roma student population low. Keats also saw no reason to think that local government would be equipped to take over from NGOs in the immediate future, and worried that local government dependence on these organizations might create problems in the future. He wrote: The desegregation process and nuanced interaction between Roma and Non-Roma in Pazardzhik stands as a good sample for the current situation in Bulgaria, especially in regards to the NGO based desegregation efforts. While the grass roots desegregation efforts have proven to be the driving factor in Bulgaria, and have achieved notable gains in a relatively short period of time, there are striking limitations to their efforts. The current integration scheme is based around universal agreement that more than twenty-five percent of Roma in any one class, and thus any one school, significantly diminishes the benefits of the integration. The inability to integrate non-Roma into the neigh219. See Christopher Wlach, 2008 Report on Bulgaria 34 (2008) (on file with the Columbia Law Review) (highlighting efforts of Nangle 2000 NGO in Berkovitsa).

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borhood schools, the large Roma population in many regions, and the declining Bulgarian population all paint a grim future for full integration under this system. Additionally, the NGOs currently play an invaluable role in the efforts by busing students to school and providing supplemental education to overcome systemic educational limitations. These efforts, lauded by everyone involved as fundamental to successful integration, are contingent upon continued funding, which must be frequently renewed. As a result, the NGOs are becoming a permanent fixture in Bulgaria’s education process. This has worrying implications about the country’s ability to autonomously integrate its school system; stronger national legislation, and financial support from the municipalities themselves seem to be crucial steps to the future viability and progress of these efforts.220 III. THE LESSONS
OF

U.S. DESEGREGATION

Similarities between Roma and African American school segregation suggest consulting U.S. experience, but not uncritically adopting its remedies. We should not assume that United States correctives, which have not been wholly successful, should be transferred wholesale to Europe. For example, desegregation in the United States was, at the beginning, characterized by “all deliberate speed.” It is now crippled by a near impenetrable barrier between city and suburb and a recently imposed Supreme Court prohibition of affirmative action, even when voluntarily adopted by communities.221 While outside the scope of this report, desegregation efforts in the United States could profit by emulating the Eastern European experience, for example, in using mediators to ease integration and by not insisting on an unrealistic “state action” requirement as a prerequisite for relief. Desegregation in the United States was challenged from the very moment the Court ruled in Brown. The “all deliberate speed” formula (which allowed time only to perform administrative tasks) nominally prohibited delay. But, “massive resistance” reached a near insurrectionary level, sustaining delay in many guises: interminable litigation, convoluted transfer procedures, threats of violence, and actual violence. These and other tactics persisted, despite being denounced from on high, for years. In response, over a period of approximately fifteen years, the courts tightened the screws, bit by bit, until 1969 when the Supreme Court decided, in Alexander v. Holmes County Board of Education, that there must be desegregation at once.222 A great deal of desegregation followed rapidly.
220. E-mail from Ryan Keats, student intern, to author (Aug. 11, 2009) (on file with the Columbia Law Review). 221. See generally Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (striking down voluntary race-conscious desegregation plans). 222. 396 U.S. 1218, 1220 (1969) (“[T]here is no longer the slightest excuse, reason, or justification for further postponement of the time when every public school system in

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One might have supposed that the sudden and widespread desegregation which Alexander required would stimulate even more opposition. In fact, opposition to desegregation diminished markedly between 1956 and 1977, even as desegregation increased. In 1956, roughly one in seven Southern whites supported school integration.223 In 1969, Alexander ordered schools to integrate “at once” and there was widespread compliance.224 By 1977, 72.9% of southern whites supported it.225 As Erica Frankenberg points out: In the year of the Brown decision, more than four-fifths of southerners believed the decision was wrong; four decades later, only 15% still believed the Supreme Court had been wrong. In 1959, 72% of white Southerners objected to even a few black students in white schools and 83% objected to white children attending schools that were half black. By 1975, these percentages had fallen to 15% and 38%, respectively.226 The period of sharply increased integration corresponds with more favorable attitudes among whites about integration. Did integration increase because attitudes towards it were more favorable? Or did attitudes wax more favorable because there was more integration? Alexander can be seen as a Supreme Court rebuke to President Nixon, whose Secretary of Health, Education, and Welfare had asked the courts to postpone deciding whether the defendants were obliged to desegregate promptly. Assuming that the President expressed what the public felt about desegregation at the time of Alexander, it is likely that Alexander—and compliance with it—influenced public opinion, not the other way around. The reaction may have been an instance of the normative power of the actual. In other words, what is, is right. In Eastern Europe, the relationship between change on the ground and change in beliefs is not as clear-cut. A 2005 Open Society Institute survey of attitudes towards the Roma in general and integration in particular, conducted with focus groups in eight Eastern European countries, suggests high levels of prejudice, but also some unevenness.227 Attitudes varied from country to country and incorporated some Roma concern about loss of cultural identity.228 Nevertheless, most
the United States will . . . receiv[e] and teach[ ] students without discrimination on the basis of their race or color.”). 223. Paul B. Sheatsley, White Attitudes Toward the Negro, Daedalus, Winter 1996, at 217, 220. 224. Alexander, 396 U.S. at 1222. 225. John G. Condran, Changes in White Attitudes Toward Blacks: 1963–1977, Pub. Opinion Q., Winter 1979, at 463, 463–66. 226. Erica Frankenberg, Chungmei Lee & Gary Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? 16 (2003), available at http://www.civil rightsproject.ucla.edu/research/reseg03/AreWeLosingtheDream.pdf (on file with the Columbia Law Review) (citation omitted and emphasis added). 227. See generally Open Soc’y Inst., Current Attitudes, supra note 32. 228. Id. at 18–19.

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Roma and non-Roma survey respondents guardedly supported Roma integration, recognizing it as the only sustainable solution to the current problems facing the Roma.229 But for most non-Roma respondents, integration implies assimilation, with the Roma adjusting their values, priorities, and behavior (not necessarily culture) to conform to the standards of mainstream society.230 This implication may be the reason that some Roma resist full integration and assimilation: They fear that they will be expected to relinquish their “values, language, and tradition” as well.231 Non-Roma say it is better to have desegregation, but express discomfort with the idea of more Roma in their apartment buildings, schools, and neighborhoods.232 Nobody can know now whether, if there were widespread and rapid Eastern European desegregation, the response would be similar to that in the United States: acceptance of the actual as normative. However, even if there were acceptance, it is unclear whether desegregation would continue at the same level, or eventually wane as it did in the United States. The survey reports that “[d]isdain drives the views that non-Roma have of Roma”233 and that “[a] few groups (the majority of respondents from the Czech Republic and Bulgaria, along with some respondents from other countries) described the Roma as a largely homogenous group that is completely responsible for its own problems.”234 By contrast, “the vast majority expressed more complex and often more conflicted views of the Roma and the problems that they face.”235 At the same time: The majority of respondents from most countries are ready to accept the Roma into all areas of their day-to-day lives—from the schools their children attend to the workplace to their neighborhoods. Many respondents from Hungary and Slovakia qualified their support for Roma integration to include only “acceptable Roma” (primarily those people they already know and are familiar with in their everyday lives), contrast[ed] to “nonacceptable Roma” (the traditional nomadic Roma about whom they consistently expressed fear and distrust) . . . . A notable exception were respondents from the Czech Republic, many of whom actively rejected Roma integration, even if continued segregation meant the relegation of the majority of Roma children
229. Id. at 3. 230. Id. 231. Id. 232. Id. 233. Id. 234. Id. at 10. 235. Id. (“Virtually all respondents reported negative associations toward the Roma as a whole, along with a consistent litany of negative characteristics to describe them.”). These negative associations include beliefs about hygiene, work ethic, criminality, dishonesty, aggressiveness, and illiteracy. Id.

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into special schools for children with learning disabilities and Roma workers into menial, low-paying jobs.236 A 2009 poll in Hungary produced almost identical results.237 A. Desegregation in Higher Education Desegregation in the United States began with higher education and moved to elementary and high schools after Brown in 1954. It took from 1936 to 1963—a period that included the civil rights movement—until every Southern state enrolled at least one black student at a white institution of higher learning. After a successful 1936 suit in Maryland state court,238 black applicants won cases against all Southern states239 except Arkansas, which surrendered after threat of suit. Most integration was uneventful and involved a very small number of black students. However, in 1956, when Autherine Lucy entered the University of Alabama under court order, a racist mob drove her from campus. The school subsequently suspended her and she did not return for some time.240 In 1962, President Kennedy called out armed forces to enforce a court order to admit James Meredith to the University of Mississippi.241 Violent opposition caused two deaths (some called this the last battle of the Civil War), but Meredith entered and began classes. He graduated and went to Columbia Law School. In 1963, Governor George Wallace of Alabama blocked entrance to the University of Alabama to two black applicants who attempted to enter under court order, but Wallace eventually yielded to federalized National Guard troops.242 The students enrolled, following which Ms. Lucy enrolled once more, completed her studies, and graduated, as did her daughter.
236. Id. at 13–14. 237. See MTI, Poll Finds Vast Majority of Hungarians Openly Anti-Roma, Caboodle.hu, Mar. 6, 2009, at http://www.caboodle.hu/nc/news/news_archive/ single_page/article/11/poll_finds_v/?cHash=2e19aba07b (on file with the Columbia Law Review) (noting eighty percent of Hungarians surveyed were prejudiced against Roma). 238. Pearson v. Murray, 182 A. 590 (Md. 1936). 239. Sweatt v. Painter, 339 U.S. 629, 635–36 (1950) (University of Texas Law School); McLaurin v. Okla. State Regents of Higher Educ., 339 U.S. 637, 641–42 (1950) (University of Oklahoma Graduate School of Education); Sipuel v. Bd. of Regents of the Univ. of Okla., 332 U.S. 631, 633 (1948) (University of Oklahoma Law School); Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 352 (1938) (University of Missouri Law School); Pearson, 182 A. at 590 (ordering African American student to be admitted to University of Maryland Law School). Typically, these cases were followed by others against other divisions of the universities, or other state institutions, which did not consider themselves bound by the cited cases. See, e.g., Bruce v. Stilwell, 206 F.2d 554 (5th Cir. 1953). 240. For a brief telling of Ms. Lucy’s story, see Robert Caro, Autherine Lucy at the University of Alabama: How the Mob Won, 37 J. Blacks Higher Educ. 124, 124–25 (2002) (“The university’s trustees reacted by suspending not the rioters but her, ‘for her own safety’: had they not done so, they said, there was the possibility of a lynching.”). 241. Meredith v. Fair, 328 F.2d 586, 589 (5th Cir. 1962). 242. The students were Vivian Malone and James Hood. See United States v. Wallace, 218 F. Supp. 290, 291 (N.D. Ala. 1963) (“[T]he governor of a sovereign state has no authority to obstruct or prevent the execution of the lawful orders of a court of the United

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The last Southern state yielded in 1963 when Harvey Gantt entered Clemson College, a South Carolina state university, under order of the Fourth Circuit Court of Appeals.243 By 1963, twenty-seven years had elapsed since the Maryland case— hardly a history the Roma would want to repeat. Not until the 1970s did blacks begin enrolling in substantial numbers in southern, formerly allwhite, institutions of higher education. Today, there is substantial integration among most U.S. colleges and universities, with affirmative action at most selective schools.244 Desegregation of higher education in the United States illustrates how the potentially simple task of transitioning a few minority students into a small number of formerly all-white schools can nevertheless take a long time. Why? First, prejudice was so strong and deep that no school agreed to admit its first black student until it was compelled to do so by judicial decree. To a considerable extent, the prejudice existed outside the schools, not entirely within them. Those who conducted higher education in the South valued the approbation of peer institutions elsewhere in the country, where opposition to segregation ran high. Those who feel anti-Roma prejudice concerning elementary and high school education typically do not seek the approval of elites who disparage such sentiment. Nor is such sentiment openly expressed. Furthermore, law suits were limited by the availability of lawyers and funding. Only one small organization—the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund—was bringing suits. If there had been others—or if the government had been behind the effort—the process would have been concluded much earlier. In 1964, Congress enacted laws prohibiting recipients of federal funds, including all universities, from discriminating on the basis of race,245 and enforcement was greater than that currently being experienced in Eastern Europe. B. Desegregation in Elementary and High Schools Lower school desegregation built on the doctrine of the higher education cases, particularly Sweatt v. Painter 246 and McLaurin v. Oklahoma.247 In 1955, Brown II set a timetable for desegregating elementary and high schools.248 It required a “prompt and reasonable start,” allowed time
States.”). They were admitted pursuant to an order in Autherine Lucy’s 1956 case, which was reopened to address their exclusion. Id. 243. Gantt v. Clemson Agric. Coll. of S.C., 320 F.2d 611 (4th Cir. 1963). 244. For a chronicle of affirmative action’s rise at Harvard, Yale, and Princeton, see generally Jerome Karabel, How Affirmative Action Took Hold at Harvard, Yale, and Princeton, 48 J. Blacks Higher Educ. 58 (2005). 245. See generally The Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. 246. 339 U.S. 629 (1950). 247. 339 U.S. 637 (1950). 248. 349 U.S. 294 (1955).

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only for administrative changes (pupil and teacher assignments, bus routes, etc.), prohibited delay based on opposition, and concluded with the famous oxymoronic phrase, “with all deliberate speed.”249 Most Southern districts ignored everything but “deliberate speed.” While a few deep Southern districts desegregated promptly, by 1963–1964 “the numbers were still minuscule, with only 1.2 percent of blacks attending schools with whites.”250 And, some of the few districts that integrated during this period retreated to segregation in the face of racist mobs.251 Both the United States and Eastern Europe began desegregation gradually. In Eastern Europe, there has been a nearly uniform limit of two or three Roma per classroom in formerly all-white schools (although those schools that have been desegregated for some time occasionally have Roma student populations between twenty and forty percent). In the United States, while “all deliberate speed” permitted delay only for administrative reasons, some schools delayed by using “stair step plans” (integration of one grade at a time, beginning with the first grade and working up, year by year), which could take ten years to integrate the entire school. Other districts had minority to majority transfer plans (students in a racial minority could transfer out, i.e., whites in a mostly black school could transfer to a mostly white school; there also might be pressure on minority blacks to transfer). In these instances, administrative hurdles made the transfer of black students to all-white schools quite difficult. Still other districts employed freedom of choice plans, under which students could attend any school in the district that they desired. Nevertheless, administrative hurdles and community pressures kept these schools segregated as well. It took more than fifteen years of litigation to invalidate these schemes. Many school districts averted integration through pupil assignment: School districts assigned children to the school they “ordinarily” would attend, that is, blacks to black schools, and whites to white schools. Although any student might transfer to another school, she would first have to navigate lengthy and complex administrative procedures. Even then, transfers were granted rarely. Everyone knew that pupil assignment laws were adopted not to facilitate desegregation, but to impede it. For years, the Supreme Court played along with this deception by refusing to review challenges to these assignment regimes.252
249. Id. at 300–01. 250. Charles T. Clotfelter, After Brown: The Rise and Retreat of School Desegregation 24 (2004). 251. See Jack Greenberg, Crusaders in the Courts 200–01 (1994) [hereinafter Greenberg, Crusaders] (describing protest mobs in Milford, Delaware and other districts). 252. See, e.g., Covington v. Edwards, 264 F.2d 780 (4th Cir. 1959), cert. denied, 361 U.S. 840 (1959) (finding proper administrative remedies were not exhausted); Carson v. Warlick, 238 F.2d 724 (4th Cir. 1956), cert. denied, 353 U.S. 910 (1957) (same); Shuttlesworth v. Birmingham Bd. of Educ., 162 F. Supp. 372 (N.D. Ala.), aff’d, 358 U.S. 101 (1958) (finding pupil placement law offered legal machinery for orderly admission of qualified students).

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Desegregation in the United States was hobbled from the outset by “massive resistance,” as school districts did not even pretend to comply with Brown. A Southern “Congressional Manifesto” signed by all but three Southern congressmen and Senators denounced the Supreme Court for Brown and other decisions, as did state chief justices and attorneys general. State-funded Sovereignty Commissions fought integration with a wide array of tactics, including newspaper advertisements in the North. School districts with prejudiced electorates did not desegregate until compelled. Some communities closed public schools and white parents created private “segregation academies” for their children to attend. The white community was able to discourage would-be plaintiffs from challenging these schools by instilling in them a fear of reprisals and violence, withholding supplies and credit necessary for their livelihood, and utilizing other forms of intimidation. For many years, no white lawyers in the South would file desegregation suits.253 Very few black lawyers were in the region; some states only had one. Because desegregation cases were large, complicated, and expensive, even those few local lawyers available could not handle them without assistance. A local black lawyer, practicing alone, or with one or two associates, needed the assistance of the small, not richly funded, NAACP Legal Defense Fund. (The Department of Justice was not authorized to file desegregation suits until the Civil Rights Act of 1964.) Realizing this, state officials attacked civil rights organizations in an attempt to cut off the support necessary to bring desegregation cases. State legislatures harassed civil rights advocates through baseless investigations. Civil rights lawyers faced disbarment. Scattered violence attended desegregation in a handful of states, including Delaware, Kentucky, and Arkansas,254 where federalized National Guard protected nine black children at Little Rock High School.255 Border states desegregated more quickly: “By the 1963–1964 school year, only 7 percent of districts that enrolled both whites and blacks were still segregated, and more than half of all the region’s blacks in public
253. Michael J. Klarman, From Jim Crow to Civil Rights 352 (2004) (“Only an organization that represented blacks as a group, such as the NAACP, could capture the benefits, and thus offset the costs, of desegregation litigation. Moreover, few white lawyers would have dared to take such cases.”). 254. On Delaware, see Greenberg, Crusaders, supra note 251, at 200; on Arkansas, see id. at 228–43 (“Soldiers were on the Central High School campus every day to keep the peace, until . . . the Defense Department removed the army and left the federalized National Guard in charge.”); on Kentucky, see John M. Trowbridge & Jason Lemay, Sturgis and Clay: Showdown for Desegregation in Kentucky Education 7–9 (2006), available at http://kynghistory.ky.gov/NR/rdonlyres/4AF62952-3762-472D-A52A-D18F8122C5C5/0/ sturgisandclayky1956.pdf (on file with the Columbia Law Review) (describing national guard efforts to restrain anti-segregation mobs). 255. See Cooper v. Aaron, 358 U.S. 1, 1–2 (1958) (“Due to actions by the Legislature and Governor of the State opposing desegregation, and to threats of mob violence resulting therefrom, respondents were unable to attend the school until troops were sent and maintained there by the Federal Government for their protection . . . .”).

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schools attended school with whites.”256 To describe a district as no longer segregated meant only that there was some desegregation, not necessarily full desegregation. Nevertheless, residential segregation kept many urban schools mostly or completely black or white.257 In 1969, Alexander v. Holmes County Board of Education required desegregation “at once.”258 Soon after, civil rights lawyers, the Department of Health, Education, and Welfare (HEW), and the Department of Justice began enforcing that decision. In 1971, Swann v. Charlotte-Mecklenburg Board of Education ordered integration by busing and authorized assigning children to schools by means of racial quotas.259 Charles Clotfelter describes what followed as “a breathtaking transformation of public education in many communities in the South.”260 In 1968, 78% of black students had attended schools that were 90% or more minority; by 1972 that share had fallen to 25%.261 As more African Americans moved to cities and suburbs became whiter, busing children across the city-suburb school district line became the only feasible integration method. However, by this time political resistance to desegregation had led to the appointment of judges hostile to integration and the courts began wavering in their commitment to Brown. In 1974, Milliken v. Bradley held that courts may not require desegregation across school district lines unless there had been an “interdistrict violation,” which usually meant that adjacent districts had colluded to create segregation (something quite difficult to prove).262 As a result, desegregation began to taper off. C. Social and Political Environment of U.S. Desegregation One can better understand the development of race relations law by reflecting on Justice Holmes’s observation: “The life of the law has not been logic; it has been experience.”263 Brown in large part was a product
256. Clotfelter, supra note 250, at 24–25. 257. Id. at 27. 258. 396 U.S. 19, 20 (1969). 259. 402 U.S. 1, 31–32 (1971). 260. Clotfelter, supra note 250, at 26. 261. Id. 262. 418 U.S. 717, 752–53 (1974). 263. Oliver Wendell Holmes, Jr., The Common Law 1 (Boston, Little, Brown & Co. 1881). The remainder of the passage is as follows: The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. Id.

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of transformations which originated in World War II.264 But the transformations of that time were different for Roma and African Americans. That war, and the Soviet domination that followed, disabled the Roma from then until today. Possibly twenty-five percent of all European Roma perished during the Holocaust.265 Following defeat of the Nazis, Soviet domination of Eastern Europe stunted Roma capacity to function in the market economy that emerged. The movement towards equality for African Americans in the United States, on the other hand, has a long history. The foundation of American civil rights law is the Reconstruction Amendments and civil rights legislation adopted after the Civil War. In modern times, the end of World War II was marked by the Universal Declaration of Human Rights and a U.S. commitment to fight racism. It was a time of African American migration from the oppressive South to industrial jobs in the more egalitarian North. It was during this period that living standards for African Americans began to increase. In 1940, black males’ wages averaged around 43.3% of white males’ wages. Ten years later, in 1950, blacks’ wages had increased by over a quarter, averaging 55.2% of whites’ wages.266 In 1940, only 8% of black males had an income above the median white male income. By 1950, that number had risen to 12%.267 In that same decade the number of blacks in the middle class rose from 22% to 50%.268 This time period also saw other important advancements for African Americans. While they were largely excluded from the ballot box in the Deep South, elsewhere many became involved in politics. Harry Truman was elected with an overwhelming portion of the black vote.269 He then desegregated the armed forces, appointed the first black federal judge, and issued the Report of the President’s Committee on Civil Rights, a blueprint for subsequent civil rights legislation that was enacted over the next two decades. He supported the Brown plaintiffs in the Supreme Court, which not only implemented the abolitionist-inspired Fourteenth and Fifteenth Amendments, but also satisfied the needs of American Cold War foreign policy.270
264. See Jack M. Balkin, Framework Originalism and the Living Constitution, 103 Nw. U. L. Rev. 549, 575 (2009) (“Brown v. Board of Education responded to changing views about race following World War II in ways that congress could not until the middle of the 1960s.”). 265. U.S. Holocaust Mem’l Museum, Genocide of European Roma (Gypsies), 1939–1945, in Holocaust Encyclopedia, at http://www.ushmm.org/wlc/article.php? ModuleId=10005219 (last updated May 4, 2009) (on file with the Columbia Law Review). For estimates of the number of Roma deaths, see supra note 14 and accompanying text. 266. James P. Smith & Finis R. Welch, Black Economic Progress After Myrdal, 27 J. Econ. Literature 519, 522 tbl.2 (1989). 267. Id. at 523 tbl.3. 268. Id. at 524 tbl.4. 269. David McCullough, Truman 862 (Touchstone 1993) (1992). 270. See Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy 90–91 (2000) (noting that in Brown “the Justice Department argued that

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African Americans lived within an environment of supportive institutions. The black church was a home for the NAACP, political groups, and labor unions. Black churches were linked to one another through national organizations, such as the Southern Christian Leadership Conference. These organizations gained strength both from their ties to the community and the inspirational effect of the Brown decision. Furthermore, the network of black colleges, which Southern states built as a sop to separate-but-equal, educated black students nonetheless. These students grew up to become leaders in the movement for racial equality. When in 1960 black college students demanded service at white-only lunch counters in Greensboro, North Carolina, students throughout the South joined their sit-ins in solidarity. In 1961, Freedom Rides, sponsored by the Congress of Racial Equality (CORE), challenged bus lines that seated blacks only in the back of the bus. The first ride was scheduled to arrive in New Orleans on May 17, Brown’s anniversary. However, when the bus carrying black Freedom Riders seated in the front seats reached Montgomery, Alabama, it was attacked by white racists. The local police then arrested the Riders. The NAACP Legal Defense and Educational Fund defended them, as it did the sit-in demonstrators.271 In previous years, such demonstrations had been isolated. In the 1960s, fueled by television, and imbued with the post-World War II spirit of freedom, they spread like wildfire, attracting recruits from black colleges and universities. Large numbers of white students, as well as adults, joined. The names and events that shaped this movement are so iconic that mere mention is enough to grasp what the demonstrators stood for: the Montgomery bus boycott, Rosa Parks, Martin Luther King, Jr., the March from Selma to Montgomery, the Southern Christian Leadership Conference (SCLC), the Student Non-Violent Coordinating Committee (SNCC), Black Panthers, Malcolm X, the NAACP, and the Leadership Council on Civil Rights. At the crest of the movement, Congress enacted the Civil Rights Act of 1964 and the Voting Rights Act of 1965, both unimaginable five years earlier. A ready-made network of churches was home to demonstrators. A powerful wing of the Democratic party, led by Hubert Humphrey— Vice President under Lyndon Johnson and 1968 Democratic candidate for President—made civil rights its primary cause. Alexander v. Holmes
crucial national interests were . . . implicated” because “segregation . . . damaged U.S. prestige abroad and threatened U.S. foreign relations”). 271. The following, in chronological order, are only some of the demonstration cases decided during this period: Garner v. Louisiana, 368 U.S. 157 (1961); Briscoe v. Louisiana, 368 U.S. 157 (1961); Hoston v. Lousiana, 368 U.S. 157 (1961); Edwards v. South Carolina, 372 U.S. 229 (1963); Avent v. North Carolina, 373 U.S. 375 (1963); Shuttlesworth v. City of Birmingham, 376 U.S. 339 (1964); Barr v. City of Columbia, 378 U.S. 146 (1964); Robinson v. Florida, 378 U.S. 153 (1964); Bell v. Maryland, 378 U.S. 226 (1964); Hamm v. City of Rock Hill, 379 U.S. 306 (1964); Blow v. North Carolina, 379 U.S. 684 (1965); Walker v. City of Birmingham, 388 U.S. 307 (1967).

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County Board of Education followed in 1969.272 An upsurge in integration then followed.273 Not to be ignored is Richard Nixon’s “southern strategy,” which scored political points by building on white resentment at and resistance to Brown—a force that did not begin to recede until the election of Bill Clinton. During this period, and often with the support of the Nixon White House, Supreme Court decisions blocked efforts by civil rights claimants to obtain racial equality.274 For the Roma, the European Convention and the Race Equality Directive are similar to the commitment to equality that Brown made in the United States. But the near absence of implementation signals that these rights may be abstractions that no one takes too seriously. Consider the flat response to and lack of tangible change arising out of D.H., Sampanis, Hajduhadhaz,275 and Miskolc. Time and again, courtroom victo´ ´ ries have not led to tangible desegregation.276 A possible forthcoming shift toward demanding compliance may be the February 2008 Recommendation of the Committee of Ministers of the European Union “on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights,” which sets forth in detail recommendations for “timely and effective implementation of the Court’s judgments.”277 This strongly suggests that the European Union may be serious about implementing the human rights principles of the European Convention. We may be at a decisive moment. Or, the European Union may continue as it has and acquiesce in doing little or nothing for years to come. The question is whether the European Union will require desegregation “at once,” or will continue to permit member states to delay and offer only half-solutions, or no solution, under what amounts to an “all deliberate speed” regime. Should the possibility of implementing desegregation judgments become reality, by national decisions or E.U. requirement, the next ques272. 396 U.S. 1218 (1969). 273. Clotfelter, supra note 250, at 26 (stating Court’s post-Brown decisions resulted in a “breathtaking transformation of public education in many communities in the South”). 274. See, e.g., Bd. of Educ. v. Dowell, 498 U.S. 237, 247 (1991) (concluding that once a segregated school becomes “unitary,” a desegregation decree directed at it must be dissolved, and one-race schools which develop are viewed as de facto segregated and may not be ordered to desegregate); Milliken v. Bradley, 418 U.S. 717, 745 (1974) (holding that schools may not be required to integrate across district lines absent an “interdistrict” violation). 275. E-mail from Andr´ s Ujl´ ky, President, Chance for Children Found., to author a a (May 23, 2009) (on file with the Columbia Law Review) (“[W]e agreed with a few people to prepare a long term comprehensive desegregation and school improvement plan for the town . . . . Hajduhadh´ z of course will never have the funds to fulfill the plan but we would a ´ undertake to help them fund raising from other sources subject they cooperate in planning.”). 276. See infra notes 278–288 and accompanying text (discussing tepid response to legal victories in state and European Union courts). 277. Committee of Ministers Recommendation, supra note 97, at 2.

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tion will be whether sufficient legal resources will exist—e.g., lawyers, fact-finders, funds—to bring the cases that will win the judgments. Nearly all the desegregation that has occurred in the United States has been litigation-initiated, although public administration often took over. The Department of Education has resources that courts and private litigants lack. That could be true in Europe as well. IV. A ROMA RIGHTS MOVEMENT? National governments have committed to the European Union that they will integrate, but for almost a decade they have done little but pass laws that remain unenforced, conduct studies that provide little usable data, and turn desegregation over to NGOs on an ad hoc basis. Far from taking the lead, national governments have almost uniformly allowed responsibility to rest with thousands of municipalities. Even Hungary, which has adopted financial incentives to support integration, has not insisted on compliance. Major initiatives like D.H. have been the work of NGOs. But NGOs have limited personnel, minimal funds, and almost no power. Their limited, albeit sometimes successful, history suggests the desirability of proactive national government-led programs, in collaboration with NGOs, to completely desegregate schools in Eastern Europe. Such joint activity might derive from agreement among nations or an act of the European Union itself. That will not happen on its own. The same opposition that resists integration within municipalities would resist it across municipalities. Therefore, something will have to be done to move national governments to act. Since the pledges to desegregate were made either directly to the European Union or by the nations to each other through the medium of the European Union, the European Union will likely have to be that force. Eastern European nations have a legal obligation to comply with the Race Equality Directive, and since repeal of the directive is unlikely, in theory they can be forced to comply. In the few showdowns which have developed since the European Union admitted nations which segregated Roma, segregated schools have not obeyed judgments of the European Court of Human Rights. They haven’t openly defied the law. They simply have done nothing. The European Union is in a position to compel active compliance. As Roma make up an increasingly larger percentage of the population, pressure to comply may come not only from the European Union but also from national interest in economic well-being. The negative economic effects of deficient Roma education will be compounded as the Roma population continues to grow, unless immediate steps are taken to integrate Roma students into the education system. This reality may be reason enough to undertake a government-led effort, with NGO support, to bring about desegregation. But, more likely a politically more telling demand will be needed.

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The missing link for achieving integration appears to be a forceful Roma rights movement that would play a role like that of the U.S. civil rights movement. Is it possible that one might occur? Margita Wagnerov´ , a Roma woman whom I visited when she was an official in the a Czech Education Ministry, observed: “There is a lack of awareness of the possibility of taking action. There is no Roma intellectual elite that knows how to do these things. They don’t know how to effect change. . . . There is not enough representation of the Roma in the media explaining a a what’s really going on.”278 Ms. Wagnerov´ ’s colleague, Mrs. Tich´ , added that the Roma community is not unified.279 I inquired whether there are Roma activist organizations. Ms. Wagnerov´ responded that there are a few individual activists, but no ora ganization with an activist reputation: “In the 1970s there was a Roma party in parliament, but it died. They were officially dissolved by the ministry. There is a government council for Roma community affairs run by Roma, but they are passive, never fighting for what they want.”280 I asked the same questions of Kumar Vishwanathan, an Indian physicist teaching in the Czech Republic, who is the Director of the NGO called Life Together. He replied: The Roma have different ways of expression. Civil activism is not high; it’s not like America or India. But that doesn’t mean they like it. When there was the flood and Roma people lost their homes, the government didn’t do anything. [The government] just stuck them in little cabins and left. The Roma then had to rebuild their own houses. There were no protests in the street, but there was dialogue. The Roma are more similar to the Native Americans in the United States than to the blacks.281 Is there Roma political activity? Yes, said Vishwanathan. “It’s happening slowly. This is a place of law . . . and the Czechs are proud of being civilized. If it is shown that there is a need for respect of the law, if the Czechs are accused of being lawless, then they would try to change.” He believes that for this to happen, “there must be pressure from the a outside.”282 Margita Wagnerov´ also responded to this question: “There is a little movement, such as in South Moravia and Ostrava. There is not enough representation of the Roma in the media explaining what’s really going on.”283 Another person replied, “The Roma are brainwashed by the media . . . they are starting to believe and live up to the stereotypes out there. When a child is told he is stupid, he is going to stop trying,
278. 279. 280. 281. 282. 283. Jessica’s Notes, supra note 102, at 4. Id. Id. at 5. Id. at 20. Id. Id. at 4.

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thinking it’s no use because he is stupid—and then he will end up stupid.”284 I asked Ivan Vesel´, a prominent Roma intellectual and activist in the y Czech Republic about lessons to be learned from the U.S. civil rights movement: “Sit-ins, bus demonstrations, marches—is there anything like that among the Roma?” He replied: “I’m waiting for this. There is social stratification. There are very poor whites that can’t even send their children to good schools. But they feel no connection with the Roma. The whites just don’t care about the Roma, so there can’t be a movement like in the U.S.” As an example, he stated that, “since 1989 there have been lots of racist murders, and nobody really noticed.”285 Jiø´ Kopal, Chair of the League for Human Rights in the Czech ı Republic, was equally pessimistic: Civic organizations or movements are small and dispersed. There is no proper fundraising and there is a lot of fraud . . . . There is no support from society . . . . They don’t see why they should support the cause or why it is important. It is not part of Czech culture to give money [to NGOs]—it’s a strange concept to them. This lack of fundraising makes long-term organizing difficult because, as Kopal points out, “there is no long-term funding.” To make matters worse, “there is a lot of fighting between Roma leaders, and no sense of community.”286 In Hungary, Bernard Rorke, Director of the Roma Participation Program of OSI, believes that civil society is passive, and it is difficult to maintain a movement across ten countries. The Roma in different countries are not connected and there is no singular Roma movement, either religious—like the Southern Christian Leadership Conference—or otherwise. Rorke noted, “[atheism] is a central doctrine in Hungary, so a religious approach to Roma problems is not in the cards.”287 I inquired further into the existence of Roma religious movements. Florin Nasture, an REF staff member in Romania, replied: There are Pentecostals and Baptists. There is no community/ unity between them or within them. They are selfish organizations. It is hard to gather people for a protest. How do we get the young involved? We need a Martin Luther King.288 In the United States, religious, civil rights, political, and advocacy organizations supported what was called the “movement.” The prospects for a
284. Id. 285. Id. at 11. 286. Id. at 15. 287. Id. at 26. Another observer commented that while the population is largely not church-going, significant parts of society are still religiously active. The right wing often uses religious rhetoric, and all parties try to be on good terms with the historic churches. Id. 288. Id. at 44.

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movement based on similar foundations in Eastern Europe appear somewhat dim. A. Religion 289 To obtain effective support of religious institutions, the Roma would have to overcome the obstacles of national boundaries and languages, as well as religious divisions within nations. Consider religion in Bulgaria: 83.7% of Bulgarians identify as Christian; around 12.2% identify as Muslim.290 Most religious Roma in Bulgaria identify as either Eastern Orthodox (44%) or Muslim (39%); another 15% are Protestant and a small number identifies as Catholic or Jewish.291 Many Roma in Eastern Bulgaria have developed a new identity among the Turkish minority.292 Roma evangelical Protestant communities comprise different sects293 and make up about 15% of the religious Roma in Bulgaria.294 Evangelical Roma regularly attend religious services, actively proselytize,295 and have been growing in numbers since the early twentieth century.296 Estimates of Roma evangelical churches range from 130 to 400, but these are educated guesses.297 This diversity makes coordination difficult. Protestant communities “give the Roma a feeling of being accepted, of being an equal part of the brotherhood.”298 Therefore, one might suspect that the evangelical churches could offer a strong base for a Roma civil rights movement. However, unlike in the United States, where a large portion of the African American community was active in the church, only a small percentage of Roma are evangelical. Furthermore, the various religious sects are scattered throughout different geographical regions and often compete with one another.299 In addition, as one investigator observes, “[w]e encountered the most passive and neglectful ‘lay’ Roma in this group. They expressed complete indifference to
289. For this discussion of the church, I am indebted to assistance from Minsun Lee and Christopher Wlach. 290. Nat’l Statistical Inst. (Bulg.), Population by Districts and Religion Group as of March 1, 2001 (2001), available at http://www.nsi.bg/Census_e/Religion.htm (on file with the Columbia Law Review). 291. Ilona Tomova, The Gypsies in the Transition Period 25 (1995). 292. Elena Marushiakova & Vesselin Popov, The Relations of Ethnic and Confessional Consciousness of Gypsies in Bulgaria, 2 Facta Universitatis 81, 86 (1999), available at http:/ /www.ceeol.com/aspx/getdocument.aspx?logid=5&id=E8B61E44-5B4A-4C54-8C7B-4B56 E64CF5EF (on file with the Columbia Law Review). 293. See Magdalena Slavkova, Roma Pastors in Bulgaria as the Leaders for Roma Protestant Communities, in Roma Religious Culture 168, 170 (Dragoljub B. – ordevi´ ed., D – c 2003). 294. Tomova, supra note 291, at 25. 295. Id. 296. See Slavkova, supra note 293, at 168. 297. See id. at 168–69. 298. Nonka Bogomilova, God of the Social Outcast (the Religion of the Romas in Bulgaria), in Roma Religious Culture, supra note 293, at 41, 44. 299. See Slavkova, supra note 293, at 170–71.

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whether they would find work or not, whether their children go to school or not, and whether they themselves provide for their children or not.”300 Therefore, the church is unlikely to serve as a foundation for a Roma rights movement. Some pastors have attempted to unify some of the diverse Roma churches, focusing on “help[ing] arouse the interest in education among the Roma families, which would result, in the long run, in Roma participation in the life of a civil society on equal terms.”301 Nevertheless, for the Roma churches to mobilize the wider Roma community, they would likely have to convert substantially more Roma or adopt a more ecumenical appeal. Given the diversity of beliefs and languages among the Roma, this is unlikely to happen. There is scant authority on Roma religion in the Czech Republic. Expert estimates place the number of Roma in the Czech Republic between 160,000 and 300,000,302 a small minority of the Czech Republic’s 10.2 million inhabitants.303 Most Roma in the Czech Republic are Roman Catholic,304 the country’s predominant religion (although a 2001 government census found that the majority of Czechs—over six million— are “non-denominational”).305 Various Presbyterian missions have sought to convert Roma.306 There appears to be no data on what percentage of Roma identify as Presbyterian or Protestant. It seems unlikely that these churches could be a base for a nationwide Roma movement. According to a 2001 census, approximately 76.7% of Hungarians are Christian, the majority Roman Catholic.307 A small percentage (0.1%) is Jewish; the remaining are nonreligious or chose not to disclose their religion for the census.308 The Hungarian Roma—unofficially numbered
300. Tomova, supra note 291, at 25. 301. Slavkova, supra note 293, at 170. 302. For the official number, see Czech Statistical Office, Czech Demographic Handbook 2007, at tbl.1-17 (2008), available at http://www.czso.cz/csu/2008edicniplan. nsf/engt/24003E05E7/$File/4032080117.pdf (on file with the Columbia Law Review) [hereinafter Czech Nationality Statistics]. For a credible estimate of the actual number, see United Nations Dev. Programme, supra note 16, at 25. 303. Czech Nationality Statistics, supra note 302. 304. Jarmila Balazova, Religion Among the Roma, Kavarna, Feb. 26, 2000, reprinted in Radio Prague, Roma in the Czech Republic, at http://romove.radio.cz/en/article/ 18906 (on file with the Columbia Law Review). 305. Czech Nationality Statistics, supra note 302, at tbl.1-19. 306. See, e.g., Jim Nedelka, Brave Old World, Presbyterian News Service, Oct. 8, 2008, available at http://www.pcusa.org/pcnews/2008/08738.htm (on file with the Columbia Law Review) (noting travels by Presbyterians to “seek new pathways and partnerships . . . with member congregations”); The Ecumenical Council of Churches, Committee of Roma People, at http://www.ekumenickarada.cz/erceng/cl22.htm (last visited Mar. 2, 2010) (on file with the Columbia Law Review) (reporting recent events by Council’s Committee of Roma People). 307. Hungarian Cent. Statistical Office, Population Census 2001, at tbl.1.26, available at http://www.nepszamlalas.hu/eng/volumes/18/tables/load1_26.html (last updated Sept. 29, 2009) (on file with the Columbia Law Review). 308. Id.

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at around 600,000 people—make up around 6% of the population.309 Although Hungarian law does not allow ethnic data to be collected without consent, most Hungarian Roma are thought to be Catholic.310 Hungary is also home to evangelical Roma. Various American Baptist churches have made evangelical missions to convert Hungarian Roma.311 The Baptist Union of Hungary has twelve Roma churches in the country,312 though they do not seem focused on promoting Roma social mobilization. According to Romania’s 2002 census, an overwhelming majority of the country’s total population (86.8%) is Eastern Orthodox.313 Protestants make up 7.5% of the population (aggregating denominations including Pentecostal and Reformate), while 4.7% is Roman Catholic.314 Officially, the Roma in Romania number around 535,000, approximately 2.5% of Romania’s total population.315 However, unofficial estimates place this number at 1.8–2.5 million, or 8.3–11.5%.316 Among Romanian Roma, 81.9% identify as Eastern Orthodox, approximately 10.5% as Protestant, and 3.8% as Roman Catholic.317 The proportion of Protestant Roma may be attributable in part to various Christian outreach programs. In 1992, following the collapse of
309. Istv´ n Kem´ ny & B´ la Janky, Roma Population of Hungary 1971–2003, in Roma a e e of Hungary 70, 73 (Istv´ n Kem´ ny ed., 2007), available at http://www.mtaki.hu/docs/ a e kemeny_istvan_ed_roma_of_hungary/istvan_kemeny_bela_janky_roma_population_of_ hungary_1971_2003.pdf (on file with the Columbia Law Review). 310. See, e.g., Gypsy Bible Makes Publishing History, BBC News, Mar. 27, 2002, at http://news.bbc.co.uk/1/hi/not_in_website/syndication/monitoring/media_reports/ 1884240.stm (on file with the Columbia Law Review) (explaining key role of Catholic Church in initiatives to educate Roma because “[m]ost Hungarian Roma are Catholics”). 311. See, e.g., Patricia Heys, Gandhi School Provides Rare Educational Opportunity for Roma Youth, Cooperative Baptist Fellowship, June 6, 2008, at http://www.the fellowship.info/News/Archive/Gandhi-School-provides-rare-educational-opportunit (on file with the Columbia Law Review) (describing Cooperative Baptist Fellowship partnership with Gandhi School to provide educational opportunities for Roma); Hungarian Baptist Aid, North Carolina Baptists Help the Roma Mission in K´ rp´ talja (Ukraine), Mar. 4, 2003, a a at http://english.baptistasegely.hu/node/336 (on file with the Columbia Law Review) (describing Baptist mission to Hungary); Stocks Report—Ministry Among the Roma, at http://stocksreportromaministry.blogspot.com/ (last visited Jan. 25, 2010) (on file with the Columbia Law Review) (describing “life among the Roma (Gypsies) of Hungary serving as field personnel through the Cooperative Baptist Fellowship”). 312. Daniel Trusiewicz, European Baptist Fed’n, Hungarian Baptists Working Among the Roma People, May 24, 2006, at http://www.ebf.org/articles/display-article.php? article=66&cat=imp&lang=eng (on file with the Columbia Law Review). 313. CIA, World Factbook 2009, at 534 (2008). 314. Id. 315. Nat’l Inst. of Statistics (Romania), Census of Population and Dwellings 2002: Population by Ethnic Groups, Religion and Areas, available at http://www.insse.ro/cms/ files/RPL2002INS/vol5/tables/t20.pdf (last visited Mar. 24, 2010) (on file with the Columbia Law Review). 316. See 2004 Regular Report on Romania’s Progress Towards Accession, Eur. Parl. Doc. (COM 657) 30, (2004). 317. Nat’l Inst. of Statistics, supra note 315.

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communism, a Baptist church started Project Ruth in Bucharest.318 The project’s mission is to provide educational opportunities to the Roma while spreading the practice of the Christian faith.319 Currently the program enrolls 180 Roma students and has been officially recognized by the Romanian Ministry of Education.320 Several evangelical missions focus on converting Roma,321 and some are Roma-led.322 However, they do not have the size or focus necessary for sparking nationwide Roma rights movements. In summary, among the Roma there is no single church that might launch or nurture a civil rights movement. In Bulgaria, Roma are divided mainly between Eastern Orthodox and Muslim. In the Czech Republic they are mainly Roman Catholic. Three-quarters of Hungarians are Roman Catholic, while almost eighty percent of the Romanian Roma are Eastern Orthodox. Evangelicals are not insignificant in number. The various religious groups are not only divided, they also do not display interest in social reform. While U.S. experience suggests they might take up a cause in which they believe, they are scattered and, on the whole, do not appear to be interested in school segregation as an issue. B. Advocacy Groups The U.S. civil rights movement would not have succeeded without civil rights organizations. These organizations built public support for the Civil Rights Act of 1964 and the Voting Rights Act of 1965. They spurred various administrations into action when law enforcement was needed. The National Association for the Advancement of Colored People, NAACP Legal Defense and Educational Fund, Leadership Conference on Civil Rights, Urban League, Southern Christian Leadership Conference, Student Non-Violent Coordinating Committee, and other groups contributed to the movement’s success. The NAACP had hundreds of thousands of members, and SCLC and SNCC membership was also substantial. The Leadership Conference consisted of organizations within and without the civil rights fields (including labor unions
318. Project Ruth, What Is Project Ruth?, at http://www.projectruth.ro/old/ whatis.html (last visited Mar. 2, 2010) (on file with the Columbia Law Review). 319. Id. 320. Id. 321. See, e.g., Carla Wynn Davis, Coop. Baptist Fellowship, Field Personnel Provide Opportunities to Roma People, Feb. 20, 2008, at http://www.thefellowship.info/News/ Archive/CBF-field-personnel-provide-opportunities-to-perse (on file with the Columbia Law Review) (describing Cooperative Baptist Fellowship’s work with Roma); Tony Peck, European Baptist Fed’n, The Ministry of Reconciliation, Sept. 25, 2008, at http:// www.ebf.org/general-secretary/ (on file with the Columbia Law Review) (“Hungarian, Romanian and Czech Baptist Unions are . . . working among the Roma people.”). 322. Fl. Baptist Witness, Roma Reaching Roma Gypsies Key for 10-Million Plus Worldwide, Apr. 8, 2008, available at http://www.gofbw.com/news.asp?ID=8632 (on file with the Columbia Law Review) (describing attempts by evangelicals to use Roma to help convert other members of Roma community).

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and religious institutions) with large memberships. Today there are many Roma rights organizations, but none have the size or influence of any of the U.S. groups. Gwendolyn Albert, until recently Director of Women’s Initiatives Network at Peacework Development Fund in Prague, sent me a list of the organizations in the Czech Republic that are working together to implement D.H. 323 Most of the Roma organizations that exist are active in Bulgaria, Hungary, and Romania. None are mass membership organizations. Roma self-defense groups have also mobilized in response to skinhead and neo-Nazi depredations.324 Possibly these coalitions might evolve into a more general and proactive force. Community organizing could be instrumental in creating a stronger Roma rights movement in civil society. President Obama was a community organizer following his graduation from Columbia College. In Dreams from My Father 325 he describes his work in Chicago as similar to the work done by the Industrial Areas Foundation (IAF), founded by Saul Alinsky.326 Alinsky believed that to end poverty, the poor must be involved in the process. Because the poor are often apathetic and disempowered, a first step is to get them to believe in themselves and their power to create change. Central to creating this confidence is the community organizer. IAF now has a network of fifty-nine affiliates in twentyone states and Canada.327
323. These organizations included European Roma Rights Centre, an international public interest law organization (http://www.errc.org/); Amnesty International Czech Republic; Peacework Development Fund; Step by Step Czech Republic (http://www. issa.nl/network/czech/czech.html); Open Society Fund Prague (http://www.osf.cz/en/); DROM (http://www.drom.cz/en/); IQ Roma Servis (http://www.iqrs.cz/verze/en/); Romodrom (http://www.romodrom.cz/en/home); Czech Helsinki Committee (http:// www.helcom.cz/en/index.php); People in Need (http://www.clovekvtisni.cz/ indexen.php); Life Together (http://kumarvishwanathan2.tripod.com/); League of Human Rights (http://www.llp.cz/en/); Zvule pr´ va (http://www.zvuleprava.cz/ a ` ?language=en). Nothing in the Czech Republic is comparable to the NAACP. In Romania, Romani CRISS is probably the closest. The League of Human Rights (LIGA) is more akin to the ACLU in U.S. terms, but without anything like a mass membership. It is extremely small. Roma Education Fund, as far as I can tell, is a Soros initiative and quite effective. Ms. Albert added that, “In my view, the most important Roma NGO in the Czech Republic, in terms of the number of Roma people it reaches at the grassroots level, is D˘eno . . . z People not friendly to the Roma cause would like to cast Mr. Vesel´, who runs D˘eno, as a y z version of Malcolm X, but he is not.” Email from Gwendolyn Albert to author (Feb. 11, 2009) (on file with the Columbia Law Review). 324. See, e.g., Hungary Around the Clock, Roma to Organise Self-defense Group in Western Hungary, Politics.hu, Feb. 4, 2009, at http://www.politics.hu/20090204/roma-toorganise-selfdefense-group-in-western-hungary (on file with the Columbia Law Review) (describing motives and scope of Roma nonviolent self-defense group). 325. Barack Obama, Dreams from My Father 144–63 (1995). 326. I am indebted to Jean Zachariasiewicz for sharing with me her research into Saul Alinsky and his work. 327. For more information on the IAF, its history, and its activities, see Indus. Areas Found., About Us, at http://www.industrialareasfoundation.org/iafabout/about.htm (last visited Mar. 2, 2010) (on file with the Columbia Law Review). Alinsky offered jobs to Obama

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But, Alinsky was not working with the Roma or in Eastern Europe. While the Roma currently lack the organizational drive necessary for a strong social movement, it is less clear whether the lessons of community organizing in the United States could be applied in Eastern Europe. It would require careful consideration and some experimentation to learn whether an IAF-type program,328 first employed in Chicago in the 1940s, would be effective in such situations. It is, however, certainly worth a try. I am not proposing adopting an Alinsky-type program, but merely looking to what he has done as an example of activating a politically inert community. C. Politics In 2006, the U.S.-based National Democratic Institute (NDI) reported: “Sixteen years after the fall of the Berlin Wall, most citizens in Central and Eastern Europe have seen steady political and economic gains. However, the Roma—among the region’s largest minority—remain politically marginalized.”329 If Roma were elected to the European Parliament proportionate to their numbers—perhaps 24 of the 785 members—members of the European Parliament from the Roma community could make their voices heard. Until recently there were two, both from Hungary; after the June 2009 elections there is now only one, from Hungary. In Romania, when I asked about Roma political participation, leaders of the National Association of Roma replied that Roma are not interested in voting: They are too poor to care. They think about the rain that’s coming into their house and what they’re going to eat today. Roma votes are the easiest votes to buy, with a pack of cigarettes or some oil or sugar. . . . Common ground must be found; a minority self-government should be formed.330 Lom, Bulgaria suggests what could be the relation between political power and desegregation. It is a rare case. A small town, at least half its population is Roma. Roma hold important positions in government. The schools are substantially integrated with government support, and minority self-government plays no role there. Former Hungarian MEP Viktoria Mohacsi, however, believes that minority self-government is responsible for Hungary’s pro-integration policy.331 But others say that Hungary’s support for integration comes from
and Hillary Clinton. Peter Slevin, For Clinton and Obama, a Common Ideological Touchstone, Wash. Post, Mar. 25, 2007, at A1. 328. For a description of such programs, see generally Saul D. Alinsky, Community Analysis and Organization, 46 Am. J. Soc. 797 (1941). 329. Nat’l Democratic Inst., Europe’s Roma Gaining Political Rights, Mar. 21, 2006, at http://www.accessdemocracy.org/node/14341 (on file with the Columbia Law Review). 330. Jessica’s Notes, supra note 102, at 44. 331. Id. at 39.

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the policies of the political party in power, not minority self-government. The NDI disparages minority self-government support for integration. An NDI report asserts that the “MSGs tend to marginalize Romani issues by depositing them in a parallel, fairly powerless, quasi-governmental structure rather than addressing them through established governing bodies. . . . They lack the authority to take action outside of a very limited scope of issues and function more like NGOs than elected governing bodies.”332 The similarities between the African American and Roma situations suggest that one should look at sources of progress for African Americans as a guide to advance prospects of the Roma. But, Roma cannot rely, as did U.S. blacks, on the church, political support, and advocacy groups. The black church, mainly Baptists, existed in every community and contributed both financially and by offering locations for meetings and organizing. Martin Luther King, Jr. was the most prominent, but by no means the only civil rights leader to emerge from the church. The NAACP has been large and influential. Presidents often address its annual meetings. Civil rights have long been an important part of the political platform of the Democratic party. A network of black colleges, established to fend off integration of white institutions, while often deficient in academic offerings nevertheless provided some higher education. The sit-in demonstrations emerged from black colleges. They were points around which blacks could and did organize. Roma have no comparable infrastructure. Moreover, while black unemployment was up to double that of whites, income around sixty percent that of whites’, and wealth one-tenth that of whites’, blacks nevertheless did not suffer anything like communities with total unemployment. The American legal system possessed tools to effect change, such as power to issue injunctions and class actions, which remain unavailable in Eastern European law. Nevertheless, Europe has resources that can be brought to bear: The European Convention on Human Rights that has been held expressly to apply to the Roma condition and the European community has expressed a commitment to Roma equality. Further, the region must deal with the economic imperative created by the increasing cost of Roma subordination. There are some small signs of resistance from among the Roma: eager enrollment in many newly integrated schools, organizing to implement D.H. in the Czech Republic, mobilization to combat neo-Nazi and skin-head depredation, and incipient stirring of Roma political organization in European community elections. V. SUMMARY
OF

SEGREGATION

IN THE

REGION

School segregation of Roma is widespread throughout Eastern Europe. They have endured generations of slavery, segregation, and discrimination. The Roma Holocaust, in which perhaps over a million per332. Nat’l Democratic Inst., Hungarian Minority System, supra note 154, at 6.

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ished, marked the height of their suffering. Decades of communist domination contributed to disabling them from learning how to perform effectively in modern economies. They are readily stigmatized. They typically have a darker complexion, are disproportionately afflicted by vastly deficient education, ill health, decrepit housing, high unemployment, and severe prejudice. Many have turned to begging and crime, which brings them further obloquy. No single improvement can alleviate all these burdens. While education, more than anything else, is likely to offer a way out of their situation, they have been isolated in inferior schools or segregated within schools also attended by non-Roma. While upon admission of Eastern European nations to the European Union new treaties prohibited antiRoma discrimination, very little has been accomplished to realize their promise. In 2007, The European Court of Human Rights held the Czech Republic in violation of the European Convention on Human Rights for unwarranted extensive segregation of Roma children in schools for the mentally impaired. But, since 2007, that nation has done little more than confer about correcting the situation. Another European Court of Human Rights case, from Greece, also resulted in a favorable ruling for Roma, but no order requiring integration. Both decisions awarded between = 4,000 and = 6,000 in damages, clearly inadequate to compensate C C for having stifled critical years of a child’s education. Countries of the region have enacted their own legislation prohibiting Roma segregation. Hungary subsidizes and otherwise financially encourages integration. But, a recent study of sixty schools there finds that although integration has been successful where instituted, segregation is more widespread than in 1992. Romania and Bulgaria have laws prohibiting school segregation but next to no enforcement activity. As with the European Court of Human Rights decisions, domestic court cases favorable to Roma have never included decrees ordering a cessation of segregation. Governments have done little more than opine on the illegality of segregation. NGOs have almost always been central to integration activity, but do not have the resources of national governments and have rarely had governmental support. There are no central (regional, national, or European) coordinating authorities that gather information about segregation or have power to counteract the subversive effects of white flight. A small number of non-Roma, including some educators, endorse and promote nonsegregated education in isolated schools, but they are few and beleaguered. Forces opposed to segregation appear to be outmatched by competing influences that support it. Throughout the region, neo-Nazi and skinhead groups intimidate equal rights efforts by threatening politicians, Roma citizens, and leadership. Segregation is facilitated by spatial separation between many Roma and non-Roma communities, even though the distance could be overcome by modest trans-

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REPORT ON ROMA EDUCATION TODAY

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portation. White flight is a common response even to tentative steps towards integration, assuring that segregation, once ended, will return and persist. Inadequate preschool preparation and meager or nonexistent support at home for Roma children, which could be overcome or compensated by a robust preschool program and after-school supplementation, set Roma apart from and behind non-Roma when integration takes place. Civil society among Roma is not very demanding of change; the small number of Roma rights activists is incapable of moving politics or society. Nothing among them remotely resembles the U.S. civil rights movement of the 1960s. The most important issue for Roma school segregation is how to move from the current situation to implementation of the law, to move from segregation and isolation to integration and inclusion. VI. WHAT IS
TO

BE DONE?

The European Union must take seriously the importance of swiftly bringing an end to Roma school segregation. It has exacted promises from newly-admitted members of its community, pledging that they will prohibit segregation. To fulfill such pledges will require energetic, proactive, unambiguous insistence on newly admitted nations fulfilling their obligations. Some steps may be easy; others difficult. Enforcement may require tough, controversial political measures. But, it should be clear that nations which continue to operate segregated schools cannot fulfill their treaty obligation to desegregate simply by passing authority on to municipalities and washing their hands of it, perhaps following up with only conferences and rhetoric.333 If the nations of the Union fail to act, the results will be the continuation of a slow squandering of Roma lives and loss of treasure and humanity for all who live in Eastern Europe. School segregation is but one factor which maintains Roma in their diminished status. Roma must achieve parity with non-Roma in employment, housing, health, and civil rights generally. But education is the most important of these, particularly because it can lead to the others. To act effectively, Europe first needs information: Where do Roma live, where do they go to school, what is the ethnicity of students in their schools and nearby schools, how are they and non-Roma distributed among classrooms? Because lack of information about ethnicity, which is concealed from view by national laws and practices, is an impediment to protecting Roma effectively, the European Union should establish an Inspectorate General charged with the task of identifying and describing discrimination and segregation as well as where it exists. This Inspectorate General should be adequately staffed and funded and given the charge of identifying segregation across nations and within schools. National laws which prohibit gathering such information, which were
333. Particular thanks to Lilla Farkas concerning the crucial role of municipalities.

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adopted for good reason long ago, should be ignored or overridden by higher European law. Where segregation exists, it should cease immediately. Municipalities must furnish transportation to facilitate desegregation and supply funds to make it possible. That should not be the obligation of NGOs which often pay for it. For as long as necessary, schools must supply mentors or other aides to assist children and their families during the transition. Desegregation must be treated systemically, not school by school. Desegregation may not be thwarted by white flight. Therefore, orders may also be entered to prevent schools from taking in non-Roma who flee desegregation. This would include not only public schools, but private and religious schools. National chief law enforcement officers should treat segregation as a grave violation of law and give priority to proceedings aimed at ending it. While it has been debated whether any agency or court, including the European Court of Human Rights, now has power to issue an order (comparable to an injunction) that would require officials in charge of a public school to end segregation, no such order ever has been issued. The European Union should take steps, legislatively or otherwise, to make possible issuance of enforceable orders to make meaningful Article 13 of the European Convention of Human Rights which assures that “[e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority.” Private litigation to require desegregation should be encouraged and government funding made available to facilitate it. While official enforcement is often preferable, private litigation is not so susceptible to political manipulation or frustration. Most of the school segregation litigation in Eastern Europe so far has been privately funded and directed. While litigation has not yet produced enforced court orders, it does focus public attention. Nathan Margold, who wrote the planning paper that suggested the litigation campaign which led to Brown v. Board of Education perceived that “[its] psychological effect upon Negroes themselves will be that of stirring the spirit of revolt among them.”334 That might be true in Europe. One of the most important lessons for the Roma in the American civil rights movement is that a vibrant civil rights movement would be a highly important addition to the quest for Roma rights. There must be preschool available for all Roma children, and all Roma children should enroll. Children who do not attend preschool start primary grades at a disadvantage and cluster among the least accomplished children in their classes—a form of de facto intraschool segregation, which continues through their school years. A World Bank program designed to promote preschool among all children in Bulgaria is in the offing. If it does not materialize, the same end must be advanced some
334. Mark V. Tushnet, NAACP’s Strategy Against Segregated Education 1925–1950, at 15 (1987) (citing Committee Report, May 28, 1930, NAACP Papers, I-C-196).

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other way throughout Eastern Europe. Such a program should alleviate financial obstacles (for transportation, meals, school-suitable clothing, and the like), the greatest deterrent to Roma enrollment. Recognizing that some Roma families resist sending their children to school at a very early age, there must be an outreach program to impress upon them the importance of preschool. It should allay Roma concerns about loss of cultural identity. One final step is vital, something that the Roma themselves, and not the European community, must do. The Roma must make clear, and do so forcefully, that they cannot continue to tolerate subordination. After centuries of subjugation, including slavery, second-class citizenship, ethnic cleansing, oppression under communism, and stigmatization in the modern world, the Roma must launch a movement to claim their freedom. The Roma must take steps to cast off their shackles. These are stern demands, but Europe has dithered long enough with one of the gravest humanitarian and economic crises of our time.

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