Segregation in Education and a Duty of Desegregation Under the ECHR

Abstract

In recent case law on Roma segregation in education, the European Court of Human Rights (ECtHR) further develops its approach towards segregation in education and shifts its focus to desegregation. This evolution in the Court’s case law is important both for furthering the rights of Roma and equality in education. This article addresses two key questions concerning segregation in education on which the recent cases provide guidance. The first question concerns what situations of segregation can be considered “de facto discrimination”. The Court’s interpretation of this term has evolved from explaining the concept of indirect discrimination to an interpretation that has the potential to address systemic issues such as that of segregation in education. Secondly, this article addresses to what extent a duty of desegregation exists. In the case law on Roma segregation in education, the Court’s focus has recently shifted towards desegregation measures. It has ordered states to ensure the end of segregation in schools, where appropriate desegregation measures swiftly need to be implemented. In contrast to this detailed duty of collective desegregation, an approach towards a possible duty of individual desegregation is lacking. By shedding light on the prohibition of segregation in education and the duty of desegregation under the European Convention on Human Rights (ECHR), the paper aims to highlight evolutions and hiatuses in the ECtHR’s case law concerning Roma segregation in education and thereby contribute to strengthening the rights of Roma pupils to equality in education.