Strategic Litigation Impacts - ROMA SCHOOL DESEGREGATION
Open Society Justice Initiative
Methodology
This study seeks to contribute to the burgeoning field of strategic litigation, which is
also referred to as public-interest or impact litigation. Using a hybrid of legal analysis,
academic research, and quantitative and qualitative methodologies, this report aims
to assess the varied impacts of strategic litigation and related advocacy efforts on one
issue (Roma school desegregation) in the comparative framework of three Euro-pean
countries (Czech Republic, Hungary, and Greece), all of which fall under the jurisdiction of the European Court of Human Rights. In doing so, the study seeks to
catalyze mutual learning among activists, legal practitioners, and affected individuals,
communi-ties, and affinity groups. The study is intended primarily as an analytical
resource for litigation practitioners and advocates who may consider strategic
litigation—among other tools—as a means to advance human rights protections.
The research seeks to contribute to emerging thinking about strategic litigation
in several ways. It is, to the best of our knowledge, the first multi-country study of
the impact of strategic litigation designed to curb educational discrimination and
segrega-tion on grounds of race. While appreciating the rich and helpful literature on
quantita-tive justice measurements, this largely empirical study does not rely
significantly on quantitative data or attempt to survey the field as such. Nor does it
pretend to apply rigorous scientific techniques, or claim a fully objective perspective.
Rather, this study seeks to explore the complexity of strategic litigation. In doing so, it
acknowledges that strategic litigation may not be the most appropriate tool to
secure change—and that in certain contexts it may even be counter-productive. It is
hoped that this study will prove its value through its sensitivity to nuance and detail,
and the judiciousness of the research approach.
With that aim in mind, this report hopes to add value to the ongoing discourse by
offering an unprecedented 360-degree assessment of the impact of each case described
herein. Over the course of about six months (May–November 2014), a research team of
lawyers, sociologists, and Roma rights advocates sought out the views of a wide range
of interlocutors, asking them to respond to normative questions. (Please see Appendix
A for a list of those questions.) The research team conducted over 100 interviews with
litigants, members of affected communities, government officials, litigators, judges,
rights advocates, teachers, donors, academics and others. The primary research was
conducted principally in July and August 2014 in the Czech Republic by Lucie Fremlová;
in Greece by attorney Dani Maniou; and in Hungary by Roland Ferkovics, a graduate
student and Roma rights advocate. Lead researcher and author-attorney Adriána Zimová
participated in most of the interviews.
In most cases, interviews were conducted in real time, in situ, without outside
observers present, and in the language of the respondent, although sometimes simultaneously interpreted into English. Some additional interviews were conducted by telephone, Skype, and email.
The manuscript was completed in November 2014 and the information is current
as of that date.
Below are some essential questions—and brief answers—relevant to this study:
What is strategic litigation?
Strategic litigation, often also referred to as public interest litigation, impact litigation, or cause lawyering, can be many things. But for the purposes of this study
it may be used to refer to bringing a case before a court with the explicit aim of
positively impacting persons other than the individual complainants before the
court.
What indicators measure impact?
Knowledge of the impacts of strategic litigation—both real and perceived—is
evolving rapidly, thanks to growing interest in strategic litigation’s role in advancing human rights. Benefitting from this discourse, this study is framed around
three principal impact indicators: changes in policy, practice, and mobilization.
Quantitative indicators include the number of Roma students who are attending special (i.e. segregated) schools before and after relevant judgments, and the
number of segregated schools closed. But much of the relevant data are either
flawed or absent, so qualitative indicators have been used to help shed light on
real and perceived impacts.
Who is considered Roma in government data?
Efforts to collect reliable data about the authentic experience of Roma are profoundly complicated by the pervasiveness and severity of anti-Roma discrimination
in Europe—and sometimes by explicit government policy. Fearing discrimination,
ethnic Roma commonly identify themselves as “Hungarian” or “Czech” in public
censuses, leading to substantial under-counting. This poses a fundamental challenge to attempts to quantify the impacts of court-centered action. For example,
since the Greek government does not officially recognize the existence of ethnic
minorities (apart from migrants, such as those fleeing the war in Syria), it is
nearly impossible to measure the number of Roma children attending mainstream Greek schools before and after judgments.
To the greatest extent possible, this study seeks to adhere to principles of
impartiality, even-handedness, intellectual integrity, and rigor. To be sure, the study’s
co-sponsor, the Open Society Foundations (OSF), are avowed advocates of the use of
strategic litigation as a vehicle for social change. Moreover, both OSF and the Roma
Education Fund financially support grassroots efforts to assist Roma communities in
exercising their rights. Some might reason that this study is therefore inherently biased
toward conclusions favorable to the sponsors’ missions.
The study was structured to mitigate any such misperceptions. It was researched
and written by independent experts, rather than staff, and overseen by an advisory group
whose members are unaffiliated with the co-sponsors. In addition, the research process
was designed to garner input from the widest possible spectrum of stakeholders and
observers, including those who have been publicly critical of using strategic litigation to
desegregate Roma schools. This study is born of an authentic desire to understand the
complexities and risks of—rather than platitudes about—the use of strategic litigation
to advance social justice. A lack of impartiality would only thwart that goal.
....
