This report, the first of four related studies of the issue, was commissioned jointly by the Open Society Justice Initiative, the Open Society Foundations’ Roma Initiatives, and the Roma Education Fund. It probes concrete instances of strategic litigation—in three European countries—aimed at securing equal educational opportunity for Roma children. Other studies will examine strategic litigation impacts on equal access to quality education beyond Europe, torture, and land rights.
Using strategic litigation to effect social change can be stunningly effective, capable of breaking down longstanding injustices and opening new paths of human rights protection and enforcement. But strategic litigation can be complex, time-consuming, expensive, and risky. It may fail outright. Or it may succeed, but engender a powerful backlash against the very values and protections it seeks to enshrine in law.
This study is the first in a four-part series examining strategic litigation impacts. It seeks to contribute to emerging thinking about strategic litigation by exploring―in all their complexity―specific efforts to end discrimination against Roma school children.
Based on over 100 interviews with litigants, members of affected communities, government officials, litigators, judges, rights advocates, and others, this volume looks at strategic litigation as a social change agent. It examines the impacts of strategic litigation, with an emphasis on the social, political, and legal change it can generate. It also seeks to consider the context in which the litigation took place, and the factors that propelled or hindered it.
Six significant cases lie at the heart of this study. Those cases are taken from three countries—the Czech Republic, Greece, and Hungary—and all focus on Roma school desegregation. Strategic litigation on the six cases has resulted in groundbreaking judicial rulings and significant changes in policy and practice. But it has also led to disillusionment with the courts and new manifestations of discrimination, including against some of the very people who—at least in theory—stand to benefit from the judgments.
As this study explores, strategic litigation can be pathbreaking but also frustrating, powerful but also marred by unintended consequences. Above all, this study shows that strategic litigation is neither a panacea nor an invitation to disaster. Rather, it is one tool among many, a tactic that—under the right circumstances and in combination with other efforts—can contribute to positive social change.