EUROPE'S SCHOOLHOUSE GATE?
STRASBOURG, SCHOOLS, AND THE
EUROPEAN CONVENTION ON H U M A N
RIGHTS
PATRICK LEISURE*
Yale lawprofessor Justin Driver's 2018 book, The Schoolhouse Gate, argues
that American public schools have served as the most important sites of
constitutional conflict in United States history. This Article, inspired by
Driver's work, argues that primary and secondary schools similarly serve as
some of the most significantforums of human rights conflict in the Council of
Europe. In support of this argument, the Article adopts a two-tiered analysis.
Thefirstis court-centric, focusingprimarily on thejurisprudence of the European
Court of Human Rights involving schools. The second is society-centric
and homes in on the crossroads at which the European Court of Human Rights,
schools across the Council of Europe, and European societies meet. By making
the above claim regarding the centrality of schools, this Article hopes not only
to spur onfurther discussion about human rights within Europe's schoolhouse
gate, but also to deepen the conversation regarding how schools as institutions
interact with European supranational human rightsprotections.
I. INTRODUCTION 92
II. STRASBOURG, SCHOOLS, A N D THE EUROPEAN CONVENTION ON H U M A N RIGHTS
96
A. Convention Interpretation and the School Context 96
* Masaryk University, Department of Constitutional Law and Political Science, and part-time consultant
at the Czech Constitutional Court. LL.M. University of Panthéon-Assas, Paris II, J.D. Boston
University School of Law, B A . College of William and Mary. I would like to express my gratitude to
audiences at Cologne University's Academy for European Human Rights Protection, the Judicial Studies
Institute at Masaryk University, Hasselt University, and McGill University, for helpful comments at various
stages of this project. I would also like to thank Joey Shroycr, NickSchafcr, Kelly Schmidt, Niels
Kirst, Ceilidh Higgs, Lenka Křičková, Jan Burda, David Kosař, Kateřina Šimáčkova, Katarína Šipulová,
and Alfred de Zayas for beneficial discussion, comments, and suggestions. Any errors or weaknesses in
the Article are the responsibility of the author alone. This research was kindly supported by the NPO
"Systemic Risk Institute" number LX22NPO5101, funded by European Union - Next Generation E U
(Ministry of Education, Youth and Sports, NPO: EXCELES).
91
59 STAN. J. INT'L L . 2 (2023)
92 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
1. The Particular School Context and Convention Interpretation: A
Complex Relationship 97
2. The School Context and the Stringency of Supranational Scrutiny 101
B. Judicial and Academic Contestation in Strasbourg's Schooling Cases 103
1. Judicial Contestation in Strasbourg's Schooling Cases 104
2. Academic Contestation and Strasbourg's School Cases 109
C. Strasbourg's Role in Diverse Schooling Matters Across the Council of
Europe 113
III. STRASBOURG, SCHOOLS, AND EUROPEAN SOCIETIES 114
A. The Number of People and Magnitude of Interests Involved in Primary and
Secondary Education 114
B. Schooling Cases Beyond the Council of Europe 117
C. Strasbourg's Schooling Cases and European Societies 121
IV. CONCLUSION 128
1. INTRODUCTION
In a Croatian high school in 2011, a math teacher berated a group of high
school seniors for being late to math class. He shouted at one of the late pupils, calling
him a moron, an idiot, a fool, a hillbilly, and a stupid cop.1
After the pupil reported
the event that day to the head teacher, in class the following day, the math teacher
said to the pupil, "[W]hen you say to a fool that he is a fool, that should not be an
insult for him. . . . You don't know what the insults are, but you will see what the
insults are."2
In the third and final incident, eight days later, the math teacher asked
the pupil to turn to a page in his textbook. After the pupil had turned to the wrong
page, the math teacher said, "You, fool, not that page. I didn't mean to insult you,
because I know you will call your dad."3
The question that eventually wound up before
the European Court of Human Rights (ECtHR, Strasbourg Court) was whether
this verbal abuse and the Croatian authorities' response amounted to a violation of
the applicant's right to private life under the European Convention on Human Rights
(ECHR, Convention).4
1
F.O. v. Croatia, App. No. 29555/13, para. 6 (Sept. 6, 2021), https://perma.cc/WLW3-AU6E.
2
Id. at para. 7.
3
Id. at para. 8.
4
Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213
U.N.T.S. 221 [hereinafter European Convention on Human Rights]. The text of the Convention lists individual
human rights that the forty-six member states of the Council of Europe pledge to protect. The
Convention also establishes the ECtHR, which decides on individual human rights complaints (and, relatively
rarely, inter-statc cases) that meet the admissibility criteria. Following the entry into force of
Protocol No. 11 to the Convention in 1998, the ECtHR merged with the prior European Commission for
Human Rights into one permanent court in Strasbourg, France. Finally, the Convention outlines some of
the powers of the Committee of Ministers in relation to the Strasbourg Court, namely, their power to
supervise the execution of the Strasbourg Court's judgments. For more on the functioning of the ECtHR
and ECHR, sec A N G E L I K A N U B B E R G E R , T H E E U R O P E A N C O U R T O F H U M A N R I G H T S (2020); E D B A T E S ,
T H E E V O L U T I O N O F T H E E U R O P E A N C O N V E N T I O N O N H U M A N R I G H T S (2010); Paul L. McKasklc, The
European Court of Human Rights: What It Is, How It Works, and Its Future, 40 U.S.F.L. R E V . 1 (2005).
2023 Strasbourg, Schools, and the European Convention on Human Rights 93
Finding a violation of the applicant's Article 8 rights under the Convention,
the ECtHR noted early in the judgment that "in school . .. any form of violence,
however light, is considered unacceptable . . . ."5
In so doing, the ECtHR implicitly
acknowledged what the U.S. Supreme Court had explicitly recognized in the U.S.
context in Tinker v. Des Moines Independent Community School District in 1969:6
Students do not shed their rights when they enter the schoolhouse gate. In fact, this
finding is nothing new—the ECtHR has been adjudicating human rights claims of
students and their parents involving the primary and secondary school context for
some fifty-five years.7
Yet, no scholarship exists that holistically examines the school
as an important forum of supranational human rights protection in Europe. This Article,
taking inspiration from Yale law professor Justin Driver's recent book The
Schoolhouse Gate—arguing that schools have served as the most significant theater
of constitutional conflict in the United States8
—begins to bridge that gap through a
broad-spectrum discussion of the intersection between two significant institutions in
Europe: the ECtHR and European primary and secondary schools.
Labeled as one of the most effective international human rights tribunals in
existence,9
the ECtHR sits in Strasbourg, has jurisdiction to adjudicate human rights
claims of applicants regarding forty-six different countries, and decides on issues
with noteworthy legal, political, and societal consequences.10
Schools are similarly
central institutions in people's lives across Europe.11
Schools perform many key functions
in society, not limited to teaching pupils necessary skills for life like mathematics,
reading, and writing. They also provide a significant social experience, in which
young people from different families learn and coexist together for long periods
throughout the school day and school year, and as the COVID-19 pandemic has
brought back to the fore, they have an important and diverse caring function.12
According
to the ECtHR itself, among the objectives of schools is "the development and
5
F.O., at para. 69.
6
393 U.S. 503 (1969).
7
The first such case was the Case "Relating to Certain Aspects of the Laws on the Use of Languages
in Education in Belgium" (Merits) (Belgian Linguistics Case), 6 Eur. Ct. H.R. (ser. A) (1968).
8
J U S T I N D R I V E R , T H E S C H O O L H O U S E G A T E : P U B L I C E D U C A T I O N , T H E S U P R E M E C O U R T , A N D
T H E B A T T L E F O R T H E A M E R I C A N M I N D 12 (2018) ("At its core, this book argues that the public school
has served as the single most significant site of constitutional interpretation within the nation's history.").
9
Laurence Heifer, Redesigning the European Court of Human Rights: Embeddedness as a Deep
Structural Principle of the European Human Rights Regime, 19 E U R . J. I N T ' L L. 125, 126 (2008).
1 0
David Kosaf & Jan Petrov, The Architecture of the Strasbourg System of Human Rights: The
Crucial Role of the Domestic Level and the Constitutional Courts in Particular, HEIDELBERG J . I N T ' L L.
585, 587 (2017) (observing that "the ECtHR delivers rulings which deal with crucial legal, political and
societal issues of our day").
11
See, e.g., Bram Spruyt et al., The Perceived Quality, Fairness of and Corruption in Education
in Europe, O X F O R D R E V . E D U C . 1 (2022) (noting that "education is arguably one of the most central
institutions in contemporary European societies").
1 2
See, e.g., J A C K S C H N E I D E R & J E N N I F E R B E R K S H I R E , A W O L F A T T H E S C H O O L H O U S E D O O R :
T H E D I S M A N T L I N G O F P U B L I C E D U C A T I O N A N D T H E F U T U R E O F T H E S C H O O L 45 (2020) ("[S]chools play
an increasingly expansive role, providing food, clothing, medical care, and mental health counseling, as
well as after-school and summer programs."); id. at 63 ("Schools have always played an essential role in
readying students for employment."); id. at 79 ("[E]ducation is governed through a public system designed
to promote broad aims like democratic competence and general principles like equity."); Brett
Warnick, Student Speech Rights and the Special Characteristics of the School Environment, 38 E D U C .
R E S E A R C H E R 200 (2009); see also collection of articles in What is School For?, N.Y. T I M E S O P . (Sept.
9, 2022), https://pcrma.cc/8WUL-3V65.
94 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
moulding of the character and mental powers of its pupils."13
In a narrow sense, the
ECtHR sustains what Jan Comenius—the father of modern education—said in the
seventeenth century: A school is a "manufactory of humanity."14
Yet, while existing
scholarship has extensively examined important individual cases involving schools
before the ECtHR, such as the Belgian Linguistics Case,15
the Lautsi case,16
and
O 'Keeffe v. Ireland,11
or has examined particular Convention rights in the school con-
text,18
no scholarship exists attempting to characterize in broad strokes the relationship
between the ECtHR and schools in Europe.19
Based on a holistic analysis of a body of international jurisprudence—never
before collected and analyzed in one place—that I call "Strasbourg's schools juris-
prudence,"2
'' the central argument of this Article is that schools have served as one of
1 3
Campbell and Cosans v. U.K., 48 Eur. Ct. H.R. (scr. A) at para. 33 (1982). The Council of
Europe has also emphasized the importance of youth education for, among other things, forming full
citizens in democratic societies, transmitting generic European values, and fostering a European awareness
that respects Europe's rich cultural, religious, and other diversity. See Eur. Pari. Ass., Education for
Europe, 4th Scss., Ree. No. 1682 (2004).
1 4
S I M O N S O M E R V I L L E L A U R J E , J O H N A M O S C O M E N I U S , B I S H O P O F T H E M O R A V I A N S : H I S L I F E
A N D E D U C A T I O N A L W O R K S 198 (1899).
15
See B A T E S , supra note 4, at 225-38; Katherinc Williams & Bernadette Raincy, Language, Education
and the European Convention on Human Rights in the Twenty-First Century, 22 L E G A L S T U D I E S
625 (2002).
16
See, e.g., Dominick McGoldrick, Religion in the European Public Square and in European
Public Life—Crucifixes in the Classroom?, 11 H U M . RTS. L. R E V . 451 (2011); Joseph Weiler, Freedom
of Religion and Freedom from Religion: The European Model, 65 M E . L. R E V . 759 (2013); Pierre-Henri
Prclot, The Lautsi Decision as Seen From (Christian) Europe, 65 M E . L. R E V . 783 (2013); Lorenzo
Zucca, Lautsi; A Commentary on a Decision by the ECtHR Grand Chamber, 11 i N T ' L J. C O N S T . L. 218
(2013).
17
See, e.g., James Gallen, O'Kccffc v. Ireland: The Liability of States for Failure to Provide an
Effective Systemfor the Detection and Prevention of Child Sexual Abuse in Education, 78 M O D . L. R E V .
151 (2015).
18
See, e.g., Noam Pclcg, Marginal isation by the Court: The Case of Roma Children and the European
Court of Human Rights, 18 H U M . R T S . L. R E V . 111 (2018) (discussing many of the cases decided
by the ECtHR involving discrimination in schools against Roma children).
1 9
For the purposes of this Article, school is defined as a primary or secondary school. My study
docs not include, among others, prc-schools, nurseries, creches, or universities.
2 0
I identified forty-five judgments issued by the ECtHR involving a close factual nexus with
primary and secondary schools. These cases were identified using a combing method on the primary
search engine of ECtHR case-law, HUDOC. Specific key terms were used to identify initial cases, such
as "school," "education," "primary," "secondary," "student," and "pupil." Then, I identified the cases
that the search results turned up involving the rights of pupils or their parents that did not involve a close
factual nexus with a primary or secondary school. Finally, the set of identified cases was cross-checked
with the relevant literature, such as C L A I R E F E N T O N - G L Y N N , C H I L D R E N A N D T H E E U R O P E A N C O U R T O F
H U M A N R I G H T S (2021). Admissibility decisions involving schooling were not included. This body of
case law forms the basis for the Article's analysis. Only judgments issued before January 26, 2023, when
this Article was accepted for publication, arc included. Those cases arc "Relating to Certain Aspects of
the Laws on the Use of Languages in Education in Belgium" (Merits), 6 Eur. Ct. H.R. (scr. A) (1968);
Kjeldsen v. Denmark, 23 Eur. Ct. H.R. (scr. A) 711 (1976); Campbell and Cosans v. United Kingdom,
48 Eur. Ct. H.R. (scr. A) (1982); Costello-Roberts v. United Kingdom, 247 Eur. Ct. H.R. (scr. A) (1993);
Efstratiou v. Greece, App. No. 24095/94, 24 Eur. H.R. Rep. 294 (1997); Valsamis v. Greece, App. No.
21787/93, 24 H.R. Rep. 294 (1997); Cyprus v. Turkey, 2001-IV Eur. Ct. H.R. 237; Timishev v. Russia,
2005-XII Eur. Ct. H.R. 169; D.H. and Others v. Czech Republic, 2006 Eur. Ct. H.R.; Folgere and Others
v. Norway, 2007-111 Eur. Ct. H.R. 51; Zengin v. Turkey, 2007 Eur. Ct. H.R.; D.H. and Others v. Czech
Republic {D.H. II), 2007-IV Eur. Ct. H.R. 241; Sampanis and Others v. Greece, 2008 Eur. Ct. H.R.;
Orsus and Others v. Croatia, 2008 Eur. Ct. H.R.; Dogru v. France 2008 Eur. Ct. H.R.; Kervanci v.
France, 2009 Eur. Ct. H.R.; Lautsi and Others v. Italy, 2009 Eur. Ct. H.R.; Orsus and Others v. Croatia
(Orsus IT), 2010-11 Eur. Ct. H.R. 247; Grzelak v. Poland, 2010 Eur. Ct. H.R.; Ali v. UK, 2011 Eur. Ct.
H.R.; Lautsi and Others v. Italy (Lautsi IT), 2011 -III Eur. Ct. H.R. 63; Ponomaryovi v. Bulgaria, 2011ITI
Eur. Ct. H.R. 366; Vejdeland and Others v. Sweden, 2012 Eur. Ct. H.R.; Kemaloglu v. Turkey, 2012
2023 Strasbourg, Schools, and the European Convention on Human Rights 95
the most important sites of human rights conflict and ECHR interpretation in the postWorld
War II history of Europe. It is likely that few other "domains," in which the
ECHR protects people from rights abuses by the state, rival schools in terms of the
size of the interests within Council of Europe states, the divergence of views and
contestation in the judiciary and academia on the correct interpretation of the ECHR
as applied to the domain, and the significance for European societies in both the legal
and social spheres. In making this claim, the Article advocates for the transposition
of what Dean Heather Gerken of Yale Law School calls "domain-centered" constitutional
law21
to the European supranational context.22
In other words, because interpretations
of rights may depend on judges' understandings of their context, our understanding
of the ECtHR's interpretation of the ECHR will improve by focusing on
certain places or applicants rather than only specific clauses of the Convention.23
As
this Article shows, Convention interpretation is contextual. Therefore, we should
study it as such.24
In support of the above, the Article adopts a two-tiered approach.25
The first
tier, explored in Part II, is court-centric. It focuses on the ECtHR's interpretation of
the ECHR in schooling cases. A trio of observations supports the Article's argument
that schools are critical sites of human rights conflict and Convention interpretation.
1. The Strasbourg Court frequently accentuates the distinctive characteristics
of the unique and complex school setting in its judicial reasoning in schooling cases,
sometimes in determinative ways.
2. Schooling cases before the Strasbourg Court often involve highly-contested
questions about the correct judicial interpretation of the ECHR.
Eur. Ct. H.R; Kayak v. Turkey, 2012 Eur. Ct. H.R.; Catan and Others v. Republic of Moldova and Russia,
App. Nos. 43370/04 et al, 57 Eur. H.R. Rep. 99 (2013); Sampani v. Greece, 2013 Eur. Ct. H.R.; Horväth
v.Hungary, 2013Eur. Ct. H.R.; Lavida v. Greece 2013 Eur. Ct. H.R.; Yalcin and Others v. Turkey,20\5
Eur. Ct. H.R.; O'Keeffe v. Ireland, 2014-1 Eur. Ct. H.R. 155; Memlika v. Greece, 2015 Eur. Ct. H.R.;
Cam v. Turkey, App. No. 51500/08 (May 23, 2016), https://perma.ee/7QEN-JC7P; Osmanoglu and Kocabas
v. Switzerland, App. No. 29086/12 (Apr. 10, 2017), https://perma.cc/9SAZ-C8J2; Papageorgiou
and Others v. Greece App. Nos. 4762/18 ct al. (Jan. 31, 2020), https://perma.cc/86UE-DKG2; G.L. v.
Italy, App. No. 59751/15 (Oct. 12, 2020), https://pcrma.cc/TN2E-SJFA; Perovy v. Russia, App. No.
47429/09 (19 Apr., 2021), https://pcrma.cc/YWR8-RNE7; F.O. v. Croatia, App. No. 29555/13 (Sept. 6,
2021), https://pcrma.ee/WLW3-AU6E; Stoian v. Romania, App. No. 289/14 (June 25, 2019),
https://pcrma.ee/4V4N-SASG; Kurt v. Austria, App. No. 62903/15 (July 4, 2019),
https://perma.ee/7QVG-JFEG; Kurt v. Austria {Kurt IT), App. No. 62903/15 (June 15, 2021),
https://pcrma.ee/C8RB-KJG5; Tagayeva and Others v. Russia, App. No. 26562/07 (Apr. 13, 2017),
https://pcrma.ee/7J76-ZRGF; Adam and Others v. Romania, App. No. 81114/17 (Mar. 8, 2021),
https://pcrma.cc/U9A9-GK69; X and Others v. Albania, App. Nos. 73548/17 & 45521/19 (Aug. 31,
2022), https://pcrma.ee/7YMQ-WS48; Elmazova and Others v. North Macedonia, App. Nos. 11811/20
& 13550/20 (Dec. 13, 2022), https://perma.cc/CNG6-DHNH. The phrase "Strasbourg's schools jurisprudence"
is inspired by James Ryan. See James Ryan, The Supreme Court and Public Schools, 86 VA. L.
R E V . 1335, 1337 (2000) (discussing the U.S. Supreme Court's public schools jurisprudence).
2 1
Heather K. Gerken, Justice Kennedy and the Domains of Equal Protection, 121 H A R V . L. R E V .
104, 122 (2007).
2 2
While the registry of the ECtHR produces case law handbooks that detail jurisprudence on
certain Convention rights, such as the right to education, and a handbook of all cases involving prisoners'
rights exists, no handbook or scholarly work has ever tried to focus on the school as a specific institution
or domain of rights protection at the ECtHR.
2 3
Emma Kaufman, The New Legal Liberalism, 86 U. CHI. L. R E V . 187, 207 (2019).
2 4
Id.
2 5
My gratitude to a member of the Judicial Studies Institute in Brno for suggesting this way of
organizing the Article's arguments.
96 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
3. The ECtHR has repeatedly confirmed that it has a role to play in upholding
human rights in schools across the Council of Europe's member states and in cases
involving numerous Convention rights.
The second tier of the argument, in Part III, takes a broader view and considers
the societal implications of the intersection between schools and the Strasbourg
Court. Three observations in this realm lend credence to the notion that schools
should be understood as key theaters of human rights encounters in Europe.
1. The number of people involved and the size of the interests in elementary
and secondary schooling across the Council of Europe are enormous.
2. Many of the ECtHR's schooling cases may be reflective of broader apprehensions
that permeate membership in Europe's human rights protection regime.
3. Some of the Strasbourg Court's schooling cases have made important contributions
to the European social landscape.
While there is some overlap between these two levels of analysis, the framework
provides a meaningful distinction between jurisprudential analysis and broader
societal considerations at the intersection of schools and the Strasbourg Court. Finally,
by introducing the relationship between schools and the ECtHR and arguing
that schools have been key sites of Convention conflict, the Article seeks to start a
discussion, not to finish it. The observations and arguments therefore take a general
rather than a particular form and suggest possible answers rather than definite con-
clusions.
II. STRASBOURG, SCHOOLS, AND THE EUROPEAN CONVENTION ON H U M A N
RIGHTS
A. Convention Interpretation and the School Context
While the ECtHR has stated that prisoners do not shed their Convention
rights at the prison gate,26
it has never made a similar statement regarding the school,
as the U.S. Supreme Court famously did in Tinker.21
This is perhaps not surprising,
as the Convention's Additional Protocol 1 Article 2 (Pl-2), unlike the U.S. Constitution,
directly mentions education.28
Yet, the ECtHR in its jurisprudence involving
2 6
Khodorkovskiy and Lcbedev v. Russia, 2014 Eur. Ct. H.R. at para. 836.
2 7
Tinker v. Dcs Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) ("It can hardly be
argued that cither students or teachers shed their constitutional rights to freedom of speech or expression
at the schoolhousc gate.").
2 8
Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 1, art. II,
Mar. 20,1952, E.T.S. 9 ("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 convic-
tions.").
2023 Strasbourg, Schools, and the European Convention on Human Rights 97
schools has repeatedly emphasized the importance of the school context in shaping
the way it interprets at least eight different Convention rights.29
To be sure, the general observation that Convention interpretation in schooling
cases is contextual is multifaceted. Judicial reference to the school context in a
case may lead to different results vis-a-vis Convention interpretation. Some ECtHR
opinions simply accentuate various characteristics of elementary and secondary
schools in theirjudicial reasoning, with varying impacts on how they apply the Convention
to the facts of the case. Other judgments view the school setting as more
directly impacting the ECtHR's supervisory role—in some cases the ECtHR appears
to make supervision of the Convention rights more stringent, and in others it affords
more deference to the national actor involved in the case. Below, I conceptualize and
consider examples of the former before turning to several illustrations of the latter.30
1. The Particular School Context and Convention Interpretation: A Complex
Relationship
Schools are unique and complex legal and social institutions. However, it is
difficult to articulate precisely the exact nature of schools, the elements that make the
school setting unique, and the broader function of schools in society, perhaps because
no two schools are the same and a school's function is often subjective. Nonetheless,
U.S. legal and educational literature helps us to go slightly deeper into the nature of
schools, as well as the "special characteristics" that make them sui generis environments.
For example, legal scholar and former Dean of the University of Colorado
Law School Betsy Levin argues:
The 'special characteristics' of the elementary and secondary school environment
include the fact that students, being compelled to attend
school, are a captive audience, that the students are not yet fully developed
intellectually or emotionally, that the educational enterprise has an
obligation to protect the safety of all students and to provide them with
an atmosphere conducive to education, and that the purpose of compulsory
education is to inculcate the social, moral and political values of
the community (however defined) and, in particular, to prepare the
young to participate as citizens in our democratic society.31
In a similar vein, education scholar Brett Warnick claims that seven characteristics
of schools shape judicial interpretation of free speech in the United States: the age of
pupils, school attendance requirements, heightened safety considerations, the necessity
for public accountability, the multiple constituencies served by schools, the
2 9
See infra note 133.
3 0
The cases presented in the following two Subparts are not an exhaustive discussion of Strasbourg's
schools jurisprudence. Given the broad scope of this Article and its primary goal of spurring on
future scholarship at the intersection of schools and rights protection in Europe, 1 selected the cases in
this Article for their representativeness of different Convention rights and different factual scenarios involving
the school context, as well as their relatively simple factual patterns.
3 1
Betsy Levin, Educating Youthfor Citizenship: The Conflict Between Authority and Individual
Rights in the Public School, 95 Y A L E L.J. 1647, 1678 (1986).
98 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
school-associated nature of much student speech, and the need to promote educational
goals.32
Adding another layer of complexity, legal scholar and current President of
the University of Virginia James Ryan argues that the U.S. Supreme Court's jurisprudence
concerning schools rests on a necessarily imperfect distinction between two
functions of schooling: the academic and the social.33
The academic is easy enough
to understand—in schools students learn important skills for life, including mathematics,
science, history, reading and writing, and (hopefully) critical thinking. The
social function is more difficult to grasp. To Ryan, schools are institutions that not
only convey to the youth certain values or touchstones of behavior important to the
broader society, but also that can correct certain broader societal flaws. For example,
schools could be the places where society attempts to cure racial segregation.34
This brief sketch of several scholars' views on what schools are and what
schools do in the United States reveals schools to be complex legal and multidimensional
social institutions. How does the Strasbourg Court conceive of the unique nature
of the school environment in its judicial reasoning? Below 1 illustrate that the
Strasbourg Court consistently engages with the "special characteristics" inherent in
the school setting in its schools jurisprudence—though in a complex and varying
manner—via concrete illustrations involving religion, safety, discrimination, and
freedom of speech.35
In 1976, in Kjeldsen, Busk Madsen and Pedersen v. Denmark, three sets of
Christian parents objected to Danish legislation making sex education classes compulsory
in Danish schools—legislation that came about in light of, amongst other
things, a worrying rise in unwanted pregnancies. Finding no violation of the Convention,
the ECtHR emphasized that "the State, in fulfilling the functions assumed by it
in regard to education and teaching, must take care that information or knowledge
included in the curriculum is conveyed in an objective, critical and pluralistic manner"
and is forbidden from pursuing "an aim of indoctrination."36
Most significantly,
the ECtHR linked PI-2 with Article 9 of the Convention's protection of the freedom
of religion, reasoning that the second sentence of PI-2 was essential for the preservation
of democratic society, which states achieve above all through teaching?1
In
light of this reasoning, the Strasbourg Court found that the Danish legislation mandating
compulsory sex education, while of a moral order, did not overstep the bounds
of what a democratic state might regard as in the public interest, particularly where
"public authorities wish to enable pupils to take care of themselves and show considerations
for others in that respect."38
The fact that "the setting and planning of the
curriculum fall in principle within the competence of the Contracting States"39
and
3 2
Warnick, supra note 12. Cf. J.C. Blokhuis, Student Rights and the Special Characteristics of
the School Environment in American Jurisprudence, 49 J. P H I L . EDUC. 65,74 (2015) (claiming that in the
U.S. context, the "special characteristics of the school environment" are only predicated on the custodial
and tutelary relationship between the teacher and pupil, due precisely to the legal status of minors and
the parens patriae doctrine under the common law).
3 3
Ryan, supra note 20, at 1340.
34
Id.
3 5
This discussion is meant to be illustrative rather than exhaustive. See infra note 63.
3 6
Kjeldsen v. Denmark, 23 Eur. Ct. H.R. (ser. A) at para. 53 (1976).
37
Id.
38
Id.
39
Id.
2023 Strasbourg, Schools, and the European Convention on Human Rights 99
that the Danish legislation intended to prepare and protect pupils rather than indoctrinate
them pushed the ECtHR towards finding no violation of the Convention. Thus,
one of the earliest of Strasbourg's school cases evinces the tension between the ECtHR's
understanding of the school as an institution with specific societal functions—
e.g., preserving democracy and empowering young people to be safe and autonomous
in their sexual lives40
—and how such functions ought to interact with the Strasbourg
Court's interpretation of specific Convention rights.
Six years later, in Campbell and Cosans v. United Kingdom, dealing with
corporal punishment in Scottish schools, the ECtHR pointed out that:
The use of corporal punishment may, in a sense, be said to belong to the
internal administration of a school, but at the same time it is, when used,
an integral part of the process whereby a school seeks to achieve the
object for which it was established, including the development and
moulding of the character and mental powers of its pupils.41
Because of the understanding that "discipline is an integral, even indispensable, part
of any education system," the ECtHR found that Campbell and Cosans' claim fell
squarely under Pl-2's protection of respect for parents' philosophical convictions in
the education of their children.42
Thus, judicial understanding of discipline's importance
in schooling underscored Pl-2's application in the case. Yet, twenty-six
years later, in Dogru v. France, which dealt solely with the Article 9 freedom of
religion right of an eleven-year-old pupil who was expelled for not removing her veil
on multiple occasions during physical education class, the ECtHR borrowed from the
Campbell and Cosans case to find no violation of the Convention. The judgment
reiterated that:
The imposition of disciplinary penalties is an integral part of the process
whereby a school seeks to achieve the object for which it was established,
including the development and moulding of the character and
mental powers of its pupils.43
As a result, the ECtHR was able to sidestep some of the thornier interests of the child
in relation to the religious minorities question and find no Article 9 violation, in part
because schools must enforce their own rules with disciplinary measures, particularly
when a pupil's objections to the terms of participation in certain school classes "had
led to a general atmosphere of tension within the school."44
Strasbourg's judges also have considered the school context important regarding
safety in school. In llbeyi Kemaloglu and Meriye Kemaloglu v. Turkey, the
4 0
For an argument that "the schoolhouse is a site—perhaps the preeminent site—for the inculcation
of values of sexual citizenship," see Melissa Murray, Sex and the Schoolhouse, 132 H A R V . L . R E V .
1445,1484(2019).
4 1
Campbell and Cosans v. U.K., 48 Eur. Ct. H . R . (ser. A) at para. 33 (1982).
4 2
Id. at para. 34. The Court ultimately found in favor of the applicants, holding that the Pl-2
rights of the applicants had been violated. Id. at para. 38.
4 3
Dogru v. France, 2008 Eur. Ct. H . R . at para. 83.
4 4
Id. at para. 74.
100 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
ECtHR unanimously found a violation of the right to life when a seven-year-old student—who
had not enrolled in the paid school busing service—froze to death while
attempting to walk the four kilometers home after school closed early due to an unexpected
snowstorm. In delineating the state's positive obligations under Article 2's
protection of the right to life, the ECtHR stated "that the State's duty to safeguard the
right to life is also applicable to school authorities, who carry an obligation to protect
the health and well-being of pupils, in particular young children who are especially
vulnerable and are under the exclusive control of the authorities."45
Thus, in that case,
the age of pupils, vulnerability in the school setting, and the pupils being under the
exclusive control of school authorities swayed the ECtHR to find a violation under
Article 2 of the ECHR.
Consider G.L. v. Italy, involving disability discrimination in school. In that
case, the ECtHR unanimously found a violation of Article 14 in conjunction with Pl-
2. A thirteen-year-old girl with nonverbal autism, during her first two years of primary
school, had not been provided with specialized learning support, even though
such support was required by law. Specifically rejecting the government's claim of a
lack of financial resources, the case relied on the educational context and cited many
of the Strasbourg Court's relevant prior decisions. In a telling part of the judgment,
the ECtHR reflected that "the discrimination suffered by the applicant is particularly
serious as it occurred in the framework of primary schooling . . . which provides the
bases for overall education and social integration and the first experiences of living
together—and which is compulsory in most countries."46
A final example of the Strasbourg Court stressing the distinctive characteristics
of the school environment in its interpretation of the Convention relates to freedom
of expression under ECHR Article 10. Vejdeland v. Sweden arose out of the
convictions of four Swedish nationals under the Swedish penal code for "agitation
against a national or ethnic group" after leaving homophobic pamphlets in approximately
one hundred lockers of students in an upper-secondary school. With a nod to
the reasoning in the Swedish Supreme Court's decision to uphold the criminal conviction,
the ECtHR found no violation of the Convention, emphasizing that "the distribution
of the leaflets took place at a school which none of the applicants attended
and to which they did not have free access" and that, citing the ECtHR's Handyside
case,47
"the leaflets were left in the lockers of young people who were at an impressionable
and sensitive age and who had no possibility to decline to accept them."48
Moreover, the concurring opinion of Judge Bostjan M. Zupancic would have placed
the primary reasoning of the case on this latter fact because "high-school grounds
may not be seen primarily as the setting for a captive audience .. . yet they are definitely
a protected setting where only those authorised to distribute any kind of information
may do so."49
In this context, Judge Zupancic cited one of the key judgments
in the U.S. Supreme Court's schools jurisprudence—Bethel SchoolDistrict v. Fraser.
In that case, the U.S. Supreme Court upheld a school's suspension of star student
Matthew Fraser for a lewd speech at a school assembly in which he claimed his free
speech rights allowed him to advocate for the election of his "firm" friend for student
4 5
Kcmaloglu v. Turkey, 2012 Eur. Ct. H.R. at para. 35.
4 6
G.L. v. Italy, App. No. 59751/15, at para. 71 (Oct. 12, 2020), https://pcrma.cc/TN2E-SJFA.
4 7
Handysidc v. United Kingdom, 24 Eur. Ct. H.R. (scr. A) (1976).
4 8
Vejdeland v. Sweden, 2012 Eur. Ct. H.R. at para. 56.
4 9
Id, Concurring Opinion of Judge ZupanciS at para. 9.
2023 Strasbourg, Schools, and the European Convention on Human Rights 101
president. The key part of that ruling for Judge Zupancic was the U.S. Supreme
Court's finding that "the undoubted freedom to advocate unpopular and controversial
views in schools and classrooms must be balanced against the society's countervailing
interest in teaching students the boundaries of socially appropriate behaviour."50
2. The School Context and the Stringency of Supranational Scrutiny
The above cases illustrate that in its judicial reasoning for schooling cases,
the ECtHR frequently accentuates the distinctive characteristics of the school setting
in complex and multifaceted ways. However, the school setting sometimes appears
to play a more significant role in the Strasbourg Court's understanding of the scope
of protection under the Convention, at times wrapped up in the question of the level
of discretion left to member states. In some cases, the school setting appears to make
more stringent the ECtHR's supervisory role, while in others it appears to widen the
discretion left to member states. This Subpart first considers examples of the former
in safety schooling cases involving Articles 2, 3, and 8 of the Convention, before
concluding with examples of the latter in schooling cases concerning religion and
discrimination.
In a debated passage in Kayak v. Turkey, a case concerning the right to life
of a fifteen-year-old who was stabbed by a nearly eighteen-year-old pupiljust outside
of an Istanbul schoolhouse, the Strasbourg Court held that "the mission entrusted to
the educational institution . . . implies the primordial duty to ensure the safety of the
pupils in order protect them against all forms of violence of which they could be
victims during the time when they are placed under its supervision."51
Thus, under
this standard, states' positive obligations to protect the right to life would appear to
take on a particularly stringent standard in the school setting.
Similarly, in O 'Keeffe v. Ireland, a case concerning Ireland's liability for not
having set up an effective system of detecting and reporting sexual abuse in primary
schools, the Strasbourg Court discussed ECHR Article 3 and its protection of the
right not to be subjected to inhuman or degrading treatment:
[T]he primary-education context of the present case defines to a large
extent the nature and importance of this obligation. The Court's caselaw
makes it clear that the positive obligation of protection assumes particular
importance in the context of the provision of an important public
service such as primary education, school authorities being obliged to
protect the health and well-being of pupils and, in particular, of young
children who are especially vulnerable and are under the exclusive control
of those authorities . .. ,5 1
The school thus played a key role in the Grand Chamber of the Strasbourg Court's
understanding of the scope of obligations incumbent on the state regarding the right
not to be subject to inhuman or degrading treatment or punishment.
5 0
Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 681 (1986).
5 1
Kayak v. Turkey, 2012 Eur. Ct. H.R. at para. 59.
5 2
O'Keeffe v. Ireland, 2014-1 Eur. Ct. H.R. 155, 192 (citations omitted).
102 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
In the recent case of F.O. v. Croatia, mentioned above, the ECtHR expanded
its jurisprudence under Article 8's right to privacy with respect to school safety. In
that case, invoking teachers' duty of care and the dignity of students, the Strasbourg
Court stated, "[A]s a teacher, he should have been aware that any form of violence,
including verbal abuse, towards students, however mild, is not acceptable in an educational
setting and that he was required to interact with students with due respect for
their dignity and moral integrity."53
Under this reasoning, Europe's teachers may have
altered responsibilities with respect to ECHR Article 8 regarding the language they
use in interactions with their students in the classroom.
In other school cases, however, the school setting works in the opposite manner—affording
a greater (or different) level of discretion to national authorities. In
Osmanoglu and Kocabas v. Switzerland, concerning the ability of Muslim parents to
obtain an exemption from mandatory mixed swimming classes for their daughters,
the school context played a key role in how the ECtHR interpreted the discretion left
to national authorities under ECHR Article 9's protection of the freedom of religion.
The ECtHR, applying the general principles to the specifics of the case, reiterated
that "States enjoy a considerable margin of appreciation concerning matters relating
to the relationship between the State and religions . . . particularly where these matters
arise in the sphere of teaching and State education."5
* Thus, the level of protection
afforded under Article 9, when it occurs in the context of state-provided schooling
and teaching, is particularly deserving of a wide margin of appreciation.55
This
gives more leeway to states and raises the threshold for finding a violation of the
individual's right to religion in the school context. Of course, supplementing the wide
margin of appreciation in this schooling case, the ECtHR also mentioned various
aspects specific to its view of the school environment, such as that "school plays a
special role in the process of social integration, one that is all the more decisive where
children of foreign origin are concerned."56
The ECtHR's statement speaks to its view
of the school's role as one of promoting social integration, a role which outweighed
the parents' right to respect for their religious views in the education of their chil-
dren.57
The ECtHR similarly found the school context key to its interpretation of the
level of discretion left to states under the Convention's prohibition of discrimination
in Ponomaryovi v. Bulgaria. That case concerned the right of two Khazaki-born,
Russian pupils legally living in Bulgaria with their mother, who had married a Bulgarian
national, not to be subject to discriminatory fee payments to attend secondary
5 3
F.O. v. Croatia, App. No. 29555/13, para. 87 (Sept. 6, 2021), https://pcnna.cc/WLW3-AU6E.
5 4
Osmanoglu and Kocabas v. Switzerland, App. No. 29086/12, para. 95 (Apr. 10, 2017),
https://perma.cc/9SAZ-C8J2 (emphasis added).
5 5
The margin of appreciation is a judicially created doctrine that the ECtHR uses to interpret the
Convention. "It generally refers to the amount of discretion the Court gives national authorities in fulfilling
their obligations under the Convention. It is somewhat analogous to a standard of review." Jeffrey
A. Brauch, The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights:
Threat to the Rule of Law, 11 C O L U M . J. E U R . L. 113, 115 (2005). The literature on the margin of appreciation
is immense. See, e.g., Jan Kratochvil, The Inflation of the Margin of Appreciation by the European
Court of Human Rights, 29 N E T H . Q . H U M . R T S . 324 (2011j; George Lctsas, Two Concepts of the Margin
of Appreciation, 26 O X F O R D J. L E G A L S T U D . 705 (2006).
56
Osmanoglu, App. No. 29086/12 at para. 96.
5 7
For more on this case, sec Sarah Trotter, 'Living Together', 'Learning Together', and 'Swimming
Together': Osmanoglu and Kocabas v Switzerland (2017) and the Construction of Collective Life,
18 H U M . RTS. L. R E V . 157 (2018).
2023 Strasbourg, Schools, and the European Convention on Human Rights 103
school. Citing to Leyla Sahin,58
a case regarding wearing a veil in a Turkish medical
school, the Ponomaryovi court pointed out that "[i]n a democratic society, the right
to education . . . is indispensable to the furtherance of human rights."59
Then, in the
most important passage of the judgment, the ECtHR stated that "the State's margin
of appreciation in [the educational] domain increases with the level of education, in
inverse proportion to the importance of that education for those concerned and for
society at large."60
Thus, the ECtHR privileges primary schooling as deserving of the
most restrictive margin of appreciation, in part because it "provides basic literacy and
numeracy—as well as integration into and first experiences of society—and is compulsory
in most countries."61
Likewise, secondary education, at issue in the case,
"plays an ever-increasing role in successful personal development and in the social
and professional integration of the individuals concerned."62
Therefore, the school
context was key to the ECtHR's understanding of the margin of appreciation in different
levels of schooling under the prohibition of discrimination in Article 14 taken
together with PI-2. With the Strasbourg Court finding in favor of the applicants despite
the wider margin left in secondary education, the school context played an influential
role in the ECtHR's interpretation of the degree of discretion left to states at
different stages of schooling.
What is clear from this brief discussion of select passages from Strasbourg's
schools jurisprudence is that the school context often plays an important role in shaping
both the particularjudicial application of Convention rights to the facts of a given
dispute and the Strasbourg Court's understanding of the general protection offered
by various Convention rights. A holistic reading of Strasbourg's schools jurisprudence
confirms what the smattering of case law explored above illustrates: In the vast
majority of Strasbourg's schooling cases, the specific school context affects how the
Strasbourg Court interprets the Convention—frequently in decisive ways.63
B. Judicial andAcademic Contestation in Strasbourg's Schooling Cases
Disagreement over the proper interpretation of the ECHR in many of Strasbourg's
schooling cases further supports the claim that the school domain has been a
key site of Convention conflict before the ECtHR. There are several metrics by which
one might measure the contested nature of these judgments, both within the walls of
the Strasbourg Court and outside the ECtHR building. First consider judicial disa-
greement.
5 8
Lcyla Sahin v. Turkey, 2005-XI Eur. Ct. H.R. 115.
5 9
Ponomaryovi v. Bulgaria, 2011-1II Eur. Ct. H.R. 366, para. 55.
6 0
Id. at para. 56.
61
Id. at para. 55.
« Id.
6 3
For a more thorough discussion of the specific characteristics of the school environment that
ECtHR judges consider (including the age of pupils, compulsory attendance requirements, the extent to
which a school is rules-based and orderly, the extent to which a school serves multiple constituencies,
the nature of a school's learning spaces, how a school differentiates and groups students, safety considerations,
and the extent to which a school is open, accessible, and non-exclusive) and how this affects
judicial reasoning and outcomes in schooling cases, sec Patrick Leisure, The European Court of Human
Rights' Schools Jurisprudence (forthcoming) (on file with author).
104 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
1. Judicial Contestation in Strasbourg's Schooling Cases
Taking a global view, of the forty-three novel judgments64
issued by the
Strasbourg Court involving schools, less than half were unanimous judgments,65
and
two of those unanimous judgments were later overturned by the Grand Chamber.66
A
high dissenting incidence rate exists in Strasbourg's schools jurisprudence,67
and unanimity
as to outcome is lower in Strasbourg's schools jurisprudence than that indicated
in one other study.68
Finally, of the forty-five total judgments, six cases were
split judgments, where one single judge made the difference in the case's outcome
on at least one substantive issue.
Staying at the global level, separate opinions in schooling judgments occasionally
use harsh language to illustrate profound disagreement with the outcome or
judicial reasoning in the case.69
Most ominously, dissents have labelled majority opinions
in Strasbourg's schooling cases as "Kafkaesque,"70
bordering "on the absurd,"71
6 4
Two sets of cases in the corpus of judgments I call Strasbourg's schools jurisprudence were
released on the same day, were decided by the same judges, and contained the same reasoning. Those
cases arc Valsamis v. Greece, App. No. 21787/93, 24 H.R. Rep. 294 (1997) and Efstratiou v. Greece,
App. No. 24095/94,24 Eur. H.R. Rep. 294 (1997); and Dogru v. France, 2008 Eur. Ct. H.R. and Kervanci
v. France, 2009 Eur. Ct. H.R.
6 5
For the definition of a unanimous judgment, sec Fred J. Bruinsma, The Room at the Top: Separate
Opinions in the Grand Chambers of the ECHR (1998-2006), in ANCILLA lURIS 32, 36 (2008) (classifying
a unanimous judgment as one "without a separate opinion, dissenting or concurring").
6 6
Lautsi and Others v. Italy, 2011 -III Eur. Ct. H.R. 61; Orsus and Others v. Croatia, 2010-11 Eur.
Ct. H.R. 247.
6 7
Over fifty percent of the cases in this subset have dissenting opinions, infra note 68.
6 8
See Robin C.A. White & Iris Boussiakou, Separate Opinions in the European Court of Human
Rights, 9 HUM. R T S . L. R E V . 37, 53 (2009) (showing that from 1999 to 2004, roughly twenty-five percent
of judgments at the ECtHR were unanimous, fifteen percent had at least one dissenting opinion, and sixty
percent at least one concurrence). Thus, in relation to this study, my global view indicates within Strasbourg's
schooling cases, there is a higher than average proportion of unanimous judgments (this may be
because of the high number of unanimous judgments regarding discrimination in schools), a higher than
average dissenting incidence rate, and lower than average proportion of unanimity as to outcome (i.e.,
about fifty-five percent versus the eighty-five percent observed by White & Boussiakou). By including
these numbers, 1 only mean to illustrate the level of disagreement in Strasbourg's schools jurisprudence.
These numbers are subject to the caveat that numbers of dissenting, concurring, and unanimous judgments
should be treated with some skepticism because separate opinions may extend only to one legal
issue, which may or may not be the primary one in the case. Thus, categorizing cases along these lines
may not be the full picture. Id. at 49. These numbers represent only a baseline quantitative inquiry, and a
somewhat superficial one at that, into the existence of judicial disagreement in Strasbourg's schools ju-
risprudence.
6 9
Some of this language may call into question the judicial norm of politcssc and respect at the
Strasbourg Court more generally. See Jeffrey L. Dunoff & Mark A. Pollack, International Judicial Practices:
Opening the "Black Box" of International Courts, 40 MICH. J. INT'L L. 47, 94 (2018) (noting that
in addition to the "highly permissive norm about writing separately [there] were secondary norms that
separate opinions should be brief and should be respectful of both the Court and the majority").
7 0
O'Kccffc v. Ireland, 2014-1 Eur. Ct. H.R. 155, Partly Dissenting Opinion of Judges Zupancic,
Gyulumyan, Kalaydjicva, Dc Gaetano and Wojtyczck, para. 9 ("We disagree with the retrospective application
of the present-day understanding of positive obligations of the State to a situation obtaining
about forty years ago. It is Kafkaesque to blame the Irish authorities for not complying at the time with
requirements and standards developed gradually by the case-law of the Court only in subsequent dec-
ades.").
7 1
D.H. and Others v. Czech Republic, 2007-1V Eur. Ct. H.R. 241, Dissenting Opinion of Judge
Zupandic, 324 ("[T]he Czech Republic is the only Contracting State which has in fact tackled the specialeducational
troubles of Roma children. It then borders on the absurd to find the Czech Republic in violation
of anti-discrimination principles. In other words, this "violation" would never have happened had
the respondent State approached the problem with benign neglect.").
2023 Strasbourg, Schools, and the European Convention on Human Rights 105
"like a Formula One car, hurtling at high speed into the new and difficult terrain of
education,"72
and "not necessarily advanc[ing] human rights protection."73
Even when
judges agree with the overall outcome in the case, some concurring opinions disagree
profoundly with the majority's characterization of the ECFIR's scope of protection in
the schooling realm. Judge Tulkens stated in no uncertain terms that the level of protection
mandated by the majority in the school setting in Kayak v. Turkey was "excessive,
dangerous and contrary to our case law."74
And in Lautsi II, Judge Bonello's
concurrence struck out at the dissent and the unanimous Chamber judgment, implying
that they were suffering from "historical Alzheimer's."75
Finally, in the recent
Perovy judgment, the four-judge majority took the unusual move of issuing a joint
concurring opinion specifically to respond to the three judges in dissent.76
The majority's
concurrence concluded that the dispute "could have been better solved by a
constructive talk between the parents and the school, rather than through bitter lawsuits
brought before the domestic courts and the Strasbourg Court."77
In short, Strasbourg's
concurring and dissentingjudges at times use harsh language to disagree with
the outcome and/or reasoning in schooling cases.
Having assessed some global considerations indicating important disagreement
between majority judges and those writing separately from the same bench, this
Subpart proceeds to consider several school cases involving religious convictions,
safety, and discrimination that reflect more detailed disagreement between judges.
In Perovy v. Russia, mentioned above, the judges split four-to-three, disagreeing
decisively on the precise role of the school environment in how to interpret
ECHR Article 9's protection of religious freedom and Pl-2's protection of parental
religious convictions. In that case, the seven-year-old son of a priest of the Church of
the Community of Christ sat at his desk on his first day of school while the father of
one of his new classmates, a priest of the Russian Orthodox Church, performed the
rite of blessing the classroom. Dressed in a cassock and priestly robes, this blessing
consisted of lighting incense and candles, distributing small paper icons to the children,
singing prayers in Church Slavonic, sprinkling the classroom with holy water
with some students making the sign of the cross in line with the Russian Orthodox
tradition, and then inviting the children to kiss a crucifix.
The dissent of Judges Keller, Serghides, and Poláčková would have found a
violation of the right to freedom from religion in conjunction with PI-2 in the case
for four reasons, all intimately connected with the school environment. First, the child
72
Id., Dissenting Opinion of Judge Borrego Borrego, 331 (making a general observation).
7 3
F.O. v. Croatia, App. No. 29555/13, Dissenting Opinion of Judges Wojtyczek and Paczolay,
para. 4 (Sept. 6, 2021), https://perma.cc/L36Z-QX6U ("In our view, lowering the threshold of applicability
of Article 8, thus triggering a flow of applications to the Court lodged by pupils complaining about
their relations with teachers, will not necessarily advance human rights protection.").
7 4
Kayak v. Turkey, 2012 Eur. Ct. H.R., Concurring Opinion of Judge Tulkens, para. 3.
7 5
Lautsi and Others v. Italy, 2011 -III Eur. Ct. H.R. 61, Concurring Opinion of Judge Bonello,
101 ("A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to
disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries,
has served to mould and define the profile of a people. . . . No court, certainly not this Court, should rob
the Italians of part of their cultural personality. . .. Now, a court in a glass box a thousand kilometres
away has been engaged to veto overnight what has survived countless generations. The Court has been
asked to be an accomplice in a major act of cultural vandalism.").
7 6
Perovy v. Russia, App. No. 47429/09, Concurring Opinion of Judges Lemmcns, Dedov,
Schcmbri Orland, and Guerra Martins (Apr. 19, 2021), https://perma.cc/LNZ3-V7NP.
77
Id. at para. 3.
106 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
was only seven years old at the time, and thus easily influenced and unable to "dissociate
the school authorities from the rite."78
Second, it was his first day of regular
schooling—"a milestone in one's life"—and the ceremony consisted of active observance
and interactions, like passing out icons meant to be taken home, that argued
in favor of the event's more lasting impact on the applicant.79
Third, the dissent—
citing to the U.S. Supreme Court's Lee v. Weisman decision—did not think that
"mere presence" espoused by the majority accurately characterized the fact that attendance
"signified more than respect in a school context."™ Rather, "given the particular
school context in which the facts took place," the majority's analysis should
have taken account of the above factors and the fact that students are in a "hierarchical
relationship with the school authorities and their teachers" that makes them more
likely to be influenced by witnessing a religious ceremony.81
Finally, the three dissenters
pointed to the compulsory nature of schooling and the school environment in
recognizing that the young boy "had virtually no possibility of escaping the religious
act."82
Thus, for the dissenting judges in Perovy v. Russia, the school context83
was
the crucial element that changed how they interpreted the Convention's articles to
apply in the case.
Moving on to the school safety realm, consider in more depth Judge Tulkens'
concurrence in Kayak v. Turkey, in which she questioned what sort of educational
model the majority's opinion encouraged. The majority's emphasis on surveillance
over the entry and exits to schools made Judge Tulkens wonder if the judgment encourages
the "carcelization" of schools.84
She queried in her opinion, "[D]o we really
want to make schools and boarding schools into securitized zones with police patrols
around them . . . ?"85
Judge Tulkens' model of education would rest neither on fear
nor suspicion of students, but rather on engaging and further developing adolescents'
sense of responsibility.86
Similarly, in the same case, partly dissenting Judges Sajo and Raimondi
stressed that the fatal stabbing actually took place 150 meters from the garden of the
school and thus did not take place on school premises, nor did it involve a "causeand-effect
relationship with a structural defect in the educational system."87
Finally,
the involvement of a fifteen-year-old and a nearly-eighteen-year-old did not implicate
the typically "vulnerable children" that may be involved in other schooling cases.88
78
Perovy, App. No. 47429/09, Dissenting Opinion of Judges Keller, Serghidcs, and Polackova,
para. 16 (emphasis added).
79
Id. (emphasis added).
80
Id. at para. 20 (emphasis added).
81
Id. at para. 21.
82
Id. at para. 23.
8 3
Kaufman, supra note 23, at 207-08 (citations omitted) (outlining an explanation for judicial
reasoning, observing that "[sjchoolchildrcn are perhaps the most sympathetic plaintiffs in all of constitutional
law. They arc less culpable than adults, or at least courts tend to treat them as such; they arc young
enough for judicially imposed institutional reforms like racial or gender integration to have a real effect
on their perceptions of the world; and they are acutely subject to state power— after all, they cannot leave
the building until the school bell rings. Schoolchildren arc, in short, very easy to want to protect, which
is why courts have so often protected them.").
8 4
Kayak v. Turkey, 2012 Eur. Ct. H.R., Concurring Opinion of Judge Tulkens, para. 4.
85
Id. (author's translation).
86
Id. at para. 5 (citing Mastromatrco v. Italy, 2002-VIII Eur. Ct. H.R. 123).
87
Id., Partly Dissenting Opinion of Judges Sajo and Raimondi (author's translation).
88
Id. (author's translation).
2023 Strasbourg, Schools, and the European Convention on Human Rights107
Thus, the concurring and dissenting judges took a different stance on how aspects of
the school environment affected their view of the case and what model of education
the majority's opinion espoused.
Remaining in the school safety realm but this time regarding ECHR Article
3's protection against inhuman and degrading treatment, the dissenting judges in
O 'Keeffe also disagreed with placing such an exacting standard on countries with
respect to pupil safety in school. The partly dissenting opinion of Judges Zupanfiic,
Gyulumyan, Kalaydjieva, De Gaetano, and Wojtyczek stated that "the majority judgment
imposes a positive obligation of constant and retrospective vigilance with regard
to assumed inherent risks arising out of unpredictable human conduct 'in an
educational context,' which in our view amounts to imposing . . . an 'impossible and
disproportionate burden.'"89
Thus, rather than following the minimum severity test,
which the court in Costello-Roberts rightfully clarified includes the context of the
alleged degrading treatment, the dissent would have applied the reasoning in Osman
v. United Kingdom90
and found that states' positive obligation to protect individuals
does not extend to unpredictable human behavior, even with respect to sexual abuse
by a lay teacher in a primary school.
In the discrimination realm, we also seejudges disagreeing according to their
educational predilections. In his D.H. II dissent, Judge Jungwiert pointed out two
aspects of school systems that in his view changed the outcome of the case. First, he
argued that schools must draw a distinction "between what is desirable and what one
might term realistic, possible or simply feasible."91
And second, "[E]very school system
entails not only education but also a process of assessment, differentiation, competition,
and selection."92
In his view, the ECtHR could not substitute desirability for
feasibility, and inherent parts of schooling are tests, selection, and differentiation.
Thus, the Czech practice of placing Roma students in special schools in Ostrava was
simply a necessary evil inherent in all education systems, not a violation of the
ECHR.
Moreover, in some judges' views, pedagogical reasons justify some level of
segregation in schooling matters. In Orsus II, in a split nine-to-eight judgment, the
dissent emphasized that separation in the "common school" may not always be harmful,
reasoning that important pedagogical goals like language acquisition may actually
be served by such a practice.93
Likewise, in G.L. v. Italy, not all the judges shared
the majority's view of schools as places always requiring social integration of handicapped
individuals. In his concurring opinion, Judge Wojtyczek pointed out that for
certain children, notably some autistic children, scientific studies demonstrate that
mainstream education can cause suffering and actually harm their development,
whereas specialized (and separate) schools can provide a better environment for their
specific educational and social needs.94
8 9
O'Kccffe v. Ireland, 2014-1 Eur. Ct. H.R. 155, Partly Dissenting Opinion of Judges Zupancic,
Gyulumyan, Kalaydjieva, De Gaetano, and Wojtyczek, 219.
9 0
Osman v. United Kingdom, 1998-VIII Eur. Ct. H.R. 3124, para. 116.
9 1
D.H. and Others v. Czech Republic, 2007-1V Eur. Ct. H.R. 241, 329.
92
Id. at 330.
9 3
Orsu§ and Others v. Croatia, Partly Dissenting Opinion of Judges Jungwiert, Vajic, Kovler,
Gyulumyan, Jaeger, Myjer, Berro-Lefevre and Vucinic, 2010-11 Eur. Ct. H.R. 247, 322.
9 4
G.L. v. Italy, App. No. 59751/15, para. 5 (Oct. 12, 2020), https://perma.cc/TN2E-SJFA.
108 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
As this brief discussion of separate opinions in three different types of
schoolingjudgments illustrates, judges in Strasbourg's schoolsjurisprudence can disagree
profoundly over both the general outcome or reasoning of the majority, as well
as over the majority's specific understanding and characterization of the school environment.
Convention interpretation in Strasbourg's schools jurisprudence is frequently
divided, sometimes directly over how the school context should influence
judicial application of the Convention, and this disagreement occasionally involves
the use of rather acerbic language. I next turn to judicial contestation in-between different
judicial benches and even from off the bench, where a similar dynamic of concentrated
judicial disagreement emerges in Strasbourg's schools jurisprudence.
Judicial contestation regarding the Convention's application in school cases
is further evidenced by disagreement between judges on different benches. Of the
nine Grand Chamberjudgments in Strasbourg's schools jurisprudence, four included
both section judgments and Grand Chamber judgments on the merits.95
In three out
of four of those cases, the Grand Chamber came to a different conclusion than the
Chamber. Moreover, in several school cases before the Strasbourg Court, the ECtHR
has diverged from the ruling of the constitutional court of the state in question. This
was the case in D.H. II,96
O 'Keeffe v. Ireland,91
Orsus II,9
* Grzelak v. Poland," and
Folgere v. Norway}00
Finally, the United Nations Human Rights Committee has
come to the opposite conclusion to the ECtHR regarding the wearing of religious
garments in French schools.""
Consider, in this regard, the different reasoning between the Chamber and
Grand Chamber judgments in the Lautsi case. One element of the Lautsi saga that
has not—to this author's knowledge—been discussed in the vast literature on that
case is that the difference in opinion between the unanimous Second Section and the
15-2 judgment of the Grand Chamber coming to the opposite conclusion was in large
part due to the judges' different emphases on the school context in interpreting the
scope of protection afforded by the Convention in religious freedom matters. According
to the lower Second Section judgment, three characteristics of the school
9 5
D.H., 2007-IV Eur. Ct. H.R. at 241; Lautsi and Others v. Italy, 2011-III Eur. Ct. H.R. 61; Orsus,
2010-11 Eur. Ct. H.R. at 247; Kurt v. Austria, App. No. 62903/15 (June 15,2021), https://perma.ee/C8RB-
KJG5.
96
Compare D.H., 2007-IV Eur. Ct. H.R. at 256-57 (noting the Czech Constitutional Court's ruling
in favor of the government), with id. at 322 (noting the ECtHR's ruling in favor of the applicants).
9 7
Cowpare O'Kccffe v. Ireland, 2014-1 Eur. Ct. H.R. 155, 169 (noting the Irish Supreme Court's
ruling in favor of the government), with id. at 206-07 (noting the ECtHR's ruling in favor of the appli-
cants).
98
Compare Orsus, 2010-11 Eur. Ct. H.R. at 264 (noting the Croatian Constitutional Court's ruling
in favor of the government), with id. at 316—17 (noting the ECtHR's ruling in favor of the applicants).
99
Compare Grzelak v. Poland, 2010 Eur. Ct. H.R. at paras. 8-12 (noting the Polish Constitutional
Court's rulings in favor of the government), with id. at para. 28 (noting the ECtHR's ruling in favor of
the applicants).
100
Compare Folgcro and Others v. Norway, 2007-111 Eur. Ct. H.R. at 66 (noting the Norwegian
Supreme Court's ruling in favor of the government), with id. at 103 (noting the ECtHR's ruling in favor
of the applicants).
101
See Saila Ouald Chaib, Freedom of Religion in Public Schools: Strasbourg Court v. UN Human
Rights Committee, S T R A S B O U R G O B S E R V E R S (Feb. 14, 2013), https://perma.cc/YAW9-7FKE.
2023 Strasbourg, Schools, and the European Convention on Human Rights 109
environment were key to the analysis of the ECHR's negative protection of religious
freedom: the age of students,102
the compulsory nature of school attendance,103
and,
with reference to Dahlab v. Switzerland,1
*4
the classroom environment.105
In contrast,
the Grand Chamber utilized the school context for the opposite purpose. Finding that
Italian authorities had acted within the limits of the margin of appreciation granted to
states within the Convention system in the sphere of education and teaching, the ECtHR
rejected each of the lower chamber's findings with respect to why the school
environment mandated closer supervision by the Strasbourg Court. Instead, the
Grand Chamber emphasized the fact that, in general, "Italy opens up the school environment
in parallel to other religions."106
Whatever one thinks of the merits of the
Second Section's or the Grand Chamber's invocation of the school environment in
interpreting the scope of protection afforded by the Convention, the school context
did play a significant dividing role in how the section judges and the Grand Chamber
judges understood the Convention to apply in the case.
As a final remark, in addition to strong words on the bench, at least one judge
has also taken to extrajudicial speech regarding a school case to signify his displeasure
with the approach taken by the Strasbourg Court. Former ECtHR and Spanish
Supreme Court Judge Javier Borrego (who was not at the ECtHR when the Lautsi
judgments were released) called the Lautsi Chamberjudgment a "stilted decision that
has much to do with pre-established opinions (not to speak of ideology) and very
little with a judgment adopted by judges applying the Convention and its Protocols
to a concrete case."107
Thus, in Strasbourg's schools jurisprudence, judges on the
same judicial bench, between different benches, and even from off the bench, regularly
disagree over the outcomes and reasoning. I next turn to critical academic commentary
regarding Strasbourg's schools jurisprudence, unearthing a significant corpus
of academic critique.
2. Academic Contestation and Strasbourg's School Cases
Academic commentary on the outcome and judicial reasoning used in some
of Strasbourg's school cases is intense and often divided. The volume of academic
writing on and critique of various aspects of the Lautsi case is as immense as it is
varied.108
As one illustration, in his high profile academic exchange regarding both
1 0 2
Lautsi and Others v. Italy, 2009 Eur. Ct. H.R., para. 50 (noting "the Court will take into account
in particular the nature of the religious symbol and its impact on young pupils").
103
Id. at paras. 55-56 ("That negative right deserves special protection if it is the State which
expresses a belief and dissenters are placed in a situation from which they cannot extract themselves if
not by making disproportionate efforts and acts of sacrifice . . . . The State has a duty to uphold confessional
neutrality in public education, where school attendance is compulsory regardless of religion, and
which must seek to inculcate in pupils the habit of critical thought.").
104
See generally Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447 (declaring inadmissible the
application of a primary school teacher who was prohibited from wearing a hijab when teaching).
105
Lautsi, 2009 Eur. Ct. H.R., para. 54 ("It is impossible not to notice crucifixes in the classrooms.
In the context of public education they are necessarily perceived as an integral part of the school environment
and may therefore be considered 'powerful external symbols.'").
1 0 6
Lautsi and Others v. Italy, 2011 -III Eur. Ct. H.R. 61, 96.
1 0 7
Javier Borrego, Estrasburgo y el Crucifijo en las Escuelas {Strasbourg and the Crucifix in
Schools], E L M U N D O (Dec. 17, 2009), https://perma.ee/5ZAN-NVA3.
108
See, e.g., THE LAUTSI P A P E R S : M U L T I D I S C I P L I N A R Y R E F L E C T I O N S O N R E L I G I O U S S Y M B O L S
I N THE P U B L I C S C H O O L C L A S S R O O M (Jeroen Tcmpcrman, ed., 2012); Susana Mancini, The Crucifix
110 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
the outcome and reasoning of Lautsi II with Professors Lorenzo Zucca,"19
Dimitrios
Kyritsis, and Stavros Tsakyrakis,"0
Professor Joseph Weiler sums up one of his disagreements
by querying "why all the rage" when "[t]he European Court of Human
Rights is not a constitutional court—-neither of Italy nor of Europe; and the European
Convention is not a constitution."1
"
Writing about the 2006 judgment of D.H. and Others v. Czech Republic regarding
the placement of Roma pupils in special schools, Professor Morag Goodwin
expressed severe criticism of the Chamber opinion, stating:
[T]he Court has chosen to leave exposed the most vulnerable victims of
a particularly vicious form of racial discrimination, and one that will
have lasting effects for a generation. It is a hugely disappointing and
flawed decision that is almost certain to be appealed to the Grand Chamber.
In refusing to see the evil before it, the Court has not avoided doing
evil itself."2
Yet, one year later, the Grand Chamber's judgment in D.H. II also led to mixed reactions
among the legal public. For example, while some American and European
lawyers in the aftermath of the case positively likened the case to Europe's Brown v.
Board ofEducation"3
on the Czech legal blog forum Jiné Pravo, "opinions were both
positive and negative towards the judgment, with a slight prevalence of critical
views.""4
Professor Goodwin, despite agreeing with the overall outcome, heavily critiqued
the reasoning of the majority—arguing among other things that the ECtHR
had abandoned its judicial role."5
Other academics critiqued not the reasoning or outcome
in the case, but the length of time from when the Roma applicants lodged their
complaint in D.H. and Others v. Czech Republic in 2000, to when the Chamber and
Rage: Supranational Constitutionalism Bumps Against the Counter-Majoritarian Difficulty, 6 E U R .
C O N S T . L. REV. 6 (2010); Andrea Pin, Public Schools, the Italian Crucifix, and the European Court of
Human Rights: The Italian Separation of Church and State, 25 E M O R Y INT'L L. REV. 95 (2011); Carla
Zocthnout, Religious Symbols in the Public School Classroom: A New Way to Tackle a Knotty Problem,
6 RELIGION & HUM. RTS. 285 (2011); sources cited supra note 16.
1 0 9
Zucca, supra note 16 (critically commenting on the reasoning in Lautsi II regarding the ECtHR's
treatment of religious symbols, secularism, and parental convictions).
1 1 0
Dimitrios Kyritsis & Stavros Tsakyrakis, Neutrality in the Classroom, 11 INT'L J. CONST. L.
200 (2013) (developing an account of neutrality that contraindicatcs the Grand Chamber's Lautsi //judg­
ment).
1 1 1
Joseph Weiler, Lautsi: A Reply, 11 I N T ' L J. C O N S T . L. 230, 232-233 (2013).
1 1 2
Morag Goodwin, D.H. and Others v. Czech Republic: A Major Set-Backfor the Development
of Non-Discrimination Norms in Europe, 7 GERMAN L.J. 421, 431 (2006).
1 1 3
See MľCHAEL GOLDHABER, A PEOPLE'S HISTORY O F THE EUROPEAN COURT OF HUMAN
RIGHTS 159 (2007) ("[The] case languished for so many years that it aroused suspicions . . . that it would
be remembered as the Brown v. Board of Education that wasn't. But in November 2007 the Strasbourg
tribunal found its voice and showed itself to be the true successor of America's Warren Court."); see also
Jack Grcenbcrg, Report on Roma Education Today: From Slavery to Segregation and Beyond, 110
COLUM. L. REV. 919, 940 (2010) ("After D.H. was decided, many European lawyers and Roma rights
advocates referred immediately and primarily to Brown v. Board of Education") (citations omitted).
1 1 4
Hubert Smckal & Katarína Šipulová, DH v Czech Republic Six Years Later: On the Power of
an International Human Rights Court to Push Through Systemic Change, 32 N E T H . Q. HUM. R T S . 288,
300 (2014).
115
See M . E . A . Goodwin, Taking on Racial Segregation: The European Court of Human Rights at
a Brown v. Board of Education Moment?, R E C H T S G E L E E R D M A G A Z I J N T H E M I S 93, 101 (2009).
2023 Strasbourg, Schools, and the European Convention on Human Rights 111
Grand Chamber released theirjudgments in 2006 and 2007, respectively.116
Similarly,
regarding another Roma rights schooling case, Moria Paz critiqued the Oršuš//judgment
for taking "a narrowly utilitarian approach to the Romani language, forcing
Croatia to accept the use of the minority language only in the process of its elimina-
tion.""7
As a result, "Romani is treated as an obstacle that Roma pupils must overcome
in order to participate in the school environment, rather than as a valuable cultural
possession worthy of legal protection" in and of itself."8
Finally, Professor Ian
Leigh stated of the Folgew and Others v. Norway case, "The judgment of the Grand
Chamber of the European Court of Human Rights is noteworthy for the serious division
that it produced over fundamental questions.""9
Division over and critique of the ECtHR's schooling caselaw is not limited
to Grand Chamber decisions with divided benches. Considerjust a few of many possible
examples. Professor Georgios Milios critiqued Papageorgiou and Others v.
Greece because "the ECtHR dealt with the case merely from the exemption procedure
perspective, avoiding more complex and controversial issues such as the mandatory
nature of the religious courses or their actual content."120
Similarly, Professor
Liav Orgad critiqued Osmanoglu v. Switzerland as one of a number of court judgments
in Europe that orient the principle of freedom "toward the majority's understanding
of it" while often giving "little tolerance... in Europe toward the minority's
perception of being free."121
Critiquing the proportionality analysis in the same case,
Fiona de Londras and Konstantsin Dzehtsiarou discussed the Strasbourg Court's prioritization
of integration over belief in school, stating:
One can imagine, however, the Court coming to precisely the other conclusion
.. . Either outcome is possible, and the inability to predict which
will be arrived at in a particular case makes the outcome of a complaint
difficult to foresee, and thus calls into question the effectiveness of the
Convention in ensuring practical protection of rights, including at the
stage of making the kinds of policy that mandate mixed-sex swimming
lessons regardless of the likely objections of people who follow a more
116
See Rory O'Connctl, Substantive Equality in the European Court of Human Rights?, 107 M I C H .
L. R E V . F I R S T I M P R E S S I O N S 129, 132 (2009) ("The children in DH were in special schools from 1996—
1999, and they lodged a complaint in the ECtHR in 2000. The Chamber decision came down in 2006 and
the Grand Chamber decision a year later. By the time the Chamber decided the case, the Czech Republic
had already introduced legislation abolishing the special schools . . . .").
1 1 7
Moria Paz, The Failed Promise of Language Rights: A Critique of the International Language
Rights Regime, 54 H A R V . iNT'L L.J. 157, 187 (2013).
118
Id.
1 1 9
Ian Leigh, New Trends in Religious Liberty and the European Court of Human Rights, 12
E C C L E S I A S T I C A L L.J. 266, 275 (2010); see also Ian Leigh & Rex Ahdar, Post-Secularism and the European
Court of Human Rights: Or How God Never Really Went Away, 75 MOD. L. REV. 1064, 1086-87
(2012) (critiquing the prs-Lautsi religious education exemption cases including the Folgere and Zengin
cases as possibly undermining one of the key purposes of religious education classes).
1 2 0
Georgios Milios, Schoolchildren's Right to Education and Freedom of Religion in the Case
Law of the ECtHR: Comments on Papageorgiou v Greece, 16 VIENNA J. INT'L CONST. L. 135, 136 (2022)
("The [ECtHR] only considered the exemption procedure from the courses offered, and made no reference
to, or examination of, the courses themselves."); id. at 148 (noting that perspectives on the right to
private life arc also missing and that "the judgment can mainly be criticized for not dealing with all case
facts and human rights issues related to them").
1 2 1
Liav Orgad, Forced to Be Free: The Limits of European Tolerance, 34 H A R V . HUM. RTS. J . 1,
35 (2021).
112 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
conservative approach to religious beliefs and for whom this would
likely cause real difficulties, such as Orthodox Jews or devout Mus-
lims.'22
While not an exhaustive survey of the academic commentary on specific Strasbourg
school cases, these examples nonetheless illustrate that academic commentators, for
a variety of reasons, have expressed critical assessments of how Strasbourg's judges
have interpreted the Convention to apply in specific schooling cases.
Commentators have also criticized not only the outcomes and reasoning in
certain specific Strasbourg schooling cases, but also the reasoning used in certain
types of school cases more generally. Noam Peleg has argued that "the Court consistently
fails to treat children as agents in their own right" in cases involving discrimination
against Roma children in schools and that Roma children "are further
discriminated against by the Court because of the overriding focus on their parents'
rights."123
Regarding the cases of G.L. v. Italy and Stoian v. Romania, involving disability
rights in schools, Marie Spinoy and Kurt Willems—himself an educational
court judge in Belgium—claimed that the ECtHR conflates reasonable accommodation
with inclusive education, thus creating negative incentives for states.124
Moria
Paz also critiqued the ECtHR's four cases involving language rights, all of which fall
within Strasbourg's schools jurisprudence. Paz described "[t]he model of linguistic
accommodation developed by the ECtHR" as "minimal and transitional" and one in
which "[minority speakers are accommodated in the public school system, but only
to promote their assimilation into the state and the market."125
And Joanna Tourkochoriti,
discussing, among other cases, Dogru v. France,126
Kervanci v. France,nl
and
Dahlab v. Switzerland,^ argued that:
The case law of the European Court of Human Rights (ECHR) regarding
headscarf prohibitions reflects an understanding of the role of the state
that legitimizes it in limiting freedom of religion rights for teachers and
students. By deferring to the judgment of the member states of the European
Convention of Human Rights as to the proper way of implementing
secularism, the ECHR created a situation which allows the state to
dictate the proper content of religious liberty, even in cases where no
harm to others exists.129
1 2 2
F I O N A D E L O N D R A S & K A N S T A N T S I N D Z E H T S I A R O U , G R E A T D E B A T E S O N T H E E U R O P E A N
C O N V E N T I O N O N H U M A N R I G H T S 100 (2018).
1 2 3
Pclcg, supra note 18, at 111.
124
See Marie Spinoy & Kurt Willems, G . L . v. Italy: The Ambiguous Role of Article 14 European
Court of Human Rights in Inclusive Education Cases, 22 I N T ' L J . DlSCRlM. & L . 192, 192 (2022). For
critique of the Stoian case, sec Constantin Cojocariu, Stoian v. Romania; The Court's Drift on Disability
Rights Intensifies, STRASBOURG OBSERVERS (Sept. 5, 2019), https://perma.cc/CY9X-6PXT.
1 2 5
Moria Paz, The Tower of Babel: Human Rights and the Paradox of Language, 25 EUR. J. INT'L
L. 473,487(2014).
1 2 6
Dogru v. France, 2008 Eur. Ct. H.R.
1 2 7
Kervanci v. France, 2009 Eur. Ct. H.R.
, 2 8
Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 429 (declaring the application inadmissible).
1 2 9
Ioanna Tourkochoriti, The Burka Ban: Divergent Approaches to Freedom of Religion in France
and in the U.S.A., 20 WM. & M A R Y B l L L R T S . J. 791, 804 (2012).
2023 Strasbourg, Schools, and the European Convention on Human Rights 113
Even some education scholars have entered the debate regarding Strasbourg's schooling
cases. Nigel Fancourt of Oxford has stated regarding the educational competence
of ECtHR judges:
Different judges hint at different pedagogies, but they do not do so consistently.
These pedagogical variations are problematic since they mean
that the judgements are educationally inconsistent, whatever their jurisprudential
logic, and decisions affecting the whole of Europe have been
based on often unquestioned assumptions about contextual and cultural
variations across schools.130
Finally, even where academic commentators agree with a line of reasoning introduced
in school cases of the ECttLR, commentators sometimes discuss the risks involved
in the court's approach.131
As this brief literature overview indicates, academic
commentary on Strasbourg's schooling cases is sometimes harsh and at times deeply
divided, signaling that the school context provides a key forum of discussion and
debate over the proper interpretation of the ECHR.
C. Strasbourg's Role in Diverse Schooling Matters Across the Council ofEurope
The jurisprudential sketch above illustrates that the school context plays an
important, if debated, role in how the ECtHR interprets the Convention. Yet, it also
shows that the ECtFLR plays an important role in schooling matters across the Council
of Europe. The Strasbourg Court's role in schooling issues is neither limited to cases
coming from only one state or region of the Council of Europe nor to cases concerning
only one or even a few Convention rights. The geographical dispersion of Strasbourg's
schools jurisprudence is reasonably uniform across the Council of Europe.
The judgments comprising Strasbourg's schools jurisprudence relate to twenty-three
different countries,132
spanning Western Europe, Northern Europe, Southern Europe,
Central Europe, Eastern Europe, and the edges of the Asian continent. It is not true
that Strasbourg's schools jurisprudence is dominated by one or even a few Council
of Europe countries' education systems. Strasbourg's schools jurisprudence cannot
be reduced to cases arising in connection with schoolhouse gates in only France, Turkey,
or Greece; the jurisprudence is dispersed enough to argue convincingly that it
involves all of Europe's schoolhouse gate.
Further, Strasbourg's schooling cases do not only concern one type of human
rights conflict or only one article or a few articles of the Convention. Rather, the
no NigC l Fancourt, The Educational Competence of the European Court of Human Rights: Judicial
Pedagogies of Religious Symbols in Classrooms, 48 O X F O R D R E V . E D U C . 131, 142 (2022).
131
See, e.g., Lourdcs Peroni & Alexandra Timmer, Vulnerable Groups: The Promise of an Emerging
Concept in European Human Rights Convention Law, 11 I N T ' L J. C O N S T . L. 1056, 1057 (2013) (discussing
the concept of vulnerable groups, including in Roma school discrimination cases and arguing
that "the emergence of the concept represents a positive development in the Court's case law. Yet, for all
its power to further substantive equality, the concept also risks sustaining the very exclusion and inequality
it aims to redress").
1 3 2
They are Austria, Italy, Norway, Sweden, Belgium, Denmark, the United Kingdom, Ireland,
Greece, Turkey, Croatia, Poland, Czechia, Hungary, Bulgaria, France, Switzerland, Russia, Cyprus, Moldova,
Albania, Romania, and North Macedonia.
114 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
ECtHR's cases have involved diverse disputes concerning fundamentally important
issues in European societies such as sex, race, crime, safety, terrorism, equality, religion,
free speech, and language rights. Strasbourg's schools jurisprudence spans at
least eight different Convention rights.133
In sum, the geographical distribution of
Strasbourg's schools jurisprudence, the diversity and importance of factual issues involving
schooling, and the numerous Convention rights involved in schooling cases
suggest that the Strasbourg Court has a role to play at the intersection of various
human rights and diverse schooling matters across all of the Council of Europe.
This broad view of Strasbourg's school cases illustrates that although the
ECtHR has a key role to play in educational matters through its role as ultimate interpreter
of Convention rights, the precise scope of its role in schooling matters remains
debated. More specifically, there is an inherent tension in many of Strasbourg's
school cases between the margin of appreciation due to member states in the education
realm and the effective protection of human rights, sometimes leading to unpredictability
and inconsistency in judicial reasoning in schooling cases. Naturally,
schooling cases often involve delicate judicial balancing of competing interests,
rights, and values, not to mention the best interests of the child. The Strasbourg Court
has played a strong role in combatting discrimination in schools and in upholding
safety in schools, but it is not always consistent in its reasoning as to why. Moreover,
the freedom of religion cases seem to be somewhat of an enigma, as the educational
context is generally considered deserving of a wide margin of appreciation where
there is no European consensus on the relationship between religion and the state.
Nonetheless, the religious education exemption cases show the ECtHR taking a different
stance, extensively examining school curricula and exemption criteria, and
finding violations of the Convention in all those cases. What is the precise scope of
the margin of appreciation in schooling matters before the European Court of Human
Rights? And how do the Strasbourg Court's other interpretation doctrines such as
effective protection, living instrument, and European consensus interact in different
spheres of schooling cases with the subsidiarity principle? As this Article's main argument
is the broader importance of the school as a site of human rights conflict, it
leaves the precise contours and nature of the deeper jurisprudential debate for future
scholarship.134
III. STRASBOURG, SCHOOLS, AND EUROPEAN SOCIETIES
The second tier of this Article's analysis focuses on societal aspects of
schooling in Europe, concentrating on both the Council of Europe countries specifically
and the implications of the ECtHR's schooling cases more generally. This Part
presents quantitative and qualitative arguments for viewing the nexus between
schools in the Council of Europe and the Strasbourg Court as important for European
societies, thus supporting the Article's central claim that schools are critical forums
for human rights conflict and ECHR application in Europe.
A. The Number of People and Magnitude of Interests Involved in Primary and
1 3 3
They include EHCR Articles 2, 3, 8, 9, 10, and 14, as well as PI-2 and Article 1 of Protocol
No. 12.
1 3 4
See infra Part IV for suggested future research directions.
2023 Strasbourg, Schools, and the European Convention on Human Rights 115
Secondary Education
On any given school day, from Reykjavik to Kyiv, Madrid to Ankara, Prague
to Athens, vast numbers of school-age children attend schools across the countries
that make up the Council of Europe. My own estimate indicates that approximately
ninety-three million pupils attend primary and secondary schools in the Council of
Europe.135
This estimate corresponds to approximately one-seventh of the 675 million
people living in the Council of Europe countries being primary or secondary school
students. Despite the significant differences in education systems across the Council
of Europe, the vast majority of the schools in the region are provided for by the relevant
state.136
Moreover, the ECtHR has found that the Convention also applies in private
schools137
and in institutions where schooling arrangements are not purely run
by the state.138
Therefore, across the Council of Europe countries, the school is likely
the most populous institution that Europeans inhabit (both over a sustained period of
their life and for significant hours during the school-week and school-year), in which
their rights under the ECHR protect them from abuses by the state.139
Moreover, these ninety-three million students are not the only persons active
on school premises during school days and school hours. Schools also employ teachers,
administrators, leadership staff, and other support staff to function. Some schools
hire employees with specific functions, like psychologists, nurses or doctors, librarians,
food preparation staff (e.g., cooks and nutritional experts), school social workers,
maintenance workers and custodial staff, and even safety personnel. The estimated
ninety-three million students attending school in the Council of Europe does not account
for these numerous individuals that work in schools.
Widening further the number of interests involved in primary and secondary
schooling in the Council of Europe, outside interests accompany the panoply of individuals
that either work at or attend schools. Most prominently are the interests of
the parents of children who attend school—parents who remain in charge of the
1 3 5
1 used a media-based data collection methodology to arrive at this figure. This data was very
difficult to collect because national school systems are all different across the Council of Europe, there
arc many different languages in the Council of Europe, and different terminology is used to describe
education systems (e.g., folk schools in Finland). In my data collection, I erred on the side of caution and
reported the lowest numbers available where there were multiple figures available. I did not report on
private schools as part of this figure.
1 3 6
See E U R Y D 1 C E N E T W O R K , P R I V A T E E D U C A T I O N IN T H E E U R O P E A N U N I O N : O R G A N I S A T I O N ,
A D M I N I S T R A T I O N A N D T H E P U B L I C A U T H O R I T I E S ' R O L E 13 (2000) ("In all European Union countries,
more than 90% of primary and lower secondary school pupils attend public sector institutions or those of
the grant-aided private sector. Public authorities thus finance the compulsory schooling of the majority
of pupils in the European Union."). My media-based data collection on the number of schools and pupils
in the Council of Europe leads me to believe this figure remains consistent not only across the European
Union, but the wider Council of Europe as well.
137
See Costello-Robcrts v. United Kingdom, 247 Eur. Ct. H.R. (ser. A), para. 27 (1993) ("The
fundamental right of everyone to education is a right guaranteed equally to pupils in State and independent
schools, no distinction being made between the two.").
138
See generally O'Kccffe v. Ireland, 2014-1 Eur. Ct. H.R. 155, para. 151 ("The State cannot be
released from its positive obligation to protect simply because a child selects one of the State-approved
education options, whether a national school, a fee-paying school or, indeed, home schooling.").
1 3 9
By comparison, in 2020 there were 1,528,343 inmates in the Council of Europe countries. See
Marcelo F. Acbi & Melanic M . Tiago, Prisons and Prisoners in Europe 2020: Key Findings of the
SPACE I Report, 2020 C O U N C I L E U R . A N N . P E N A L S T A T I S T I C S O N P R I S O N P O P U L A T I O N S , at 1, 2, fig.l
(June 29, 2021). The number of incarcerated people in Europe is likely closer to the number of schools
in Europe than the number of students.
116 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
education of their children according to the ECtHR1 4 0
and whose interests must be
respected under the text of the Convention. Finally, the fact that schools can influence
the direction of society more generally141
lends support to the idea that, in the Council
of Europe countries, all people have some interest in how the ECHR is interpreted to
apply within the schoolhouse gate.
Additional considerations support the contention that Strasbourg's judgments
relating to the primary and secondary school context carry important weight
for human rights in Europe. First, many of Strasbourg's school cases include a very
large number of applicants. The Belgian Linguistics case had over 800 applicants,142
Tagayeva and Others v. Russia—a case arising from the Beslan school siege that is
considered the deadliest school shooting in human history143
—had over 400 appli-
cants,144
Catan and Others v. Moldova andRussia had 170 applicants,145
and Sampani
v. Greece had 140 applicants.146
Approximately one third of Strasbourg's school cases
have had more than eight applicants, and Strasbourg's school judgments have involved
in total over eighteen hundred applicants. Moreover, this number does not
include the case of Cyprus v. Turkey,1
*1
which concerned the Turkish invasion of Cyprus
and involved schooling issues for Greek Cypriot children living in the nearly
entirely Turkish-speaking Northern Cyprus.148
Thus, the number of applicants in
Strasbourg judgments involving primary and secondary schools far outpaces the
number of judgments.
Moreover, many of Strasbourg's school cases carry significant import for
individuals beyond only those applicants directly involved in the case. Louise
O'Keeffe, in her press conference after winning her case against Ireland before the
ECtHR's Grand Chamber in 2014, said, "It's such good news for the children of
Ireland . . . It's not just me, it's the children attending our schools at the moment,
children who will attend the schools in the future and also those who did attend in the
past."149
Moreover, the Czech Judge Jungwiert said in D.H. II that the judgment was
not just about the rights of the eighteen applicants from Ostrava, but about the "country's
entire education system."150
It is safe to say that in many of Strasbourg's school
140
See Kjcidsen v. Denmark, 23 Eur. Ct. H.R. (scr. A) 711, para. 52 (1976) ("It is in the discharge
of a natural duty towards their children—parents being primarily responsible for the 'education and teaching'
of their children—that parents may require the State to respect their religious and philosophical
convictions.").
141
See D R I V E R , supra note 8, at 62.
142
See "Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium"
(Merits), 6 Eur. Ct. H.R. (scr. A), para. 2 (1968).
143
See Russian Children Return to School on 'Day of Knowledge', MOSCOW T I M ES (Sept. 1, 2021,
4:27 P M ) , https://pcrma.cc/2V74-S5RP. See generally TIMOTHY P H I L L I P S , BESLAN: THE T R A G E D Y OF
SCHOOL No. 1 (2007) (providing an in-depth account of the Beslan school siege).
144
See Tagayeva and Others v. Russia, App. Nos. 25662/07 ct al., (Apr. 13, 2017),
https://pcrma.ee/EMD6-5WMN.
145
See Catan and Others v. Republic of Moldova and Russia, App. Nos. 43370/04 et al., 57 Eur.
H.R. Rep. 99, 149 (2013).
146
See Sampani v. Greece, 2013 Eur. Ct. H.R., at 1.
1 4 7
For more on this case by a former ECtHR judge, sec Loukis G. Loucaidcs, The Judgment of the
European Court of Human Rights in the Case o/Cyprus v. Turkey, 15 LEIDEN J. lNT'L L. 225 (2002).
148
See Cyprus v. Turkey, 2014-11 Eur. Ct. H.R. 245.
1 4 9
Niall Murray, Louise O'Keefe: 'The Case Should Never Have Gone This Far', IRISH EXAMINER
(Jan. 29, 2014), https://perma.ee/K7GA-4APN.
1 5 0
D.H. and Others v. Czech Republic, 2007-IV Eur. Ct. H.R. 241, para. 2 (J. Jungwiert, dissent-
ing).
2023 Strasbourg, Schools, and the European Convention on Human Rights 117
cases, the "footprint'' of the case is felt by far more individuals than only those applicants
directly involved in the proceedings.
Finally, the trend over time has seen an exponential increased in school
cases, which is in line with the general increase of the caseload of the Strasbourg
Court. Therefore, it is at the very least safe to say that Strasbourg's schools jurisprudence
has been on the rise, and given the number of interests and people involved,
the trend may continue to increase.
B. Schooling Cases Beyond the Council ofEurope
Cases arising in the primary and secondary school setting frequently involve
apprehensions about broader membership in the European supranational system of
human rights protections. Wider misgivings emerge from this specific body of jurisprudence
that reflect both shared concerns across the Council of Europe and the tensions
inherent in belonging to an international human rights regime. One of the Council
of Europe's stated goals is to "foster European identity and unity, based on shared
fundamental values, respect for our common heritage and cultural diversity."151
Despite
the definitional difficulties relating to European identity, a significant number
of cases involving primary and secondary schools before the Strasbourg Court appear
to encapsulate these dynamics in a way worth examining.
Consider six concerns relating to membership in an international human
rights protection regime that have arisen in Strasbourg's schools jurisprudence: (1)
sovereignty;152
(2) linguistic diversity;153
(3) the individual-religion-state relation-
ship;154
(4) immigration155
and integration'56
in diverse societies; (5) individual and
151
Warsaw Declaration, COUNCIL OF EUR. (May 17, 2005), https://pcrma.cc/D4LK-B3MN; see
also Kanstantsin Dzchtsiarou & Vassilis P. Tzevelekos, The Conscience of Europe That Landed in Strasbourg:
A Circle of Life of the European Court of Human Rights, 1 EUR. CONVENTION HUM. RTS. L. REV.
1, 5 (2020) (arguing that the ECHR is "a vehicle for the integration of the national legal orders of the 47
parties in the areas of human rights, democracy, and the rule of law" and that "[t]hc establishment of
common standards across Europe is a means of integration").
152
See infra text accompanying notes 160-64.
153
See "Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium"
(Merits), 6 Eur. Ct. H.R. (ser. A) (1968); Orsu§ and Others v. Croatia, 2008 Eur. Ct. H.R.; Catan
and Others v. Republic of Moldova and Russia, App. Nos. 43370/04 et al., 57 Eur. H.R. Rep. 99 (2013);
Cyprus v. Turkey, 2014-11 Eur. Ct. H.R. 245.
154
See, e.g., Valsamis v. Greece, App. No. 21787/93, 24 H.R. Rep. 294 (1997); Efstratiou v.
Greece, App. No. 24095/94, 24 Eur. H.R. Rep. 294 (1997); Folgere and Others v. Norway, 2007-111 Eur.
Ct. H.R. 51; Lautsi and Others v. Italy, 2011-III Eur. Ct. H.R. 61; Grzelak v. Poland, 2010 Eur. Ct. H.R.;
Dogru v. France, 2008 Eur. Ct. H.R.; Papageorgiou and Others v. Greece, App. Nos. 4762/18 et al. (Jan.
31, 2020), https://perma.cc/86UE-DKG2; Perovy v. Russia, App. No. 47429/09 (Apr. 19, 2021),
https://perma.cc/YWR8-RNE7.
155
See, e.g., Ponomaryovi v. Bulgaria, 201 l-III Eur. Ct. H.R. 366; Timishev v. Russia, 2005-XII
Eur. Ct. H.R. 169.
156
See, e.g., D.H. and Others v. Czech Republic, 2007-IV Eur. Ct. H.R. 241; Sampani v. Greece,
2013 Eur. Ct. H.R.; Sampanis and Others v. Greece, 2008 Eur. Ct. H.R.; Lavida v. Greece, 2013 Eur. Ct.
H.R.; Horväth v. Hungary, 2013 Eur. Ct. H.R.; Elmazova and Others v. North Macedonia, App. Nos.
11811/20 & 13550/20, (Dec. 13, 2022), https://perma.cc/CNG6-DHNH; X and Others v. Albania, App.
Nos. 73548/17 & 45521/19, (Aug. 31, 2022), https://pcrma.ee/7YMQ-WS48.
118 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
family autonomy vis-a-vis collective interests;157
and (6) peace, order, and safety.158
These apprehensions—intertwined with an international human rights protection regime—have
often flashed where law and education intersect. Thus, Strasbourg's
schools jurisprudence may be illustrative of broader, foundational questions relating
to membership in an international human rights regime.
Let us examine three prominent examples of this observation. In the arguments
in the Belgian Linguistics case—perhaps the most well-known international
legal case involving schooling159
—the Belgian government argued vehemently that
the case was outside the ECtHR's jurisdiction and was not covered by the Convention.
It stated:
[L]inguistic and educational legislation is to a large extent an integral
part of the State's political and social structure, which belongs pre-eminently
to the reserved domain [of the Belgian State]; that the Convention,
as a declaration of rights, is not concerned with the organisation
[sic] of governmental authorities; that the Belgian conseil d'etat and Parliament
understood it this way when the question of ratification arose
. . . that, therefore, there is in this case an inherent limit to the exercise
of the Court's jurisdiction, this limit being so evident that it depends
neither on an explicit clause of the Convention nor on a reservation under
Article 64.160
In other words, states' social and political decisions, of which schooling nearly always
forms a part, were internal issues and therefore not covered under the Convention.
However, Belgium went further and warned of "rashly extensive interpretations
that would jeopardize not only internal peace in Belgium, but also the legal security
of all the High Contracting Parties and, thereby, the very fabric of this work, based
on the loftiest political ideals, that we Europeans have managed to construct."161
The
case was notjust about language in Belgium or language rights under the Convention,
but about the legal security of the Council of Europe as well as national sovereignty
and peace since "[l]anguage wars lie at the heart of Belgian history."162
Strasbourg
disavowed this stance in its Belgian Linguistics decision, emphasizing that state regulation
"must never injure the substance of the right to education nor conflict with
157
See, e.g., Kjeldscn v. Denmark, 23 Eur. Ct. H.R. (scr. A) 711 (1976); Osmanoglu and Kocabas
v. Switzerland, App. No. 29086/12 (Apr. 10, 2017), https://pcrma.cc/9SAZ-C8J2; Dogru v. France, 2008
Eur. Ct. H.R.; Mcmlika v. Greece, 2015 Eur. Ct. H.R.
158
See, e.g., Kayak v. Turkey, 2012 Eur. Ct. H.R.; Ali v. United Kingdom, 2011 Eur. Ct. H.R.;
Kemaloglu v. Turkey, 2012 Eur. Ct. H.R.; O'Kecffc v. Ireland, 2014-1 Eur. Ct. H.R. 155; F.O. v. Croatia,
App. No. 29555/13, (Sept. 6, 2021), https://perma.cc/L36Z-QX6U; Tagaycva and Others v. Russia, App.
No. 26562/07 (Apr. 13, 2017), https://pcrma.ee/EMD6-5WMN; Kurt v. Austria, App. No. 62903/15
(June 15, 2021), https://pcrma.cc/C8RB-KJG5.
159
See Paz, supra note 117, at 181.
1 6 0
"Related to Certain Aspects of the Laws on the Use of Languages in Education in Belgium"
(Judgment on Preliminary Objection), 5 Eur. Ct. H.R. (scr. A), para f. (1967).
1 6 1
B A T E S , supra note 4, at 226 (citation omitted).
1 6 2
Philippe Van Parijs, Bruxelles Capitate de VEurope: Les Nouveaux Defis Linguistiques [Brussels,
the Capital of Europe : The New Linguistic Challenges], 6 B R U S S E L S S T U D . 1,1 (2007) ("La guerre
des langucs est au coeur dc 1'histoirc de [la] Belgiquc.").
2023 Strasbourg, Schools, and the European Convention on Human Rights 119
other rights enshrined in the Convention,"163
while at the same time outlining for the
first time the foundational principles of primarity and subsidiarity in ECHR interpre-
tation.164
In short, the case is emblematic of broader concerns common to Europe
concerning retained sovereignty.
Consider two cases from Psari, Aspropyrgos in Greece involving the
"Aspropyrgos Roma ghetto school,"165
which illustrate how Strasbourg's schooling
cases sometimes involve important questions related to immigration, integration, and
order in society. On September 13, 2005, about two hundred non-Romani parents
protested outside the Aspropyrgos primary school in an effort to block Roma pupils
from accessing the school.166
Roma students at times could only access their school
with police escorts.167
As a result, Roma students were often educated in an annex to
the regular school. The case eventually ended up before the ECtHR, which unanimously
found a violation in the 2008 Sampanis and Others v. Greecejudgment. However,
the judgment did not end the tense situation in the community. The annex was
transformed into a new school, known as the 12th primary school of Aspropyrgos,
which only Roma students attended.
Despite a meeting "organized by the Ombudsman [a Greek government mediator],
between the direction of this school, the prefecture, the association of parents
of (non-Romani) students and the Ombudsman" with the purpose of convincing "the
parents to renounce their opposition to the integration of Romani students in ordinary
classes," no community consensus was found.168
Moreover, in response to an invitation
by the Greek Ministry of Education to merge the 11th and 12th primary schools
of Aspropyrgos, the Mayor of Aspropyrgos and the parents of non-Romani students
stated in a joint letter:
The creation of the 12th primary school did not aim to . . . segregate
Romani students from other students in the district schools. It has, however,
become an inevitable necessity because Gypsies living in tents
have chosen to live a nomadic life, in dumps they have created themselves,
without worrying about basic standards of hygiene, and indulging
in illegal activities which have a negative impact on vulnerable social
groups and, more generally, on the inhabitants of Aspropyrgos . . .
in spite of all this, [the Romani children] dare to demand to share the
same classrooms as the other students of Aspropyrgos, a considerable
percentage of whom are sensitive social groups or children of economic
immigrants . . . .1 6 9
1 6 3
"Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium"
(Merits), 6 Eur. Ct. H.R. (ser. A), para. 5 (1968).
1 6 4
See J A N N E K E G E R A R D S , G E N E R A L P R I N C I P L E S O F T H E E U R O P E A N C O N V E N T I O N O N H U M A N
R I G H T S 5 (2019).
1 6 5
Sarah Montgomery, Case Watch: Take Two on Greek Roma School, O P E N SOC'Y J U S T .
I N I T I A T I V E (Apr. 11, 2011), https://pcrma.ee/4TXS-593S.
166
See Sampanis and Others v. Greece, 2008 Eur. Ct. H.R., para. 21.
167
See id.
1 6 8
Sampani v. Greece, 2013 Eur. Ct. H.R., para. 11.
169
Id. at para. 19.
120 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
Given the intense community disagreement over integration of the Roma community,
many of the same allegations made in the 2008 Sampanis case were repeated when,
unusually, a follow-up case ended up before the ECtHR during the implementation
phase of the prior Sampanis judgment. This case was entitled Sampani v. Greece.
Four years after its original judgment, the ECtHR again unanimously found a violation
of the Convention. It was not until 2017 that Strasbourg's Committee of Ministers
was satisfied with the implementation of the judgment and closed the follow-up
examination.170
In broad terms, these two cases are illustrations of Strasbourg's
school cases involving bitter contestation at the community level over immigration
and integration, individual and family autonomy, and order in society.
Finally, consider the case of Catan and Others v. Republic of Moldova and
Russia, decided in 2012. In that case, the Grand Chamber considered possible violations
to PI-2, Article 8, and Article 14. These violations arose from the Moldovan
Republic of Transdniestria's (MRT) adoption of a policy requiring all schools in
MRT to use Cyrillic instead of Latin script and the intimidation and violence that
took place against some of those schools when they refused to comply. Though the
case proved complex in its jurisdictional and attributional aspects, the Strasbourg
Court found that Russia had violated its obligations under PI-2. The ECtHR stated:
Indeed, it appears that the [MRT's] language policy, as applied to these
schools, was intended to enforce the Russification of the language and
culture of the Moldovan community living in Transdniestria, in accordance
with the [MRT's] overall political objectives of uniting with Russia
and separating from Moldova. Given the fundamental importance of primary
and secondary education for each child's personal development
and future success, it was impermissible to interrupt these children's
schooling and force them and their parents to make such difficult
choices with the sole purpose of entrenching the separatist ideology.171
This passage encapsulates an overlapping set of concerns common to European countries
more generally. The case focused on language and education rights under the
Convention, but it also involved other important concerns like sovereignty, cultural
preservation, language, peace, and safety. The Council of Europe was created in the
aftermath of World War II. As noted by Federico Fabbrini, "The memory of the tragedies
of the twentieth century had made crystal clear to Europe's political elites that
the protection of fundamental rights could not be confined solely to the states and
that additional norms and institutions beyond the state were necessary to ensure liberty
and peace in the European continent."172
Still, Strasbourg's school cases are illustrative
of foundational expectations and misgivings related to belonging to an international
human rights mechanism in a region with incredible linguistic, cultural,
historical, and geographic diversity that was the primary locus of much of the fighting
in the two World Wars.
170
See Execution of the Judgment of the European Court of Human Rights, Final Resolution
CM/RcsDH (2017) 96, Sampani and Others v. Greece (App. No. 59608/09) (March 10, 2017),
https://perma.cc/MYF8-T6E9.
1 7 1
Catan and Others v. Republic of Moldova and Russia, App. Nos. 43370/04 ct al., 57 Eur. H.R.
Rep. 99, 145 (2013).
1 7 2
F E D E R I C O F A B B R I N I , F U N D A M E N T A L R I G H T S I N E U R O P E 13 (2014).
2023 Strasbourg, Schools, and the European Convention on Human Rights 121
C. Strasbourg's Schooling Cases and European Societies
Professors Abdurrahman Hendek and Nigel Fancourt claim that in England
and Turkey's religious education spheres, the ECtHR's "decisions are deployed as
catalysts for change as well as bulwarks of the status quo."173
Expanding this hypothesis,
one possible way of organizing Strasbourg's schools jurisprudence is the division
of judgments into those that catalyzed change and those that preserved the status
quo, either in the specific country concerned in the case or beyond. In several of
Strasbourg's schooling cases, the ECtHR's ruling served as a catalyst for both small
and large domestic change. In a few cases, the rulings catalyzed change beyond the
country in which a particular case had its roots. Some Strasbourg judgments have
also preserved the status quo in the schools where the cases arose and in other European
countries. Below, I consider a few examples of this typology as applied to Strasbourg's
schooling cases. The baseline claim is that Strasbourg's schools jurisprudence
has served sometimes as a catalyst and other times as a hindrance to broader
legal, political, and social change in European societies.
Before diving into this typology, a preliminary word regarding existing terminology
is necessary. As a formal matter, the Committee of Ministers under the text
of the ECHR supervises the domestic execution of ECtHR judgments.174
Many scholars
have studied domestic compliance with ECtHR judgments, focusing on, for example,
the factors that lead to domestic compliance with ECtHR judgments against
certain countries.175
Beyond compliance, some scholars note that ECtHR judgments sometimes
produce ripple effects, influencing domestic judiciaries and administrations beyond
those involved directly in the case.176
While as a factual matter, ECtHR judgments
only have interpartes effect,177
in certain circumstances, the Strasbourg Court's rulings
do have effects beyond only those countries and parties involved in the dispute,
effects which look more like erga omnes effects.178
Moreover, the domestic diffusion
of ECtHR caselaw, connected with the res interpretata principle, shows that ECtHR
1 7 3
Abdurrahman Hcndck & Nigel Fancourt, The Effects of Judgements by the European Court of
Human Rights on Religious Education in England and Turkey, 48 RELIGION & EDUC. 436, 436 (2021).
174
See European Convention on Human Rights, supra note 4, art. 46. Some argue that the ECtHR
itself plays a bigger role in the execution of its judgments. See, e.g., Helen Keller & Ccdric Marti, Reconceptualizing
Implementation: The Judicialization of the Execution of the European Court of Human
Rights' Judgments, 26 EUR. J. INT'L L. 829, 830 (2015); Lizc R . Glass, The European Court of Human
Rights Supervising the Executing of Its Judgments, 37 NETH. Q. H U M . RTS. 228, 228 (2019).
175
See, e.g., Dia Anagnostou & Alina Mungiu-Pippidi, Domestic Implementation of Human Rights
Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter, 25 EUR. J. INT'L L.
205, 207 (2014); Courtney Hillcbrccht, The Power of Human Rights Tribunals: Compliance with the
European Court of Human Rights and Domestic Policy Change, 20 EUR. J . INT'L REL. 1100, 1106-08
(2014).
176
See Laurence R. Helfer & Erik Vocten, Walking Back Human Rights in Europe?, 31 EUR. J .
I N T ' L L. 797, 824-25 (2020) ("When the ECtHR expounds the meaning of a particular right or freedom,
its interpretation has ripple effects across the 47 member states, all of which have incorporated the Convention
into domestic law, and across national judiciaries, many of whose members give significant
weight to ECtHR rulings when interpreting rights or freedoms in their respective constitutions.").
177
See Georg Rcss, The Effect of Decisions and Judgments of the European Court of Human Rights
in the Domestic Legal Order, 40 TEX. INT'L L.J. 359, 378 (2005).
178
See Laurence R. Helfer & Erik Vocten, International Courts as Agents of Legal Change: Evidencefrom
LGBT Rights in Europe, 68 INT'L ORG. 77, 78 (2014).
122 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
judgments often make their way into domestic jurisdictions not directly involved as
respondent states.179
Beyond the legal effects (both narrow and broad) of ECtHR judgments, recent
socio-legal scholarship emphasizes that the shadow of the Strasbourg Court extends
well beyond the legal arena. This scholarship notes that ECtHR judgments have
indirect effects stemming from the fact that courts produce notjust decisions, but also
messages.180
Looking narrowly at compliance therefore misses "the inherent ambiguity,
diversity and the strong contestation that often surrounds how international norms
are translated into national policy and practice [and] the wide range of possible effects
that international rulings and norms may have in domestic state law and policy
but also in the mobilization and empowerment of rights advocates."181
ECtHR judgments
may indirectly affect "public consciousness, change how social actors perceive
and articulate their grievances and claims, empower national rights institutions, or
prompt mobilization among civil society and other rights advocates."182
Importantly,
these indirect effects may be more important than formal legal and administrative
implementation.183
My formulation below, borrowing the framework of Professors Hendek and
Fancourt and focusing on ECtHR judgments as catalysts of change and bulwarks of
the status quo, is necessarily broad and includes elements of domestic compliance,
legal ripple effects, and indirect effects. Finally, the typology presented is meant as a
suggestive framework, not a comprehensive study of Strasbourg's schools jurisprudence's
effect on Europe's schools and societies more generally. That I leave to future
scholarship.
* * *
One example from Strasbourg's schools jurisprudence of the ECtHR spurring
on domestic change comes from Campbell and Cosans v. United Kingdom. In
that case, the ECtHR held that the existence of corporal punishment in their children's
schools violated the PI-2 rights of two Scottish mothers. Moreover, the Strasbourg
Court found that Jeffrey Cosans had had his PI-2 rights violated by being suspended
from school for refusing to submit to corporal punishment. While the judgment did
not rule that corporal punishment was in all circumstances contrary to the Convention,
the judgment did motivate important domestic legislative change. Four years
after the case, the Education Act of 1986 preventing corporal punishment in statefunded
schools was passed as "a direct response by the British Government to the
1 7 9
See, e.g., D A V I D K O S A R E T A L . , D O M E S T I C J U D I C I A L T R E A T M E N T O F E U R O P E A N C O U R T O F
H U M A N R I G H T S C A S E L A W : B E Y O N D C O M P L I A N C E 4, 8 (2020) (offering the "first comprehensive empirical
analysis of the use of Strasbourg case law and its effect on the reasoning of domestic courts" in
the Czech Republic and showing that "domestic courts act as norm diffuscrs, often pushing for the direct
implementation of principles delivered in judgments issued against other CoE member countries").
180
See Effic Fokas, Directions in Religious Pluralism in Europe: Mobilizations in the Shadow of
European Court of Human Rights Religious Freedom Jurisprudence, 4 O X F O R D J . L . & R E L I G I O N 54,
71-72 (2015) (citation omitted).
1 8 1
D I A A N A G N O S T O U , T H E E U R O P E A N C O N V E N T I O N O F H U M A N R I G H T S R E G I M E : R E F O R M O F
I M M I G R A T I O N A N D M I N O R I T Y P O L I C I E S F R O M A F A R 163 (2022).
1 8 2
Dia Anagnostou & Effic Fokas, The "Radiating Effects " of the ECtHR on Social Mobilizations
Around Religion and Education in Europe: An Analytical Frame, 12 P O L . & R E L I G I O N 9, 10 (2019).
183
See id.
2023 Strasbourg, Schools, and the European Convention on Human Rights 123
decision of the European Court in Campbell and Cosans."IM
This is particularly significant
as contemporaneous evidence suggests that broader Scottish society at the
time accepted the use of corporal punishment in schools."" The judgment indicated
that the majority of Scottish parents supported the use of corporal punishment in
schools, and reportedly some pupils even preferred it to other forms of punishment.186
Campbell and Cosans therefore suggests that the Strasbourg Court does sometimes
act as a counter-majoritarian institution and can bring about domestic legislative
change, despite opposition from segments of society.
An example from Strasbourg's schools jurisprudence of the ECtHR spurring
on both domestic change and international change is D.H. II. To be clear, other scholarship
has addressed the extent to which a court like the ECtHR can push through
systemic change such as that at play in the D.H. II case.187
The claim here is broader
and relates not to the success with which the Strasbourg Court can achieve systemic
change and the factors that help or hinder this process, but rather the claim is that the
ECtHR's judgments do in fact catalyze some important change.
In the D.H. II Grand Chamber judgment, the ECtHR held in favor of eighteen
Roma applicants from Ostrava who argued that their placement in special schools
violated their rights under Article 14 and PI-2 of the ECHR.1 8 8
This judgment has
catalyzed important change in the Czech Republic, albeit slowly and on its own trajectory.
Though the judgment is still being implemented some fifteen years later, the
2020 report of the Committee of Ministers welcomed several positive developments
regarding the situation of Roma in education, particularly following legislative reform
in the Czech Republic in 2016.189
As Hubert Smekal and Katarina Sipulova
pointed out in 2014, the ability of the ECtHR to push for the overhaul of a domestic
education system is as complicated as it is difficult and depends on many factors.190
Moreover, in a study about domestic compliance with international human rights
bodies' decisions including the D.H. II case, David Kosaf and Jan Petrov have noted
that "the level of compliance achieved depends on a repeated balancing exercise, in
which domestic political actors balance domestic political costs of compliance, on
the one hand, with the international reputational costs of non-compliance, on the
other."191
What is clear from this scholarship, and compliance scholarship more generally,
is that domestic compliance with rulings of the ECtHR is complex and context-dependent.
Nonetheless, while the Czech Republic has far from perfectly
1 8 4
Ralph Bcddard, Corporal Punishment in Schools: Recent Decisions from Strasbourg, 6 E D U C .
& L . 27, 28(1994).
185
See How the Tawse Left its Mark on Scottish Pupils, B B C N E W S (Feb. 22, 2017),
https://perma.ee/3CQC-K5HJ (noting that up until the 1980s, the culture of Scottish society completely
accepted the use of corporal punishment).
186
See Campbell and Cosans v. U.K., 48 Eur. Ct. H.R. (ser. A), para. 18 (1982).
187
See Smekal & Sipulova, supra note 114; A N A G N O S T O U , supra note 181, at 143.
1 8 8
D.H. and Others v. Czech Republic, 2007-1V Eur. Ct. H.R. 241, para. 210.
1 8 9
Communication DH(2020)24 of 7 October 2020, para. 4.
1 9 0
Smekal & Sipulova, supra note 114, at 304-12.
1 9 1
David Kosaf & Jan Petrov, Determinants of Compliance Difficulties Among 'Good Compilers ':
Implementation of International Human Rights Rulings in the Czech Republic, 29 EUR. J. I N T ' L . L. 397,
422 (2018).
124 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
integrated the Roma minority into mainstream Czech education, it is reasonable to
say that the D.H. //judgment has spurred on important change at the domestic level.192
As one commentator has written, "Through successive iterations and exchanges between
the supervisory bodies, state authorities and non-governmental actors, the D.H.
implementation process led to incremental, nonetheless important legislative, administrative
and policy changes."193
In other words, despite the fact that "there is much
work to be done,"194
the ECtHR's D.H. II ruling was an important—and catalytic—
first step towards change for the Roma within the Czech educational system.
One commentator, writing after the D.H. //judgment was released, said that
"[t]hough the decision in D.H. and Others is binding only on the Czech Republic, in
the months following the decision it has become clear that it is having an immediate
and tangible effect on legal systems throughout Europe."195
Empirically, this is a very
difficult claim to assess. What may be said about the D.H. II case within the framework
of Strasbourg's schools jurisprudence is that the reasoning and holding in the
case pushed the door wide open for others, including strategic litigators, to challenge
discriminatory practices against Roma in the rest of Europe, thereby spurring on
change beyond the Czech Republic. The Grand Chamber in D.H. II made several
specific findings that propped open the door for future Roma discrimination cases.
First, it charted a new course by introducing a statistical burden-shifting standard in
Roma indirect discrimination cases. Second, it emphasized the importance of the educational
context for combatting discrimination against Roma pupils. Third, the case
introduced a positive obligation on states to introduce safeguards in schools to protect
Roma pupilsfromdiscrimination.
These findings served as the foundation on which strategic litigators brought
cases in other European countries that ultimately ended up before the ECtHR. In all
seven other cases involving discrimination against Roma in schools,196
the ECtHR
found a violation of Article 14 taken together with PI-2 based on at least one of the
three findings in D.H. II mentioned above.
Hence, the subsequent set of Roma discrimination cases in schools are, in a
sense, the progeny of D.H. II. These later cases have suffered from similar implementation
difficulties, setbacks, and lackluster progress.197
Despite implementation
1 9 2
One such indirect but important change was an apparent confidence that the ECtHR's judgment
imparted to the Roma Community itself. See Filip Sys, D.H. v. Czech Republic, Roma Educational
Equality and the Vulnerability of Strategic Litigation, 20 A C T A U N I V E R S I T A T I S C A R O L I N A E S T U D I A
T E R R I T O R I A L I A 71, 88 (2020).
1 9 3
A N A G N O S T O U , supra note 181, at 150-51.
1 9 4
Sys, supra note 192, at 95.
1 9 5
Jennifer Dcvroye, The Case of D.H. and Others v. the Czech Republic, 7 Nw. J. INT'L HUM.
RTS. 81, 100 (2009) ("D.H. and Others is also likely to compel national constitutional courts across
Europe to examine defacto situations of discrimination, rather than simply analyzing whether a law was
facially neutral and being followed to the letter . . . .").
1 9 6
These cases arc Horvdth v. Hungary, 2013 Eur. Ct. H.R.; Sampanis and Others v. Greece, 2008
Eur. Ct. H.R.; Sampani v. Greece, 2013 Eur. Ct. H.R.; Lavida v. Greece, 2013 Eur. Ct. H.R.; Orsus and
Others v. Croatia, 2010-11 Eur. Ct. H.R. 247; Xand Others v. Albania, App. Nos. 73548/17 & 45521/19
(Aug. 31, 2022), https://perma.cc/7YMQ-WS48; and Elmazova and Others v. North Macedonia, App.
Nos. 11811/20 & 13550/20, (Dec. 13, 2022), https://perma.cc/CNG6-DHNH.
197
See Smckal & Sipulova, supra note 114, at 301 ("It is claimed that ECtHR judgments concerning
the Roma have the worst track record of implementation.") (citations omitted).
2023 Strasbourg, Schools, and the European Convention on Human Rights 125
difficulties, however, these subsequent cases that rely on D.H. II have catalyzed
change for Roma pupils beyond the borders of the Czech Republic.198
One instance within Strasbourg's schools jurisprudence of the ECtHR preserving
the domestic status quo relates to mandatory sex education classes. In Kjeldsen
v. Denmark, mentioned above, and several follow-up admissibility decisions, the
Strasbourg Court held that mandatory sex education classes, even in the case of
young children, do not violate the Convention. Studies revealed that prior to the
Kjeldsen case, in Western and Northern Europe, "[w]ith the exception of the Republic
of Ireland (Eire), all countries of this region have accepted the need for sex education
in schools in the interest of children's mental and physical health and of human
rights."199
Some countries introduced compulsory sexual education across the country
and some left the decision to the local education authorities.200
Denmark's legislature,
concerned about the health of its young people, passed a law making sex education
compulsory. Three sets of parents challenged this law, arguing that it mfringed upon
their right to educate their children according to their religious convictions.
The Kjeldsen court upheld Denmark's legislation, finding that the legislation
"in itself in no way offends the applicants' religious and philosophical convictions to
the extent forbidden by the second sentence of Article 2 of the Protocol (PI-2), interpreted
in the light of its first sentence and of the whole of the Convention."201
In
particular, the ECtHR placed the emphasis on the fact that:
The public authorities wish to enable pupils, when the time comes, "to
take care of themselves and show consideration for others in that respect",
"not . . . to land themselves or others in difficulties solely on
account of lack of knowledge."202
The Danish sex education legislation, passed with domestic democratic imprimatur,
withstood a reasonable claim under the Convention. In rejecting the Christian parents'
attempt to exempt their children from sex education, the Strasbourg Court preserved
the newfound status quo in Denmark in which pupils had to attend sex education
classes to prepare them for and protect them from possible harms.203
In three follow up admissibility decisions, the Strasbourg Court upheld national
decisions that had made sex education mandatory, even for very young pupils.
In Dojan and Others v. Germany, Christian Evangelical Baptist Church parents with
198
See A N A G N O S T O U , supra note 181, at 159 (noting that one apparent effect of the D.H. case and
its progeny was their role as "catalysts for domestic follow-on litigation").
1 9 9
Edmund H. Kellogg & Jan Stepan, Legal Aspects of Sex Education, 26 A M . J. C O M P . L. 573,
576(1978).
2 0 0
Id. at 576-77.
2 0 1
Kjeldsen v. Denmark, 23 Eur. Ct. H.R. (ser. A ) 711, para. 54 (1976).
2 0 2
Id. (citation omitted).
2 0 3
This may be particularly important, as "[t]he school is likely the first place where students may
witness first-hand the state's role in shaping attitudes toward sex, defining the parameters of acceptable
sex and sexuality, and cultivating a robust understanding of sexual rights." Murray, supra note 40, at
1485.
126 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
children in school in Salzkotten, Germany objected to compulsory sex education classes
on account of their religious beliefs, amongst other reasons. In upholding Germany's
compulsory classes as consistent with the Convention, the ECtHR reasoned
that the sex education classes' purpose was the "neutral transmission of knowledge
. . . with a view to enabling children to deal critically with influences from society [,]
instead of avoiding them and was aimed at educating responsible and emancipated
citizens capable of participating in the democratic processes of a pluralistic soci-
ety."204
As such, Germany had not overstepped its margin of appreciation in the educational
realm. Moreover, inA.R. andL.R. v. Switzerland, the ECtHR declared inadmissible
the request of a mother to have her seven-year-old daughter exempted from
the mandatory sex education class in her primary school in Basel.205
The ECtHR again
upheld the decision of the domestic authorities, despite the sensitive nature of the
case, in part to protect children's physical and mental health. Finally, in Alonso and
Merino v. Spain, the ECtHR also declared inadmissible the application of a father
and his daughter who, amongst other things, objected to the teaching of human sexuality
as part of a natural science class in a state school in Trecefio.206
This string of
cases saw the Strasbourg Court refuse to overturn democratic decisions made at the
national or local levels regarding mandatory sex education, even in the case of young
children. In doing so, the ECtHR preserved the national status quo with respect to
mandatory sex education in the schools of the countries concerned.
* * *
Another illustration from Strasbourg's schools jurisprudence of the ECtHR
preserving the status quo, with important implications for the rest of the countries in
the Council of Europe, is the Grand Chamber's judgment in Lautsi II. In that case,
the Grand Chamber had to decide whether the presence of crucifixes on the wall of
Italian classrooms violated the Lautsi family's religious rights under the Conven-
tion.207
Eight governments intervened in the case and emphasized that the case went
beyondjust crucifixes in Italian classrooms.208
According to them, the "huge diversity
of Church-State arrangements in Europe" meant that extending the Chamber's view
"to the whole of Europe would represent the 'Americanisation' of Europe in that a
single and unique rule and a rigid separation of Church and State would be binding
on everyone."209
In other words, precisely because the Council of Europe consists of
sovereign nations, each with its own history, culture, religious personality, and language,
the Strasbourg Court must tread very carefully and respect sovereign decisions
of member states where the case is not extreme and there is no European consensus
on the matter.
Likewise, Joseph Weiler, who represented those eight states in Lautsi II, elucidated
in a speech before the Grand Chamber:
2 0 4
Dojan and Others v. Germany, 2011 Eur. Ct. H.R., at 14-15.
2 0 5
A.R. and L.R. v. Switzerland (dec.), App. No. 22338/15, para. 53 (Dec. 19, 2017),
https://pcrma.ee/WJU4-NEM9.
2 0 6
Alonso and Merino v. Spain, 2000-V1 Eur. Ct. H.R. 465, 479.
2 0 7
Lautsi and Others v. Italy, 2011-111 Eur. Ct. H.R. 61, para. 57.
2 0 8
See id. at para. 47.
2 0 9
id.
2023 Strasbourg, Schools, and the European Convention on Human Rights 127
This case is not only about the crucifix. It is also about the tension between
individual rights and collective identity, the tension between the
role of courts and of political democratic institutions, and the tension
between the uniform values which the Convention system espouses, and
the rich diversity which characterizes the European legal landscape.210
The undertone of these sentiments before the ECtHR suggests that the case had implications
for a religiously diverse Europe. As such, by granting Italy a wide margin
of appreciation and overturning the lower chamber judgment, the Grand Chamber in
Lautsi II halted what would have been a cross-European reckoning on the place of
religion in public schools, as well as in the public sphere more generally. During the
case, questions arose regarding the judgment's ultimate effect on religious holidays
in various European countries, the flag and national anthem of England, crosses on
national currencies, reading the Irish or German constitution in classrooms, and the
French conception of lai'cite. In a concrete example, a Romanian activist brought a
claim against the Romanian state regarding the presence of icons in public school
classrooms, "but his lawyers were demobilized in the aftermath of the 2011 Grand
Chamber decision."211
And another study of the indirect effects of Lautsi II in Greece,
Italy, Romania, and Turkey concluded that the judgment's "reverberations were powerful
both across the four countries studied as well as across issue areas . . . [since] it
encouraged majority actors seeking to preserve the status quo, and operated as a demobilizing
factor for secularist actors in fields well beyond that of religion and edu-
cation."212
Thus, the Grand Chamber's judgment finding no violation of the Convention
meant that no answer had to be provided for important questions in other
countries. The ECtHR therefore preserved the status quo in Europe regarding religious
symbols in schools specifically and in the public sphere more generally.
* * *
Professor Justin Driver posits that both those U.S. constitutional scholars
who believe that the U.S. Supreme Court can "achieve almost anything" and those
who "suggest that it can accomplish virtually nothing" are incorrect.213
His reading of
the U.S. Supreme Court's jurisprudence concerning schools leads him to contend that
the U.S. Supreme Court's school cases illustrate that it "is neither omnipotent nor
impotent, but, simply, unambiguously potent."214
A comprehensive reading of Strasbourg's
schools jurisprudence might lead one to the same conclusion. The debate
over the extent to which the ECtHR functions like a constitutional court continues.215
Strasbourg's judgments do not have immediate and direct effect across the Council
2 1 0
Videotape: Crucifix in the Classroom - Joseph Weiler Before the European Court of Human
Rights (2011), available at https://perma.cc/6TCC-6CET.
2 1 1
Fokas, supra note 180, at 72.
2 1 2
Anagnostou & Fokas, supra note 182, at 25.
2 1 3
D R I V E R , supra note 8, at 20.
2 1 4
Id. at 22.
2 1 5
See Wojciech Sadurski, Quasi-Constitutional Court of Human Rights for Europe? Comments
on Geir Ulfstein, 10 GLOB. CONST. 175, 175 (2021).
128 STANFORD JOURNAL OF INTERNATIONAL LAW 59:2
of Europe, nor does the Strasbourg Court have robust enforcement powers.21f
' At the
same time, this does not mean that the ECtHR has no power in real terms. Strasbourg's
schools jurisprudence illustrates the dynamic nature of the ECtHR's authority.
Driver's claim is sufficiently broad to encompass "the capacious middle
ground"217
of the powers of both a national apex court and an international human
rights court. As Strasbourg's schooling cases clearly demonstrate, the ECtHR does
sometimes contribute in significant ways to the wider legal and social landscape of
European societies.
In conclusion, when most people think of the contributions that the ECtHR
has made to Europe, they are likely to think of foundational cases outside the school
realm. They may think of end-of-life questions, voting rights, reproductive rights,
gay marriage, or environmental issues. Going forward, cases arising within Europe's
schoolhouse gate should also make the list.
IV. CONCLUSION
The school as a site of human rights conflict has been understudied in European
human rights literature. By introducing "Strasbourg's schools jurisprudence" as
a field of study, this Article has started to take steps towards bridging that gap, inspired
by the arguments of Professor Driver's The Schoolhouse Gate in the United
States context. In a sense, this Article is a call to arms for deeper consideration of the
intersection between schools and human rights in Europe. More in-depth research
about the knock-on effects—legal, political, and societal—of Strasbourg's schooling
judgments would prove fruitful. Startlingly, in many of the legal discussions involving
human rights at school, pedagogical experts and teachers are entirely left out of
the discussion. Further academic research would do well to include their views on
the intersection between pedagogy and rights in school. The relationship between
schools, democracy, and the ECtHR could be further explored. This is particularly
important given the history of the Council of Europe and what occurred with respect
to youth and schools during the Third Reich.218
And beyond Europe's historical context,
some commentators have warned that "the rise of populistic-autocratic regimes"
in Europe may have a big impact on the future of European schools and education.219
The role of supranational rights protection in this changing context is worthy of scholarly
attention. Finally, as stated in the Introduction, there are important insights to be
gained by examining jurisprudence relating to specific institutions like schools. As
this Article has suggested, it may not be unreasonable to think of "the Convention
law of schools" as a distinct field of study. A domain-centered approach to judicial
interpretation of the ECHR may allow scholars to better understand judicial
2 1 6
See Veronika Fikfak & Lora Izvorova, Language and Persuasion: Human Dignity at the European
Court of Human Rights, 22 H U M . R T S . L. R E V . 1, 3 (2022) ("[I]f the Court has the power to tell
the state what the law is, as an international court it has very low enforcement authority and compliance
with its decisions is always voluntary.").
2 1 7
DRIVER, supra note 8, at 22.
2 1 8
See, e.g., Daniel Horn, The Hitler Youth and Educational Decline in the Third Reich, 16 H I S T .
E D U C . Q. 425, 425 (1976). The expansion of the Council of Europe following the fall of the Berlin Wall
and the inclusion in the Convention system of schools that were formerly part of authoritarian regimes
also forms an important part of Europe's historical trajectory.
2 1 9
P E T E R R A D O E T A L . , A D A P T I N G T O F U T U R E C H A L L E N G E S T O E D U C A T I O N : H U N G A R Y ,
P O L A N D , R O M A N I A , S E R B I A , A N D S L O V A K I A 21-22 (2021).
2023 Strasbourg, Schools, and the European Convention on Human Rights 129
interpretation in cases concerning specific institutional contexts. Likewise, further
such study could help Strasbourg's judges craft a sharper and more consistent jurisprudence,
clarifying how certain institutional characteristics interact with Convention
interpretation.
Regardless of how the ECtHR has addressed human rights claims involving
elementary and secondary schools in the past, this Article has shown that schools
have acted as significant vectors of human rights contestation and Convention interpretation
in the Council of Europe. Given the prevalence of cases in the Strasbourg
Court involving the interpretation of the ECHR in schooling matters, as well as the
high threshold in ECtHR caselaw with respect to discrimination and safety in schools,
the suspicion is that the story of human rights within Europe's schoolhouse gate is
not yet over.
STANFORD JOURNAL OF INTERNATIONAL LAW