EUROPE'S SCHOOLHOUSE GATE? STRASBOURG, SCHOOLS, AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS.

• Author: Leisure, Patrick

1. INTRODUCTION 92 II. STRASBOURG, SCHOOLS, AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS 96 A. Convention Interpretation and the School Context 96 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 I. 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)

   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 States (8)--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 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, (17) or has examined particular Convention rights in the school context, (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 jurisprudence," (20) the central argument of this Article is that schools have served as one of the most important sites of human rights conflict and ECHR interpretation in the post-World 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 law (21) 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.

   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 conclusions.

2. STRASBOURG, SCHOOLS, AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS

   1. 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. (27) This is perhaps not surprising, as the Convention's Additional Protocol 1 Article 2 (PI-2), unlike the U.S. Constitution, directly mentions education. (28) Yet, the ECtHR in its jurisprudence involving 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 their judicial 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...