The role of the European judge in combating racial discrimination and what I learned from my stay in Ann Arbor Michigan

2020 will long be remembered as an eventful year. It will be remembered as the year in which, in March 2020, the WHO announced the COVID-19 outbreak a pandemic. Less than half a year afterward, it is already clear that the global COVID-19 pandemic is widening inequalities. There is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19. Inequities in the social determinants of health, such as poverty and healthcare access, affecting these groups are interrelated and influence a wide range of health and quality-of-life outcomes and risks.

2020 will also be remembered for the brutal killing of George Floyd in May 2020 by police forces in Minnesota, which triggered the resurgence of the #BlackLivesMatter campaign. Discussions about white supremacy’s historical role in a particular kind of racial inequality have regained momentum, not only in the US, but also in Europe. Here in Belgium, several statues of Leopold II, a Belgian king whose forces seized Congo in the late 19th century and ran an exploitative regime that led to the deaths of millions, were vandalized by recent protests against racism. A 150-year-old statue of King Leopold II of Belgium was removed from a public square in Antwerp in June, as protests against racism continued around the world.

2020 will also go into the history books as the year in which the United Kingdom has left the European Union. You will recall that the UK formally left the EU on 31 January 2020 and immediately entered into an 11-month transition period. During this period, the UK will continue to follow all of the EU’s rules and its trading relationship will remain the same. However, it is no longer part of the EU’s political institutions – so there are no longer any British MEPs in the European Parliament. As I am writing this blog, UK and EU officials are trying to agree what the future relationship will eventually look like. All these major events are connected with the Fulbright sponsored post-doc research project, for which our family moved to the US for a year. Until recently, I was based in Ann Arbor—a cosy city west of Detroit, in the Midwestern state of Michigan. Ann Arbor is home to the sprawling University of Michigan. It is known for its cold winters, and hot summers, and for ‘the Big House’, the University’s football stadium, which is the biggest stadium in the US. Apart from being a bustling university town, it is also considered a culinary hotspot, and a tech hub with a walkable downtown that includes world-class arts and culture.

@pottermia caught this colourful sunset over the downtown Ann Arbor skyline

The post-doc research project which brought me to Ann Arbor focused on the role of the European judge in combating discrimination, by better enforcing the Racial Equality Directive, an EU Directive that prohibits discrimination based on race and ethnic origin in several areas of life. It had to be transposed into national law by 19 July 2003 by the 15 “old” Member States, by 1 May 2004 by the 10 “new” Member States, and by 1 January 2007 for Romania and Bulgaria. Even though this directive has been correctly transposed by all these Member States, we still do notice that certain ethnic minorities, such as the Roma, continue to face structural discrimination, lacking, among others, equal access to quality education.

Whereas the prohibition to discriminate based on racial or ethnic origin in the area of education is defined in EU law, the sanctions for this behaviour are defined in national law. That is because the EU, unlike the federal courts in the US, does not have its own EU courts, but rather makes use of the national judges in the different Member States to enforce EU law. If those responsible for segregated school systems, whereby Roma children are systematically relegated to ethnically segregated schooling of lesser quality, only face light sanctions, which are not dissuasive and effective, it is obvious that the discriminatory behaviour will continue. I, therefore, wanted to examine, how judges, when they apply their national sanctions to enforce a right which is based in EU law (eg the right of these Roma children to equal access to quality education), can apply these sanctions in such a way as to make them dissuasive and effective, ie as to ensure that the perpetrator discontinues the discriminatory behaviour.

Why would a European human rights lawyer want to go to the US to do research about making EU non-discrimination law more effective? The answer to that question is: injunctive relief. [For the non-lawyers reading this blog: an injunction is a judicial order restraining a person from beginning or continuing an action threatening or invading the legal right of another, or compelling a person to carry out a certain act.] It is clear that injunctive relief as a procedural tool has contributed to the desegregation movement in education in the US, in which both strategic litigation and the active role of certain judges were crucial. I have learned, when looking into the civil rights movement in the US, that desegregation in education has not been an overall success story. In the last decades, racial segregation in education seems on the rise again in several US States. That does not change the fact that, from a purely procedural perspective, the injunction has always been “the remedy of first choice” in desegregation cases, and a particularly interesting and effective procedural tool. In certain EU Member States, such as Belgium, injunctive relief is used in the context of racial segregation, or also discrimination based on a disability. In other Member States, it is not.

What if European judges would start imposing injunctions on those responsible for school segregation, forcing them to adopt a de-segregation plan? What if European judges would retain jurisdiction over these cases to ensure that the de-segregation plans are complied with? Why can some European judges, such as the Hungarian Supreme Court Kuria, legally impose such a de-segregation plan, whereas others can not? How can European judges make better use of the procedural tools they have in national law to render EU non-discrimination law more effective?

Those are but a few of the questions I have been looking into while doing research at the University of Michigan. The latter turned out to be an excellent choice for a post-doc research stay, not only because of the excellent support I have received from my faculty host Professor Daniel Halberstam, who is an expert both in US constitutional law and EU law (a rare combination), but also because of the fact that Michigan Grotius Research Fellows are in many ways included in life at the Law School. It is true that, whether you are a student, an SJD, an LLM, or a guest researcher, you truly become part of the “Michigan family”. That translates in many ways: via a weekly colloquium of research scholars and SJD’s, resulting in lively discussions, via the opportunity to hold guest lectures for students, through unlimited access to online and library resources, and through lunch dates with very accessible, open and welcoming professors at the Law School.

Lunch of the SJD’s and Grotius Research Scholars at Jerusalem’s Gardens in Ann Arbor

The opportunity to sit in on classes such as American Constitutional Law and South African Constitutional Law allowed me to gather materials for a contribution (keyword entry) on racial discrimination in the area of comparative constitutional law for the newly launched Max Planck Encyclopaedia of Comparative Constitutional Law. A fun project, which made me realize how issues such as affirmative action are approached in a fundamentally different way by the different constitutional courts in Western Europe, South Africa, India, and the US.

The local Fulbright network helped me to liaise with faculty and staff from the University of Toledo in Ohio, where I was invited for a guest lecture on my research topic. It was challenging to present the topic to an audience with limited prior knowledge of EU law, but at the same time, I was impressed by sharp remarks from the students – who clearly saw the bigger picture – about the dangers of too high a degree of judicial activism to the detriment of acceptance of the EU project. In only an hours’ time, we covered subjects such as the tension between procedural autonomy versus the effectiveness of EU law, the dual role of national judges as EU judges, the dangers of judicial activism, Euroscepticism leading to Brexit, and challenges to the rule of law in Europe

And in Detroit, at the Fulbright reception, we met Endi and his family, an accomplished and renowned Art Professor at the University of Michigan who had been on a Fulbright in Krakow, where my husband and I have studied, and who often travels to …. Belgium. It’s a small world, after all!
Some volunteer work at the local Saint Francis parish allowed me to get to know some lovely persons, such as Ginny Birchler, the director of the handbell choir. Handbells are not very popular in Belgium, even though they are such nice instruments, which are not very difficult to play. Once the pandemic is over, I hope to welcome the Assisi Ringers in Belgium and take them on a handbell tour through Brussels and Flanders.

Discovering handbells at the parish of Saint Francis in Ann Arbor

The year in Ann Arbor was a wonderful experience on all levels for the entire family, even though the last months in lockdown were challenging. The relief to get back home to a system with a cheap and universal health care was immense. The year in the US taught us not to take what we have here at home for granted.

2020, apart from being the year in which we stopped shaking hands, the year in which #Black Lives Matter regained momentum, and the year in which the Brits left the European project, will also be, on a more personal note, the year in which I rediscovered the pleasure of doing full-time academic research and working with students, the year in which I discovered America (or at least part of it), and the year in which I learned to better appreciate certain things I had been taking for granted, such as universal health care, ubiquitous bike paths and widespread public transport.

Family picture in front of the Harbor House Clubhouse in Ann Arbor

To all those contemplating leaving on a life-changing Fulbright experience: go for it and Go Blue!

Dr. Sina Van den Bogaert is a Belgian 2019-2020 Fulbright Visiting Research Scholar in Law at the University of Michigan. Sina is a Legal Officer at the European Commission. She is a former Research Fellow of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. Her doctoral dissertation on Segregation of Roma Children in Education examined how the Framework Convention for the Protection of National Minorities (Council of Europe) and the Racial Equality Directive 2000/43/EC (European Union) have contributed towards desegregation of Roma children in education in Europe. Sina has also published several articles on European Non-discrimination Law. With her post-doc Fulbright grant she wants to study how US de-segregation injunctions can be of inspiration for European judges when they seek to establish a proportionate, dissuasive and effective sanction mechanism in cases of school segregation.

Articles are written by Fulbright grantees and do not reflect the opinions of the Fulbright Commission, the grantees’ host institutions, or the U.S. Department of State