Judging by their comparison of 1954 America to present-day Europe, the New York Times editorial board is slightly confused about Brown v. Board. In an otherwise worthy condemnation of the discrimination faced by Roma (aka Gypsies) in Europe, focusing on the vastly disproportionate placement and representation of Roma children in "dead-end schools for the mentally handicapped," they conclude,
Decades ago, America painfully learned that government policies and social attitudes could keep an underclass down, and that discrimination might exist even though laws seemed fair. Europe has not yet absorbed these ideas. The Court of Human Rights has long been reluctant to prohibit biased practices without proof of intent to discriminate, allowing discrimination to hide behind another name. The court should seize the opportunity to modernize and reverse a decision that has anchored European race relations today well behind where America was in 1954.Unless there are actual laws requiring Roma children to be put into special schools, the comaprison is inapt. In 1954, the schools in American states without laws mandating racial segregation often were segregated in fact due to housing patterns. The busing decisions of the 1960s and 1970s that forced integration on northern cities, and the legislation against housing discrimination, were the real fight against apparently fair laws. Even today, African American children are overrepresented in precisely the same place as the Romas about whom the Times frets: special ed. Moreover, U.S. courts have limited receptiveness to the pattern theory of actionable discrimination that the Times implicitly is pushing for the European Court of Human Rights; the Supreme Court, for example, has rejected challenges to capital punishment that are based on the disproportionate number of African Americans who receive it, demanding instead that plaintiffs show specific proof of unjust treatment. Unless the European courts refuse to hear even those cases, the Times has no reason for Americans to feel superior on this issue (though pogroms and forced sterilization -- something that we at least inflicted on poor whites too! -- are another matter).