Sixty-two years after the United States Supreme Court ruled in the landmark Brown v. Board of Education decision, de jure school segregation exists halfway across the world in the tiny Southeastern European country of Bosnia and Herzegovina (BiH).
A bitter war gripped BiH between 1992 and 1995. By the time the Serbs, Bosniaks, and Croats had agreed to peace under the Dayton Agreement, the war had left nearly one hundred thousand dead and displaced over two million people. Twenty years after Dayton, remnants of the war are clearly visible when wandering the streets of the capital, Sarajevo. Bullet holes are just as visible as the Austro-Hungarian influence. But many of the scars of the war are less visible, and, by nearly every measure, the country’s three ethnic groups remain even more divided than before the war.
The Dayton Agreement partitioned BiH into two larger political Entities, and one neutral, administrative unit called the Brčko District, which is under the direct administration of the State government. The first Entity is the Federation of Bosnia and Herzegovina (FBiH or the Federation), which is predominantly inhabited by Muslim Bosniaks and Catholic Croats. The second is the Serb dominated Republika Srpska (RS). Unlike RS, which is governed by a highly centralized Entity-level government, FBiH is highly decentralized. Its population of 2.3 million people are divided into ten cantons, which each have their own government. Each canton is further divided into municipalities, for a total of 79 municipalities in the Federation.
Refugees returning after the war were reluctant to reintegrate into communities alongside those with which that they had recently been at war. While the increasingly mono-ethnic RS faced numerous problems of its own, the FBiH was tasked with reintegrating Bosniaks and Croats into communities with one another. To compromise on education, the “Two Schools Under One Roof” policy was born. The policy was viewed as a compromise between complete segregation between Bosniak and Croat students, advocated for by hardliners, and complete integration, which, even reformers admitted was untenable given the political circumstances at the time.
The “Two Schools Under One Roof” policy called for Croat and Bosniak children to learn in separated spaces in the same school. The children learn separate curricula, developed by school boards and taught by teachers from their own ethnic group. Oftentimes students go to school in different shifts, and, in some cases, children actually enter the school via separate entrances. In the Federation, there are currently over fifty schools that operate in this manner. What is perhaps worrisome is that many children, who were too young to live through the war, are in favor of the status quo. In fact, a 2011 Council of Europe report found that one in eight BiH children avoided joint activities with students of other ethnicities, and one in six did not want to be in the same class as members from other groups.
In 2012, in an effort to use the country’s legal system as a means to change the divisive policy, a local NGO, Vaša Prava, filed suit in the Herzegovina-Neretva Canton (Mostar), alleging that the “Two Schools Under One Roof” policy violated the country’s Law on Prohibition of Discrimination. The municipal court sided with the NGO, finding that the policy violated the law. The cantonal court quashed the first ruling, claiming that the statute of limitations had expired. Vaša Prava appealed to the FBiH supreme court, which is the highest court in the Federation. The supreme court rejected the canton court’s decision and held the policy of “organizing school systems based on ethnic background and implementing curriculums on ethnic principles” was in violation of the antidiscrimination law.
But because BiH courts are not bound by the rules of precedent, as is the case in common law courts, and because a decision by a BiH court is only binding on the immediate parties to the suit, the supreme court’s decision only applied to the schools in Mostar. This means that in order to change the law across the Federation, Vaša Prava needs to bring strategic litigation in every canton. Since its initial victory, Vaša Prava has brought suit in Central Bosnia Canton (Travnik). But the Travnik court dismissed the claim on the ground that there had never been a complaint from parents against the policy. The court also cited language barriers between Croatian and Bosnian, despite the fact that two languages that are virtually identical, as justification for the policy. The NGO plans to appeal this case.
What seems clear from the difficulty in getting such a blatantly discriminatory policy changed in BiH is that the wounds from the war still run deep. Liberal-minded NGOs aside, popular sentiment for de jure division among the ethnic groups remains strong. And, indeed, the very means by which the Dayton Agreement structured peace, grounded in a federalism based on ethnic divisions, seems as much a pragmatic result of the tensions that caused the conflict as a surefire means of ensuring those tensions are perpetuated.