The Muddled Distinction Between De Jure and De Facto Segregation

Abstract

Abstract In 2007, the U.S. Supreme Court in Parents Involved in Community Schools v. Seattle School District No. 1 declared unconstitutional voluntary, race-based plans to integrate public schools in Jefferson County, Kentucky and Seattle, Washington. The decisionrested on a critical distinction in constitutional law between “de jure” segregation—resulting from purposeful discrimination by the government—and “de facto” racial imbalance derived from unintentional or “fortuitous” actions by state and private entities. The Court held that de facto school districts could not voluntarily assign students to schools according to their race for purposes of promoting integration. In a vigorous dissent, Justice Breyer argued the “futility” of the de jure–de facto distinction, contending that both districts should have been afforded the constitutional flexibility to pursue voluntary remedies that address racial imbalance in their schools. This chapter takes up Justice Breyer’s dissent to explore the complicated origins of school segregation outside the South and the federal cases that adjudicated its constitutionality. Its central contribution is to recover the often confusing legal narratives about segregation in the period after Brown and how federal courts struggled to discern the constitutional boundaries between de jure and de facto discrimination. The chapter briefly describes the constitutional turns that facilitated the Court’s decision in Parents Involved, including the advent of the intent requirement in equal protection and “colorblindness” doctrine, which treats any use of race as presumptively unconstitutional, regardless of its integrative purpose.