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Antiracist Praxis

Segregation and De Facto Segregation by Olivia Ivey

Racial segregation, the splitting of communities into racial groups in housing, education, and other uses of community spaces and civic life, is legally understood to be either de jure - resulting from the actions of the state, or de facto - occurring through natural preference or happenstance. De jure segregation is understood to be unconstitutional in the United States, requiring a proactive remedy. When segregation is deemed de facto, the state bears no burden of redress. For a succinct examination of U.S. Supreme Court decisions establishing these distinctions, see The Oxford Companion to the Supreme Court of the United States.   

Legal scholars have worked to understand the causes of de facto segregation as an important step in repairing its harmful effects. The 1965 book (now considered a legal classic) De Facto Segregation and Civil Rights: Struggle for Legal and Social Equality points to gerrymandering, restrictive covenants and in land titles segregating neighborhoods, and overt and covert jobs discrimination limiting socioeconomic progress of Black Americans, driving families into segregated housing as drivers of de facto segregation.  

Richard Rothstein’s The Color of Law takes a detailed look at the role of the government in either creating or perpetuating segregation. Although his arguments have yet to be adopted by the courts, his research reclassifies much of what has been understood to be de facto segregation as actually de jure, thus requiring remedy from the government. In his view, gerrymandering and restrictive covenants are actions of the state, taken to deliberately bring about and maintain segregation. A streamlined version of these arguments can be found in his chapter “De Facto Segregation: A National Myth” in Facing Segregation

Questions for Discussion

  • While PreK-12 education is administered by the state and to all children, the relationships between state actions in housing policy or school district design can directly impact the segregation or integration of public schools. Higher education, whether state-funded or private, relies on an application process that is in theory merit based. How then do we reckon with issues of segregation on college campuses? Are the inequalities we see today de jure or de facto
  • Is integration of educational spaces an antiracist practice? 

Recommended Reading

Adams, Michelle. “Is Integration a Discriminatory Purpose?” Iowa Law Review, vol. 96, no. 3, March 2001, pp. 837–884. 

Anderson, B. (1994). "Permissive Social and Educational Inequality 40 Years after Brown." The Journal of Negro Education, vol, 63, no. 3, July 1994, pp. 443.

Cox, Betty. "De Facto Segregation." Encyclopedia of Educational Reform and Dissent, edited by Thomas C. Hunt, et. al., vol. 1, SAGE Reference, 2010, pp. 260-261. 

Cox, Betty. "De Jure Segregation."  Encyclopedia of Educational Reform and Dissent, edited by Thomas C. Hunt, et. al., vol. 1, SAGE Reference, 2010, pp. 261-263. 

Hall, Kermit L., et at. The Oxford Companion to the Supreme Court of the United States. Oxford University Press, 2005. 

Rothstein, Richard. “De Facto Segregation: A National Myth.” Facing Segregation: Housing Policy Solutions for a Stronger Society, edited by Molly W Metzger and Henry S. Webber. Oxford University Press, 2019, pp. 15 - 34.