This argument is eloquently made by Goodman who posits that the Supreme Court's decision in Brown v. Board of Education while addressing de jure segregation did nothing for the ensuing de facto segregation that existed at the time (275). To support his position Goodman engages a multipronged approach to demonstrate the ongoing de facto discrimination within the school system. The argument is also supported by Green who argues that the Supreme Court, by failing to address de facto discrimination allowed the practice to continue (139). While some argued that the courts cannot address de facto discrimination, Green demonstrates that in the case of Sheff v. O'Neill the state judiciary did address de facto discrimination through court action (145).
An interesting facet of the argument that often goes unconsidered is whether there is actually a clear difference between de facto and de jure discrimination. There is a position that runs counter to the convention wisdom and suggests that the distinction made between de facto and de jure is arbitrary in nature and that fundamentally the idea of separate but equal is uniquely flawed in that it is inherently discriminatory (Reading the mind 320). This argument does not suggest that de facto discrimination is none existent rather it suggests that de jure discrimination is an outworking of de facto discrimination.
De facto discrimination is often so deeply entrenched within the social fabric that in cases where the laws supporting discrimination are removed the behaviors still abound. Eubanks posits that it was necessary to engage the services of a Court Master to ensure that the will of the court was carried out (210). This became necessary because while the court removed the legal support to discrimination, other institutions were unwilling to follow...
This gives voice to the perpetual challenge of addressing de facto discrimination.
The attempts to remove de jure and de facto discrimination from society has met with varied success. De jure discrimination is removed once the courts possess the will to declare particular laws and statutes as unconstitutional. De facto discrimination is not removed as easily since it is part of the social fabric and institutional culture. Additionally it is highly insidious and often beyond the scrutiny of the legal system. Societies must pay scrupulous attention to both forms as they have a symbiotic relationship and can easily become entrenched where watchfulness wanes.
Works cited
Eubanks, Eugene E. "School Desegregation under Brown: The Role of Court Master, Guidelines
and Experiences" the Journal of Negro Education 73.3 (2004): 209-217
Godsil, Rachel D. "Race Nuisance: The Politics of Law in the Jim Crow Era." Michigan
Review, 105, no. 3 (2002): 506.
Goodman, Frank I. "De Facto School Segregation: A Constitutional and Empirical Analysis"
California Law Review 60. 2 (1972): 275-437.
Green, Preston Cary "Can State Constitutional Provisions Eliminate De Facto Segregation in the Public Schools?" The Journal of Negro Education 68. 2 (1999): 138-153.
Reading the Mind of the School Board: Segregative Intent and the De Facto/De Jure Distinction
The Yale Law Journal 86.2 (1976): 317-355.
Romero, Francine Sanders. "The Supreme Court and the Protection of Minority Rights: An
Empirical Examination of Racial Discrimination Cases" Law & Society Review 34.2
(2000): 291-313.
