The term de facto segregation refers to the separation of individuals, typically based on a characteristic over which the individual has little or no control and that exists in fact as customary practice. It differs from de jure segregation, which has a legal basis. De facto segregation is also more widespread, encompasses a greater number of individuals, and is harder to eliminate. As with de jure segregation, the areas involving de facto segregation include employment, education, housing, and public accommodation.
Oppressive systems can, and often do, include both types of segregation. For example, the U.S. Supreme Court’s desegregation order in Brown v. Board of Education in 1954 constituted the first major victory in the battle to end Jim Crow laws. Yet, the battle over the separation of individuals not required by law on the basis of such factors as race or sex, which first came to national attention during the civil rights movement, continues to this day.
At the height of the movement, the Supreme Court struck down numerous de facto practices in such cases as Johnson v. Virginia in 1963, Hamm v. City of Rock Hill in 1964, and Griggs v. Duke Power in 1971. In Johnson, the Court ruled that a black man could not be held in contempt for refusing to sit in the area of courtroom traditionally “reserved for Negros” and, in Hamm, that black people sitting at a department store lunch counter could not be convicted of trespassing. The justices concluded in Griggs that a company could not impose new job requirements (including IQ and personality tests) on black applicants seeking jobs historically limited to whites, since white applicants were never required to meet those requirements.
In recent years, the U.S. Supreme Court has issued mixed rulings with respect to de facto segregation. Among the cases in which such practices were declared unconstitutional are United States v. Fordice in 1992 and U.S. v. Virginia in 1996. In Fordice, the justices found that Mississippi state colleges were still segregated with more than 99 percent of white students attending historically white campuses and 92 to 99 percent of black students attending historically black campuses. The policy contested in Virginia, which excluded all female students, had existed at the Virginia Military Institute since 1839.
Examples in which the U.S. Supreme Court did not eliminate de facto segregation include Wards Cove Packing Co. in 1989 and Johnson v. California in 2005. After noting in Wards Cove that the predominantly white noncannery workers and the predominantly nonwhite cannery employees live in separate dormitories and eat in separate mess halls, the justices determined that the plaintiffs had not presented sufficient proof of racial discrimination. Also important was the Court’s decision in Johnson. At issue was the policy of the California Department of Correction of racially segregating prisoners for up to 60 days each time they enter a new facility. Rather than ruling on the policy, the justices specified the standard that a lower court would need to adjudicate the case.
- Gold, Barry A. 2007. Still Separate and Unequal: Segregation and the Future of Urban School Reform. New York: Teachers College Press.
- Massey, Douglas S. and Nancy A. Denton. 1998. American Apartheid: Segregation and the Making of the Underclass. Cambridge, MA: Harvard University Press.