DE FACTO/DE JURE

De facto and de jure are old common law terms meaning, respectively, "in fact" and "in law." In older usage, de facto carried at least a hint of reference to illegitimacy or illegality. Thus, a usurper might be called a de facto king, or a corporation whose formation was irregular might be called a de facto corporation. As these examples suggest, the connotation often was that for some legal purposes the person or institution would be treated as if there were no irregularity. De jure, on the other hand, carried a suggestion of lawfulness or rightfulness.

In modern constitutional law, these terms have come to be used almost exclusively in the context of racial segregation, and particularly segregation in the public schools. In this context the connotations concerning lawfulness are reversed. De jure segregation refers to the separation of pupils by race resulting from deliberate action by state officials, such as the legislature or the school board. De facto segregation refers to the racial separation of pupils by other causes, and particularly through the adoption of the "neighborhood school" policy in a community characterized by residential separation of the races. The Supreme Court has held that only de jure segregation violates the Constitution. (See columbus board of education v. penick; dayton board of education v. brinkman.)

There is some artificiality in this distinction. When a school board's members are aware of racial patterns in residential neighborhoods, and they draw school attendance district lines in ways that do not minimize the racial separation of pupils, it would not do violence to the language to call the results of their action de jure segregation. Yet the courts tend not to "find" the "fact" of de jure segregation in this circumstance.

On the other hand, deliberately segregative actions of the school board in the rather distant past may be held to constitute de jure segregation, so that the school board remains under a continuing obligation to dismantle a "dual" (segregated) system by taking affirmative remedial action, such as the busing of children. The Columbus and Dayton cases that are cited above exemplify this line of reasoning.

Kenneth L. Karst
(1986)

(see also: Keyes v. School District No. 1; School Busing; Swann v. Charlotte-Mechlenburg Board of Education.)

Bibliography

Sedler, Robert Alan 1979–1980 The Constitution and School Desegregation: An Inquiry into the Nature of the Substantive Right. Kentucky Law Journal 68:879–969.