Segregation, de facto
Description: Separation of people by race or ethnicity through custom, tradition, or socioeconomic factors rather than by law. De facto segregation differs from de jure segregation, which is the separation of people mandated by the state.
Significance: The Supreme Court distinguished between the two types of segregation and declared de facto segregation to be constitutional.
The Supreme Court held that de facto segregation, which results from merely private action, without the involvement, authorization, or action of the state, is not subject to constitutional remedy. The Fourteenth Amendment protects against discriminatory conduct or actions on the part of the state, not against those of private individuals. The problems with the distinction between de facto and de jure segregation include determining where state or government conduct ends and individual conduct begins and defining action and conduct. Justices William O. Douglas and Lewis F. Powell, Jr., in Keyes v. Denver School District No. 1 (1973), urged the Court to abandon the distinction, which Douglas said was muddied by past state actions, restrictive covenants, and other public policies. The Court varied the breadth of its interpretations of state responsibility but tended to apply a narrow state action doctrine in which all segregation that is not intentional, explicit, and officially sanctioned is defined as de facto and is, therefore, not subject to constitutional remedy. In Washington v. Davis (1976), the Court ruled that de facto segregation was not unconstitutional unless it resulted from the state's having a “racially discriminatory purpose.”