Justice  /  Argument

Modern Segregation

Policies of de jure racial segregation and a history of state-sponsored violence continue to have an impact on African Americans.
Arthur S. Siegel/Library of Congress

In 2007, the Supreme Court made integration more difficult when it prohibited the Louisville and Seattle school districts from making racial balance a factor in assigning students to schools, in cases where applicant numbers exceeded available seats.

The plurality opinion by Chief Justice John Roberts called student categorization by race unconstitutional unless designed to reverse effects of explicit rules that segregated students by race. Desegregation efforts, he ruled, are impermissible if students are racially isolated, not as the result of government policy but because of societal discrimination, economic characteristics, or what Justice Clarence Thomas, in his concurring opinion, termed “any number of innocent private decisions, including voluntary housing choices.”

In Roberts’ terminology, commonly accepted by policymakers from across the political spectrum, constitutionally forbidden segregation established by federal, state or local government action is de jure, while racial isolation independent of state action, as, in Roberts’ view, like that in Louisville and Seattle, is de facto.

It is generally accepted today, even by sophisticated policymakers, that black students’ racial isolation is now de facto, not only in Louisville and Seattle, but in all metropolitan areas, North and South.

Even the liberal dissenters in the Louisville-Seattle case, led by Justice Stephen Breyer, agreed with this characterization. Breyer argued that school districts should be permitted voluntarily to address de facto racial homogeneity, even if not constitutionally required to do so. But he accepted that for the most part, Louisville and Seattle schools were not segregated by state action and thus not constitutionally required to desegregate.

This is a dubious proposition. Certainly, Northern schools have not been segregated by policies assigning blacks to some schools and whites to others; they are segregated because their neighborhoods are racially homogenous.

But neighborhoods did not get that way from “innocent private decisions” or, as the late Justice Potter Stewart once put it, from “unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears.”

In truth, residential segregation’s causes are both knowable and known – twentieth century federal, state and local policies explicitly designed to separate the races and whose effects endure today. In any meaningful sense, neighborhoods and in consequence, schools, have been segregated de jure.

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