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ON JUSTIFYING THE RETENTION OF THE DE JURE/DE FACTO DISTINCTION:
A REPLY TO GEORGE WINTERTON
Gabriel Moens
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I have read with much interest Mr. Wintertonfs comment on
my paper.
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He has raised several interesting points which I have
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considered carefully.
Whilst I believe that my defence of the value of
free choice (especially in American society) is sound, I have changed
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some of my opinions as a result of Mr. Wintertonfs valuable comments.
In this reply, I would like to concentrate on Mr. Wintertonfs comments
regarding the retention of the de jure/de, facto distinction.
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1.
I argued in my paper that the Supreme Court retained the
de facto category because it wanted to salvage the value of free choice.
Mr. Winterton argued that the retention of the de facto category by
the Supreme Court is based rather upon recognition of the limitations of
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the language of the Equal Protection clause which requires 'state action* |.
I disagree with this interpretation for the following reason.
The
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Courts know that the so-called limitations of the Equal Protection clause|
are virtually non-existent (as I have illustrated in Section 3 of my papejr)
and that the de jvuce/de facto distinction could easily be abolished with |
a minimum of legal quibbling.
Therefore, there has to be a better
explanation for the fact that the distinction has been retained by the
courts.
Hence, my thesis that the retention of the de facto category
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is based on the Supreme Court's valiant efforts to salvage the value of
free choice.
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Mr. Winterton suggests that my argument for removing the
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distinction between de jure and de facto segregation is convincing.
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2.
However, he also argues that, since I claim that the Supreme Court's
ASLP Bulletin No. 18, 1981
49
retention of the de facto category is based on the paramount value
of free choice, I cannot possibly maintain my argument for the removal
of the de facto/de jure distinction lest my defence of the value of
free choice be seriously weakened.
It is this point that I have
reconsidered, and I now agree with Mr. Winterton.
In particular,
I found compelling his argument that, as a practical matter, it is
difficult to expand the judicial process by abolishing the de ^wce/
de facto distinction without sacrificing free choice or resorting to
proportional representation.
I argue in my paper that a numerical equality approach,1 which
aims to achieve racial balance in public schools, violates a commitment
to free choice.
Indeed, as school districts in the United States are
traditionally regulated by the community, multi-district busing
programmes which are increasingly ordered by the Courts to overcome
racial imbalance in public schools, significantly impinge upon the
parents1 2right to seek the most desirable education for their children.
Hence, as I argue that the retention of the de facto category is
based upon the Supreme Court’s desire to salvage the value of free
choice, my argument is assisted by the retention of the de facto category
3.
Without going into too much detail, I think it is important
to clarify the present de jure/de facto distinction debate and to
summarize briefly my position on the issue.
Those who favour the abolition of the distinction between de jure
and de facto
segregation usually base their opinion on a putative causal
nexus between segregated patterns of student attendance and inferior
education for blacks.2
However, there is uncertainty surrounding this
I used the term ’equality of result’ in my paper, but I believe
that the term ’numerical equality’ better describes the shift in focus
toward balanced racial ratios in public schools.
2Hobson v. Hansen, 269 F. Supp. 401 (1967), p. 406; M.G. Yudof,
’International Human Rights and School Desegregation in the United States
(1980) 15 Tex. Int. L.J:. , pp. 25-28.
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harm hypothesis for there is (inconclusive) evidence that there is
no positive correlation between racial integration and student achieve­
ment.
Among others, Professor Coleman has argued that other factors,
particularly the influence of the family, may have a more enduring
impact on the scholastic achievements of children than racially
balanced schools.
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Furthermore, every correlation rests necessarily
on elements of arbitrariness, which are injected 'by the choice of
categories, correlation of which is taken to be
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significant.'4
Professor Yudof, commenting on the harm hypothesis observed that
'the complexity of these causal links is such that it is unlikely that
social science methodologies will ever allow the drawing of such causal
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inferences with a reasonable degree of confidence' and that 'the evidence!
and research thus far accumulated suggest the implausibility of the
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"but-for" theory.Professor Dworkin makes a similar observation when
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he states that 1 there
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5 ample room to deplore any general dependence of
adjudication upon complex judgments of causal social science, particularly
when constitutional rights are at stake.f6
J.S. Coleman et al., Equality of Educational Opportunity,
Washington, U.S. Govt. Pr. Off., 1966, passim; J.S. Coleman, fToward
Open Schools1, (1967) 9 The Public Interest 20. Coleman warned in
this article that f(t)he task of increasing achievement of lower-class
children cannot be fully implemented by school integration, even if
integration were wholly achieved - and the magnitude of racial and
class concentrations in large cities indicates that it is not likely
to be achieved soon.'
(p. 22). N. St. John, School Desegregation:
Outcomes for Children, New York, Wiley, 1975, passim; D. Bell,
f0n Meritocracy and Equality1, (1972) 29 The Public Interest
pp. 43-6.
4
R. Dworkin, fSocial Sciences and Constitutional Rights - The
Consequences of Uncertainty1, in R.C. Rist and R.J. Anson (eds.),
Education, Social Science and the Judicial Process, New York, London,
Teachers College Press, 1977, p. 22.
5 Yudof, supra n.2, p. 27.
^ Dworkin, supra n. 4, ]3. 23.
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As an alternative to the harm hypothesis, proponents of the
abolition of the distinction between de jure and de facto
segregation
emphasize that segregation in itself is degrading and insulting to the
black minority.
These proponents do not rely on causal judgments but
on interpretative judgments which do not 1 assert a causal relationship
between two independent and specifiable phenomena, but rather locate
a particular phenomenon within a particular category of phenomena by
specifying its meaning within the society in which it occurs.17
Dworkin
defends this alternative theory in a recent article entitled ’Social
Sciences and Constitutional Rights - The Consequences of Uncertainty1.8
’Racial balance’ is there presented as a prophylactic device ’to counter
the likelihood that superficially race-neutral decisions resulting
in segregation are the product of a corrupt process of government decision­
making. ’9
He explains a court order to integrate in the following terms:
A court order to integrate, even an order based upon a
mechanical formula which otherwise has no appeal, must be
viewed in the following way. The order speaks to those in
political power and says this: ”If you refuse yourself to
produce an outcome that negates the antecedent probability
of corruption, then we must impose upon you such an outcome.
The only decision that we can impose, given the nature of the
problem, is a decision that requires integration on some
formula that is evidently not corrupt even if it is just
as evidently arbitrary.” If so, then objections to these
decisions based on doubt about the various causal hypotheses is
{sic) misguided, because these decisions do not rest on
causal hypotheses. They rest on interpretive theory. Until
the background changes in one of two ways, until our sense
of prejudice abates or blacks have the political power to make
decisions in question, until that happens then integration is
required as the only thing that can sustain the burden of
proof rising from the antecedent probability of corruption.^
7
Dworkin, supra n. 4, pp. 20-21.
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Dworkin, supra n. 4, pp. 20-29.
^Yudof, supra n. 2, p. 29.
10
Dworkin, supra n. 4, p. 29.
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Common to the harm and corruption theories is the fact that
proponents of racial balance agree that the distinction between
de jure and de facto segregation must be abolished because the
distinction leads to not all children getting the benefits of integrated
education.
As discussed in my paper, integration efforts are tied to
the distinction between de jure and de facto
segregation.
Programmes
aimed at the integration of the public school system can only be
required in a de jure context, namely when a constitutional wrong can
be proven.
Indeed, whenever segregation is due to factors other than
state action, there is no affirmative duty on the courts to order racial
integration.
Therefore, so the argument continues, the first step to an
educational interpretation of educational opportunity for all is the
abolition of the distinction between de jure and de facto segregation.
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This distinction perpetuates a dual school system because it denies racial
minorities the benefits of integrated education through, for example,
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residential segregation and white flight.
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The proposition that the distinction between de jure and de facto
segregation should be abolished assumes that children will not enjoy
'educational opportunity' unless schools are racially balanced.
Whereas
Mr. Winterton would argue that educational policy-makers should have
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regard to the overall educational standards of the public, my point
of view is, however, that parents', or indeed children's, interpretation
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of the concept of educational opportunity may well conflict with the
value of racial balance in public schools. I have argued that parents
should have the right to determine what sort of education is desired
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for their children.
What is considered 'quality' education for some,
may be 'mediocre* education for others.
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I argue for a restriction of the judicial process.
For from the
fact that integrated education is an important social good, it does not |
follow either that racial groups must be proportionately represented or I
See Crawford v. Board of Education, 551 P.2d 28, p. 35,
130 Cal. Eeptr. 924 (1976).
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that all other values must be subordinated to it.
Multi-district
busing aimed at proportional representation and racial balance, could
well result in the violation of the right of parents to shop around
for the most desirable education for their children.
Indeed, as I have
argued in detail in Section 3 of my paper, an integrationist approach
would make moving to a de facto segregated district pointless, since
an important reason for moving, namely the desire of parents to control
the education of their children, would no longer apply.