Discrimination De Facto vs. De

Discrimination de facto vs. de jure The practice of discrimination involves two dynamic elements. The elements come together to produce discriminatory practices and beliefs. The idea of de facto discrimination is drawn from the behaviors of persons and does not essentially find congruence within the legal framework. De jure discrimination is enshrined and codified in some legal structure and is administered through the court system.

The challenge however is that while courts can easily correct de jure discrimination by adjusting laws and removing statutes that are hostile to a particular segment of the society. De facto discrimination may continue long after the legal hindrances are removed. Thus de facto discrimination has a more lasting effect upon society. De jure discrimination refers to any form of discrimination or inequitable treatment of persons or groups that is founded in the law or supported by government policy or action.

The most potent example of de jure discrimination occurs in observation of the Jim Crow laws in the United States. The Jim Crow laws refer not to a specific individual but the entrenched legal framework of discrimination, degradation, humiliation and depersonalization that occurred in the post slavery era within the United States (Godsil 506). These laws regulated the lives of African-Americans and were inherently racist and segregationist. Thus you have a situation of de jure discrimination.

A major element of the de jure system of discrimination is that the power imbalances between individuals is maintained and supported by judicial and other institutions. This is a serious problem because in such as system individuals are unable to gain adequate redress since the problem is systemic and the possible solutions are unavailable to the powerless. This situation adequately describes the rise of the civil rights movement. The civil rights movement was a response to the problem of not having an adequate avenue to address legitimate discriminatory practices.

One of the major tools of the civil rights movement was non-violent protest. This approach was necessary because the leaders found that the legal system had failed to protect the rights of African-American or to guarantee equality under the law. The ideological stance of the justices on many courts seemed to run counter to the desires of minority groups (Romero 292).

The courts were overwhelmingly white, and under those conditions, particularly in the Southern part of the United States it was difficult for a Black person to receive what might be considered a fair trial. The courts were at times unwittingly and in other cases deliberately promoting and supporting a system of entrenched discrimination. De facto discrimination refers to discriminatory actions that are not part of any legal code by are discriminatory in practice.

There is no legal code that can be referenced as a support for the action and it derives its authority from social forces. It can also be considered as discrimination that occurs under the surface of the legal structure. As a part of the mosaic of de facto discrimination a minority group may be prevented from accessing housing or jobs by the use of measures designed to skew the opportunities toward a particular group.

De facto discrimination is difficult to up root as it is often part of the social structure and may be engaged as an unconscious part of the human experience. While changes in the law will address de jure discrimination it may do little to treat with de facto discrimination. This argument is eloquently made by Goodman who posits that the Supreme Court's decision in Brown v. Board of Education while addressing de jure segregation did nothing for the ensuing de facto segregation that existed at the time (275).

To support his position Goodman engages a multipronged approach to demonstrate the ongoing de facto discrimination within the school system. The argument is also supported by Green who argues that the Supreme Court, by failing to address de facto discrimination allowed the practice to continue (139). While some argued that the courts cannot address de facto discrimination, Green demonstrates that in the case of Sheff v. O'Neill the state judiciary did address de facto discrimination through court action (145).

An interesting facet of the argument that often goes unconsidered is whether there is actually a clear difference between de facto and de jure discrimination. There is a position that runs counter to the convention wisdom and suggests that the distinction made between de facto and de jure is arbitrary in nature and that fundamentally the idea of separate but equal is uniquely flawed in that it is inherently discriminatory (Reading the mind 320).

This argument does not suggest that de facto discrimination is none existent rather it suggests that de jure discrimination is an outworking of de facto discrimination. De facto discrimination is often so deeply entrenched within the social fabric that in cases where the laws supporting discrimination are removed the behaviors still abound. Eubanks posits that it was necessary to engage the services of a Court Master to ensure that the will of the court was carried out (210).

This became necessary because while the court removed the legal support to discrimination, other institutions were unwilling to follow the law and created numerous practices to circumvent the law and its intent.