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10 Cath Law. 309 (1964)


There are three basic fields with which a discussion of racial segregation must deal: education, employment and housing. Opinions will vary as to which, if any, is paramount, but none will deny that they are interrelated. In all three areas, the engines of legal proscription have been brought to bear to eliminate affirmative, legally-sanctioned segregation. But there remains the stubborn fact that the removal of legal discrimination has not been attended by either a resultant improvement in the living conditions of minority groups or a substantial integration of the races. The lack of causal connection between the elimination of legal segregation and the betterment of racial relations is strikingly affirmed in the northern states where, after a generation of freedom from affirmative legal discriminations, we find some of the most perplexing problems of ghettoization and limited opportunity in the entire nation. It is in recognition of the disparity between legal equality and actual equality of opportunity that attention has shifted from legal discrimination to de facto segregation as the immediate object of correction. This article will examine the posture of the law toward de facto segregation, with three questions in mind: (1) has the Supreme Court of the United States merely forbade legal segregation, or rather commanded integration? (2) apart from Supreme Court decisions, and as a matter of constitutional analysis, must local authorities adopt measures designed to eliminate de facto segregation? and (3) may the local authorities do so if they choose?

The problem of de facto segregation arises in many forms throughout the three principal areas of education, employment and housing as well as in social and other relationships. Nevertheless, the relevant issues have been developed most fully in the educational field. Analytically, we can gain from an examination of that field an over-all view of the operative principles and their potential applications, which ought to obtain in employment, housing and other areas as well. This study, therefore, will attempt to discover the ruling principles by primary resort to the developments which have occurred thus far in matters of education.


Reprinted with permission of the Catholic Lawyer



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