De Facto

The term de facto translates to mean “in fact.” In the world of law, if something is de facto, that means it exists in fact, even if not legally recognized. For example, de facto corporations may have failed to file all of the necessary paperwork to be legally recognized as corporations, yet have behaved in such a way as to be considered corporations “in fact.” To explore this concept, consider the following de facto definition.

Definition of De Facto

Adjective

1. A term translated as “in fact” to describe something that is in effect, whether legally recognized or not.

Origin

Early 17th century        Latin

What is De Facto?

De facto is a term used to describe what is accepted to be real, whether or not it is declared to be so by law. A de facto residential parent in a divorce case is the parent that the children live with by default, typically the mother. There was no law put in place that forced the mother to live with her children. It is simply accepted that the mother is the de facto residential parent because children are expected to live with their mother after a separation.

On a related note, when a couple decides to divorce, both parents are entitled to de facto joint custody. This arrangement exists until a court intervenes and awards either sole custody to one parent, or legally declares that joint custody by both parents can continue.

De Facto Relationships

If two partners choose to live together without getting married, this is considered a domestic partnership. Those partners are then recognized by some authorities as being husband and wife in a de facto relationship.

In some countries, the very term “de facto” itself is used in everyday speech as a way to refer to one’s partner (“she’s my de facto“). A couple can be officially considered a “de facto couple” by legally entering into a civil union or domestic partnership with each other.

In some states, couples who live together are considered to be in a de facto relationship, and can enjoy the same benefits that married couples enjoy. However, the down side is that it can be difficult in certain situations to prove one’s de facto status, especially when trying to claim benefits after the death of the other partner.

De Facto Segregation

De facto segregation refers to the act of forcing different groups of people to live separately from each other for a reason not based in law. For instance, banks can refuse to issue mortgages to people who are looking to buy houses in certain areas, based on the color of their skin.

For another example, residents of a particular neighborhood who act hostile toward newcomers looking to relocate to their area because of their nationality are engaging in de facto segregation.

Some forms of de facto segregation, like those mentioned above, are illegal. However, the end result is the same as if there was a law in place, directing these people to behave this way. Ultimately, de facto segregation results in different racial and ethnic groups living apart from each other in different neighborhoods, based on what is typically discrimination.

De Facto National Language

Unlike other countries, the United States does not have an official language. However, the vast majority of Americans speak English. This leads to English being considered the de facto national language of the U.S. Most businesses provide services in English, and the most commonly spoken language spoken is English. It is therefore accepted that English is the de facto language of the land.

De Facto Leader

A de facto leader is someone who has assumed leadership of a country or region without being legally appointed as its president, king, or equal authority figure. Typically, the term “de facto leader” is reserved for those who are assumed to have been appointed in that role by some illegal or illegitimate means. This is because a de facto leader usually “assumes the throne” after the previous leader has been dethroned or otherwise undermined.

Many believe that all dictators are de facto leaders, but this is not actually the case. For example, Saddam Hussein was officially declared the leader of Iraq in 1979, when he became the country’s president. However, he was acting as a de facto leader earlier than that, when he served as vice president to Iraq’s de jure president, Ahmed Hassan al-Bakr. During this time, Hussein took advantage of the president being elderly and exercised more power than his position called for at the time.

De Facto vs. De Jure

The terms “de facto” and “de jure” in the field of law are closely related. While “de facto” refers to a situation that may be true but not legally recognized, “de jure” refers to a situation that is legally true. For instance, the speed limit on a road is a great example of “de facto” and “de jure” realities differing.

The speed limit “de jure” is set by the local government and posted on the road for all to see. However, the speed that drivers are allowed to reach without being pulled over by the police can be considered the “de facto” speed limit.

De Facto Example Involving Segregation in School

A perfect example of de facto segregation can be found in the famous case Brown v. Board of Education (1951). Here, Oliver Brown, as the lead plaintiff in a class-action lawsuit, sued the Topeka Board of Education because his daughter, an African-American, was forced to attend a lower-quality school. This was because the school that was closer to Brown’s house was a de facto whites-only school. The lawsuit called for the school district to end its segregation policy.

The District Court ruled in the school district’s favor, citing precedent the Supreme Court had set in 1896 when it upheld Kansas’ law that blacks and whites were “separate but equal.” As a result, blacks and whites were assigned to segregated facilities, like railway cars. Sadly, while the District Court agreed that such segregation was having a negative effect on negro children, schools and the quality of teachers who taught in them were considered to be “substantially equal.”

The case ultimately landed on the doorstep of the U.S. Supreme Court, which was set to consider Brown simultaneously with four other cases. The question the Court had to answer was this: Did the segregation happening in public schools, and based on race alone, violate the 14th Amendment’s Equal Protection Clause?

Upon initially hearing the case in the spring of 1953, the Court ruled that it was unable to make a decision at that time. They asked to hear the case again in the fall of that same year. This stalling was actually a strategy to allow the Court to gather enough information to outlaw segregation based on the Brown case in particular.

And gather they did, as the Court ultimately ruled unanimously in Brown’s favor. The Court held that the segregation of public education based on race caused African-American children to feel inferior to white children. As a result, African-American children were experiencing negative effects on their education and overall growth.

Chief Justice Earl Warren used the results of studies conducted in social science, rather than legal precedent, to make his decision. This was because there were so few decisions for him to draw upon. While the Court would make history, they would also earn their fair share of criticism for their decision.

Warren also worded the decision in such a way as to ensure that all Americans would be able to understand it:

“Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment — even though the physical facilities and other ‘tangible’ factors of white and Negro schools may be equal…

…Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other ‘tangible’ factors may be equal…

…The ‘separate but equal’ doctrine adopted in Plessy v. Ferguson, 163 U.S. 537, has no place in the field of public education.”

Related Legal Terms and Issues

• Coercion – The act of using force or intimidation to ensure compliance.
• Congress–- The legislative branch of the United States federal government, composed of the House of Representatives and the Senate.
• Legislation – A law, or body of laws, enacted by a government.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
• Unconstitutional – A law or act of government which is not allowed by the United States Constitution.