Revealed: White House's desegregation plan spanning five administrations

(Reuters) - A previously unseen batch of legal memos written by lawyers inside the U.S. Department of Justice provides new insight into the White House’s evolving understanding of its own responsibility and power over the course of the civil rights movement.

Lawyers in the DOJ's Office of Legal Counsel essentially advise the executive branch about its powers under law — what the White House and federal agencies under its authority can do about issues of national concern. Their legal opinions are considered binding on the federal government and produce high-level policies and action, even though they are cloaked in secrecy.

The OLC memos on the civil rights movement and efforts to desegregate the country span five presidential administrations, from 1952 to 1972. They were obtained by the Knight First Amendment Institute at Columbia University, which forced the disclosure of more than 200 OLC memos in settlement of a Freedom of Information Act lawsuit in August 2021. The Knight Institute has been releasing the memos on a rolling basis.

One of the latest memos in the batch, from 1970, was written by then-attorney general William Rehnquist. The May 1970 memo rejected the theory that the Constitution is “color blind” and therefore prohibits all kinds of racial classification.

In 1970, most of the courts that had considered the question consistently rejected the notion that the Constitution bars both anti-Black laws and "benign" racial classifications — classifications designed to remedy past discrimination caused by earlier laws, Rehnquist's memo explained.

However, as a Supreme Court justice Rehnquist later went on to support the color-blind approach, and it's since become the prevailing view among the court’s ultra-conservative majority.

In all likelihood, that theory will soon serve as the basis for the elimination of affirmative action, a long-running goal of staunch conservatives like Rehnquist.

Altogether, the memos show that legal advisors for successive presidents concluded fairly consistently over two decades that the executive branch had tremendous power to help desegregate the country and curb the violent backlash to the civil rights movement in the 60s. Yet, officials repeatedly cautioned against using the full scope of that authority to address the most pressing issues, even as they recognized that activists’ goals were legitimate and that their opponents’ actions were both criminal and anti-democratic.

I asked the Biden White House about its views on the strategy revealed in the historical memos and the role the OLC played but didn't hear back.

Stephanie Krent, a staff attorney at the Knight Institute, told me the memos also show the crucial role that the obscure OLC played in shaping how the executive branch viewed its own role — and potential responses — to the most pivotal moments of the civil rights movement.

Two of the other memos in the batch are particularly noteworthy, to my mind.

In February 1957, OLC lawyer Nathan Siegel wrote a memo laying out the attorney general’s authority to designate White Citizens Councils as disloyal “fascist, communist or subversive” organizations — a domestic terrorist group, in today’s language — under a then-existing executive order.

There was plenty of evidence that the councils fit the definition. The councils and other White supremacist groups sprang up in opposition to the Brown v. Board of Education decision ending school segregation. They used economic oppression, in addition to the usual violence and intimidation, to counter the civil rights movement.

Martin Luther King Jr described the groups as a new iteration of the Ku Klux Klan a year before the OLC's memo, according to the Martin Luther King, Jr. Research and Education Institute at Stanford University. King wrote to President Dwight Eisenhower in 1956 urging his administration to investigate violence perpetrated by WCC members in Alabama.

Siegel acknowledged that the groups “differ from other loyal citizens in their deep and aggressive hostility” to the 14th and 15th Amendments and that they might have been advocating “the commission of acts of force or violence” to deny Black people their constitutional rights.

But he ultimately cautioned against the designation, due to concerns about “labeling as subversive, and classing with Communists and Fascists, so large and otherwise loyal a group of individuals as compose the membership of the Citizens Councils.” The OLC left the issue largely unresolved, despite that there was strong justification for treating the councils like the Klan, which had been designated a subversive group, according to the 1957 memo.

(In contrast, the federal government took an unjustifiably forceful law enforcement approach toward a supposed infiltration of communists during the 1940s – even though many of those individuals and organizations were actually much less dangerous or subversive than white supremacist groups.)

About six years after the 1957 memo, Medgar Evers, a civil rights leader in Jackson, Mississippi, was killed by a racist White Citizens Council member. The murderer, Byron De La Beckwith, was also a Klansman.

Another striking document in the collection of memos concerned the executive branch’s authority if local police responded violently to peaceful demonstrators, an emerging pattern that continued throughout the civil rights movement.

The May 1960 memo came in response to sit-ins and large-scale demonstrations against segregation across the South, especially in Birmingham, Alabama. White citizens and police officers responded to the peaceful demonstrations with “terroristic acts” against Black people, the memo noted.

OLC lawyers quoted news reports about Eugene (Bull) Connor, the Birmingham police commissioner, “whose philosophy is expressed by such aphorisms as ‘Damn the law — down here we make our own law.’”

The OLC's approach was much less strident.

It concluded first that the federal government couldn't stop local police from “taking reasonable measures” against Black people who refused to leave segregated restaurants because private-sector discrimination was generally still lawful.

Federal authorities did have the power to intervene, however, if there was an attack by a lawless mob or an “armed police assault against a peaceable public demonstration by Negro citizens,” OLC said.

Still, at every turn, officials expressed undue caution about taking strong legal action against open defiance of the law by police and unruly counter-protesters.

The government could prosecute officers, but that wouldn’t have been practical, OLC concluded, because there was “good reason to doubt that a grand jury would return an indictment” against cops. The government could've also gotten court injunctions against individuals for interfering with protestors' Constitutional rights to peacefully assemble and protest, but “it is conceivable that the police would refuse to comply,” OLC wrote.

The batch of memos reveal the government’s halting approach, at times, to prosecuting white supremacist violence, and much more. And, as it turns out, they are highly relevant to unrest that is ongoing today.

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