This list provides an annotated index of OLC opinions published by the Knight Institute on July 25, 2022, for the first time as part of a landmark legal settlement in Francis v. DOJ. These opinions all address the government’s response to the civil rights era.

  • Racial segregation at airports developed with financial assistance under the Federal Airport Act (August 28, 1952). The OLC was asked whether airports built using federal grant money were required to integrate given a clause in the grant agreement requiring accessibility without “unjust discrimination,” but the agency declined to provide an answer, citing “a long-standing departmental policy” against weighing in on “judicial questions.” The OLC did advise, however, that the Civil Aeronautics administrator could include a grant agreement term explicitly prohibiting discrimination for future grantees.
  • Elimination of Racial Segregation in Interstate Transportation (July 16, 1954). On the heels of Brown v. Board of Education, this memo advised that there was “ample reason to believe that the legal basis for segregation in transportation is crumbling” and encouraged the attorney general to “press with renewed vigor for the elimination of the doctrine,” including by intervening in two then-ongoing cases.
  • Use of the regulatory powers of the Interstate Commerce Commission and the Postmaster General to achieve aims of the government contract program against discrimination in employment (July 20, 1954). This opinion concluded that the Interstate Commerce Commission had authority under the Interstate Commerce Act to address racial discrimination in the employment of railway employees.
  • Opinion of the Attorney General of Kentucky on racial integration of its public schools (September 24, 1956). The memo analyzed the exclusion of Black students in two segregated Kentucky schools with the support of the state attorney general on the purported basis that enrollment was “illegal” until the local school boards created a formal integration plan. The OLC’s memo observed that local school boards had the primary responsibility for integration, but noted that the school boards had not adopted any plan for integration whatsoever, and that the Kentucky attorney general’s opinion supporting the exclusion of the students was likely rooted in political opposition to integration. “Faced with a choice between principle and expediency,” the opinion explained, the Kentucky attorney general “appears plainly to have selected the latter course.”  
  • Designation of White Citizens Councils (February 26, 1957). This opinion considered whether the attorney general had authority to designate White Citizens Councils as a “totalitarian, fascist, communist or subversive” group under Executive Order 9835. The opinion described the “deep and aggressive hostility to the Fourteenth and Fifteenth Amendments” expressed by members of White Citizens Councils, but conveyed 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 Civil Rights Act of 1957 (January 31, 1958). This memo described the legislative, procedural, and political background that led to the passage of the Civil Rights Act of 1957, which created the Civil Rights Division of the Justice Department, added new protections for voting rights, and gave the attorney general authority to litigate or intervene in lawsuits to protect voting rights.
  • Authority of President to keep troops in Little Rock (May 8, 1958). This memo concluded that the president had authority to maintain the presence of federal troops in Little Rock following the Little Rock Nine crisis absent any specific court order if he concluded there were a “high probability of serious disorder if the troops were removed.” If, however, a court ruled that troops were not needed, the opinion advised that the president’s maintenance of troops would present “grave constitutional questions … which should, if at all possible, be avoided.”
  • Federal authority to cope with possible armed clash between local police forces and Negro demonstrators (May 10, 1960). This opinion discussed the federal government’s power to address “a tense racial situation in Birmingham, Alabama” resulting from “claimed racial inequality” and “widespread demonstrations in various parts of the South, particularly aimed at racial segregation in public restaurants.” The opinion explained that the federal government might be able to seek injunctive relief from the courts to address police force against protestors, even without specific statutory authorization. The opinion also advised that police officers might be prosecuted if their “real purpose was to deprive Negro demonstrators of their Fourteenth Amendment rights to freedom of assembly,” although it noted that prosecution may not be effective.
  • President’s authority to deal with racial discrimination in housing projects constructed with the aid of the federal government (August 10, 1960). This opinion concluded that the president had the authority to direct all federal housing agencies to deny funding to “any housing or housing project in connection with which persons are excluded on the basis of their race, color, or creed,” despite the fact that legislative proposals to eliminate discrimination in federal housing failed in 1949, 1953, and 1960.
  • Use of executive authority to deny federal funds to institutions of higher learning which discriminate among applicants for admission (August 30, 1961). This opinion concluded that the executive branch could withhold funding from segregated colleges and universities, and suggested that in some cases the Fourteenth Amendment might require the withholding of funds.
  • Authority of United States Marshals to Protect Witnesses Appearing Before the Civil Rights Commission and its State Advisory Committees (February 19, 1962). This opinion advised J. Edgar Hoover, then the director of the FBI, that United States marshals could protect witnesses from actual or threatened force when they appear before civil rights commissions, because those witnesses enjoy constitutional rights to testify before state committees. The memo suggested, however, that the federal government should avoid involvement if the FBI believed that state and local law enforcement would provide adequate protection.
  • Expense of enforcing the desegregation order at the University of Mississippi (June 6, 1963). This memo, which appears to have never been formally sent to its recipient, advised the deputy attorney general that the federal government must bear the cost of federal troops and marshals used to support desegregation. The opinion’s conclusion rested on a prior attorney general opinion concluding that the federal government’s costs in enforcing the fugitive slave law could not be charged to a slaveowner.
  • Memorandum concerning the designation of members of the National Guard of the District of Columbia as Special Police (August 9, 1963). This opinion concluded that the D.C. National Guard could be designated as special police in advance of the 1963 March on Washington, and explained that the designation could provide members of the Guard with “additional protection” from liability.
  • Documents involving the use of Federal forces in the District of Columbia (August 27, 1963). This memo transmitted a draft presidential proclamation, executive order, and letters that could be used to deploy federal forces in the event that the March on Washington became violent.
  • Possible Application of the Posse Comitatus Act to Use of Armed Forces in Mississippi Search (June 26, 1964). This opinion concluded that naval forces could be used in connection with the search for civil rights activists James Chaney, Michael Schwerner, and Andrew Goodman. The OLC reasoned that the Posse Comitatus Act did not apply to Navy personnel and applied only to law enforcement efforts rather than search-and-rescue operations.
  • Implementation of Civil Rights Act (July 13, 1964). This memo informed the White House that the Justice Department had established a task force to review agencies’ regulations implementing Title VI of the Civil Rights Act. The memo also noted that the Civil Rights Division had begun investigating discrimination in public accommodations in Alabama, Mississippi, and Louisiana.
  • Policy prohibiting officials and employees of the Federal Government or of the Government of the District of Columbia from appearing before segregated groups (August 12, 1964). This opinion concluded that the government had the authority, and potentially the legal obligation, to prohibit its employees from appearing before segregated groups. The OLC compared the participation of federal employees in activities promoting segregated groups to a court’s enforcement of racial covenants, which the Supreme Court concluded violated the Fourteenth Amendment in Shelley v. Kraemer.
  • Whether it would be appropriate to protect from discrimination on account of race, color or national origin the contractors and subcontractors on Federal-aid highway projects and those who seek to obtain such contracts and subcontracts (September 16, 1964). This opinion advised the Bureau of Public Roads that it could issue regulations under Title VI of the Civil Rights Act prohibiting racial discrimination in Federal-aid highway projects. Although the OLC noted that it was hesitant to conclude that contractors and subcontractors fell within the protections of Title VI, it approved the bureau’s proposed regulations because it discerned congressional “interest” in procurement practices with respect to the Federal-aid highway system expressed in other statutes.
  • Legal Authority for Using Federalized National Guard and Reserve Components of Armed Forces in Suppressing Civil Disorders at the Request of a State (April 26, 1968). This opinion concluded that the president could federalize a state militia in response to a state request to do so based on the state’s inability to “restore law and order with all the resources at its command.” It also concluded that the president could deploy troops for a limited period of time in response to civil unrest, but could not do so permanently.
  • Constitutionality of Federal Allocation of Funds on the Basis of the Number of “Minority Group Children” within a State (May 26, 1970). In this opinion, then-Assistant Attorney General William Rehnquist rejected the theory, rooted in Justice Harlan’s dissent in Plessy v. Ferguson, that the Constitution is “color blind” and therefore prohibits racial classifications of any kind. Rehnquist explained that most Supreme Court and lower court cases had left open the possibility that “benign” racial classifications could be constitutional. He wrote, however, that “whether this will ultimately prove to be a workable distinction, and whether it is entirely consistent with the logic of broad application of the equal protection clause when invoked by minority groups, admit of reasonable doubt as a matter of original inquiry.”
  • State Implementation of Voting Rights Act Amendments of 1970 (February 24, 1971). This opinion provided comments on materials prepared by the Civil Rights Division to assist state implementation of the Voting Rights Act.
  • Restoration of Full Civil Rights to the Late General Robert E. Lee (April 1, 1971). This opinion informed White House Counsel that an 1898 act removing the disabilities imposed by Section 3 of the Fourteenth Amendment did not restore the civil rights of Robert E. Lee because the act only applied to persons living at the time of its enactment. It also advised that a presidential pardon could not restore Lee’s civil rights. (Lee’s civil rights were ultimately restored through a 1975 congressional resolution).
  • Draft Memorandum Re Supreme Court Desegregation Decisions (April 22, 1971). This memo suggested revisions to a draft White House memo on Swann v. Charlotte-Mecklenburg Board of Education, a Supreme Court case giving courts broad authority to order remedies in response to segregation. The memo, written by then-Assistant Attorney General Rehnquist, included a suggestion that White House Counsel John Dean add a sentence describing the decision’s discussion of limitations on permissible busing.
  • Does the Equal Educational Opportunities Act of 1972 permit a “Rollback” of court-ordered or agency-induced busing or desegregation already in effect at the time of its enactment? (April 10, 1972). This opinion concluded that the proposed Equal Educational Opportunities Act would likely permit educational agencies to reopen court desegregation orders, and once reopened, the orders would have to comply with the substantive provisions of the act prioritizing different forms of desegregation and curtailing the use of busing to achieve integration. The OLC recommended amending the bill to clarify whether existing desegregation orders should be reopened under the act.