NEW YORK – The Knight First Amendment Institute at Columbia University today published for the first time a set of Office of Legal Counsel (OLC) memos authored between 1952 and 1971 pertaining to desegregation policies and civil rights law. The Institute obtained the documents as part of a landmark legal settlement in a case seeking disclosure of OLC opinions written more than 25 years ago. The Institute has already published hundreds of other OLC opinions obtained through the settlement, and it expects to publish additional opinions over the coming weeks.

“These memos chart the federal government’s evolving understanding of its own responsibility and authority over the course of the civil rights movement,” said Stephanie Krent, staff attorney at the Knight First Amendment Institute. “They illuminate some of the most pivotal moments of that era, including President Eisenhower’s support for the Little Rock Nine, President Kennedy’s preparations for the March on Washington, and President Nixon’s opposition to busing.”

The 24 documents released today span five presidential administrations—those of Truman, Eisenhower, Kennedy, Johnson, and Nixon—and they focus on civil rights issues that arose in various contexts, including schools, airports, and workplaces. Among the documents the Knight Institute is publishing today are:

• A memo titled Opinion of the Attorney General of Kentucky on racial integration of its public schools and dated September 24, 1956. The memo analyzed the exclusion of Black students from 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 memo observed 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.”  
• A memo titled Designation of White Citizens Councils and dated February 26, 1957. This opinion considered whether the attorney general had authority to designate White Citizens Councils as “totalitarian, fascist, communist or subversive” groups 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.”
• A memo titled Policy prohibiting officials and employees of the Federal Government or of the Government of the District of Columbia from appearing before segregated groups, dated August 12, 1964. The 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.

Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994, taking advantage of new legislation that limits the authority of federal agencies, including the OLC, to withhold memos that are more than 25 years old. When the OLC failed to release any opinions in response to its request, the Institute filed suit on behalf of five scholars, Campaign for Accountability, and the Institute itself. The Institute reached a settlement with the OLC in August 2021. Under that settlement, the OLC has provided the Institute with indexes of OLC opinions written between 1945 and February 15, 1994. It has also agreed to release hundreds of opinions reflected on those indexes. 

“Despite the historical and political significance of OLC memos, the government keeps the majority of these opinions secret, which means the public is in the dark about the government’s interpretation of laws relating to a range of issues, including national security, war, immigration, and civil rights,” said Alyssa Morones, legal fellow at the Knight Institute. “It shouldn’t take a lawsuit to unearth memos that should have been publicly released as a matter of course decades ago.”

The Knight Institute maintains an OLC Reading Room on its website that is the most comprehensive public database of opinions written by the OLC. It contains the approximately 1,400 opinions published by the OLC in its online database and the approximately 350 opinions produced to date in two FOIA lawsuits brought by the Knight Institute. In January, the Institute launched @OLCforthepeople, a Twitter account that alerts the public each time the OLC adds an opinion to its online database—a process that generally happens without public notice. So far, @OLCforthepeople has tweeted three times, to announce the publication of two OLC opinions written in 2022 and a third that was written in 1970 but remained secret until April of this year.

Access a complete annotated list of the OLC civil rights opinions released today here.

Access the Knight Institute’s OLC Reading Room here.

Read more about the Knight Institute’s litigation, Francis v. DOJ here.

For more information, contact: Lorraine Kenny, [email protected].