Opponents Deploy Memos in Rehnquist Attack

By Tom Mirga — September 17, 1986 2 min read


The Senate began debate last week on William H. Rehnquist’s nomination to be Chief Justice of the United States amid charges that the associate justice is biased against women and minorities.

Last week, a coalition of civil-rights groups released copies of controversial legal memoranda by Mr. Rehnquist on school desegregation and the proposed equal-rights amendment.

The documents disclosed by the Leadership Conference on Civil Rights were written in 1970, when he served as an assistant attorney general in the Nixon Administration.

In the first memo, Mr. Rehnquist proposed a constitutional amendment that would have allowed continued segregation in public schools I through the use of “freedom of choice” and “neighborhood school” student-assignment plans.

In the second memo, he argued that the equal-rights amendment, if passed, would “hasten the dissolution of the family.”

Approval Seen

Mr. Rehnquist, who joined the Supreme Court in 1971, is expected to I win the Senate’s approval this week despite the last-minute attempt by hi opponents to raise questions about his commitment to equal protection for women and minorities.

He would succeed Warren E. Burger, who resigned last June to devote full attention to his duties as chairman of the National Commission on the Bicentennial of the U.S. Constitution. (See related story, page 1.)

‘The chamber is also expected to endorse President Reagan’s selection of , Antonin Scalia to fill Mr. Rehnquist’s seat on the bench. Mr. Scalia, widely regarded as a brilliant conservative legal scholar, served most recently as a judge on the U.S. Court of Appeals here. He was previously a professor of law at the University of Chicago.

Senate approval of the two nominees would represent a major victory for President Reagan. Two of the Court’s nine members--Mr. Scalia and Sandra Day O’Connor-would be his appointees, and Mr. Rehnquist, considered its most conservative member, would be elevated to its highest post.

Furor Over Memos

Opposition to Mr. Rehnquist’s nomination reached a peak last week with the disclosure of his memos for the Nixon White House on school desegregation and women’s rights.

The memo on desegregation included a draft constitutional amendment stating that “no provision of the Constitution hall be construed to prohibit the United States, or any state, or any subdivision of either” from adopting freedom-of-choice or neighborhood-school policies “reasonably related to school capacity, availability of transportation, availability of curriculum, safety, or other similar considerations.”

Nixon Administration officials never sent the proposed amendment to the Congress.

‘Fair-Minded’ Boards

In the memo, Mr. Rehnquist stated that such an amendment would permit school boards to adopt racially motivated student-assignment policies so long as it could be proven that another school would have adopted the same policy for reasons other than segregation.

“If fair-minded, school-board members could have selected [such a policy] for non-racial reasons, it is valid regardless of the intent with which a particular school board may have chosen it,” he wrote.

In the second memo, Mr. Rehnquist wrote that enactment of the the proposed equal-rights amendment would “have an adverse effect on the family unit as we know it.”

And he noted elsewhere in the memo, "[Do] a majority of women really wish to have the only distinction between themselves and men be the preservation of separate rest rooms in public buildings?”

A version of this article appeared in the September 17, 1986 edition of Education Week as Opponents Deploy Memos in Rehnquist Attack