Rehnquist Plan Sought Halt of Desegregation : Amendment Drafted for Nixon Administration Would Have Overturned Rulings, Ended Busing

Chief Justice-designate William H. Rehnquist, while a top attorney in the Nixon Administration, drafted a proposed constitutional amendment that would have halted the desegregation of the nation’s public schools.

Rehnquist’s plan, evidently prepared at the request of the White House in 1970 but never publicly proposed, sought to overturn Supreme Court rulings in the late 1960s that brought about desegregation in the South. The amendment also would have halted busing for desegregation in the rest of the nation.

Memo Describes Rationale

In a memo accompanying the proposal, Rehnquist says his amendment would stop federal courts from interfering even if local officials set up school attendance boundaries “with a motive or partial motive of separating the races in the schools.”

The memo and the proposed amendment, made available to The Times on Saturday, were not included in material released to the Senate last month by the Justice Department.

Veteran civil rights attorney William Taylor said Saturday that the proposed amendment, if adopted, would have “effectively nullified” the Supreme Court’s landmark desegregation decision in the 1954 case of Brown vs. Board of Education “and preserved segregated schools.”

Eric Schnapper, an attorney for the NAACP Legal Defense Fund, called the memo “a smoking gun . . . which confirms everybody’s worst fears about his views on racial segregation.”

But Justice Department spokesman Terry Eastland downplayed the memo. “I don’t see much that’s new in this. The civil rights groups are pulling out all the stops, but I don’t see any reason why this will change any vote one way or the other,” Eastland said.

The Senate begins debate this week on Rehnquist’s nomination as chief justice. Although civil rights groups and some Senate Democrats have bitterly opposed President Reagan’s choice of Rehnquist to lead the high court, his supporters have been confident that he will win confirmation with a solid majority.

Under the constitutional revision drafted by Rehnquist, then an assistant attorney general in the Justice Department’s Office of Legal Counsel, school officials would be immune from federal court suits if they assigned children to schools in their neighborhood or if they permitted them a “freedom of choice” among schools.

In 1968, a unanimous Supreme Court, frustrated by Southern resistance to desegregation, struck down a “freedom of choice” plan in Virginia. Although said to be a remedy for official segregation, the court concluded that “freedom of choice” was actually a dodge for it, because white parents were permitted to bus their children to the one predominantly white school in the county.

Provides Criteria for Choice

Rehnquist’s proposal, dated March 4, 1970, would have revised the Constitution so courts could not prohibit plans from “permitting persons to choose or transfer voluntarily among its educational facilities, provided only that the opportunity . . . is available to all persons within its jurisdiction or to any eligible person” whose numbers could be limited by “school capacity, availability of transportation, safety or other similar considerations.”

Another part of the proposed Article 26 of the Constitution would have declared legal any school plans that assign “persons to its educational facilities on the basis of geographic boundaries, provided only that such boundaries are reasonably related to school capacity, availability of transportation, safety or other similar considerations.”

Rehnquist’s memo was sent to Egil Krogh Jr., then a deputy assistant to President Richard M. Nixon for domestic affairs. His proposal did not endorse de jure segregation, “the type of school system which prevailed in the South prior to the decision of the Supreme Court in Brown vs Board of Education in 1954,” Rehnquist noted. Before this decision, black students were sent by law to all-black schools, and white students were assigned to all-white schools.

‘Geographic Attendance Zones’

Neither would it support a “gerrymander” of school boundaries where a “district is carved up in such a way that one can tell merely by the way the lines are drawn that the basis for drawing them was race,” Rehnquist wrote.

However, he wrote, school officials may have set up a “perfectly rational system of geographic attendance zones” that are “perfectly justifiable . . . and yet which were adopted by the local school board at least partly because they would make some schools largely white and others largely black.”

Rehnquist continued: “The argument against validating the type of system described (above) is that if it was adopted with a motive or partial motive of separating the races in the schools, it is ‘tainted’ under the general principle of Brown and should be cast out. The arguments contrary, which I believe to be more weighty, are basically practical ones.”

Courts should not be asked to discern the “intent of a multimember school board in adopting one districting plan as opposed to another,” he argued.

“If the zoning plan adopted bears a reasonable relationship to educational needs--if fair-minded school board members could have selected it for non-racial reasons--it is valid regardless of the intent which a particular school board may have chosen it,” Rehnquist concluded.

Separating Blacks, Whites

Schnapper, a civil rights lawyer, said the Rehnquist proposal “makes it crystal clear that intentional segregation by government officials ought to be permitted.”

After 1971, federal courts throughout the nation ordered desegregation when school boards were found to have juggled attendance zones or built new schools in a way that tended to separate black and white children.

Rehnquist’s proposal was “a well-thought-out plan to overrule the Brown decision,” Schnapper said. “He had one part to facilitate segregation in the North through gerrymandering and another part to facilitate it in the South through freedom of choice. This is also absolutely consistent with the view expressed in the memo to Justice (Robert H.) Jackson.”

In a controversial memo written in 1952, Rehnquist, then a Supreme Court law clerk for Jackson, said the “separate but equal” doctrine of racial segregation enunciated in 1896 was “right.” In his confirmation hearings in 1971 and again this year, Rehnquist has maintained that the views expressed were Jackson’s, not his.

Justice Refuses Comment

Rehnquist, contacted Saturday through Supreme Court spokeswoman Toni House, refused to comment on the newly disclosed memo.

In 14 years on the high court, Rehnquist has repeatedly dissented from decisions in favor of desegregation or affirmative action, saying that the Constitution requires “racially neutral” actions. In 1973, in his second year on the court, Rehnquist filed a lone dissent against a desegregation order for Denver, saying that the Constitution does not “require school boards to affirmatively undertake to achieve racial mixing in the schools.”

Eastland of the Justice Department defended the 1970 memo, saying: “There were a lot of questions unsettled then. This would not have been an extreme or unusual position. There was also a lot of anti-busing sentiment in the country that helped elect Richard Nixon.”