Monday, July 18, 2011

Judge J. Waties Waring re-directed South Carolina history

Martin Luther King Jr in 1967, channeling the sentiment of Theodore Parker's writing of 1853, told the 11th annual Southern Christian Leadership Conference in Atlanta, "...the arc of the moral universe is long but it bends toward justice."

If judges, whose main interest is justice, affect the course of that arc, few of South Carolina's judges had greater impact on it -- or on state history -- than Judge J. Waties Waring. In a series of decisions issued in the 1940s and 1950s from his bench in Charleston, it might be said that Waring took the arc in both hands and bent it with all judicial force. In so doing, Waring earned himself an important place in South Carolina's history.

But he also earned the permanent enmity of the state's ruling elite, whose responses to Waring continue to punish South Carolina's children today.

TIME magazine took notice of Waring in 1948, publishing this item under the title, "The Man They Love to Hate":

Aug. 23, 1948

For the first time in history, South Carolina Negroes voted freely last week in the Democratic primary; by evening of election day nearly 35,000 had cast their ballots. To old families in the mansions along Charleston's historic Battery, as to most South Carolinians across the state, this was sacrilege. But proud Charleston spent its bitterness on the cause, rather than the effect of this enormous social change. It charged it all up to cold-eyed, 68-year-old Federal Judge J. Waties Waring.

Antique Grandeur.
Judge Waring was one of Charleston's own. He was born of an old and honored family; he married a Charleston girl. He was appointed to the bench January 1942 on the recommendation of the late Senator "Cotton Ed" Smith. Until he was 65, he abided by the insular mores of Charleston's first families and devoted himself to the dusty grandeur of Charleston's traditions.

Three years ago, after 32 years of marriage, he and his wife got a Florida divorce (South Carolina has no divorce laws). The judge married a Connecticut woman. He was instantly ostracized. He did not take it well. Charleston lawyers complained that he grew more vituperative and irascible month by month. But as time wore on, he also grew more liberal in his opinions. His onetime friends did not consider the possibility that an elderly man might gain a new and deeper understanding of justice and the law. They whispered that he was "out to get his revenge."

Last July they were sure of it. Judge Waring ordered the Democratic Party to open its enrollment books to Negroes and permit them "full participation in party affairs." He went even further. When a white man, Senatorial Candidate Alan Johnstone, rose to protest, the judge had him forcibly ejected. He told the crowd of Negroes who jammed his courtroom: "It is a disgrace when you have to come . . . and ask a judge to tell you how to be an American."

He was jeered and denounced. When lightning struck a house next to his summer cottage on Sullivan's Island beach, its owner nailed up a neatly lettered sign: "Dear God, He Lives Next Door." Every man entered in South Carolina's senatorial race vilified him during the campaign. Congressman L. Mendel Rivers sought to institute impeachment proceedings against him, cried: "Unless he is removed . . . there will be bloodshed. He is now in the process of extracting a pound of flesh from the white people of South Carolina because, through his own actions, he has been ostracized from their society."

New Dignity.
Last week there was no bloodshed. South Carolina's Negroes voted quietly. Their votes did not change the result—all the favorites, including blue-blooded, well-heeled U.S. Senator Burnet R. Maybank of Charleston, won handily. Whatever South Carolina thought last week, history might remember crusty, umbrageous Judge J. Waties Waring as a man of cool courage.

Indeed, arch-conservatives in the South Carolina House drafted a resolution to impeach Waring, though it was not adopted.

That 1948 ruling on voting rights and open primaries was controversial enough. But it is Waring's dissent in a 1951 case that earns him attention in an academic law review this summer. Authored by U.S. District Judge Richard Gergel and Hofstra law professor Leon Friedman, the article sees Waring as an exemplar of the independent judiciary.

On June 23, 1951, a little more than 60 years ago, a three-judge federal court panel sitting in Charleston, S.C., issued a majority opinion, upholding the state's rigidly maintained practice of segregating school children on the basis of race. The decision in Briggs v. Elliott, which relied upon the U.S. Supreme Court 1896 precedent of Plessy v. Ferguson, concluded that school segregation was a local matter outside the purview of the federal courts and the American Constitution. What was then little noticed was a passionate dissent by U.S. District Judge J. Waites Waring, an eighth-generation Charlestonian and son of a Confederate veteran. The Waring dissent represented the first instance in the 55 years since Plessy that a federal judge concluded that racial segregation was incompatible with the American Constitution, even if an effort had been made to equalize the segregated facilities. The Briggs lawsuit would eventually wind itself onto the Supreme Court's docket and be consolidated with four other cases under the name Brown v. Board of Education. As they say, the rest is history.

Briggs v. Elliott was the first case filed, tried and appealed to the Supreme Court challenging segregation in public schools. At the time of the trial, in late May 1951, 18 states, including South Carolina, required the operation of racially segregated schools. These laws were a patchwork of state statutes and local ordinances from across the country that enforced a form of racial apartheid then popularly known as "Jim Crow" laws.

The Briggs case was brought by 20 mostly poor African-Americans from the rural community of Summerton in Clarendon County, S.C. The plaintiffs sought an adequate education for their children as a path away from their crushing poverty. As a price for placing their names onto the federal court complaint, many of the plaintiffs had suffered severe retaliation such as loss of their jobs or inability to secure credit. They were, however, undaunted.

On the morning of the federal court trial, a large group of the plaintiffs and their supporters traveled by caravan from Summerton to Charleston to witness what would be one of the most important legal proceedings in American history. Hundreds lined up in the courthouse, on the stairs leading to the courtroom and onto the street for a chance to see and hear the legal attack on their second-class status. They were not disappointed. They observed the testimony of witnesses describing the profound disparities in the educational facilities and resources provided the black and white children of their community. They heard what would become the historic expert testimony of psychologist Dr. Kenneth Clark as he described his "doll studies" and opined that segregation stigmatized and injured their children. But what thrilled the plaintiffs the most was the searing cross-examination by their lawyer, Thurgood Marshall, as he questioned the defendants' star witness, ultimately forcing him to admit that, at least in part, his testimony was based on a lifelong belief in racial segregation.

But this was South Carolina, the year was 1951 and the doctrine of Plessy was deeply ingrained in the region's culture. Several weeks after the completion of the Briggs trial, in June 1951, the three-judge panel issued a predictable decision, holding that racial segregation of the schools was a matter of state legislative policy in which the federal courts were "powerless to interfere." What was not predictable was the stirring 20-page dissent by Waring, who concluded that "segregation in education can never produce equality.…Segregation is per se inequality." Waring described segregation as an "evil" that "must go and go now."

Waring's improbable journey on race began after his appointment to the federal bench in 1942. Civil rights cases on his docket slowly opened him to a view of his native city and state that he had never considered as a prosperous attorney and member of elite social societies in Charleston. He started modestly, ending segregation in his courtroom. Beginning in the mid-1940s, Waring issued a series of opinions equalizing the pay of black teachers and requiring the state to admit black students to the University of South Carolina School of Law or to open an equal law school for African-Americans. Waring crossed the racial Rubicon in 1948, when he ordered the state Democratic Party to end its "white primary" and to allow black South Carolinians to vote in the only election that then mattered in the state. Waring soon found himself a social pariah in his native state. Politicians called for his impeachment, death threats were constant and crosses were burned in his yard.

Shortly after issuing his historic dissent in Briggs, Waring turned 70 and became eligible for judicial retirement. He quietly submitted his notice of retirement to the president, and he and his wife moved to New York City. There, he watched as Briggs and other school-segregation cases wound their way onto the Supreme Court's docket. In all of these cases, from Kansas, Delaware, Virginia, the District of Columbia and South Carolina, only Waring concluded that segregation in public education, even if equalized, was incompatible with the 14th Amendment. On May 17, 1954, the Supreme Court, echoing the words and reasoning of Waring's dissent, concluded in Brown that "separate educational facilities are inherently unequal." On the night of the Brown decision, Walter White, the president of the NAACP, and other civil rights leaders journeyed to Waring's small Upper East Side apartment to thank him personally for the courage and vision of his dissent.

Several years after the Brown decision, Waring and Chief Justice Earl Warren, who authored the Supreme Court's unanimous order, had a chance encounter. Waring told the chief justice, "I was greatly relieved when you decided that Clarendon school case. I'd been very lonely up to that time." Warren responded to the retired Southern jurist, essentially living in exile, "Well, you had to do it the hard way."

It is fitting now — 60 years after the Briggs trial and Waring's remarkable dissent — to note the vital role an independent judiciary played in bringing about an end to government-mandated racial segregation in America. It is also important to remember the ability of one man, willing to sacrifice his good name and comfort for a higher principle, to help to change the course of American history. We should, on this important anniversary, tip our collective hat to Judge J. Waites Waring for his courageous and historic dissent.

South Carolinians generally, and educators in particular -- who know a thing or two about bending the arc of the moral universe, one generation at a time -- have plenty of reason to celebrate and honor the courage of Judge Waring.

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