Monthly Archives: March 2012

More South Carolinians needed like Waties Waring

MARCH 26, 2012,  by the Rev. Joseph A. Darby Jr. — South Carolina is a better place because of people like the late J. Waties Waring. Judge Waring’s evolution from a segregationist to an advocate for civil rights and his judicial rulings that hastened the end of legal segregation are little recognized but noteworthy landmarks along the road to freedom and justice. His life and work also offer good direction as we continue to travel that winding road.

The Rev. Joseph A. Darby Jr.

The Rev. Joseph A. Darby Jr.

As an African-American, I appreciate and celebrate the courage of Judge Waring and of like-minded white citizens. I get my predictable share of angry letters and editorial criticism for calling attention to societal inequities related to race — that’s expected of a black preacher speaking inconvenient truth. Judge Waring and those like him, however, received stiffer and far more bitter condemnation because they’re seen as traitors to their race.

Charleston, South Carolina, and many other Southern cities are chronically afflicted by what I call “raging politeness.” Racial barriers to progress are seldom acknowledged or explored because we want to be “polite” to each other and not ruffle feathers. That’s true in the traditional black community, where some citizens place acceptance by the majority society above assertive action for change, and especially true in the traditional white community, where any suggestion that racial views need to evolve is often met with amazing hostility.

As a Charlestonian from a very old and established family, Judge Waring was treated by his community with the level of angry disdain and rejection reserved for Southerners who chose to stay loyal to the Union during the Civil War. He was literally driven out of town and lived and died as a Southern expatriate in New York, but he stood his ground and held onto his convictions. When citizens of like mind have the courage to follow his example today, we can bring South Carolina into the 20th century — and I did mean to say the 20th century — when it comes to race relations.

We still need people like J. Waties Waring because those willing to stand on principle and not accept the status quo, regardless of criticism, are as rare now as they were in Judge Waring’s day. Many citizens — white and black — quietly agreed with Judge Waring’s views but wouldn’t stand with him or defend him out of fear that they too might be threatened or rejected, and many good people are similarly reluctant today. A longtime friend of mine is a Republican elected official, although his personal political views are more in line with those of the Democratic Party. When I pointed that out, he said, “You’re right, but I can’t be elected as a Democrat in my very white district. My constituents vote by emotion, not on the basis of what needs to be done or is best for them, and although they won’t say it out loud, they won’t vote for anyone who likes black people.”

Those with views like that need to take the risk of being as visionary and progressive today as Judge Waring was in his day. In an era when “cookie cutter” state laws on voter ID’s, immigration and “castle doctrine” pander to racial fear and when candidates went on carefully-worded racial rants to gain votes in South Carolina’s GOP presidential primary, we badly need more people like J. Waties Waring. We need people who will go beyond old prejudice, old assumptions and old fears and do what’s right instead of what’s expedient and acceptable to their peers. That kind of courage and vision are timeless and badly needed to make America “…one nation, under God, with liberty and justice for all.”

The Rev. Joseph A. Darby Jr. is senior pastor of Morris Brown AME Church in downtown Charleston.  This commentary first appeared in and is republished with permission.

Statue planned to honor Judge Waties Waring

MARCH 19, 2012, by Andy Brack — Sixty years ago at age 71, U.S. District Judge J. Waties Waring resigned from the bench in Charleston and moved to New York, never to return to his hometown, except to be buried in Magnolia Cemetery. The reason: civil rights. But now with the passage of time, people are starting to remember Waring’s courage in opposing segregation in the face of a Charleston that snubbed him out of tow.

Judge Waring

Portrait of U.S. District Judge J. Waties Waring that hangs in the federal courthouse in Charleston, S.C.

A pedigreed member of the Charleston community with family roots traceable to the city’s early settlers, Waring became a pariah by 1952 for progressive rulings that thwarted Jim Crow laws. With opinions starting in the mid-1940s, Waring called for the end to unequal treatment for blacks in cases related to voting, pay, facilities and education during a time when blacks and whites in the South had to use different water fountains.

While Waring became a hero for many blacks across the nation, his activism didn’t sit well with most white people in Charleston, particularly because they saw it as betrayal by one of their own. Waring had been influential in city and state politics and seemed to support the old Southern way of life. He was a bigwig in social events. He served as Charleston’s corporation counsel, or city attorney. Prior to taking the bench, one of his clients was the Charleston daily newspaper, one of the most ardently segregationist newspapers in the country.

But in 1945, Waring got on the wrong side of the South of Broad crowd by divorcing his hometown bride of 32 years, only to remarry an opinionated, twice-divorced Michigan debutante within two weeks. Shunned at parties and in stores, the Warings, in turn, chilled to folks in Charleston.

Meanwhile in the courtroom just a block from his Meeting Street home, a zeal for real justice blossomed in Waring. For Charlestonians still fuming over Waring’s divorce, the civil rights rulings threw gas on a fire of spreading ostracism. By the time of his most famous opinion, a 21-page dissent in a 1951 school segregation suit brought by 46 minors and 22 adults from Clarendon County, most local whites — and some blacks — ignored Waring and his wife.

In support of the black plaintiffs in Briggs v. Elliott, Waring castigated so-called “separate but equal” schools prevalent throughout the South for generations. The Constitution, he explained, clearly outlined that equal treatment under the law for all citizens — not just for white citizens — was a fundamental right and that separate was not equal. He wrote in June 1951:

“There is absolutely no reasonable explanation for racial prejudice. It is all caused by unreasonable emotional reactions and these are gained in early childhood. … If segregation is wrong then the place to stop it is in the first grade and not in graduate colleges. …

“I am of the opinion that all of the legal guideposts, expert testimony, common sense and reason point unerringly to the conclusion that the system of segregation adopted and practiced in the State of South Carolina must go and must go now. Segregation is per se inequality.”

Waring’s opinion didn’t prevail in a ruling by a three-judge panel, but it did send shockwaves throughout white South Carolina — that one of their own would side with blacks about segregated schools. By December 1952 — 11 months after Waring resigned and moved to New York — the U.S. Supreme Court heard arguments on whether school segregation was a constitutional violation. It combined five similar cases in that hearing, including an appeal of the Briggs decision by the NAACP and its lawyer, Thurgood Marshall.

Retired U.S. Sen. Fritz Hollings, reportedly the last living lawyer who attended the oral arguments in the courtroom, recalled how the Briggs case was supposed to be the first of the five heard by the Supreme Court. But because of some courtroom maneuvering, a Kansas case, Brown. v. Board of Education, was called first. As most students of history know, the unanimous decision in Brown outlawed school segregation, just as Waring concluded in his 1951 dissent.

“He made history in that decision,” Hollings said, adding that Waring was the only of probably 1,000 judges up to that time to oppose segregation. Waring’s dissent was used as a template for the later landmark Brown case, albeit in softer tones.

Last May, U.S. District Judge Richard M. Gergel and S.C. Supreme Court Chief Justice Jean H. Toal led a colloquium on Waring and “the dissent that changed America” in coordination with the S.C. Supreme Court Historical Society.

The conference spawned an idea to honor Waring with a statue in a garden of the downtown federal courthouse, a new annex of which is named for Hollings. Local attorney Thomas S. Tisdale Jr. is spearheading an effort among his peers to reacquaint people with Waring’s courage on the bench. Tisdale and a blue-ribbon statewide committee of the legal community also will be working to raise the $150,000 or more needed to pay for a statue of Waring.

“He was forgotten by time, but the development of civil rights did not stop and other federal judges took it up, mainly Republican judges appointed by President Eisenhower,” Tisdale said. “They implemented civil rights in the South and followed in the wake of Judge Waring.”

Thank goodness that bygones will be bygones. For Charleston, a flashpoint of the Confederacy, it’s long past time to honor a hometown boy for the hero he became for justice.

This commentary is by Andy Brack, publisher of Charleston Currents and Statehouse Report, and is republished with permission.  Brack can be reached at:  You can read an updated version of this column, “Time to honor national hero from South Carolina,” at

“The dissent that changed America”

JULY 11, 2011, by Leon Friedman and Richard M. Gergel — 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.

The Briggs dissent

The Briggs dissent

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.

This piece from the National Law Journal is republished with permission. The authors are Leon Friedman, the Joseph Kushner Distinguished Professor of Civil Liberties Law at Hofstra University School of Law, and Richard Mark Gergel, a U.S. district judge sitting in Charleston, S.C.