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.
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: email@example.com. You can read an updated version of this column, “Time to honor national hero from South Carolina,” at StatehouseReport.com.