“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.