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Thu April 10, 2014
How The Son Of A Confederate Soldier Became A Civil Rights Hero
Originally published on Wed April 30, 2014 3:25 pm
U.S. District Judge J. Waties Waring was the son of a Confederate soldier but later became a hero of the civil rights movement — though he was vilified for his views. On Friday — more than 60 years after Waring was one of the first in the Deep South to declare that forced segregation was unconstitutional — Charleston, S.C., will honor him with a life-sized statue.
Waring was first appointed to the bench in 1942. Nine years later, in a landmark school segregation case Briggs v. Elliott, Waring denounced segregation as an "evil that must be eradicated."
In a forceful dissent, he wrote that segregation was "per se inequality." This made him the first federal judge to take that position on "separate but equal" since Plessy v. Ferguson in 1896. His dissent helped pave the way for the U.S. Supreme Court's Brown v. Board of Education ruling in 1954.
U.S. District Judge Richard Gergel, who today presides in the same courtroom where Waring sat more than a half century ago, has done exhaustive research into Waring's life and career, poring over the rich trove of personal papers that Waring left behind.
Gergel has struggled to understand how a man who grew up in a family devoted to the "Lost Cause" of the Confederacy could come to embrace such divergent views on civil rights.
"I think when he took office in January 1942, the last person who would have guessed that he would be a great civil rights warrior and leader would have been J. Waties Waring," Gergel said in an interview with All Things Considered host Melissa Block. "It was the furthest concept from his experience in his first 61 years of life."
Gergel has come to believe that Waring's views evolved as a result of his time on the bench, that the weight of responsibility he assumed as a federal judge changed him. He points to a number of cases Waring presided over before Briggs.
A 1944 case involved an African-American teacher who sought equal pay with white teachers, who were paid a third more than blacks. Until then, no black plaintiff had ever won a civil rights case in a federal district court in the Deep South. In court, Judge Waring pressed a school board lawyer about the inequities, citing an earlier court decision that had already found race-based pay scales unconstitutional.
No one was more shocked than the plaintiff's lawyer, Thurgood Marshall, who would later describe the case as "the only [one] I ever tried with my mouth hanging open half the time."
In 1947, Waring presided over a voting rights case that challenged the South Carolina Democratic Party's prohibition on black participation. Waring ruled that the Democratic Party was not a private club and therefore not exempt from 14th Amendment. In his ruling, he stated that it was time for South Carolina to rejoin the Union and "adopt the American way of conducting elections."
That decision was the catalyst for attacks on Judge Waring so intense that he required 24-hour security. Crosses were burned in his yard. Rocks were thrown through his windows. Waring was alienated from most of white Charleston. A local magazine described him as the lonesomest man in town.
The Briggs school segregation case in 1951 would cement Waring's place in civil rights history. Sitting on a three-judge panel, Waring considered other court decisions that had chipped away at "separate but equal" in cases involving higher education. He concluded that separation is never equality, that segregation is per se inequality. Although the other two judges did not agree, the groundwork had been laid.
"That conceptual leap is really the foundation of Brown," Richard Gergel said.
In an oral interview Judge Waring gave several years after retirement, he spoke of the Briggs case, and how moved he was to see the huge turnout among African-Americans for the oral arguments. Having traveled in from the countryside, they lined the streets outside the courthouse for as far as the eye could see.
Waring described the scene as "a dramatic situation. ... They'd come there on a pilgrimage. They'd never known before that anybody would stand up for them, and they came there because they believed the United States District Court was a free court. ... It was like watching a breath of freedom."
Shortly afterward, A. J. Clement, Jr., the president of the NAACP in Charleston, sent a letter to Waring in which he wrote: "The people of my group have thanked God for you in the past. America will thank God for you in the future, and at some later date the South will raise a monument to you."
AUDIE CORNISH, HOST:
From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.
MELISSA BLOCK, HOST:
And I'm Melissa Block.
Tomorrow in Charleston, South Carolina, officials will dedicate a life-size, bronze statue to a hero of the Civil Rights Movement who was vilified for his views - J. Waties Waring. He was a federal judge in Charleston, the son of a Confederate soldier. And in 1951, he denounced segregation as an evil that must be eradicated. That forceful dissent helped pave the way for the Supreme Court's Brown versus Board of Education ruling three years later.
JUDGE RICHARD GERGEL: His dissent ends up being the dissent that changed America.
BLOCK: That's U.S. District Court Judge Richard Gergel, who presides in the same courtroom where Judge Waring sat decades ago. I asked him about Waring's earlier rulings from the '40s, starting with an equal pay case brought by an African-American teacher. As Gergel explains, Judge Waring stunned the courtroom as he pointedly asked the Charleston school district's lawyers how they could justify this inequality.
GERGEL: No one was more shocked than the plaintiff's lawyer, Thurgood Marshall, who later would - in speaking about Judge Waring and that experience with the (unintelligible) case, said it was the only case he ever tried with his mouth hanging half open because he was so surprised. This was an unprecedented breakthrough victory for the Civil Rights Movement. It was 1944. And he, thereafter, progressively moved up the line. 1947, there was a very important voting rights case, Elmore versus Rice, known as the white primary case.
The question was, could African-Americans vote in the Democratic Primary, the only election that mattered at the time in South Carolina? Judge Waring ended his order by saying, it is time for South Carolina to rejoin the union and to adopt the American way of conducting elections. That decision is really what set off the vilification and attacks on him. Crosses were burned in his yard. Bricks thrown to his windows. It was his recognition of black voting rights that really alienated him from white South Carolina.
BLOCK: I can imagine that that vilification only intensified when Judge Waring dissented in that school desegregation case in 1951. The first dissent on the topic since Plessy v. Ferguson in 1896, that separate the equal ruling. What was Judge Waring's reasoning when he said, as he did, segregation is per se inequality?
GERGEL: Well, Plessy was based on the concept that it was possible to have separate but equal resources, facilities, programs for black and white citizens. There had been a series of cases that had been chipping away at that. There were two in 1950s: Sweatt versus Painter, involving an allegedly separate but equal law school in Texas; and McLaurin versus Oklahoma Board of Regents, which involved African-American graduate students at the University of Oklahoma who were segregated physically in the classroom. And they both concluded that that separation was not equal. And Judge Waring, reading that, reasoned that separation is never equality, that segregation is per se inequality. And that conceptual leap is really the foundation of Brown, and it is the leap made by J. Waties Waring.
BLOCK: It was interesting to read that Judge Waring said later on that he had been really moved when he looked outside the courthouse and saw this huge crowd of black citizens who'd come in from the countryside to hear that desegregation case being argued. They'd lined up for hours.
GERGEL: Yeah. Before then, membership in the NAACP was such a threat to one's security and ability to function, African-Americans in the South, that when you had an NAACP legal case, the leadership might show up, but there was not mass attendance. And on that morning in May of 1951, when the sun rose in Charleston, African-Americans lined Broad Street as far as the eye could see.
And you're referring to, you know, an oral interview that Judge Waring gave several years after his retirement and he described the crowd. He says, this is a dramatic situation. These people entering, they were people in from the country. They'd come there on a pilgrimage. They'd never known before that anybody would stand up for them. And they came there because they believe the United States District Court was a free court and believed in freedom and liberty. And he went on to say, it was like watching a breath of freedom.
BLOCK: Those are impressive words.
GERGEL: He was the real thing. You know, one cannot read the decisions in his oral interviews and not realize this man had made an enormous transformation, gone on an incredible journey that eventually the rest of America would go on. But he went there first and he went there at, you know, at high cost to himself. I will tell you, being a federal district judge is a pretty comfortable position. If you don't rock the boat, you have a lot of status and it's very (unintelligible)...
BLOCK: You speak from experience there?
GERGEL: It's a very - I can say that from experience. And this man just sort of said, I'm about justice. I'm not just going to warm this seat and advance myself, I'm going to do something that is right for America. And in that same interview he says, you know, I've had some very unpleasant repercussions. You know, he end up leaving the city he'd lived in his first 70 years, basically living in exile in New York. He says, but on balance, I think I'm enormously fortunate because you don't often in life have an opportunity to do something that you really think is good. The other penalties don't amount to anything. They're offset by what I think is a really important contribution to the history of our country.
BLOCK: Judge Waring was interviewed on a public affairs television show in 1957, and he was asked the question about whether white Southerners were ready to be allies in something that the show called the battle of the new Negro. And let me play for you just a bit of what he said in response.
(SOUNDBITE OF TELEVISION SHOW, "RICHARD HEFFNER'S OPEN MIND")
JUDGE JULIUS WATIES WARING: Officially, I was quite hated and condemned because I had expressed my views to what I thought the laws of the land were. And I got a lot of telephone messages and anonymous letters saying they agreed with me but they couldn't tell me why or how or who they were.
BLOCK: So he seems to be saying there, Judge Gergel, that there was a silent, fearful minority who agreed with him but couldn't say so.
GERGEL: Well, he retained all those letters and they're not just anonymous letters. There are many letters from South Carolinians who say, keep fighting, of course, I can't say anything. He knew there was a great silent South out there and the loudest voices weren't maybe the best voices in the South.
BLOCK: You know, back in 1951, there is an NAACP leader who wrote to Judge Waring and said, at some later date, the South will raise a monument to you.
GERGEL: Yes. You know, that is a remarkable letter. This is the president of the NAACP in Charleston. And he says, the people of my group have thanked God for you in the past. America will thank God for you in the future. And at some later date, the South will raise a monument to you. That date has arrived.
BLOCK: That's U.S. District Court Judge Richard M. Gergel. He'll be speaking at Friday's dedication of the statue to the late Judge J. Waties Waring in Charleston, South Carolina. Judge Gergel, thanks so much.
GERGEL: Thank you. Transcript provided by NPR, Copyright NPR.