Several hundred people, including U.S. Attorney General Eric Holder, gathered at the federal courthouse in Charleston on April 11 to unveil a life-size bronze statue of Judge J. Waties Waring in the courthouse garden.
It was a long overdue tribute to a man whose courage and integrity helped bring voting rights and equal pay to African Americans in South Carolina. Most importantly, it was Waring's dissenting opinion on a three-judge federal panel in 1951 which brought a desegregation case to the U.S. Supreme Court, leading to the Brown v. Board of Education decision, which revolutionized American education and society.
There is abundant irony here. The Brown v. Board suit is part of American culture and history, taught in high schools and colleges from coast to coast. The Briggs v. Elliott suit, which was decided 63 years ago this week, is known to few other than historians and legal scholars.
The Briggs suit, which led to such sweeping changes across the nation, has had little impact in poor, rural Clarendon County, where it originated. The schools there are almost 100 percent segregated in 2014, with white students going to private "academies" and black students left in the underfunded public schools. There is almost no contact between blacks and whites outside the work place, especially among young people. Socially and culturally, Clarendon County seems frozen in the past.
Clarendon County in the late 1940s looked much as it did at the end of the Civil War. Black people were no longer owned as chattel, but they were economically tied to the land by sharecropper arrangements with landowners and by debt to white merchants. Blacks made up 70 percent of the population of Clarendon County, yet they owned only 15 percent of the land. It did not seem an unnatural arrangement to the whites of the cotton county, which lies between Charleston and Columbia.
Nowhere were the inequities between blacks and whites more pronounced than in the county's segregated school system. In the 1949-'50 school year, Clarendon County spent $179 per white student and $43 on every black child, according to Richard Kluger, author of Simple Justice, the definitive treatment of the case. The total value of the 61 blacks schools attended by 6,531 pupils was $194,575; the value of white schools, attended by 2,375, was $673,850.
Black teachers made about two-thirds the salary of white teachers, and black students had to buy their own books and even the coal to heat their school houses. And there were no buses to transport black students to their schools. Some had to walk as much as nine miles each way to get to classes.
By the end of World War II, change was in the air and one of the first to feel it was Joseph Albert DeLaine, a black Methodist minister and teacher in Clarendon County.
Born in 1898, DeLaine was a native son of Clarendon, who spent his childhood walking five miles to and from school. He put himself through Allen University in Columbia, earning a theology degree.
While studying during a summer session at Allen in 1947, DeLaine heard the Rev. James M. Hinton, president of the South Carolina branch of the National Association for the Advancement of Colored People, give an address on the campus. Hinton observed that the surest measure of the white man's intention to keep the black man powerless and impoverished was the condition of black schools in the state. Not only were the schools a disgrace in the wealthiest nation on earth, they were impossible for most children to reach, due to lack of transportation. Black people would never rise until they were educated, Hinton said, and legal action was needed to address the inequities in the segregated school systems. "No teacher or preacher in South Carolina has the courage to find a plaintiff to test the legality of the discriminatory bus transportation practices in the state," Hinton said.
Inspired by Hinton's address, the middle-aged, ailing teacher returned to Clarendon County, determined to find someone to test the law in a ground-breaking case.
DeLaine recruited 20 parents who were willing to stand as plaintiffs in a suit against school board chairman R.W. Elliott, saying that their children were suffering "irreparable damage" by not having transportation to their schools.
Listed alphabetically, the first plaintiff to be named on the suit, filed in November 1949, was Harry Briggs, a 34-year-old Navy veteran with five children.
The 1896 Supreme Court decision in Plessy v. Ferguson provided the legal bulwark protecting segregation. The high court had held that the state of Louisiana had the right to segregate railroad cars and to order Homer Adolph Plessy into the "Colored Only" car. The decision was shot through with holes by modern legal standards, but it allowed segregationists to sleep well for 58 years.
The Briggs suit was brought before a federal panel of three judges in Charleston that included J. Waties Waring, an eighth-generation Charlestonian, a social brahmin steeped in the city's culture of white supremacy and paternalism. Waring had already shocked the white establishment in the 1940s, when he had struck down the state's whites-only primary system and ruled in another case that Charleston County must pay its black and white teachers on the same scale. But his greatest decision was now unfolding.
Before dawn, on May 28, 1951, a procession of several dozen cars left Summerton, wending their way through the Lowcountry night, heading for the federal courthouse in Charleston. They were packed with black people, some of whose names were on the Briggs suit. They were joined by hundreds of other African Americans for miles around. They filled the sidewalk and lined up at the door of the courthouse on Broad Street, hoping for a courtroom seat.
Judge Waring later wrote of this thoughts as he gazed down from his office window at the crowd below. In Waring's eyes, they had come on a "pilgrimage ... because they believed the U.S. District Court was a free court, and believed in freedom and liberty."
One of the lawyers working on the case was an NAACP attorney named Thurgood Marshall, a man who would one day become America's first black U.S. Supreme Court judge. Like Waring, Marshall also looked out over the crowd that morning and wrote that they were "neither prosperous nor highly educated," but displayed " a greatness in human spirit."
The trial famously featured the young African-American psychologist Kenneth Clark, who had used dolls to discover the effect segregation had on black children. Based on his studies, Clark discovered that when presented with black and white dolls, black children identified the white dolls as "nice" and the black dolls as "bad." Clark held that this proved the deep sense of inferiority engendered in black children by segregation. Clark's testimony was probably one of the first instances of social science research being offered as evidence in an American courtroom.
The trial lasted two days and the three judges deliberated for nearly a month before issuing a decision on June 25. Two of them voted to uphold the doctrine of separate but equal. Judge Waring dissented, arguing passionately that the time had come to strike down the pernicious doctrine.
Marshall appealed to the U.S. Supreme Court and the case was on its way to Washington, but not before politicians and editorial writers around the South got in their licks against Judge Waring and the NAACP. On June 26, the Charleston News and Courier, precursor to The Post and Courier, editorialized:
"Since the 14th Amendment mentions neither schools nor 'segregation,' it seems to the News and Courier that both Judge Waring and the NAACP have attempted to read into the amendment something that the amendment does not contain....
"By seeking to change the Constitution through court decree, rather than by amendment, the NAACP concedes that it could not obtain passage of an amendment requiring mixture of the races in public schools.
"That is the same as saying that the NAACP is asking the courts to read into the Constitution something that the people of the United States are now and always have been unwilling to put into the Constitution."
This angry and fatuous editorial was written by Thomas Waring, one of the most vocal and virulent segregationists in the South and the nephew of Judge J. Waties Waring.
Arriving at the Supreme Court at approximately the same time as the Briggs case were four similar test cases, which, like Briggs, had been set in motion by the NAACP. They came from Virginia, Delaware, Washington, D.C., and Kansas.
In Topeka, Kan., a suit filed by Oliver Brown and others sought to enjoin enforcement of a state law that permitted segregation in elementary schools. A three-judge federal court there ruled that although segregation harmed the black elementary school children, it could not grant relief because the buildings, transportation, curricula, and qualifications for teachers were essentially the same.
The five cases were bound together under the heading of Brown v. Board of Education of Topeka and the Supreme Court heard oral argument on Dec. 9, 1952.
Marshall argued for the plaintiffs. Arguing for the various school districts was John W. Davis, perhaps the greatest attorney of his day, a Southerner, a segregationist, and the Democratic Party's 1924 presidential nominee. He had taken the case at the personal request of his friend, S.C. Gov. James F. Byrnes.
Marshall hammered away at the central point of the NAACP argument: segregation caused "actual injury" to school children and was condemned by the Fourteenth Amendment. Davis countered, mocking the NAACP's sociological brief and saying that even if segregation was harmful to black children, it was not forbidden by the Constitution.
At the justices' conference a few days after arguments, a majority was inclined to uphold "separate but equal." But a few months later, one or two justices changed their minds; the question became whether others could be persuaded to do likewise. The justices ordered a reargument, with litigants focusing on the original purpose and meaning of the Fourteenth Amendment and what power it gave the courts. Marshall and Davis went back to their respective drawing boards.
On Dec. 7, 1953, the reargument of Brown got under way before the High Court. Constitutional theory and history were cited and challenged over days of legalistic footwork, but the argument eventually came down to one proposition: While it was impossible to know what was on the minds of the people who actually voted for the Fourteenth Amendment, it was clear that the purpose of those who drew it up was to make black Americans full citizens of this nation in every sense.
Now the attorneys, the plaintiffs, the school districts, and the nation fell silent and waited. The Court did not speak from December until May 1954. Behind closed doors the discussion wound on for weeks, but the Court's decision was inevitable. The only remaining question was how many would join in.
It was the first major test and triumph of Earl Warren's leadership as the new chief justice, and it heralded more than two decades of judicial activism in favor of religious and ethnic minorities and criminal defendants.
On May 17, 1954, Warren delivered the Court's unanimous decision. It contrasted with the lengthy opinions, dissents, and concurrences that usually attend major doctrinal shifts. Warren's 10-page opinion was short, stark, and stood alone. No one dissented; no one concurred separately.
The decision read in part:
"Today, education is perhaps the most important function of state and local government.... It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the foundation of good citizenship. Today, it is a principle instrument in awakening a child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days it is doubtful any child may be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."
Throughout the South, the decision landed like a bombshell. Editors and politicians railed and ranted about the corruption of federal authority, the war on states' rights, the overweening power of the courts. In a front-page News and Courier editorial the following day, Thomas Waring wrote:
"In depriving the states of the right to administer public schools according to their own regional customs, the Supreme Court has cut deep into the sinew of the Republic.
"...we receive the decision with distaste and apprehension. But it is too late to secede and start another War Between the States. Other means must be sought to live within the laws of our country."
The News and Courier asked the opinions of numerous local politicians and parents of school children, all of them white. Their voices were predictable and unanimous.
U.S. Senator and former Charleston Mayor Burnet Maybank immediately went to the Senate floor to denounce the decision: "The Supreme Court's decision shocked me. In my judgment, it was a shameful political move, rather than a judicial decision."
First District Congressman L. Mendel Rivers, of Charleston, said South Carolina "has tried in good faith to give to the colored people the finest schools in the nation." The tragedy was compounded, he said, because "the rank and file of colored people are not ready to accept the responsibilities which go with this historic decision."
State representative and lieutenant governor candidate Ernest F. Hollings, of Charleston, said the decision came as "a real shock." In a moment of chilling prescience, Hollings suggested the possibility of leasing schools to private agencies, allowing children to attend separate schools of their choice at state expense, through individual subsidization. Such schools, he said, would be "private in operation ... public in benefit." This is pretty close to where we stand in South Carolina today.
If the rhetoric and the action around school desegregation have softened over the last three generations, it can still be ugly and the meanings are still the same. No one knew this better than J. Waties Waring and J.A. DeLaine, the two men most closely associated with the Briggs case.
Waring was ostracized by his old Charleston society friends; bricks were hurled through the windows of his Meeting Street house; a cross was burned on his lawn; his wife was confronted on the street by ruffians. He and his wife were forced to leave Charleston for New York City, where he lived out the rest of his years.
As for DeLaine, he was fired from his teaching job in Clarendon, along with his wife, two sisters and niece. His life was threatened, and he was sued on trumped up charges and denied credit at the bank. His house was burned while the fire department stood and watched. His church was stoned. When shotguns were fired upon him in the night, he fired back and was charged with assault. He eventually fled to North Carolina and was spared the sight of seeing his church burned to the ground.
He never returned to his native state.
Waring and DeLaine were giants of courage and integrity in a time of meanness and lies. Waring now has the recognition he is due and a statue in the Hollings Judicial Center Garden. It's time this state do something of equal import to recognize the sacrifice of Joseph Albert DeLaine.