“Segregation is Per Se Inequality” (Marker 10-85)

This afternoon a ceremony at the federal post office and courthouse in Charleston will celebrate the formal unveiling of the statue and state historical marker recognizing Judge J. Waties Waring.  As the many stories now circulating the state and national press point out, Waring was a native son and member of the inner circle of Charleston society who, in his capacity as a federal district judge, “issued some of the most important civil rights rulings of the era.”  The historical marker that now stands on Broad Street offers a glancing reference to these rulings, but devotes most of its space to Waring’s dissent in Briggs v. Elliott (1952), a case originating in Clarendon County, South Carolina and challenging the legal basis of public school segregation.  Waring’s dissent in Briggs is fully worthy of discussion, no doubt, but as we look forward to the celebration in Charleston this afternoon, it may be worth considering Waring’s “other” rulings as well as the larger context of his actions.

Waring’s Briggs dissent was the last opinion that he issued as a sitting judge, but it was not the first time that he had addressed racial inequality.  He was appointed to the federal bench in 1942 and early in his tenure he ended the practice of placing a “(c)” next to the names of African Americans on the rolls of potential jurors, a practice that allowed for the easy exclusion of these individuals during jury selection, and gradually African Americans began appearing on federal juries in Charleston.  Waring also ended segregated seating in his courtroom and appointed a black man, John Fleming, to serve as court bailiff.  Some of these changes were symbolic, but they were indicative of the broader changes that Waring would bring to his opinions.  In Wrighten v. Board of Trustees of South Carolina (1947) he ruled that South Carolina had to address the lack of an African American law school in the state by a) providing for an adequate legal education for black students within the state; b) admitting African American students to the University of South Carolina Law School; or c) closing the white law school entirely.  In his decision Waring relied on the precedent set forward by the Supreme Court in its earlier decision Missouri ex rel. Gaines v. Canada (1938).  There the Court had decided that the state of Missouri had to provide equal educational opportunities for black students to pursue a legal education within the state and that providing tuition grants for study outside of the state did not satisfy the doctrine of “separate but equal” laid out in Plessy v. Ferguson (1896).  Neither Gaines nor Wrighten challenged the legality of segregation per se, but instead held that states must provide “substantially equal” educational opportunities within their own borders.  As a remedy, South Carolina devoted $200,000 to the establishment of an African American law school, though in reality all that resulted was a professorship in law at the Colored Normal, Industrial, Agricultural, and Mechanical College of South Carolina in Orangeburg (South Carolina State University).

Waring’s decision in Wrighten, though, demonstrated a logic that would hold through his dissent in Briggs.  He was not developing his legal opinions sui generis, but instead was relying upon prior precedent in cases already decided by the Supreme Court.  He may have proven more willing to read these precedents in a sympathetic manner than some other judges, but he was not creating law, he was interpreting it in light of prior rulings by the higher court. He followed the same pattern in issuing what was likely his most consequential ruling, the decision to strike down South Carolina’s all-white Democratic primary in Elmore v. Rice (1947).  In this decision Waring looked back to two precedent setting cases in particular, U.S. v. Classic (1941) and Smith v. Allwright (1944).  In Allwright the Court had overturned Texas’s white primary, finding that even though the Democratic Party was a voluntary association, a state could not “permit a private organization to practice racial discrimination” in elections.  South Carolina had attempted to circumvent this ruling by erasing any mention of primaries within state election law in order to deny that state action was in any way involved.  Waring rejected this attempt to bypass the law by relying, in part, on the decision in Classic.  In that case, the Supreme Court had determined that one test for a whether a primary deserved close scrutiny was whether, “in fact the primary effectively controls the choice,” which was certainly the case in South Carolina, whether or not the operation of the primary was officially part of state law.  Waring’s decision demonstrated both frustration and exasperation.  “It is time for South Carolina to rejoin the Union,” he wrote, “It is time to fall in step with the other states and adopt the American way of conducting elections.”   

 These decisions led Clark Foreman to describe Waring as “one of the most courageous people in this country … [a judge who] stands for the full American constitution.”  Foreman made this pronouncement during a 1948 campaign rally in Charleston, and all of this came several years in advance of Waring’s dissent in Briggs, which suggests that it is perhaps best to view Waring’s Briggs dissent as the culmination of a process that was a decade or more in the making.  In his twenty-page analysis, Waring again used forceful and declarative language, just as he had in Elmore.  Waring argued that there “is absolutely no reasonable explanation for racial prejudice. … Let the little child’s mind be poisoned by prejudice of this kind and it is practically impossible to remove these impressions. … If segregation is wrong, then the place to stop it is in the first grade and not in graduate colleges. … Segregation in education can never produce equality and is an evil that must be eradicated. … Segregation is per se inequality.”  Here Waring anticipated the later Supreme Court ruling in Brown v. Board of Education (1954), of which Briggs was a part, in one way and not another.  The language of his decision invoked contemporary social science research conducted by Kenneth and Mamie Clark, studies that were part of the NAACP case presented during oral arguments.  The Clarks’ conclusions suggested that segregation created a sense of inferiority in African American children and Waring alluded to that, obliquely, by talking about the poisoning of “the little child’s mind,” though he probably was thinking also of works by Gunnar Myrdal and W.J. Cash, and considering as much the “poisoning” of white children’s minds as he was of black children’s.

In his opinion in Brown, Chief Justice Earl Warren would include a famous footnote citing the Clarks’ studies, and so in that way Waring anticipated the later ruling.  But in Brown the Court would overturn the “separate but equal” doctrine established in Plessy, something that Waring did not, and could not, do in his capacity as a U.S. District Judge.  When he wrote that “Segregation is per se inequality,” he was attacking Plessy to be sure, but he was doing so by looking back to Court precedent as established in two cases in particular, Sweatt v. Painter (1950) and McLaurin v. Oklahoma (1950).  In both of those cases, which involved legal and professional training respectively, the Court had recognized the “intangible aspects” that comprised a quality education.  Things like the “reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige” that all played a role in determining the entire educational experience.  In both cases the Court went beyond the mere appearance of equality, went beyond tangible equality, and began to consider whether the intangible circumstances and effects of segregated education led to unequal outcomes; they were questioning whether separate could ever be equal in the realm of education.

The other members of the three-judge panel that convened in Charleston refused to take up the Supreme Court’s invitation to consider these “intangible qualities,” though Judge John J. Parker, who wrote the majority opinion, certainly did recognize that these precedents existed.  He dismissed them, however, saying “as good education can be afforded in Negro schools as in white schools and the thought of establishing professional contacts does not enter into the picture.”  Parker demanded that Clarendon equalize their school facilities, a process then underway in the state as a whole, but did not suggest that separate was inherently unequal.  The difference between Waring and Parker’s opinions illustrates the importance of individual actors to historical outcomes, and it does so in more than one way.  In addition to highlighting the remarkable quality of Waring’s dissent, it also places it within the context of a much larger, and longer, legal process.  Waring could not have made his ruling without the prior precedents of Sweatt and McLaurin, two cases that were part of the long-term, and carefully crafted, strategy of the lawyers at the NAACP Legal Defense Fund to challenge the basis of racial segregation.  Without the work of Walter White, Charles Hamilton Houston, Thurgood Marshall, Robert Carter and others, there would have been no precedents for Waring to draw from and, indeed, no case for him to rule on at all.  That is not to minimize the significance of Waring’s actions, but instead to remind us that he did not walk alone.

To that end, it is an interesting footnote to the Waring story that he is the namesake of an African Methodist Episcopal Church in upstate New York.  DeLaine-Waring A.M.E. Church in Buffalo bears his name, along with that of Joseph A. DeLaine, one of the principle figures responsible in bringing the Briggs case to Waring’s Charleston courtroom.  Both DeLaine and Waring would live out their days in exile from their native state and both, it turns out, found sanctuary in New York.  DeLaine founded the A.M.E. Church in Buffalo and included Waring’s name as a reminder and celebration of his actions.  It is a fitting tribute.  But as we prepare to remember Waring with a statue in Charleston, we should also take a moment to remember DeLaine, for without his work to organize the families in Clarendon County, the NAACP lawyers would never have found their way to Summerton, South Carolina.  They did not want to challenge segregation in the heart of the Deep South and instead had planned to remain on the edges, focusing their strategy on finding worthy cases in the Border South (it is not a coincidence that a case from Kansas became the namesake of Brown, even though it was one of five consolidated cases and came after Briggs both alphabetically and in point of time).  DeLaine and the Clarendon families, who do receive brief mention on the historical marker, forced the issue; forced the NAACP to make a case in Clarendon County; and forced the hearing before the three-judge panel of which Waring was a part.  Waring has now gotten his statue.  DeLaine still awaits his.

Missing Georgetown Markers

There are a couple of historical markers in Georgetown that are currently M.I.A.  If anyone has any information about what may have happened to them we’d love to let the Georgetown Historical Society know.

One is a “Georgetown” marker (22-18), which originally stood near the corner of Front St. and Broad St., in front of Francis Marion Park.  Our source in Georgetown says this one disappeared in the 1990s, so it is a cold case.

The other is a more recent disappearance.  It is the “William Screven/Elisha Screven” marker (22-28) that was located on Prince St., about half way between Screven and Queen Streets.  According to HMbd.org, this marker was present in January 2008 and it also appears as an HD image in Google Street View, which means it was still standing sometime after April 2008, when that technology was first deployed.  If anyone can help us track down more information about what might have happened to these markers, please let us know, either in the comments or by email (efoley@scdah.state.sc.us).

The “Radical” University? (Marker 40-27)

Image by Mike Stroud, via hmbd.org

If you have ever had occasion to visit the historic campus at the University of South Carolina, the “Horseshoe” as it is commonly known, then you may have taken a moment to read the historical marker that stands near the gates along Sumter Street.  Maybe, however, you simply walked by it without offering more than a passing glance.  That is the reaction that most people, and certainly most students, probably have to a marker that does not seem to say very much.  On its face it is merely a chronicle of dates.  It tells us that the University was chartered as South Carolina College in 1801, opened 1805, closed 1861, re-chartered as the University of South Carolina in 1865, under Radical control 1873-77…  Then there is a listing of the various renamings and reincarnations in the late 19^th century, before concluding, in all caps, FAITHFUL INDEX TO THE AMBITIONS AND FORTUNES OF THE STATE.  It is, however, that last bit about “Radical control” that interests me for the purposes of this post.

This marker was erected by the Columbia Sesquicentennial Commission of 1936 (the first fifty markers placed in Richland County were the work of the Sesquicentennial Commission, which is one reason why Richland has twice as many markers as any other county in the state).  The commission worked with the Historical Marker Survey, headed by Nora Davis and also begun in 1936, to fund the placement of historic markers that the survey identified for Columbia.  The Marker Survey was the first large-scale effort to mark historic sites in the state, but then, as now, they relied on local sponsors to actually fund the markers, which cost $52 in 1936.

Many people reading the marker today may not understand what was intended by the phrase “Radical control 1873-1877,” but in 1938, when the marker was placed, that meaning was far less obscure than it is now.  Passersby at that time would have known that this was a reference to Reconstruction and to the admittance of African Americans to the University.  For them, the memory of Reconstruction retained a central place in their experience, especially because it was expressed (constantly) in the political rhetoric of the day.  It was nearly impossible to read a South Carolina newspaper in the first half of the 20^th century and not find multiple references to Reconstruction, especially during an election season (I had an opportunity to test this proposition when looking for material on Paul Robeson’s 1948 visit to Charleston discussed in another entry.  It is remarkable how frequently Reconstruction was mentioned).  Talking about Reconstruction was most often shorthand for saying that African Americans could not be allowed to gain political power and that disfranchisement and Jim Crow must remain as bulwarks against the “evils and abuses” experienced during the dark days following the Civil War.  During the 1930s, though, the rhetoric was sometimes (slightly) more complex, with New Dealers in South Carolina using the memory of Wade Hampton as a way to excuse the Roosevelt administration’s attempts to reach out to African American voters.  After all, they said, Hampton had done the same (sort of) so surely his political heirs could make similar concessions.[1]  Just as easily, and more often, however, opponents used terms of art like “Radical rule” as a way to say that an active federal state would bring corruption, graft, wasteful spending, and, most importantly, a challenge to white supremacy.

Which brings us back to the marker at the Horseshoe.  When it describes “Radical control 1873-77” it is invoking a particular memory of Reconstruction; one defined by misrule and irresponsible expenditure, and populated with the stock figures of the carpetbagger, scalawag, and the unlettered Freedmen.  This vision of Reconstruction had been popularized by numerous figures, James S. Pike, Thomas Dixon, and D.W. Griffith among them, and had come to define the dominant popular memory of the period.  In this narrative the University of South Carolina, that venerable institution, was destroyed by the admittance of ill-prepared black students, just as the state as a whole was supposedly laid waste by the political elevation of African Americans who were raised too far and too fast.  As we might expect, the reality was more complex.

The 1868 Constitution, written after the passage of the Reconstruction Acts of 1867 and drafted by delegates chosen in a special election during which African Americans were able to vote for the first time, had included within it a provision stating that “all the public schools, colleges, and universities of this State, supported in the whole or in part by the public funds, shall be free and open to all children and youths of the state, without regard to race or color” (Article X, Section 10).  The state legislature, the first elected after the ratification of this new constitution and dominated by Republicans, then named two African Americans, Benjamin A. Boseman and Francis L. Cardozo, to the board of trustees.  In 1873, the University admitted its first black student, South Carolina’s secretary of state Henry E. Hayne, to the medical school.  The next year Richard T. Greener, the first African American to receive a degree from Harvard, joined the faculty, taking a chair in mental science (what we would refer to as philosophy) and also serving as the university librarian.  The legislature also enacted a system of state-funded scholarships and created a preparatory department that would provide supplemental instruction for those students unable to meet the standards for admission.  By 1875 the University had an enrollment of 233 students, roughly ninety percent of them African American and about half of them taking classes in the preparatory department.  Most of the white students who remained where the sons of Republican politicians or northern missionaries.[2]  It remains, though, that the University of South Carolina was the only state-supported southern university to integrate during Reconstruction and it is this moment that the marker on the Horseshoe refers to as Radical control.  Following the Democrats’ return to power in 1877 the University was closed, the legislature expelled the remaining African American students, and the University would reopen as an all-white institution in 1880, remaining so until 1963.

The question then becomes, what should we think of this marker today?  It is a source of embarrassment for some at the University and within the greater Columbia community.  It is, for them, an anachronism that recalls the legacy of a benighted racial past when Reconstruction stood as a convenient shorthand for recalling the supposed horrors that accompanied a brief experiment in biracial democracy.  That is true, but it is equally true that we continue to carry other legacies of this particular historical memory.  Just think of the terms that we use to describe the period.  Scalawag, Carpetbagger, and Redemption all jump to mind and all are loaded terms that carry with them the very same memories and legacies as does the phrase “Radical control,” yet these terms remain a part of our common parlance, finding their way into our state educational standards, history textbooks, museum exhibits, and even academic texts.  So is “Radical control” really that pernicious?  I would suggest that it is actually less problematic than these other terms.  We certainly understand what was implied by the phrase in 1938 when the marker was erected, but what does it, and can it, mean today?  Is it, perhaps, accurate to describe the period from 1873-1877 as “radical”?  Certainly it is worth remembering that the University of South Carolina, begun as South Carolina College and founded to educate the sons of the planter aristocracy, was, for a brief moment in the 1870s, composed almost entirely of African American students.  Indeed, as a percentage of the student body, the University had a vastly higher percentage of African American students in 1875 than it does today.  That all is quite radical, even if the meaning, or at least the implication, of that term has changed greatly over the intervening years.  Luckily, however, we can apply our own moral valence to the term “radical” and thereby use it to far different ends than it was originally intended.

[1] Bruce E. Baker, What Reconstruction Meant: Historical Memory in the American South (Charlottesville: University of Virginia Press, 2007), 97.

[2] Joel Williamson, After Slavery: The Negro in South Carolina During Reconstruction, 1861-1877 (Chapel Hill: University of North Carolina Press, 1965; reprinted New York: W.W. Norton, 1975), 232-233; Walter Edgar, South Carolina: A History (Columbia: University of South Carolina Press, 1998), 391-392; Eric Foner, Reconstruction: America’s Unfinished Revolution (New York: Harper and Row, 1988), 368.