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After “Silent Sam” settlement roils UNC, Board of Governors go on the offensive

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“Silent Sam” (Photo by Sara D. Davis/Getty Images)

This week, facing mounting criticisms and a national civil rights group’s move to intervene in the polarizing $2.5 million “Silent Sam” settlement [2], the UNC system’s Board of Governors went on the offensive.

The UNC Board of Governors has remained largely silent on the deal with the Sons of Confederate Veterans (SCV) for weeks, despite some of its own members questioning it [3] and calling for more transparency on its details.

Five board members published an op-ed piece in the News & Observer Monday in which they defended the decision [4] to give the Silent Sam Confederate monument to the Confederate heritage group — and a multi-million dollar payout to a trust for the group’s use.

The board members — Jim Holmes, Darrell Allison, Wendy Murphy, Anna Nelson and Bob Rucho — also revealed for the first time that the board made a separate agreement with the Sons of Confederate Veterans, agreeing to pay $74,999 to the group to secure an agreement it would not display “any Confederate flags, banners, or signs before, after, or in conjunction with any group event, meeting, or ceremony on the campus of or property controlled by the UNC System … for five years.”

That figure is just $1 shy of the $75,000 limit at which Attorney General Josh Stein’s office would have to approve the settlement.

Stein’s office sounded off on the board’s negotiations and final settlement with the Sons of Confederate Veterans last week, saying in a statement that Stein believes the payout was too large and the money should instead be spent aiding UNC students. The board hired outside counsel and essentially sidelined the Department of Justice, the statement said, asking only for affirmation that the deal was not illegal.

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T. Greg Doucette

T. Gregory Doucette, a Durham lawyer who graduated from N.C. State and North Carolina Central University’s Law School, has been highly critical of the settlement and the board’s conduct since it was announced at the end of November.

As a student, Doucette served as president of the UNC System Association of Student Governments, which made him a non-voting member of the UNC Board of Governors in 2008.

It’s hard to imagine what the board could have been thinking in essentially paying a Confederate group to soften any future protests, he said.

“I was amazed by it,” Doucette said. “At this point, if I’m part of Black Lives Matter or Antifa or any other liberal group, I’d go to to the Board of Governors and say, ‘All right…I want $75,000 or  I’m going to protest.’”

Eric Muller, Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics at UNC-Chapel-Hill, [6] agreed.

“They have first amendment rights and they can barter for them if they wish,” Muller said. “But it sets a troubling precedent, I would say. It emboldens other groups with potentially provocative or unpopular messages to try to extract some comparable outlay from the university.”

It also doesn’t solve the problem of neo-Confederate protests at UNC-Chapel Hill, Muller said — most of which have recently taken place just off campus anyway.

“Can’t they show up there as they have been doing?” Muller said. “Have they just gotten $74,999 that essentially prevents them from crossing Franklin Street? If the agreement was intending to kind of buy campus peace, it may have fallen short.”

And that isn’t the most vexing of this week’s new details about the settlement, Muller said.

New settlement details further trouble legal experts

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Attorney Matthew McGonagle (Photo credit: Narronwenzel.com)

Late Monday, the UNC System also released hundreds of pages of documents related to the settlement, [8] including the trust agreement that would govern how the $2.5 million can be used.

The release did not include many specific documents requested by Policy Watch and other media outlets, including full communications by board members concerning the settlement or the Sons of Confederate Veterans group. But it did bring more clarity on a number of points that have been argued since the settlement was first announced last month.

According to the trust agreement [9], which many board members themselves say they had not seen until this week, the named trustee is Matthew McGonagle, a Smithfield attorney with Narron Wenzel, P.A. [10] The agreement states that McGonagle can approve use of the $2.5 million in the trust for six outlined purposes:

1) Real property acquisition and development to display the monument and/or construction costs to build a facility and maintain grounds to house the monument or a facility for use by the beneficiary at the site of the monument.

2) Utilities, taxes, maintenance, repair, refurbishment, renovation and insurance of the facility and monument.

3) Transportation expenses related to the refurbishment or repair of the monument.

4) Security costs, including hardware, software and monitoring services associated with the facility and monument.

5) Professional fees, including legal and financial, associated with the facility and monument.

6) Such other reasonably necessary and appropriate costs and expenses as may arise from and/or related to the foregoing activities.

The wording of the first item may explain a controversial section in a letter from Sons of Confederate Veterans leader R. Kevin Stone, in which he told members he planned to use some of the funds to build the group a new headquarters. [11]

The letter outraged some critics. Students, faculty, new UNC-Chapel Hill Chancellor Kevin Guskiewicz and even some Board of Governors members expressed concern the university would be benefiting a group whose views on slavery and the Civil War are ahistorical, racist and at odds with the values of the university.

Late Monday, when the trust agreement was released, many members of the Carolina community said the line — “or a facility for use by the beneficiary at the site of the monument” — could, despite denials by members of the UNC Board of Governors and the UNC System general counsel, justify Stone’s assertion that his group could use the funds for a new headquarters.

Muller discussed the details of the trust agreement on Twitter [12], expressing astonishment that its first page seemed to contradict so many university and board statements about how the money could be used.

“There’s nothing in the trust agreement that says they can’t build a headquarters or whatever they want at the site,” Muller said. “But the point everybody seems to be missing is that even if the trust agreement said the money could be used to construct a building for the preservation and display of the monument, that still wouldn’t foreclose the Sons of Confederate Veterans from putting an office space in that building.”

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Eric Muller, Dan K. Moore Distingished Professor of Law in Jurisprudence and Ethics at UNC-Chapel-Hill

Nothing in the trust agreement indicates any consequence for using the money that way after it’s dispersed, Muller said.

Muller said the full agreement and trust details, as well as the board’s defenses of its actions this week, are further examples of the university system’s very fluid view of the 2015 monuments law [14] and what UNC can and cannot do with the Silent Sam statue.

The university initially said it could not remove the statue from campus, even if it posed a safety threat, because of the law.

When the monument was toppled by protesters last year, university leaders and board members argued the law compelled them to re-erect it.

After security experts and university police recommended against re-erecting it, the board decided — per its legal reasoning in the recent settlement — that when the statue was removed from its original site on McCorkle Place, it ceased to belong to the university and reverted to the United Daughters of the Confederacy, who had been involved in placing it on campus in 1913.

The settlement states that the United Daughters transferred their rights to the statue to the Sons of Confederate Veterans, leading the university to settle with them.

But that legal reasoning has an enormous hole in it, Muller said.

“If the statue no longer belonged to the university, if you believe what is said in the settlement, then there is no need to settle with the Sons of Confederate Veterans,” Muller said. “If that’s true then you could just give the statue to the UDC, since they own it. There’s no need to give anybody $2.5 million. There’s no need for a lawsuit or a settlement, if that is your argument.”

If the university was going to the effort of “being creative” with the law to arrive at a settlement, Muller said, they could easily have found a creative solution that didn’t require a multi-million dollar payment to a Confederate group.

Heated rhetoric and legal challenges

On Monday, UNC Board of Governors Chairman Randy Ramsey also joined the board’s offensive against critics of the settlement, lashing out at the Lawyers’ Committee for Civil Rights Under Law.

The national civil rights group recently filed to intervene in the legal settlement [15] and will have a first hearing on the issue on Friday.

Ramsey framed the issue as a binary one: The settlement must be accepted or the statue will have to return to campus.

“It’s irresponsible that the LCCRUL organization is working so hard to return Silent Sam to UNC-Chapel Hill, putting the safety of students, faculty, staff, and visitors at risk,” Ramsey said in a written statement.

“Law enforcement experts have made it crystal clear: Returning the monument to campus would pose serious public safety risks to students, faculty and staff,” he said. “The lawful settlement approved by the court ensures the monument never returns to any county where a UNC System institution is located, and the UNC System and the Board will continue to defend solutions that protect public safety.“

Late Tuesday, the Lawyers’ Committee released a statement calling out Ramsey’s statement as illogical and not in the best interest of UNC students.

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Kristen Clarke, president & executive director of the National Lawyers’ Committee for Civil Rights Under Law

“The BOG’s statement presents the false choice of giving the monument and $2.5 million to a pro-Confederate group or having the monument back on UNC’s campus,” said Kristen Clarke, the group’s president and executive director, in a statement. “Neither North Carolina’s Monuments Act nor any other law requires the monument to be returned to campus. It is a public safety hazard, as the BOG acknowledges, and the Monuments Act explicitly exempts such hazards from its requirements.”

“The Governor of North Carolina previously informed the BOG that the Monuments Act did not require the return of the monument to campus,” Clarke continued. “As established by correspondence between Gov. Cooper and the University in 2017, [17] the BOG and UNC could have removed the monument from campus years ago, when it became a threat to public safety. They chose not to. Instead, they chose to pursue an unlawful bargain with a pro-Confederacy group for the monument’s continued display and for the group’s efforts to be funded by $2.5 million from the University.”

“That bargain must be rescinded and UNC’s property returned to the University so that it can be used to further the education of its students,” Clarke said. “Neither the BOG nor UNC is acting to protect the interests of students, faculty or the University community in this matter, so the students and the faculty member whom the Lawyers’ Committee represents have asked the court to intervene so that they may protect those interests.”

“We look forward to the hearing before the court on Friday,” Clarke said. “When the process to set aside the BOG’s misguided and unlawful bargain can begin.”