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Not settled yet: New voices seek to be heard as legal battles over UNC’s ‘Silent Sam’ deal heat up

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Silent Sam Photo by Sara D. Davis/Getty Images
A barrage of briefs were filed Wednesday in the ongoing case against UNC’s agreement to give the Silent Sam Confederate statue to the NC Division of the Sons of Confederate veterans – along with $2.5 million.

A group of 88 prominent UNC-Chapel Hill alumni and donors moved to file an amicus brief [2] in the case.

Among the list of prominent alumni are 14 members of the UNC Black Pioneers, a group of students who originally broke the color barrier at UNC-Chapel Hill between 1952 and 1972.

Other high-profile names among the alumni signing onto the brief were Pulitzer Prize winning historian Taylor Branch, former U.S. congressman Mel Watt, former President of the State Bar Bonnie Weyher, former Chief Justice of the North Carolina Supreme Court James Exum, former United States Solicitor General Walter Dellinger and retired Superior Court judges Howard Manning Jr. and Karl Adkins.

Their brief argues the controversial deal, struck in November of last year, was flawed both factually and ethically. Not only is the agreement built on a misunderstanding of the history of the statue and university history, it argues, but the Sons of Confederate Veterans have no claim to the statue and had no standing to sue over it. The brief also claims the deal “seriously damages the reputation of the University, which should be committed to historical truth and opposed to modern day white supremacy.”

Burton Craige, an attorney with the Patterson Harkavy law firm in Chapel Hill, is one of the attorneys representing the group of alumni and is himself an alumnus.

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Among the alumni signing onto the brief were former U.S. congressman Mel Watt, former President of the State Bar Bonnie Weyher, and former United States Solicitor General Walter Dellinger.

“We hope that after reviewing the full historical record the judge will conclude that the Sons of Confederate Veterans had no standing to bring their lawsuit,” Craige said Wednesday. “And the Consent Judgment must be set aside.”

Lawsuits and the issue of standing

Also filed Wednesday: an amicus brief [4]on behalf of the six students and one professor who attempted to intervene in the case last month [5].

Orange County Superior Court Judge Allen Baddour ruled against the group’s intervention, but said he would re-examine the question of the Sons of Confederate Veterans’ standing and the terms of the deal he initially approved – including how the $2.5 million that was to be deposited in a nonprofit trust can be used by the group.

The North Carolina Division of the Sons of Confederate Veterans filed their own brief Wednesday [6], arguing that the group did have standing. The brief argues that the group acquired the rights to the statue from the North Carolina Division of the United Daughters of the Confederacy, which originally worked with UNC to erect the statue.

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Ripley Rand (Photo: womblebonddickinson.com)

Historians and legal experts have roundly rejected the UDC’s claims to the statue and assertions as to how and under what circumstances it was originally erected.

In a hearing last month, Ripley Rand, the former U.S. Attorney who represented the UNC System and its Board of Governors, told Baddour the UNC Board of Governors recognized a legally complicated history exists but struck the deal with the Sons of Confederate Veterans in order to get out of a tough position.

Because of safety concerns, Rand said, the board didn’t want to return the statue to campus after it was torn down by protesters last year. But a 2015 state law governing such monuments suggested they would have to [8], Rand said, unless an agreement transferring ownership could be struck.

There were complicated questions of law on the statue’s ownership that go back to its placement on the UNC-Chapel Hill campus in 1913, Rand said. The board could have fought out those legal questions all the way to the Supreme Court, he said, but that wouldn’t have guaranteed a definitive solution to the problem.

Had a lawsuit been brought to compel the university to put the statue back up on campus, leaders in the North Carolina General Assembly may have intervened in the case, Rand said.

Rather than risk such a suit and outcome, Rand said, the board struck a deal with the Sons of Confederate Veterans.

“The Board of Governors did not want to win this case,” Rand said. “The Board of Governors wanted finality, to bring this issue to a close.”

Questionable communications

The Lawyers’ Committee for Civil Rights Under law, which represented the group from UNC-Chapel Hill who attempted to intervene, is appealing Baddour’s ruling barring their intervention.

One of their chief arguments: There was no real adversarial process in the settlement, which was arranged ahead of time by both parties with the help of the judge and without input from students, faculty and UNC community members who would be most impacted.

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Superior Court Judge Allen Baddour (Photo by Melissa Boughton)

Text messages between Baddour and Rand surfaced this week, giving rise to further questions about how the settlement was crafted. The communications began well before the lawsuit was filed or the board approved the terms.

As first reported by WBTV Tuesday [10], Baddour had at least three phone conversations and two in-person meetings with Rand. The messages began on Nov. 18 and continued to Nov. 27, when the suit was filed and settlement approved within an hour.

As Policy Watch previously reported, Baddour acknowledged the meetings in a December hearing [5] at which the judge said he would further examine the standing of the Sons of Confederate Veterans.

“In an effort to resolve these matters, I was approached by the lawyers in the case prior to the filing of the lawsuit,” Baddour said. “We all know this occurs in cases of many types — and I met with the lawyers in this case.”

Rand and Baddour were also law school classmates at UNC.

Baddour declined to comment on the matter this week.

Earlier this month, The DTH Media Corporation, the nonprofit that operates UNC-Chapel Hill’s Daily Tar Heel independent student newspaper, sued the UNC Board of Governors over the controversial Silent Sam settlement [11].

The suit alleges that the board violated North Carolina’s open meetings law [12] in the way it approved the $2.5 million deal with the Sons of Confederate Veterans, which also included a $74,999 payment to assure that the group would not use Confederate flags in on-campus protests.

Baddour has had at least two of his judgments in favor of UNC in separate cases reversed on appeal — one involving DTH Media Corp. Another is pending in the state Court of Appeals.

In 2015, the Court of Appeals reversed Baddour’s ruling in Frampton v. UNC [13], finding that the university had to pay a tenured professor put on leave after a 2012 arrest on drug smuggling charges in Argentina.

In 2018, the Court of Appeals again reversed Baddour in DTH Media Corp v. Folt, finding that the university could not deny public access to public records involving sexual assaults on campus.

Baddour is scheduled to hold the next hearing on the Silent Sam settlement – focusing on the question of the Sons of Confederate Veterans group’s standing – on Feb. 12.