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Critics vow to combat UNC’s “Silent Sam” deal with Confederate group

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Photo by Don McCullough, CC BY 2.0 License

Students, faculty and legal experts are all questioning last week’s legal settlement in which the UNC System gave the “Silent Sam” Confederate monument to the Sons of Confederate Veterans – along with $2.5 million. [2]

And some are vowing to fight it.

“We’re doing our best to figure out possibly what legal action we can take,” said Ashton Martin, undergraduate student body president at UNC-Chapel Hill.

“We definitely don’t see this as a satisfactory conclusion and we don’t want it to be the conclusion,” Martin said. “We’re going to do everything we can to make sure this isn’t the final decision.”

T. Gregory Doucette, a Durham lawyer who graduated from N.C. State and North Carolina Central University’s Law School, said he’s offended by the settlement as both a product of the UNC System and as an attorney.

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T. Greg Doucette

“I’m going to do everything I can to fight it,” Doucette said in an interview with Policy Watch Wednesday.

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. He said he’s disgusted with the way the board has handled the Silent Sam issue. Last week’s settlement led him to get actively involved.

Doucette said he’s been talking with fellow attorneys and interested parties since the settlement was announced. He’s identified a number of irregularities in everything from how the issue was handled at the Board of Governors level to the finer legal points of the settlement itself.

“If I can find people willing to get involved in filing a lawsuit, I’m going to do it,” Doucette said.

He’s not the only attorney asking tough questions of the system.

“A made-up lawsuit”

“Dismaying.”

That was the word that came to Eric Muller’s mind as he read the settlement last week.

As Dan K. Moore Distingu [4]

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

ished Professor of Law in Jurisprudence and Ethics at the UNC-Chapel Hill [4], Muller was doubly troubled.

As a matter of politics, the monument has been controversial on campus for decades, Muller said – even more so since protesters tore it down last August, leading to fights both political and physical over the statue’s future.

The fact that faculty, students and the university community had no idea such a settlement was being considered was troubling enough, Muller said.

But as a legal matter, Muller said, the settlement that seeks to end the controversy is “ridiculous.”

“The settlement agreement is just shockingly off-base in the basic legal foundation,” Muller said. “The basic legal theory that it rests on is fanciful.”

The basic thrust of the Sons of Confederate Veterans’ legal argument [6]:

When the statue was erected in 1913, a leader of the United Daughters of the Confederacy – which had helped in the campaign to fund and erect the monument – said that the monument would stand “forever.”

When protesters tore the statue down and former UNC-Chapel Hill Chancellor Carol Folt ordered its base removed from campus, the group asserts, it ceased to stand “forever.”  Therefore ownership reverted to the United Daughters of the Confederacy. The group has transferred its rights to the Sons of the Confederacy, therefore giving them standing to sue for ownership.

“The fact that someone said that one word – ‘forever’ – is simply not a valid legal argument,” Muller said. “If this was a real lawsuit, if this wasn’t a made-up lawsuit to accomplish a goal, UNC would win in an instant. That’s if it was even heard, if the group was found to have any standing at all.”

In fact, as revealed in an email from Sons of Confederate Veterans leader Kevin Stone to group members [7], the suit was filed only after both sides had spent months coming to an agreement.

A full vote of the UNC Board of Governors was also never taken. Instead, the board’s standing committee on University Governance [8] met and approved the settlement terms on the morning of Nov. 27 – the day before Thanksgiving. Only then was the suit filed, the settlement agreement approved by a judge and the deal publicly announced – all on the same day.

The UNC System has not yet responded to Policy Watch’s request for the minutes of the Governance Committee meeting and communications related to the settlement. System representatives have also not yet responded to questions about whether the full board delegated the authority to settle the yet-to-be-filed lawsuit. Board chairman Randy Ramsey signed the settlement agreement on Nov. 22 – five days before the Governance Committee met on the issue. UNC Interim President Bill Roper signed it on Nov. 26, the day before the committee meeting.

None of that is necessarily unusual, said board member Marty Kotis.

Kotis is not a member of the governance committee and never voted on the issue, he said. But he did listen in on the committee’s meeting via telephone and heard the terms. He finds it hard to “Monday morning quarterback” the board members who worked to find this solution to a difficult problem, he said.

“This is a situation where you’ve got state law that says one thing [9]…that you can’t remove the monument from campus,” Kotis said in an interview Wednesday. “You can’t violate state law. Apparently [board members] Jim Holmes and David Powers and some others crafted a solution. The only way they believed you could remove the statue was if it belonged to someone else. How do you get them to take it? You trade something of value to help resolve all of this.”

Powers, chairman of the University Governance Committee, declined to comment on the settlement or any of its details Wednesday.

Board members may have been surprised at the $2.5 million figure, Kotis said. But last year’s UNC-Chapel Hill Board of Trustees proposal to place an on-campus history center to house the monument would have cost $5.3 million for construction and another $800,000 a year for operating expenses. And it wouldn’t have removed the statue from campus completely. Keeping it there was costing the university around $400,000 a year in security [10].

The threat of continued violence around clashing protests at the site of the statue led many on the board to reconsider their initial inclination to re-erect the statue on campus, Kotis said – particularly after the deadly violence at a “Unite the Right” rally in Charlottesville, Virginia [11].

While $2.5 million is a lot of money, Kotis said, he believes the settlement will ultimately resolve many of the lingering issues.

Under the settlement, the Sons of Confederate Veterans would not be allowed to display the monument in any of the 14 counties that are home to UNC System schools. The $2.5 million would come from non-state funds such as interest earned on the University’s endowment, which comes from donations and would be handled by a non-profit trust “for the preservation and benefit” of the statue.

“I don’t think Jim Holmes and David Powers were saying ‘Let’s write a check to these guys because we think they’re nice guys,’” Kotis said. “I think they were saying, ‘Let’s write a check to these guys in an effort to resolve this without any further potential for violence.’ That’s what everybody wants.”

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Board member Phil Byers

Kotis’ fellow board member Phil Byers agreed.

“I’m glad it’s getting behind us,” Byers said. “Law enforcement is the biggest concern I’ve had. And it still is. We’ve heard you can’t sanitize history. We’ve heard all those arguments and we know they’re true. But you can’t allow a student who probably didn’t even know the statue was there – if they did, they may not know what it was, going to class – to be shot or harmed or hurt over those protests,” Byers said.

“There’s a better avenue than to have it in an area where it’s going to draw attention and get a child hurt trying to get to class,” Byers said.

Most of the board is keeping quiet on the matter this week, or trying to put it behind them with short statements.

“Really, really glad we came to some resolution with the statue,” UNC Board of Governors Chair Randy Ramsey told Policy Watch Wednesday. “The legal matter is settled. It’s never coming back to campus. That’ll be my last comment on it.”

In the end, Kotis said, the legal settlement is probably a resolution with something to make each side “happy and unhappy.”

The Sons of Confederate Veterans get ownership of the statue and $2.5 million to preserve it, Kotis said. But they aren’t getting what they wanted and what the monuments preservation law originally demanded – that the statue remain in its original location or be relocated to a place of similar prominence.

Those who believe the statue should never return to campus are getting that, Kotis said – it won’t be able to be anywhere near a UNC campus. But they’re also seeing a group they oppose walk away with the statue and $2.5 million.

“It’s a sort of a happy/unhappy resolution for everyone,” Kotis said.

That, Muller said, makes no legal or ethical sense.

“If you accept the argument that this group now has ownership of the statue, then there’s no reason for a lawsuit,” Muller said. “The UNC System could have given them the statue and even written them a $2.5 million check without there ever being a lawsuit.”

Worse, Muller said, the university is now giving $2.5 million to a group whose mission is counter to that of the university’s own.

The large cost of settling

“Scholars give their life to the discovery of new knowledge and debunking of erroneous things,” Muller said.

The Sons of Confederate Veterans, he said, is by contrast a group that promotes an ahistorical, racially offensive view of the Civil War.

It denies slavery was the cause of secession or the war that followed. It features a 1929 pamphlet called “A Confederate Catechism” [13] on its website as a “resource.” The tract explains that the war was not caused by slavery but “the vindictive, intemperate anti-slavery movement” and says “negroes were the most spoiled domestics in the world.” It credits Southerners with transforming slaves from “African savages and cannibals into upstanding Christians.”

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William Sturkey

“What would the public reaction be if the university settled a lawsuit by handing Phillip Morris $2.5 million to counter the assertions of the health dangers of smoking?” Muller said.

William Sturkey, an assistant professor of History at UNC-Chapel Hill, made a similar point in an essay in the New York Times this week [15].

“It is the clear endorsement of a discredited and dangerous idea,” Sturkey wrote. “The Confederacy groups are not purveyors of truth; they are promoting a narrative that pollutes contemporary American historical memory and bolsters modern-day white supremacists. Their websites still push old falsehoods about the Civil War as a fight for Southern “liberty and freedom [16]” and slavery’s inconsequential role in the “War Between the States [17].”

“By funneling money to neo-Confederate organizations, the university undermines decades of scholarship and the research conducted by its own experts,” Sturkey wrote.

In an interview with Policy Watch this week, Sturkey said the agreement was a particular shock in light of supposed ongoing funding challenges for academic programs at the university.

“One of the big things about working here is that we’re told ‘no’ on initiatives all the time,” Sturkey said. “Things are shuttered all the time. So for $2.5 million to pop out of nowhere is shocking — especially if it’s given to a group that runs counter to our educational mission.”

The effect on morale is incredibly negative, Sturkey said.

“It’s incredibly demoralizing,” Sturkey said. “Over the last few years it feels like we’ve been making progress on the discussion and the understanding of some of these issues. But this feels like a turning point where we’re going backward. And we don’t have the resources we’ve just given to this group.”

But even in the face of what seems like a heartbreaking resolution to this part of a long-running struggle over race, history and the direction of the university, Sturkey said, there is still hope.

“Something tells me that it’s not quite over yet,” Sturkey said.