NC judge scraps UNC’s controversial “Silent Sam” settlement

By: - February 12, 2020 2:28 pm
Attorney Burton Craige, representing UNC alumni, speaks before Judge Baddour as SCV attorney Boyd Sturges looks on. (Photo by Joe Killian)

An Orange County Superior Court Judge effectively scrapped the UNC System’s legal settlement with the NC Sons of Confederate Veterans Wednesday, saying the group had no legal standing to sue for ownership of the “Silent Sam” Confederate monument and a $2.5 million payment for its care.

Judge Allen Baddour initially signed off on the consent judgement in the case, but when the agreement was challenged by students, faculty and alumni he said he would take another look at the details of the case.

“If it was up to me, I’d burn it and see if you could get some money for the ore, then I’d fund some scholarships,” former U.S. Congressman Mel Watt, a UNC-Chapel Hill alumnus who was on hand for Wednesday’s pivotal ruling, told Policy Watch afterward.

On Wednesday, Baddour ordered the previous consent judgement voided and the original lawsuit dismissed. The details of how the statue and $2.5 million in a nonprofit trust will be returned to UNC remained to be seen. Boyd Sturges, attorney for the NC division of the Sons of Confederate Veterans said $52,000 of the money from the trust had already been spent on legal fees.

Baddour ordered an accounting of how and when the money was spent.

Baddour’s  decision centered on whether the Sons of Confederate Veterans should have been able to sue in the first place.

The settlement was arranged by members of the UNC-system’s Board of Governors, their legal representatives and the Confederate group. A settlement was approved shortly after the suit was filed, the day before Thanksgiving. Some members of the UNC board have said they were not aware of the deal or its details until the day it was filed.

But as lawyers, students, faculty and historians have since shown in evidence presented to the court, the Sons of Confederate Veterans’ right to sue depended on the dubious legal claim of ownership asserted by the United Daughters of the Confederacy and, therefore, that group’s ability to sell ownership rights to the statue to another Confederate group.

Baddour asked a series of questions about the 2015 monuments law at the center of the controversy, whether the university could have removed the monument without the consent judgment and whether it could have entered into an agreement about the monument with a private group without involving the court.

In the end, he concluded, the court didn’t have jurisdiction in the matter in the first place.

Attorneys Mark Dorosin and Elizabeth Haddix shortly after Baddour’s decision Wednesday. Their group, The Lawyers’ Committee for Civil Rights Under Law, was instrumental in having the settlement re-examined. (Photo by Joe Killian)

Attorneys Elizabeth Haddix and Mark Dorosin were instrumental in Wednesday’s decision. Their group, the Lawyers Committee for Civil Rights Under Law, represented a group of students and one professor at UNC-Chapel Hill who sought to legally intervene in the case. Though Baddour did not allow them to enter the case, he did allow them to prepare an amicus brief on the question of whether the Sons of Confederate Veterans had standing.

Haddix said Baddour’s latest decision sends an important message to the UNC community and all of those who see an injustice that needs to be confronted.

“When we see something wrong, when people see their public institution, their government has done something wrong, we need to stand up and do something about it,” Haddix said. “And when they tell us we can’t be here, we need to say ‘yes we can.’ Our clients did that, the alumni did that and I think we all need to do that more.”

Baddour’s decision also sends a message to the Board of Governors, Dorosin said.

“They can’t operate in secret,” Dorosin said. “They are public representatives. They are supposed to operate in the interests of the university – that means the interests of the students, the staff and the community. These issues have to be resolved in a public, participatory, transparent way – not behind closed doors at the last minute, through secret texts and emails that are sprung on the public after the fact.”

“These issues need to be handled in public with the participation of the folks most impacted,” Dorosin added.

“While this was not the result we had hoped for, we respect the Court’s ruling in this case,” Ripley Rand, the outside attorney representing the UNC-system and UNC Board of Governors, said in a statement after the ruling. “Judge Baddour gave us a fair hearing, and he afforded all parties the necessary time and consideration to be heard.”

“The Board of Governors knew from the very beginning that this was a difficult but needed solution to meet all their goals to protect public safety of the University community, restore normality to campus, and be compliant with the Monument Law,” Rand said. “The Board of Governors will move forward with these three goals at the forefront and will go back to work to find a lasting and lawful solution to the dispute over the monument.”

Last month, 88 prominent UNC alumni, including Watt, also filed an amicus brief in the case. Among them were 14 members of the UNC Black Pioneers, a group of students who broke the color barrier at UNC-Chapel Hill between 1952 and 1972.

Some North Carolina political and legal heavyweights also lent their name to the brief, including former President of the State Bar Bonnie Weyher, former Chief Justice of the NC Supreme Court James Exum, former US Solicitor General Walter Dellinger and retired Superior Court judges Howard Manning Jr. and Karl Adkins.

Retired UNC Historian Cecelia Moore talks with former Congressman Mel Watt and UNC Alumnus Walter Jackson as Attorney Hugh Stevens looks on. (Photo by Joe Killian)

“I’m very happy the judge didn’t allow the court to be used by the parties in this case and that’s exactly what they were trying to do,” Watt said. “To add gravitas and sanction for this agreement they entered into. I think the agreement was terrible — and then you make matters worse by trying to get an official legal process to bless it.”

“I don’t know what the proper disposition of the statue is,” Watt said. “But I know that whatever it is, it should be come to through conversation with broad cross-section of the community and not by just one side.”

Walter Jackson, a 1967 UNC alumnus, said the struggle over the Confederate monument is an extension of the activism in which he and his fellow Black UNC students engaged as they broke color barriers at the university. He said he was proud to stand with students and faculty who opposed the statue’s return to campus and the settlement.

“I was outraged by this from the moment I heard about it,” Jackson said Wednesday. “Sometimes you wonder, ‘Is there anything I can do?’ I knew I had to first write a letter to the Board of Governors about the matter and sign on as one of the amici on the case.”

Jackson said he was pleased with Wednesday’s outcome, which he wasn’t sure would come so quickly. Now the UNC System and its Board of Governors need to very carefully consider what they do next, he said.

“Certainly one message they should take from it is: ‘Let’s be very thoughtful in our approach to trying to resolve this matter,’” Jackson said. “There are a lot of people who are very concerned. As was pointed out today, there are safety issues and precedents, and the reputation and standing of the university are very much tied into this.”

Linsday Ayling, a PhD student in UNC-Chapel Hill’s History Department, has been heavily involved in anti-monument activism. Wednesday’s decision was a good first step, she said, but the Board of Governors should now answer for having made this “illegal” deal in the first place. Among the questions that need to be answered, she said: Will the Sons of Confederate Veterans keep the $74,999 they were paid in a separate deal crafted by the Board of Governors in which they agreed not to protest on campus using Confederate flags?

“There was no legal standing for the case whatsoever,” Ayling said. “I’m happy the white supremacists no longer get their $2.5 million trust fund, but there is still $75,000 that has been paid to them. What’s going to happen with that? UNC should be held accountable. The Board of Governors, who entered into this agreement without consulting the public, should be held accountable. They should all resign.”

Eric Muller, Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics at UNC-Chapel-Hill,was on hand at the hearing Wednesday. Baddour made the right call, he said.

“The Sons of Confederate Veterans and the Board of Governors wanted all of this to go away silently,” Muller said. “That’s why they did all of this on the eve of Thanksgiving. They were banking on the community just moving on and accepting this. And we didn’t. I and many other people applied reasoned, careful, legal pressure to this ridiculous arrangement and we succeeded in getting it undone. It’s a remarkable testament to the power of the public to bring some reason to a situation that was not in our interests.

Hampton Dellinger, a Durham-based attorney and former Deputy Attorney General in the North Carolina Department of Justice, called Baddour’s ruling “a great day for justice.”

“It’s never too late to do the right thing,” Dellinger said. “I commend Judge Baddour on his ruling. It’s right on the law, it’s right on the facts from everything I’ve seen. Now it’s up to UNC to do the right thing. It’s clear there is no factual or legal right to bring that monument back to campus. It needs to be stored or something needs to be done with it other than it ever coming back to UNC’s campus.”

The UNC System and Board of Governors did not have an immediate response to Wednesday’s decision.

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Joe Killian
Joe Killian

Investigative Reporter Joe Killian's work examines government, politics and policy, with a special emphasis on higher education, LGBTQ issues and extremism.