Dellinger: Discarded UNC plan dooms Silent Sam deal and any proposed campus return

Since the UNC Board of Governors unveiled its sweetheart package for the Sons of Confederate Veterans (SCV), critics of the payoff have uncovered witnesses and documents that should lead fair-minded observers to conclude that the outlay is unwarranted. As the agreement currently stands, the SCV gets possession of “Silent Sam,” the Confederate monument that towered over the center of the Chapel Hill campus until its toppling in August 2018, plus more than $2.5 million dollars in public money.

This week, state judge Allen Baddour will hold a hearing to reconsider his initial approval of the deal. Beyond the important new information revealed by gumshoes such as Durham attorney Greg Doucette along with student journalists at The Daily Tar Heel, there is a seemingly forgotten public document that also severely undercuts the rationale for the settlement itself and confirms that any effort to return Silent Sam to UNC’s campus would be untenable.

The document, entitled “Recommendation for the Disposition and Preservation of the Confederate Monument,” was released by UNC Chapel Hill officials in December 2018. Over its fifty-three pages, it sets forth a proposal to reinstall Silent Sam in a new, multi-million dollar indoor building on campus. The plan was immediately, widely, and rightly derided by the public and quickly discarded by the Board of Governors.

But what’s most striking today is what the document does not say. There is not a single mention – none – of any private group having any legal interest in the statue. Indeed, the entire plan rests on the assumption that UNC, and UNC alone, owns the monument.

Of course the presumption of UNC ownership in the 2018 plan now contradicts the linchpin of the Board of Governor’s defense for its multi-million dollar giveaway to the pro-Confederacy group: that a private entity (the United Daughters of the Confederacy), not UNC, has had legal title to Silent Sam all along. So grounds for discarding the UNC-SCV deal come from UNC Chapel Hill itself. If school leaders did not see a basis to mention any right to Silent Sam possessed by the Daughters, the Sons, or anyone else in its own lengthy consideration of post-toppling options, why should the Board of Governors’ later claim of longstanding private ownership be taken seriously?

The 2018 disposition plan is not only the best evidence of outright UNC ownership, it also makes the best argument for why Silent Sam could never return to its original location once the settlement is undone.  In UNC Chapel Hill’s words, “the return of the Monument to its pedestal creates unacceptably high safety risks”.  Because North Carolina’s monuments law explicitly allows a statue to be moved if it “poses a threat to public safety”, the campus plan makes clear that permanent removal is the only reasonable option.

The monuments law notwithstanding, I have long argued that Silent Sam’s fate should be controlled by federal law because the Civil Rights Act passed by Congress in 1964 bans schools from allowing the racially hostile environments that Confederate monuments on campus inevitably create. Soon after the plan was announced, then UNC Chancellor Carol Folt conceded that Silent Sam uniquely and negatively impacted Black students. “The burden of the statue,” she said, “has been and still is disproportionately shouldered by African Americans. No university today would consider placing such an artifact on their campuses.” Even the plan itself finally admitted the strength of the federal law argument acknowledging that “the best way to reduce potential legal exposure would be to relocate the Monument to minimize exposure to negligence claims…and under Title VI [of the Civil Rights Act].”

Further confirmation that UNC could never return Silent Sam to campus is provided by the school’s recent settlement with the U.S. Department of Education’s Office of Civil Rights (OCR). In the wake of a music rapper’s anti-Semitic performance on campus and similarly offensive flyers, UNC resolved an OCR investigation by “agree[ing] to take all steps reasonably designed to ensure that students enrolled in the University are not subjected to a hostile environment.” If transient activities can give rise to Title VI exposure then surely Silent Sam anywhere permanently on campus would as well.

Two lawsuits provide multiple avenues for Judge Baddour or another court to unwind SCV’s indefensible windfall. And a review of UNC’s ill-fated 2018 plan makes the objectors’ strong cases all the more compelling. Once the deal is undone, it is imperative that UNC finally settle Silent Sam’s off-campus fate openly and transparently.

Hampton Dellinger is a Durham-based attorney and former Deputy Attorney General in the North Carolina Department of Justice.