UNC-Chapel Hill officials have said they believe it’s in the best interest of campus safety to remove Silent Sam, the Confederate statue that was the site of a massive protest Tuesday night.
But they also insist they don’t have the legal authority to take it down, despite Gov. Roy Cooper’s suggestion that an exception in a state law protecting monuments would allow it.
UNC asked Cooper to convene the state Historical Commission to consider the matter; Cooper told the university it could take the statue down itself.
The disagreement leaves the university at a legal impasse over what to do with Silent Sam. A statement from UNC-CH on Tuesday asked for the public’s patience and cooperation “as we continue to seek clear guidance and legal authority to act.”
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The law does not provide absolute clarity, said Adam Lovelady, an assistant professor at the UNC School of Government. Lovelady researched the law and published a blog post about it Tuesday.
“There is some ambiguity there,” Lovelady said. “The language is written in a way that you could argue it either way.”
Complicating the situation, he said, is that the law is new and has not been tested in a court case. “There are a lot of questions about it,” he said.
The law, passed in 2015, prevents monuments from being altered or removed except under certain conditions, including permission from the state commission. One exception allows removal if a building inspector or other official determines there’s a safety hazard.
It’s clear, Lovelady said, that if a monument was unstable and about to collapse a building inspector or other official could make a determination that there is a public safety threat.
“Could that same provision apply for an unsafe or dangerous condition that’s surrounding the object but is not the object itself?” he asked. “It’s unclear from the statute itself ... What’s the right interpretation, and where that comes out if it’s litigated, I don’t know.”
The law does not define “other official.” UNC officials have said law enforcement assessments have concluded the statue presents a safety issue to the campus.
Tuesday night’s rally drew hundreds of protesters, shouting, “This racist statue has got to go!” The event, heavily guarded by law enforcement, was tense at times but resulted in no serious injuries and three arrests.
Some of the protesters’ chants were directed at Chancellor Carol Folt, who could not be reached for comment Wednesday. Folt signed a letter to Cooper expressing concern about campus safety along with UNC President Margaret Spellings and the chairs of the UNC Board of Governors and the UNC-Chapel Hill board of trustees.
The protest is not likely to be the last around Silent Sam. Late Wednesday five student groups released a letter they had sent to Folt, Spellings, their boards and the historical commission, calling for the statue to be removed immediately.
“This is our promise: in the wake of administrative inaction, this community will continue to act and fight every single day until Silent Sam is taken down — one way or another,” said the letter signed by groups that have been involved in the protests.
It is unclear whether UNC’s issue will go before the N.C. Historical Commission and what power the panel would have to act. The commission members, under the state Department of Cultural Resources, are appointed by the governor.
“The historical commission does not have a free hand in what it can approve,” said Harry Watson, a UNC history professor and until this summer, a member of the state historical commission.
For example, Watson said, if a statue is removed temporarily because of any construction or safety issue, it must be put back in the same location within 90 days once the problem is resolved. If it is moved, it has to go in a similar location in the same jurisdiction and can’t be moved to a cemetery or museum unless it was initially erected in that type of place.
“It’s one of those things you just have to take to court,” Watson said. “The law is actually vaguely written in many places.”
Eric Muller, a UNC law professor, suggested another strategy for UNC, instead of the “public safety” exception suggested by the governor. Tuesday on Twitter, he wrote that the law allows the historical commission to remove a public memorial to preserve the object.
“Silent Sam is under a serious threat to its ‘preservation’” Muller wrote. “(See Durham 9 days ago; see Chapel Hill last night.) Silent Sam is an important piece of university history and should not be damaged or destroyed.”
The argument, he wrote, is straightforward, and UNC should make an immediate application to the commission under that provision. “Right now,” he added. “Last week would’ve been a whole lot better. But certainly right now.”
Watson, a Southern historian, used to believe that Silent Sam should remain at UNC as a teaching tool.
“Whenever I look at one of these things, my thought is, ‘You guys made a terrible mistake and we’re still trying to fix it,’ ” he said. “I thought that ideally if other people got that memory then the monuments would be serving a useful purpose ... In fact that’s not what has happened; that’s not what is happening. Instead, we’ve got these near-riot situations.”
His opinion has changed over time, he said, and the violence in Charlottesville helped him conclude that the country would be better off if the monuments were gone.
“These statues are not fulfilling a useful educational purpose,” he said. “Instead they seem to be spreading more civil war across the country. As long as they stay there, they’re going to be used by some people as a shrine to celebrate Americans’ worst instincts.”