If Silent Sam’s fall was illegal, so too was its standing

Who toppled Silent Sam and whether they will face legal consequences remains unclear. But this much is certain: UNC Chapel Hill officials knew or should have known that the depiction in the middle of campus of a towering Confederate soldier with his rifle raised and his finger on the trigger violated federal anti-discrimination laws.

Put simply, Silent Sam stood illegally while school leaders sat by and did nothing.

The excuse UNC officials offered for their inaction – that a state law tied their hands – was baseless. As every American should know, under the United States Constitution federal law is the “supreme law of the land” and controls inconsistent state statutes and actions. Last year, on behalf of students and a faculty member, I explained to university officials the reasons why Silent Sam violated federal laws including the Civil Rights Act of 1964.

Recipients of federal funds like UNC are prohibited from maintaining a racially hostile learning environment. Courts have held that the presence of Confederate symbols can evidence a hostile environment in violation of the Civil Rights Act. And schools have been held legally liable even where students were the only ones responsible for temporary racist imagery. UNC’s violation is far more egregious given that Silent Sam was a central and permanent fixture on campus, and was legitimized and hosted by the university itself.

UNC students didn’t just have the law on their side when it came to Silent Sam. They had facts as well. As is well-known, Silent Sam was dedicated in original sin thanks to Julian Carr’s racist, misogynistic diatribe at its unveiling. And UNC’s own website had admitted that: “many view it as a glorification of the Confederacy and thus a tacit defense of slavery.” If the case I was prepared to bring on students’ behalf had proceeded to court that concession would have been a figurative “smoking gun”. So too would the statements from Chancellor Carol Folt and other UNC leaders acknowledging the continuing pain and frustration the symbol of white supremacism caused students.

UNC had every opportunity to take the initiative, transfer the statue for safekeeping, then ask a judge to declare whether or not its presence was lawful. Such an approach would have been a demonstration of the kind of leadership Carolina seeks to instill in its students. But rather than leadership, UNC officials offered only “the state made me do it” excuse that was neither intellectually honest nor legally right.

Silent Sam was erected in 1913, a time when a majority of North Carolinians remained disenfranchised. A century later, the North Carolina General Assembly that passed the anti-monument removal law was constituted through elections that included now legally discredited gerrymandering and voter suppression efforts. But even if Silent Sam could be justified as an act of a fully and fairly functioning state political system, it could not properly stand in our federal system. UNC was deliberately indifferent to the racially hostile learning environment perpetrated and perpetuated by its hosting of a hate monument. I am confident that if the case of Silent Sam had gone to court, he would be in the same position he is today.

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

This story was originally published August 21, 2018 at 2:35 PM with the headline "If Silent Sam’s fall was illegal, so too was its standing."