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North Carolina's attorney general joins in criticism of UNC's Silent Sam deal with Confederates

Tribune News Service logo Tribune News Service 12/13/2019 By Kate Murphy, The News & Observer (Raleigh, N.C.)
Demonstrators and spectators gather around a toppled Confederate statue known as Silent Sam Monday, Aug. 20, 2018 at UNC-Chapel Hill, N.C. © Julia Wall/Raleigh News & Observer/TNS Demonstrators and spectators gather around a toppled Confederate statue known as Silent Sam Monday, Aug. 20, 2018 at UNC-Chapel Hill, N.C.

RALEIGH, N.C. — Add North Carolina’s attorney general to the list of those who don’t think the University of North Carolina System should give $2.5 million to the N.C. Sons of Confederate Veterans to preserve and display the Silent Sam Confederate monument.

Josh Stein “personally believes it is an excessive amount of money that should instead be used to strengthen the university and support students,” according to a statement sent from his office Thursday.

State Department of Justice lawyers did not help negotiate the settlement and the UNC Board of Governors sidelined the Attorney General’s office in making the deal, spokeswoman Laura Brewer said in an email. Stein’s office only advised the university and the board about whether or not the agreement was legal, the office said.

A national civil rights group is also criticizing the deal and filing a motion to intervene in the existing lawsuit between the UNC System and the N.C. Sons of Confederate Veterans.

Their goal is to defend against and reopen that lawsuit on behalf of a group of UNC students and faculty, said Elizabeth Haddix, a managing attorney at Lawyers Committee for Civil Rights Under Law.

“We’re putting them on notice that we believe they’ve violated their fiduciary duties to our clients,” Haddix said. “We’re urging them to correct what they have done.”

Haddix was one of the two attorneys fired from the UNC Center for Civil Rights, which was banned by the Board of Governors from doing legal work on behalf of poor and minority clients in 2017.

The group sent a letter Wednesday to an attorney representing the UNC board asking it “to meet its fiduciary obligations to protect UNC’s interests and to recover the $2.5 million to be paid to support a white supremacist organization whose values are antithetical to UNC’s mission.”

The letter was also sent to Stein.

“It is apparent that in pursuing this Consent Order, the BOG sought to use the court system to circumvent laws that would otherwise prohibit the actions that the Consent Judgment requires — the transfer of the Confederate monument and UNC’s payment of $2.5 million,” the letter says. “These circumstances, along with the amount of the settlement payment, cause us to question whether the Board acted consistent with its fiduciary duties in approving this Consent Order.”

Haddix said the fact that the Sons of Confederate Veterans and the board negotiated a $2.5 million damages settlement knowing there was no merit to the complaint or legal standing to bring a case is fraud.

“There was no complaint until after the negotiations were completed, so that’s fraud,” Haddix said. “The misrepresentations that are found in the consent order are extremely troubling.”

The civil right’s group’s action relies heavily on the statements made by the president of SCV, Kevin Stone, shortly after the deal was finalized and made public. In a letter, Stone told his members about the confidential negotiations and explained how they “secretly worked together to craft a meritless lawsuit in order to convey possession of the Confederate monument and $2.5 million to a custodial trust for its care,” according to the civil rights group.

Stone also said the deal was a “major strategic victory” that will “ensure the future of Silent Sam” and the “legal and financial support for our continued and very strong actions in the future.” He described his plans to use the money for the dedication of the “new site and prominent display for Silent Sam and our new Division headquarters.”

As part of the agreement, Silent Sam cannot go back up in any of the 14 North Carolina counties that have a UNC System university in them. The SCV has not detailed its plans for where the new facility for the monument might be built.

In the end, Haddix said, students and faculty are the ones who are hurt by this. And they’re hoping to fix it for them.

UNC-CH law professor Joe Kennedy said there is legal precedent where courts have dismissed lawsuits or set aside judgments on the grounds of collusion. Orange County Superior Court Judge R. Allen Baddour Jr. ordered the consent judgment in the case.

“Judge Baddour could have refused to approve the settlement and entered a judgment,” Kennedy said, “and he still might be able to set it aside if he concludes that the lawsuit was essentially orchestrated by one side.”

Kennedy referenced Parker v. Raleigh Savings Bank as a case where North Carolina courts have dismissed lawsuits when the court concluded that the parties colluded to resolve a pretend issue. He also said that the U.S. Supreme Court has recognized a judicial duty to set aside judgments when one side essentially orchestrates the entire lawsuit in matters of public concern, citing U.S. v. Johnson.

Other UNC law professors have also questioned the legality of the deal, and some UNC students and faculty say it poses a threat to campus safety.

Students, faculty and community activists have made clear they are not letting this issue go, despite the semester ending and the holidays approaching. They’ve been expressing outrage over the decision, protesting the settlement and asking their leaders to condemn the $2.5 million payment since the announcement was made.

University of North Carolina, Chapel Hill interim Chancellor Kevin Guskiewicz has listened to their concerns and relayed the campus climate to UNC System leaders in a letter this week. He has said he supports the board’s work to ensure the Confederate monument does not return to the Chapel Hill campus, but he’s particularly concerned with the SCV’s plans “to promote an unsupportable understanding of history that is at-odds with well-sourced, factual, and accurate accounts of responsible scholars.”

Guskiewicz’s sentiments came just before Board of Governors meetings — being held via conference call — that could result in him being named permanent chancellor of UNC-CH.

No board members attended at any of the committee meetings Thursday, though representatives from multiple universities, a UNC student and reporters were there. At least one board member was in the building and senior leadership work about a mile away, but they all still phoned in for the meetings, leaving several empty chairs around the table.

The only public discussion around the Silent Sam settlement came at the beginning of the governance committee meeting, right before it went into closed session.

Board member Tom Fetzer said he was not on the call when the vote was recorded at the Nov. 27 Governance Committee meeting where the Silent Sam settlement was discussed. He asked for the minutes to be amended so that the record shows that he did not vote that day. Fetzer did not return a call Thursday afternoon for additional context for his request.

None of the board members are expected to be in attendance at Friday’s meeting.

Still, UNC activist groups plan to protest at the meeting Friday to confront board members about the “$2.5 million payout to white supremacy.”

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©2019 The News & Observer (Raleigh, N.C.)

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