Op-ed: What can the Board of Governors do with Silent Sam?

Silent Sam is back in the lap of the Board of Governors after Judge Allen Baddour voided his order embodying the settlement between the Board and the Sons of Confederate Veterans that gave that organization the monument and more than $2.5 million.

And that’s where it can stay. Lawfully.

The Board reacted to Judge Baddour’s decision by saying, through its attorney, that its goals are “to protect public safety of the University community, restore normality to campus and be compliant with the Monuments Law” and that it will now “go back to work to find a lasting and lawful solution to the dispute over the monument.” 

But the Board shouldn’t have to work very hard, because its own statement contains the solution to its problem. By its own terms, the Monuments Law doesn’t apply where “an unsafe or dangerous condition” poses “a threat to public safety.” And since the Monuments Law doesn’t apply, the Board doesn’t have to put it back, or do anything else in particular with it. It can remain under a tarp in the dark of the shed it now stands in, wherever that might be.

Here’s the reasoning. The Monuments Law states a rule that an “object of remembrance” like Silent Sam may not be “permanently removed.” But it also lists situations in which that rule doesn’t apply. 

One of those situations is where the monument belongs to a private party that has an agreement with a state body (like the BOG) to remove it. That’s the exception that the now-dismissed lawsuit tried to invoke: the University concocted an absurd theory that the monument actually belonged to the Sons of Confederate Veterans, a private party. With the lawsuit dismissed, that exception to the Monuments Law isn’t available.

But the Monuments Law also says it doesn’t apply to “an object of remembrance for which a building inspector or similar official has determined poses a threat to public safety because of an unsafe or dangerous condition.”

That’s a snarl of a sentence, so read it again, and try to ignore the wonky grammar.

If an official with inspector-like credentials identifies a dangerous condition endangering public safety, the law barring permanent removal doesn’t apply.

In November 2018, a panel of five highly-regarded security experts (with experience as FBI officials, police officials, and private security providers) determined that UNC-Chapel Hill “faces a high risk of violence, civil disorder and property damage” if Silent Sam were “restored on campus.” The monument, they said, would pose “a highly complex campus police challenge in terms of crowd control and violence prevention.”

And there’s your dangerous condition endangering public safety that the Monuments Law is talking about. End of story. The Monuments Law doesn’t apply.

Now some might object that the Monuments Law speaks of a “building inspector or similar official,” and what we have instead is the word of esteemed security experts, not a building inspector. 

But that’s not surprising. We’d expect a building inspector where the thing that’s dangerous is the object itself – for example, deterioration of the monument’s concrete base in a way that makes it likely to fall over and crush someone.

But the danger here doesn’t come from anything a building inspector could possibly inspect. The danger comes from people — crowds tussling and fighting over the monument’s very presence. We don’t look to building inspectors to assess the risk of people slugging or even shooting each other. We look to security and crowd control experts.  We look, that is, to the very sorts of experts who have already told us the return of the monument would endanger public safety.

Is it a creative move to consider our panel of experts the equivalent of a “building inspector or similar official?” Perhaps a little. But North Carolina law has a ‘golden rule’ that the language of statutes should not be interpreted in ways that would produce absurd results, like building inspectors being consulted about crowd control.

In any case, my analysis is nowhere near as creative as the ludicrous legal theory of ownership by the Sons of Confederate Veterans that the BOG has just spent huge sums of public money defending, to disastrous ends. 

We know the return of Silent Sam would pose a serious risk of injury and even death to people around it. So, the Monuments Law doesn’t apply. There is no legal bar to the permanent removal of the statue. 

The Board of Governors can — and should — leave it in storage.

Eric L. Muller

Dan K. Moore Distinguished Professor

University of North Carolina School of Law