[Editor’s note: this story has been updated and corrected to reflect the fact that the Lawyers’ Committee for Civil Rights Under Law will be intervening on behalf of its clients in the existing litigation surrounding the Silent Sam settlement and not filing a new lawsuit.]

A national civil rights group will intervene on behalf of its clients in the lawsuit that led to the controversial settlement in which the UNC System handed over $2.5 million to the Sons of Confederate Veterans – along with the polarizing ”Silent Sam” statue.

The Lawyers’ Committee for Civil Rights Under Law has been talking with potential student and faculty litigants, the group’s executive director said in an interview with Policy Watch Tuesday. They plan to intervene this week. Click here to read a letter the group delivered to counsel for UNC today.

“In our view, the Sons of Confederate Veterans has perpetrated a fraud upon the court,” said Kristen Clarke, president and executive director of the committee. “They have made false representations to the court about their standing, about their ownership interest in the monument. It is clear this settlement agreement was one negotiated before the filing of the suit and a letter from SCV’s leader makes it clear they knew they lacked standing and had no jurisdiction to present this matter to the court.”

Student and faculty groups at UNC-Chapel Hill fiercely oppose the settlement, suggesting legal action may be imminent. Several members of the full Board of Governors also oppose the deal, according to members who spoke to Policy Watch in recent days. Those members requested not to be identified in order to discuss closed session deliberations of the board.

Last week, the UNC-Chapel Hill Campus Safety Commission and the UNC-Chapel Hill Faculty Council issued statements condemning the settlement. That followed strong statements against it from the campus’ undergraduate student government, the UNC Black Congress and Black Student Movement. The latter organization convened a mass protest on campus and are calling for alumni to stop donations to the university.

“We are gravely concerned about the settlement put in place here and the $2.5 million extracted from the university that is money diverted away from things that could be helping students,” Clarke said.

A legal challenge

Almost immediately after the settlement was announced, legal experts – including a number of UNC-Chapel Hill School of Law faculty – began questioning its logic and legal soundness.

“The settlement agreement is just shockingly off-base in the basic legal foundation,” said Eric Muller, the Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics at the UNC-Chapel Hill.

“The basic legal theory that it rests on is fanciful,” Muller said.

The Sons of Confederate Veterans’ legal argument holds that when the statue was erected in 1913, a leader of the United Daughters of the Confederacy – which had helped in the campaign to fund and erect the monument – said that the monument would stand “forever.”

When protesters tore the statue down and former UNC-Chapel Hill Chancellor Carol Folt ordered its base removed from campus, the group asserts, it ceased to stand “forever.” Therefore, ownership reverted to the United Daughters of the Confederacy. The group has transferred its rights to the Sons of the Confederacy, therefore giving the group standing to sue for ownership.

“The fact that someone said that one word – ‘forever’ – is simply not a valid legal argument,” Muller said. “If this was a real lawsuit, if this wasn’t a made-up lawsuit to accomplish a goal, UNC would win in an instant. That’s if it was even heard, if the group was found to have any standing at all.”

In fact, as Clarke points out, NC Sons of Confederate Veterans leader Kevin Stone wrote in an email to his group members that the group and its lawyers did not believe they had standing. To get around that, Stone wrote, the group spent months negotiating a settlement with board members and state lawmakers.

Also, a full vote of the UNC Board of Governors was never taken. Instead, the board’s standing committee on University Governance met and approved the settlement terms on the morning of Nov. 27 – the day before Thanksgiving. Only then was the suit filed, the settlement agreement approved by a judge and the deal publicly announced – all on the same day.

At least three board members now say they believe the committee was not given all of the information related to the settlement, saying that members were “strongly urged” to accept the settlement and end the controversy. Those members said they also believe the settlement should have been discussed with the full board.

“They got a judge to approve the transfer of not only the monument – for prominent display at the university’s expense,” Clarke said. “But also the diversion of $2.5 million that should be going toward supporting student education.

“This amounts to a fraud perpetrated upon the court through their subterfuge and misrepresentations to the court,” Clarke said. “All in the name of supporting activities that propagate white supremacy.”

A leadership crisis

Campus officials have a duty to provide safe campuses, Clarke said – and Confederate monuments that glorify the cause of the Confederacy are increasingly flashpoints for racial violence at odds with that mission.

“We’re seeing a rise in white supremacy across the country and no doubt there is a pattern,” Clarke said. “We’re seeing, from campuses like Charlottesville in 2017 to Syracuse University today, hate incidents and racially charged violence that is becoming commonplace.”

The Board of Governors and UNC-Chapel Hill leadership don’t need to financially support neo-Confederate groups in order to solve the problem, Clarke said.

Faculty members made that point forcefully at last week’s meeting of the UNC-Chapel Hill Faculty Council, pressing UNC-Chapel Hill Interim Chancellor Kevin Guskiewicz to support students and faculty by condemning the settlement.

Guskiewicz equivocated, declining to oppose the settlement and saying he and his leadership team needed to gather more information.

In a message to the campus community, Guskiewicz emphasized the positive aspects of the settlement and urged students and faculty to concentrate on “moving on.”

“The settlement ensures the monument will never return to campus, but issues of racism and injustice persist, and the University must confront them,” Guskiewicz said in the message. “I now want to focus on our shared values of diversity, equity and inclusion, and I will continue to reject and condemn those individuals or groups who seek to divide us. We have a lot of work to do to thoroughly address and reconcile with our past.”

That, faculty said, was not nearly good enough.

Dr. Sharon Holland, chair-elect of the Department of American Studies at UNC-Chapel Hill, questioned Guskiewicz’s support of the school’s faculty during the Faculty Council meeting last week.

“I think what I’m hearing is there is no way forward with this $2.5 million in place,” Holland said, summing up the sentiments of the council. “We must do something about it and we must do something about it now, resolution or no. We need leadership.”

Holland said she has been asked to be chair of her department and doesn’t feel she can be silent on this issue.

“I’m going to have to stand up and be more public,” Holland said. “And I just want to know from you if I’m going to have protection to do that. This money is going to embolden people with connections to paramilitary groups. We know this. This is a fact. Am I not right about this?”

“This is unconscionable,” Holland said.

“Sharon, I’m sorry you feel this way,” Guskiewicz said. “I want to move us forward. And so, I’m hearing the voices today. I will take this information and try to move us forward.”

The interim chancellor’s reply was met with audible laughter and jeers from faculty.

The Board of Governors’ Personnel and Tenure committee will meet Thursday, holding a closed session to discuss an “executive personnel matter.”

Sources on the board say they expect Guskiewicz’s hiring to come to a full vote on Friday.

Friday’s full meeting of the board is a “special session by conference call,” the UNC System announced Tuesday. Students planning a protest of the Silent Sam settlement at that meeting said the board should meet in person, discuss the matter openly and hear the voices of the public.

Instead, Friday’s special session will include a closed session during which the board will hear a report from UNC System Interim President Bill Roper and UNC System General Counsel Tom Shanahan.

UNC System spokespersons denied the meeting was being held by teleconference to avoid protest of the settlement issue.

“Due to its conflicting with commencement activities, this meeting has been on the calendar but as ‘optional, only if necessary,’” said UNC System spokesman Jason Tyson.

The chairman designated the meeting a special session last month, Tyson said.

The board will, however, hold no press conference with the Interim UNC System president and chairman of the board, as has become customary in the last few years.

The board also declined to hold a press conference following last month’s meeting at Elizabeth City State University.

No reason was given for the change.

This story was updated to include a link to the letter delivered by the Lawyers’ Committee to counsel for UNC and to correct an inaccurate link that was initially provided to a statement from the UNC student government.

