DECEMBER 2019 | AROUND THE ABA

Confederate-monument removals slowed by knot of legal issues

The controversy over Confederate monuments gained greater national prominence following the events in Charlottesville, Virginia, in August 2017, when white nationalists protested the planned removal of a statue of Robert E. Lee, resulting in a violent clash between opposing parties.

In the ABA webinar, “Understanding the Complicated Landscape of Civil War Monuments,” legal experts say the movement to remove the Lee statue and the more than 1,500 other Confederate tributes erected across 31 states has only gained momentum since then with more than a hundred efforts across the country to remove Confederate monuments, symbols and names from public spaces.

While there is growing contemporary sentiment that the monuments glorify white supremacy and should be removed, others say that the memorials are not racist at all or argue that they offer valuable opportunities to teach future generations of the evils of the past and should instead be re-conceptualized to avoid celebrating them.

Renewed efforts to remove Confederate tributes has been more difficult than initially believed – not only because of tensions between opposing sides, but also due to the complexities presented by local, state and federal laws.  

Panelist Jessica Owley, law professor at the University of Miami School of Law, recently helped to develop a framework for assessing the legal status of Confederate monuments, and says that removal efforts often hinge on how the monuments are funded.

Within her framework, there is a spectrum ranging from monuments built on public land, funded with public money, on one end, and monuments built on private land and privately funded on the other.

Most of the monuments stand in the messy mix in the middle, which is the most interesting space for lawyers, says Owley, offering several examples to illustrate the complexities encountered during removal efforts.

Take the monument at Stone Mountain, Georgia, which features a large relief sculpture depicting three Confederate figures of the Civil War: President Jefferson Davis and Generals Robert E. Lee and Thomas J. “Stonewall” Jackson.

Stone Mountain is the state’s most visited tourist attraction, but also the site where the Ku Klux Klan held rallies and cross burnings more than 50 years ago. After the 2015 shooting of nine individuals by white supremacist Dylann Roof in Charleston, South Carolina, there were renewed calls to remove the sculpture. 

But nearly five years later, the sculpture remains standing.

While the monument was originally built on private land owned by the United Daughters of the Confederacy, after a series of disputes over many decades it was eventually purchased by the state, and is now protected by state statue statutes – a “real tongue-twister,” Owley says.

So, the Stone Mountain figures are untouched, requiring the approval of the state legislature before the carving can be in any way altered or removed from its location in a state park.

When monuments like Stone Mountain receive public funding, those seeking the removal of such Civil War tributes have argued that taxpayer dollars should not be used to support what many believe are symbols of hate that serve to taunt and demean people of color.

In Georgetown, Delaware, the Confederate monument behind the Georgetown Historical Society building houses the Marvel Carriage Museum.

The Sons of Confederate Veterans erected the monument, which is on private property.

However, because the property receives a favored tax status and state grants to support its museum and mission, the NAACP argued for the monument’s removal, saying that they believe in a private organization’s right to free speech but that public money should not be used to support the kind of hurtful messages communicated by the monument.

As with the Stone Mountain sculpture, the Georgetown monument still remains on display, with lawmakers countering that money authorized by the Delaware General Assembly does not support the maintenance and upkeep of the memorial.

Historic preservation laws can further complicate removal efforts, with protections on the local, state and federal level, says Jess Phelps, associate general counsel at Lyme Timber Company in Hanover, New Hampshire, who has written on the topic as a co-researcher with Owley.

Phelps says these laws operate in diverse contexts and their application hinges on many factors, including the type of resource (a building, object, structure, site or district – and clearly monuments), its ownership and its location.

Phelps says that at the federal level, two laws are most likely to apply: The National Historic Preservation Act – which administers the National Register of Historic Places – and the National Environmental Policy Act.

Under the National Historic Preservation Act, the most likely provision to inhibit the removal of a Confederate monument is Section 106, which outlines the requirement for federal agencies to consider the potential adverse effects of their “undertakings” on historic structures before any action is taken. There are also similar state laws to consider that require a state agency’s involvement in taking an action such as removal.

Relevant laws protecting Civil War monuments also include the Visual Rights Artists Act, which offers artists grounds to fight against the modification or removal of their works. While VRAA only offers protection over the lifetime of the artist, various state-level artist protection laws, such as those that exist in California, Massachusetts and Louisiana, may apply.

Given the layers of relevant laws, the removal process is arduous.

Panelist Adam Swensek, executive counsel to the city council of New Orleans, spent two years litigating the removal of four Confederate monuments, which were erected on public land, but privately funded.

Swensek recalls that the city was sued within four hours of passing an ordinance calling for the monuments’ removal in 2015. Supporters of the monuments argued, among other things, that removal of one of the four – the Battle of Liberty Place monument – would violate federal historic preservation laws and a 1993 settlement agreement involving the monument in which it was declared to be a “nuisance” by the city council.

The Eastern District of Louisiana held that while the settlement agreement required the monument in question to once again be displayed, it did not prohibit later removal where no federal funds were used or federal licenses of approvals required.

The Fifth Circuit upheld the lower court, paving the way for removal in March 2017.

The statues are now housed in a city storage facility while their fate is decided, Swensek said. “There’s been some discussion of creating a Civil War park in the city of New Orleans … there’s also been discussion about transferring ownership to the state.”

“Understanding the Complicated Landscape of Civil War Monuments” is sponsored by the Joint Legal Education and Uniform Laws Group of the ABA Section of  Real Property, Trust and Estate Law.

The program is a RPTE member benefit, produced as part of the section’s Professors' Corner, a monthly webinar series that features a panel of law professors discussing recent cases or issues of interest to real estate and trust-and-estate practitioners and scholars.