The law as a force for good? Not under ‘Silent Sam” deal

On my first day of law school at UNC-Chapel Hill, every student was expected to have read To Kill A Mockingbird, the classic novel by Harper Lee. We broke up into small groups to talk about the book and what it might mean for us as aspiring lawyers. One point of the exercise was simply to serve as an icebreaker, to help us get to know each other and begin to build relationships.

Even more important, though, was to help new law students begin the process of socializing into our chosen profession. The book and the following discussions exposed us to ideals of the law and the legal profession: the way the law can help to unearth the truth, the ability of the legal system to resolve disputes without violence, the role of the lawyer in standing up for the powerless and the unpopular. The book also tells the story of how the law can be a force for social change and racial justice.

More than 20 years later, I still believe that the law can be a powerful tool to advance our society toward what we think of as American values, including the fundamental commitment to liberty, self-determination, and equal treatment under the law. At the same time, my experience has also made me much more aware of how frequently the law is used not as a tool for justice, but as a hammer of oppression, most frequently against African-Americans, other communities of color, and the poor.

Since the start of our republic, the law has been employed in countless ways to normalize and institutionalize racial injustice. Beginning with the Constitution’s classification of slaves as only counting as “three-fifths” of a person, American legal history is littered with examples of the law and the legal system enforcing the exclusion of African-Americans from full citizenship and equal opportunity. Just a few of the most egregious include the Jim Crow laws that created an apartheid system across the South; race-based land use restrictions that led to hyper-segregated communities across the country and limited the ability of African-Americans to build wealth through home-ownership; and the systematic exclusion of people of color from juries that has resulted in wildly disparate treatment of Americans in the criminal justice system based on the color of their skin.

Recently, the UNC Board of Governors and the North Carolina division of the Sons of Confederate Veterans (SCV) announced a settlement to the ongoing controversy over the long-term fate of the white supremacist monument known as “Silent Sam.” The monument was erected on one of the central quads at UNC-Chapel Hill in 1913 and was the subject of protests by students and others beginning in the 1960s. These protests peaked in the last few years and culminated with the toppling of Silent Sam in August 2018. Since then UNC-CH and the UNC system have been working to determine what should happen to the monument.

Photo by Sara D. Davis/Getty Images

Many of the plans that were publicly discussed included the creation of an exhibit space in which the monument could be displayed alongside educational materials that would place it in an appropriate historical context. Instead, the UNC Board of Governors agreed to give the monument to the SCV, an organization dedicated to preserving the legacy and history of the Confederacy. The BOG is also giving the SCV $2.5 million to settle a lawsuit which is already facing claims of fraud and may face yet another legal challenge.

The battle over Silent Sam is in no way equivalent to the horror of Jim Crow. But it is a small example of how the law is not always a force for inclusion and justice, but for a system that reinforces white supremacy and imbues systemic racism with a veneer of legitimacy. For years, the UNC system resisted passionate yet peaceful demands to remove Silent Sam as a symbol of hate that many, and particularly students of color, saw as dehumanizing. For all those years, UNC took the position that it couldn’t remove the monument because state law didn’t allow it. In other words, it used the law to maintain the status quo so long as the monument was standing.

Once Silent Sam fell, however, it appears that the BOG began working behind the scenes to find a way to get the monument to a neo-Confederate organization. The only way it could justify such a transaction was to leverage the Sons of Confederate Veterans lawsuit into a settlement approved by a local Superior Court judge. Through this alchemy, the BOG was able to use the legal system not to challenge and reject what is clearly an exceptionally weak, if not frivolous, suit, but to make its decision to preserve and elevate a monument to white supremacy appear normal and appropriate.

The law can be a force for good – for equity and inclusion, for increased opportunity, and for justice. It can also be abused by those with power to stealthily reinforce the structures and systems that oppress. It is incumbent on all of us to point out when the law is undermining our values. This is such a time.

As we are each called to take a stand, which symbol will guide and motivate your conscience:  Atticus Finch or Silent Sam? I hope it is an easy choice.

Andrew Foster is a Clinical Professor of Law at Duke Law School and a graduate of the Law School at the University of North Carolina School of Law.

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