Legal issues complicate Silent Sam's removal

Silent Sam remains standing in McCorkle Place despite calls from leaders — including Gov. Roy Cooper — across the state for its removal. 

The Heritage Protection Act of 2015 has complicated efforts to remove the Confederate monument, which leaves the monument's fate in legal limbo. 

“The only legal way to remove a monument permanently at this point is for the General Assembly to say 'remove the monument',” Elliot Engstrom, a fellow at Elon School of Law, said.    

Engstrom said although a request to remove the statue requires approval from the N.C. Historical Commission, they don't have much power to make a decision. 

“Essentially, yes, the commission exists, but it has little-to-no discretion," he said. "The ultimate decision-making authority ultimately rests with the General Assembly.

All political subdivisions in North Carolina derive their power from the General Assembly. Mike Tadych, an attorney with Stevens Martin Vaughn & Tadych PLLC, said this makes it difficult for towns -- or in this case the University -- to unilaterally remove a monument.

Tadych said the law is vague as to how to actually get the commission to approve a request to remove a monument.    

“They basically lay it on the feet of the historical commission but without any real guidance as to how they are supposed to go about their determination,” he said.    

Tadych said he believes the law was hastily written in reaction to issues surrounding the Confederate flag in 2015.    

“This was a legislative knee jerk reaction without a whole lot of meat to guide the process,” he said.       

Chapel Hill Mayor Pam Hemminger wrote an open letter to UNC Chancellor Carol Folt last week requesting the University remove Silent Sam from its prominent location on campus, and suggested to remove it by using a statute in the protection act to take "appropriate measures" to preserve the monument.

"We’ve been really concerned about people’s safety around the statue because it’s become a focal point of gathering during this time of high tension,” Hemminger said.   

She said she thinks the public safety risk surrounding Silent Sam has risen in recent days with the return of students. 

Despite the concerns about public safety, the 2015 law prevents the removal of monuments except for preservation or renovations to the area where the statue is located. 

North Carolina Governor Roy Cooper wrote a letter to UNC system President Margaret Spellings Monday night giving the University permission to remove Silent Sam if leaders believe there is a real risk to public safety. Cooper alluded to a possible loophole in the law that allows the monument's removal if it is to protect the monument itself.    

Engstrom said if the University did take down the monument, it may be in violation of the Heritage Protection Act, but it is unlikely to face legal consequences. 

“Practically speaking, if the University were to take down the statue, I don’t see Governor Cooper or Attorney General (Josh) Stein going after them for that,” he said. “I just don’t think that would happen. I think what you could see would be some backlash from the legislature.”    

Hemminger said she was excited by the Governor’s statement and hopes Silent Sam can be removed to a place where it can be seen more constructively.   

“I think it needs to be used as a teaching tool and I think it can be moved to a museum or to a historic building or something, and where there is a description about it and to be used as a teaching tool and a reminder of our past,” she said. “A past not to be repeated.”    

@The_Beene

city@dailytarheel.com