North Carolina courts grapple with slavery's legacy

The day before Thanksgiving, the Sons of Confederate Veterans (SCV) filed a lawsuit against the University of North Carolina over the "Silent Sam" Confederate monument that stood on the Chapel Hill campus before it was torn down last year by anti-racist protesters. Seven minutes later, Superior Court Judge Allen Baddour signed an order settling the case and requiring UNC to give $2.5 million to SCV to build a place to house the statue. 
 
SCV was elated by the deal. SCV Commander Kevin Stone said he previously believed that they "had zero chance of winning" the lawsuit. 
 
The document signed by Judge Baddour lays out a biased version of the facts surrounding "Silent Sam." It includes lengthy quotes from United Daughters of the Confederacy (UDC) officials who erected the statue, repeating the group's "lost cause" propaganda that glorified the Confederate cause. But it includes just two paragraphs on protests against the statue that have taken place over the last 50 years.
 
When the settlement became public, lawyers and professors at UNC began tearing apart SCV's legal arguments. SCV argues that there was a "condition" on the gift of Silent Sam to the university in 1913, because at its dedication a UDC leader said "may it stand forever" as a monument to students who had fought for the Confederacy. SCV claims the university had to give the statue back after the "forever" condition was violated. 
 
But UNC law professor Eric Muller told the The News & Observer of Raleigh that "there is absolutely no way that a court would conclude that one word in a speech at the dedication had the meaning or the legal significance that this agreement ascribes to it." Muller pointed out that North Carolina courts require that conditions "be really, really clear." 
 
Maxine Eichner, another UNC law professor, agreed that there was no legal basis for the settlement. She suggested that judges usually approve settlement agreements without closely reviewing the arguments, but that's because settlements usually result from an adversarial process in which opposing parties hash out terms they find acceptable. In this case, SCV said that UNC's Board of Governors, which was chosen entirely by the Republican-controlled North Carolina legislature, approached the group about giving them the $2.5 million after SCV notified them of the lawsuit.  

Durham attorney Greg Doucette noted many problems with the settlement and suggested a few ways that courts could overturn it. He says that Baddour could decide to re-open the case himself, though he doesn't think that is likely. Baddour, a Democratic appointee, is up for re-election in 2022 in Chatham and Orange counties.
 
Earlier this week, Superior Court Judge Susan Bray, also presiding over Chatham County, rejected a UDC lawsuit seeking to force the county to restore a Confederate statue that the county removed on Nov. 19 after weeks of protests. Like SCV's lawsuit, UDC's cited a 2015 state law that prohibits local governments from removing monuments without the approval of the N.C. Historical Commission. The county gave the statue back to UDC. 

Endorsing brutality

While some North Carolina judges are grappling with monuments to pro-slavery forces, others are deciding what to do with an outsized portrait of Chief Justice Thomas Ruffin that holds a prominent place at the state Supreme Court. Ruffin was a slaveholding lawyer and farmer from Hillsborough who vigorously defended the institution of slavery in his decisions.
 
In 1829, John Mann of Chowan County, North Carolina, rented an enslaved woman named Lydia from her owner. When she ran away to escape a lashing, Mann shot her in the back and wounded her. He was convicted of battery and fined $5, equivalent to about $138 today, but the N.C. Supreme Court overturned his conviction. In a unanimous opinion by Ruffin, the court said "the power of the master must be absolute." In order for "the slave to remain a slave," Ruffin added, they must know "that there is no appeal from his master."  The court acknowledged the harshness of its decision.
 
Today the enormous portrait of Ruffin hangs behind the court's bench — directly behind the seat of Chief Justice Cheri Beasley, the first black woman to head the court. The portrait is three times larger than the other portraits of past chief justices.
 
Professor Muller co-authored an op-ed last year with former Chapel Hill city councilor Sally Greene that called on the court to move the portrait. Ruffin, they said, "went out of his way not just to inflict hardship on the enslaved people who happened to cross his path, but also to endow brutality with the force of law."

A documentary on the history of the N.C. Supreme Court recently aired on UNC-TV and featured scholars and former justices praising Ruffin's contributions to the law. In it, Beasley discusses what she calls Ruffin's "oppressive" opinion in the Mann case. "We don't want to discount the importance of that jurisprudence of that time, in thinking about how we've gotten where we are today," she said.
 
Last year, with questions over Ruffin's portrait mounting, Beasley set up a commission to study the issue. It's due to make a recommendation by Dec. 31.