Richard Schragger is the Perre Bowen Professor at the University of Virginia School of Law, where he has taught...
Nestor Davidson is the Albert A. Walsh Chair in Real Estate, Land Use, and Property Law and faculty director...
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law school, his...
On April 25, 2019, in Charlottesville, Virginia, Circuit Judge Richard Moore ruled that the statues of prominent Confederate figures Robert E. Lee and Stonewall Jackson are considered war memorials protected by state law. Back in 2017, Charlottesville was the site of a rally where white nationalists protested the removal of the statue of Robert E. Lee. A clash between protesters and counter-protesters turned violent, resulting in the death of Heather Heyer, which sparked a national debate over these controversial statues.
On Lawyer 2 Lawyer, host Craig Williams is joined by Richard Schragger, professor of law at the University of Virginia School of Law, and Nestor Davidson, faculty director of the Urban Law Center at Fordham University’s School of Law, to take a look at this recent ruling, the controversy over the removal of Confederate statues and what is next in this legal fight.
Richard Schragger is the Perre Bowen Professor at the University of Virginia School of Law, where he has taught for almost fifteen years.
Nestor Davidson is the Albert A. Walsh Chair in Real Estate, Land Use, and Property Law and faculty director of the Urban Law Center at Fordham University’s School of Law.
Special thanks to our sponsors, Clio.
Lawyer 2 Lawyer – Law News and Legal Topics
The Confederate Statues’ Ruling
Richard Schragger: He also has to rule on a very important question, which is whether the city councilors can be held personally liable for voting to remove the statues, and that’s a big and very important issue that could affect local government all over the Commonwealth and maybe all over the country.
Nestor Davidson: Federal constitutional questions such as the equal protection defense, which really goes in many ways to the heart of the conflict about what these statues mean and who gets to speak for the community, that raises important federal constitutional questions.
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This past April in Charlottesville, Virginia, Circuit Judge Richard Moore ruled that the statues of prominent Confederate figures Robert E. Lee and Stonewall Jackson are considered war memorials and cannot be removed.
Back in 2017, Charlottesville, Virginia was the site of a rally where White nationalists protested the removal, the proposed removal of the statue of Robert E. Lee, a clash between protesters and counter protesters turned violent resulting in the death of Heather Heyer, which sparked a national debate over these controversial statues.
Some see these statues as symbols of racism and White supremacy, while others view them merely as a memorial to United States history.
Well today, on Lawyer 2 Lawyer, we’re going to take a look at this recent ruling, the controversy over the removal of confederate statues and what’s next in this likely extended legal fight.
And here to do that today is Richard Schragger, he is the Perre Bowen Professor at the University School of Law, where he has taught for almost 15 years. His scholarship focuses on the intersection of constitutional law and local government, federalism, urban policy and constitutional and economic status of cities. He also writes about law and religion.
Welcome to the show, Rich.
Richard Schragger: Thanks for having me.
Professor Davidson is an expert in property, urban law and affordable housing law and policy. Welcome to the show, Nestor.
Nestor Davidson: Glad to be here. Thank you so much.
Richard Schragger: Sure, I’d be happy to. This is a litigation that began actually many years ago at this point when the City Council of — the Charlottesville City Council voted to remove the Robert E. Lee statue that’s in the middle of town here. There’s also as you had said Jackson, Stonewall Jackson statue that also eventually they voted to remove. The city never, never did actually remove the statues. There was a lawsuit initiated by some plaintiffs who were asserting that the city doesn’t have the right to remove the statues under a state statute that authorizes the construction of war memorials and also bars their removal under certain circumstances.
And so the plaintiffs brought this lawsuit, that lawsuit has been working its way through the courts. The Judge, Judge Moore has made a number of rulings, the most recent ruling which was just about a week ago, a week or two ago, the April 25th Ruling was a ruling that under the Virginia Statute, the Lee statue and the Jackson statue are war memorials. And so the statute covers their erection and their removal and so some took that ruling to be the end of the case.
But the Judge has some other motions to decide that are still outstanding. One of those is whether the statues, the existence of the statues violates the Equal Protection Clause of the US Constitution which is a defense that the city councilors have raised.
So he still has to rule on that question. He also has to rule on a very important question, which is whether the city councilors can be held personally liable for voting to remove the statues, and that’s a big and very important issue that could affect local government all over the Commonwealth and may be all over the country.
So both of these issues are still outstanding, the case is not over yet, so there’s some issues remaining.
Nestor Davidson: Well as Rich mentioned, there are important statutory issues. I think the Equal Protection question is an important one, and whether this ends at the Virginia Supreme Court or ultimately, goes up to the US Supreme Court will largely turn on whether this case is decided as a matter of Virginia Law, both under this statute, and questions of legislative immunity, which we typically decided as a question of state law.
I think if the case is resolved in a way that rests on those Virginia grounds, we’ll see it end at the Virginia Supreme Court if it goes that far, and I tend to suspect that it will, given how Judge Moore has ruled. I don’t think the city is going to let that ruling stand or at least they are going to, I assume pursue an appeal.
But federal constitutional questions such as the Equal Protection Defense, which really goes in many ways to the heart of the conflict about what these statues mean and who gets to speak for the community; that raises important federal constitutional questions.
Richard Schragger: Well I guess your question is how do we decide what kind of memorials and monuments do we put up in the public square and yes, you see the cycling of decisions to put up and take down monuments and other symbols of current regimes when there’s a regime change. We saw that in communist countries that after the fall of communism, you see that after Hitler’s rise and fall, the taking down of certain kinds of monuments.
And I don’t think we would be too surprised to see Germans taking down statues of Hitler after the end of the Third Reich. So I think these are complicated questions about whether statues should be erected or shouldn’t and when they can be taken down and when they can’t.
The question here is actually who gets to decide. Remember these Confederate monuments were put up by basically a Whites-only Society in Charlottesville, that is under Jim Crow laws and voting restrictions, African-Americans were restricted from participating in the political process.
The Lee statue was erected in a Whites-only park after parades by the Ku Klux Klan, and they were explicitly erected in the early part of the 20th century to send a message to African-Americans, local African-Americans, that they were second-class citizens.
The history is pretty clear about that, and so the question for the court and for the public in general is it okay for the victors, in this case the victors were the Whites in the South who had passed Jim Crow laws, segregation laws, is it all right for them to wreck their monuments and for those never to be taken down when those monuments don’t reflect the wishes or the choices of the current community.
Remember, in this case, the city of Charlottesville had a Blue-Ribbon Commission that looked at this issue for over a year and had decided to contextualize the monuments at first and then there was a decision to move them not to destroy them or anything, but just to move them out of the center of town, that generated the what we saw in August of 2017, which was the violent reaction of Neo-Nazis and the murder of Heather Heyer by one of those Neo-Nazis.
So the violence came to Charlottesville when the community of Charlottesville had already decided to say something different in their public spaces, which I think is appropriate.
Nestor Davidson: Well I think, Rich really put his finger on the most important question here, which is who gets to say what messages dominate the public square in any community, and Charlottesville undertook a process, a democratic process of discernment to decide how it felt about the messages that these two statues sent and what you have here is a dynamic that we’re seeing really all over the country where a local democracy, a local community wants to express its view, and you have a state that has a different view and the equal protection question in this case is an important one. It raises questions about the meaning of our public space. But behind all of that is really whether or not the State of Virginia gets to say to Charlottesville. These are messages that you must carry even if you and your community and the people who live there don’t agree.
I think that’s a principle that’s playing out in conflicts between states and local governments all over the country, whether it’s in the context of sanctuary cities, whether it’s in the context of environmental protection, in the context of local workplace rules. States across the country are increasingly telling local governments, we speak for you, we speak for your community and I think it’s a particularly sharp message in the context of this fight over these monuments, but it’s only a piece of what we’re seeing across the country.
Richard Schragger: So I think there are lots of monuments all over the country, especially in the south, often constructed in the beginning of the 20th century is a kind of adjunct to the Jim Crow system and celebrating the Lost Cause narrative and then in the 1950s and 60s often in response to the civil rights struggle. They send certain kinds of messages in Stone Mountain as one of those that also memorializes certain Confederate heroes.
Again, I go back to what Nestor said, which is the decisions of a local community to memorialize or not to memorialize certain kinds of aspects of the history I think should be in general respected, and in this case we have a state statute that gives the local authorities, authorizes them to erect monuments to lots of different wars, but then withholds the ability to remove those monuments. It’s not clear why the State should have a central say in that respect.
There’s also a question just to remind your listeners about the application of this statute at all. It’s not clear that this particular statute in Virginia applies to cities and the monuments that were erected before 1997 under the explicit language of the statute. It didn’t apply to cities before 1997 and these statues were built in the 1920s.
So I think it’s quite possible that the Virginia Supreme Court will reverse the Trial Court and just say that the statute doesn’t apply. It’s also possible for the General Assembly to pass a new law that says localities can decide whether or not to erect and keep their monuments or whether they want to move them or remove them entirely.
Nestor Davidson: Well, I think if you have a community that believes that the central message that they are being forced to communicate is one of segregation, one of a cause in support of slavery. It seems to me that equal protection is not served. If the answer to that is to merely provide the other side of the story I think this is a community that feels very strongly that these statues send messages that are not welcome, that certainly could be contextualized. I think that would be appropriate.
But here you have a State that if they prevail, if the city loses this litigation, the state will be forcing this community to carry messages in and around African-American neighborhoods as Rich mentioned that really come from an era of Jim Crow that sends a message of racial discrimination. And I don’t see necessarily how adding additional messages temper that core communication.
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We have been discussing the April 25th court ruling on Charlottesville’s Confederate Statues, and we’ve been discussing and talking about the application of equal protection to the type of situation that we have here. Rich, what is the resolution? I mean what is the appropriate constitutional equal protection aspect that we’re looking at? How do we resolve it? Do we remove these statues and eliminate it?
Richard Schragger: Well, I think that I’ve stated elsewhere that I think there is an equal protection problem when governments act with the purpose and intent of expressing racial subordination and the history of these monuments does reflect quite a bit of that.
I’m more interested in again the who decides question and I think that’s importantly as Nestor has said, and as I’ve repeated, I think that’s importantly a decision that local communities should be able to make.
So I oppose these statutes that restrict local authority to make decisions about what kinds of expression they want to engage in. I think ultimately it doesn’t make a lot of sense to force local communities to engage in expression that they don’t want to engage in.
I think in this case, the statutory arguments are pretty powerful as to why the statute as a technical matter just doesn’t apply to the city, that’s a pretty easy way for the Virginia Supreme Court to avoid the constitutional issues, which I think they would want to do in any case. And just ruling that the localities have authority to do this.
The other easy way out of this is for states to give latitude to localities or simply to say, it’s okay to move these statues and put them in a historical context in which they aren’t at the center of town and representative of a certain kind of dominance by a certain kind of segment of the community.
A lot of these statues are located in majority Black cities like in Richmond, Virginia for example or in Birmingham, Alabama and it seems — or New Orleans also, and Mitch Landrieu I think, the former mayor was correct in saying that these don’t represent who we are.
What I want to see the statues destroyed, no, I think they could be placed again in a historical setting in which they’re understood as not to represent a statement about racial superiority.
Nestor Davidson: Well, the question is not whether or not there’s authorization to erect monuments, I don’t think that’s really much in dispute. The real question here and I agree with Rich that the courts as this moves its way up are likely to try to rely on statutory grounds if there are clear statutory grounds to recognize the interest of the local community.
And the issue isn’t erecting the statutes, the issue is whether or not if these are statues that are placed in prominent places in a community that send a certain message that whether the state should decide that the community can’t really do anything about that, and certainly if Charlottesville wants to honor veterans, they are well within their rights to do that, but that’s not really the issue here.
The issue here as the community sees is one about racial supremacy and violence and how to place that history and that message in the right context, and the center of the City Square metaphorically speaking. Charlottesville does not believe is the right place for that message.
Richard Schragger: Well, certainly that’s right. I mean again, the history of these statues are as you say, they were donated as part of a larger donations to create a park which was named after Robert E. Lee, it’s a Whites-only park, more importantly is to create the park, it had to tear down and destroy an African-American Community.
So there was displacement of existing African-American residents at the time and there’s been a history of displacement of African-American residents in Charlottesville to make room for Whites-only spaces, and that is a history that we have set to struggle with and face directly, and the city has tried to face that directly in part by saying well what is the meaning of this space, this Park in the middle of town that used to have African-American homes adjacent to it and on it and a statue that is celebrating someone who was resisting the abolition of slavery. That’s a tough conversation to have with lots of people to remember that our history is one that is not very positive.
So I think that is an issue. The context in which these statues were erected is quite an important issue that the judge has to consider when he is considering the Equal Protection Defense. It will be something that the Supreme Court of Virginia should consider when it’s considering the Equal Protection Defense on appeal. That context gives a sense of why these statues were erected and where they were and what that effect was on the African-American community both at the time and currently what message it sends to the African-American community in Charlottesville today.
Nestor Davidson: I’m not sure that federalism per se is really going to be that much of an issue. There are important questions of the structure of state and local governance. Virginia is a state that as a matter of background law tends to favor the state. There’s a regime called Dillon’s, Rule which for local government people just means that local authority has to be legislatively granted by the state as opposed to some states where local governments have more state constitutional protection.
But again, I think that the case will turn primarily on a question of the interpretation of the Virginia statute and then if necessary, these really important equal protection grounds. I do want to remind your listeners that there’s another issue to come in the case which is about whether or not the individual city council members can be held liable for essentially doing their job as local legislators. And I think that question of immunity is going to be an important one as well.
Nestor Davidson: I would certainly think so. What we’re seeing in this case and unfortunately what we’re seeing in a number of states in Florida, in Texas, in several states where you have policy conflicts between the state and local governments and states are deciding that it’s not simply enough to assert preemption, which means that they take the local authority away but it is now becoming much more common for states to actually go after local officials to have provisions in state law to allow for the removal of local officials or that exposed local officials to individual liability.
And that is a really troubling trend and that’s something that I think whenever you think of merits of any individual conflict, even whether you think it’s an issue that should be resolved at a state level for interests of uniformity or for other important state interests or this is something that should be resolved at the local level in response to community needs and preferences. I think everyone should be able to agree that punishing local officials for the exercise of local democracy should be beyond the pale.
Richard Schragger: Well thanks Craig. It’s nice to talk about this, this is — I would just say, this has been a complicated and long-running litigation and also an emotional one for folks in Charlottesville and for the community.
And I would reiterate what Nestor just said, there are two remaining issues that I think are quite important are, one, do you hold individual city councilors liable for votes they take, remember the statues were never removed, they just had the City Council voting to remove them.
And second, whether local officials should be constrained in when they are trying to comply with in their case and this is — their equal protection defense when they’re trying to comply with the constitutional principle to treat everyone equally and not express messages of racial inferiority to some subset of their community. And that’s a — that’s a hard issue and one that I think when the Virginia Supreme Court looks at it, will take quite seriously.
Richard Schragger: So I am at [email protected]
Nestor Davidson: Certainly and again, thank you for addressing one of the more important questions I think local governments are facing today, and as Rich said, it’s a difficult set of questions and I think we have to take a step back and really ask who is best positioned to answer these very, very difficult trade-offs. And I think at the end of the day for a question like this, I think this is a great example of where community should be able to speak and should be able to have a process for working through within their own confines, the messages that they want to hold central to their community.
I hope the courts share that view as it moves forward and I’ll be watching closely as well. I can be reached at [email protected], and again, it’s been great to join you for this.
I am Craig Williams. Thanks for listening. And join us next time for another great legal topic.
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