On Monday, Engstrom visited the John Locke Foundation to talk about public records laws as part of the organization's Shaftesbury Society lecture series. Video of the talk is now available via Carolina Journal:

#PublicRecords #JohnLockeFoundation

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This week, the debate surrounding confederate monuments has reignited nationwide. In particular, protests in North Carolina have focused on "Silent Sam," a monument on the campus of UNC-Chapel Hill commemorating alumni of the university who died in the Civil War. As of this writing, a petition to the UNC Board of Governors demanding the statute be taken down has garnered more than 5200 signatures. However, the question is, could the Board of Governors take down the statue even if it wanted to?

The controlling statute is N.C.G.S. § 100-2.1, better known as the North Carolina Heritage Protection Act, which governs the "protection of monuments, memorials, and works of art." N.C.G.S. § 100-2.1(a) provides that monuments or memorials owned by the State "may not be removed...without the approval of the North Carolina Historical Commission." The North Carolina Historical Commission is part of the Department of Natural and Cultural Resources. It consists of 11 members appointed by the Governor, and includes experts in the fields of archives, historic preservation, and the teaching of history at universities. Therefore, it might seem that there is a commission of experts to which one could appeal to have a statue or monument removed. However, the statute does not end there.

N.C.G.S. § 100-2.1(b) includes statues and monuments, including Confederate statues and monuments, as "objects of remembrance." It then provides that as a default rule, "an object of remembrance located on public property may not be permanently removed." Further, such objects may only be relocated in two circumstances: (1) when necessary to preserve the object, or (2) when necessary for "construction, renovation, or reconfiguration of buildings, open spaces, parking, or transportation projects." Even where an object is permanently relocated for one of these reasons, it must be relocated "to a site of similar prominence, honor, visibility, availability, and access that are within the boundaries of the jurisdiction from which it was relocated." In effect, N.C.G.S. § 100-2.1(b) operates as a severe limitation on the discretion of the North Carolina Historical Commission to approve the removal of statues and monuments in § 100-2.1(a). In plain English -- only the legislature can have a public monument on public property permanently removed.

It is no surprise, then, that the UNC Board of Governors has claimed it lacks authority to remove the statue. However, Governor Cooper has told the university that, in his view, it does have such authority. The Governor claims that "Silent Sam" falls within the "public safety" exception to the Heritage Protection Act. That exception, found at N.C.G.S. § 100-2.1(c)(3), provides that the strict requirements of § 100-2.1(b) do not apply to "[a]n object of remembrance for which a building inspector of similar official has determined poses a threat to public safety because of an unsafe or dangerous condition." According to the governor, there is an "unsafe or dangerous condition" surrounding Silent Sam, and therefore the university is free to remove the statue.

Given the public safety exception's language about "a building inspector or similar official," it is clear that the legislative intent was to allow for monuments that might fall apart or damage buildings around them to be removed. Governor Cooper's interpretation would allow for a group of people who want to see a monument removed to themselves serve as the source of the "dangerous condition" necessitating removal. This could set a precedent for groups to actively create "an unsafe or dangerous condition" and then use the existence of that condition as the basis for removing the statue or monument.

It is likely that the real purpose behind Governor Cooper's pronouncement is more political then legal. The Governor is telling the University that if it does remove the statue, neither he nor Attorney General Stein will stand in its way. This leaves open the question of what kind of punishment the university might face from the General Assembly. It also leaves open the question of whether the General Assembly would seek to take any sort of action against the Governor or Attorney General for, in the General Assembly's view, failing to enforce the North Carolina Heritage Protection Act.

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Engstrom spoke to the Daily Tar Heel today about legal issues surrounding "Silent Sam," a confederate monument on the campus of the University of North Carolina:

“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."

...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.”

See the entire piece here.

#UniversityofNorthCarolina #SilentSam #NorthCarolinaHistoricalCommission #HeritageProtectionAct #RoyCooper #JoshStein #NorthCarolinaGeneralAssembly

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