Written with Debbie Osgood
Over the past few weeks, colleges across the country have been confronting an issue that vexes even the best academic: the past. Colleges from Texas to North Carolina are grappling with the issue of monuments and statues that, to some, glorify a racist past in American history. While there are convincing arguments on both sides—leave the statues up, take the statues down—college administrators must deal with this issue with sensitivity, attention, and nuance.
One of the authors of this post is connected to this issue more than most because he is not only an attorney, but also a practicing historian, who studies and regularly lectures on the American Civil War. After looking at the issues, and drawing upon our collective experience, here is what HMBR believes are the best practices colleges can employ to deal with this issue:
- Taking a Systematic Approach to the Past
Studying the story behind the statue can provide historical context to the statue’s meaning. Institutions that have investigated why their statues were originally commissioned, who commissioned the statue, and what their intent was, have found that the additional historical information has contributed to the college community’s understanding of the statue and helped better place it in the proper context.
- What Did the Statue Represent When it was Erected? What Does It Mean Now?
Beyond studying the original intent behind the statue, it is important to study the “life” of the object. As important as the first meaning behind the statue is, it is equally important to place the statue in its proper, lifelong context. This analysis can lead to interesting conclusions about what connections exist between the college’s culture, the students, faculty, and community who live and study in the presence of the object, and how their experiences have evolved over time.
- Concerns over Vandalism and Security
Recently, colleges confronting this issue have encountered the very real concerns of vandalism and exorbitant security costs. Many of these colleges have decided that the costs are too high and have decided to sequester the statues elsewhere, such as in the library archives or in storage. While some colleges have chosen to cover statues to protect them from damage, some have reached out to off-campus law enforcement for support. Colleges are finding, however, that they cannot always rely on outside partners for assistance on these issues. If the college cannot reasonably bear the cost of securing the object, protective measures, such as fences or cameras, can often be employed in the short-term while policy is being formulated.
- Review State Statutes on Statues
Many states, especially in southern states, have passed legislation restricting whether public institutions can remove statues from their grounds. Colleges need to keep themselves informed on these laws and whether amendments or changes are being made to address contemporary crises. These laws can create additional levels of notice and approval, and potential liability, no matter what institutions decide to do.
- Consider Possible Constitutional Implications
Public colleges will want to carefully consider any constitutional implications of their actions related to confederate monuments. Are confederate symbols, including the flag and monuments, a form of free speech protected by the First Amendment of the U.S. Constitution? Or are they a form of government speech and not subject to the Free Speech Clause? In its recent case involving a band named “the Slants”, the U.S. Supreme Court cited the posters produced by the federal government during World War II to promote the war effort as an example of government speech that is not required to be viewpoint neutral. Matal v. Tam (June 19, 2017). Are confederate monuments akin to war posters? The context of the college’s relationship to the monument at issue (is it a state-owned monument? Is it on state land?) will be critical in evaluating the constitutional considerations.
- The Statue and an Institution’s Values
Once the review of the history and context is complete, the college should consider whether the statue, and the way the university has come to understand it, comports with the institution’s values. While it is easy to see why statues honoring Confederate statues could be offensive to some students and community members, and, on the other hand, why the unceremonious removal or damaging of the statues could be offensive as well, the unique way that your institution decides to treat the statue can provide context, understanding, and meaning beyond what advocates from either side would present.
While this issue can bitterly divide a college campus, it does not have to. With the proper context, study, and attention, a college can navigate through this politically sensitive issue without dividing their institution’s members, while also paying respect to the American past and the unique identities of their students, faculty, and college community.