August 31, 2017
Mary Wood

Professors at the University of Virginia School of Law are challenging the legal case for keeping the Robert E. Lee statue and other Confederate monuments that helped spark the protests in Charlottesville on Aug. 11-12.

A judge will hear arguments for and against the removal of the Lee statue from Emancipation Park today in Charlottesville Circuit Court.

Professor Richard Schragger argued that the law being upheld as protecting Confederate monuments in Virginia doesn’t apply retroactively. Schragger wrote in the Richmond Times-Dispatch:

“Does a Virginia statute bar Charlottesville from taking down or moving a statue of a Confederate general erected in 1924? There are certainly some ambiguities in the law, but this central question can easily be answered in the negative.

“The key here is that the Virginia monuments statute — section 15.2-1812 — did not apply to cities until 1997. Starting in 1904, the predecessor statute to section 1812 only applied to counties — and that remained the case through multiple amendments and revisions until a 1997 recodification. The original statute — adopted at the height of Jim Crow — gave counties the authority to construct Confederate monuments and forbade their removal or destruction. But that statute did not say anything about cities. It neither authorized cities to erect monuments, nor prevented them from removing them.

“This is important for two reasons. First, in Virginia, independent cities like Charlottesville are not part of any county. And second, local governments only have the authority to exercise powers that are specifically granted to them by the legislature. This is a legal principle known as Dillon’s Rule. Most states have abandoned this limitation on local authority. But Virginia still retains it.”

While Schragger said the statues can be taken down legally under state law, Professor Micah Schwartzman suggested they are unconstitutional at the federal level as well. In an op-ed co-authored with Cornell law professor Nelson Tebbe in Slate, Schwartzman wrote:

“[T]here are larger constitutional principles at stake — most importantly, that the government is prohibited from conveying messages that denigrate or demean racial or religious minorities. While private citizens may engage in hate speech under existing law, the government may not demean racial or religious minorities without running afoul of the guarantee of equal protection contained in the 14th Amendment. Unlike limitations on hate speech, which remain controversial, this rule against racialized government speech should enjoy widespread support.

“An implication is that the city of Charlottesville has constitutional grounds for challenging any Virginia law that prevents it from removing a statue that communicates a message of white supremacy. City council members have a sworn obligation to uphold the Constitution, and if they believe that the monuments violate equal protection as guaranteed by the Constitution, they have an obligation to take them down.”

Both professors have been making their case in the media:

Professor Molly Brady, a property law expert and legal historian, has also been looking into county laws from Virginia and how the relevant Virginia statutes came about:

 
Schragger, the Perre Bowen Professor of Law and Joseph C. Carter, Jr. Research Professor of Law, is the author of "City Power: Urban Governance in a Global Age." He is an expert in local government law, property law and constitutional law.

Schwartzman, the Joseph W. Dorn Research Professor of Law and a religious liberty and constitutional law expert, co-edited the book "The Rise of Corporate Religious Liberty."

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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Richard C. Schragger
Micah J. Schwartzman
Maureen E. Brady
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