UNC needs to join Duke on the right side of civil rights

UNC is trying to decide what to do with the “Silent Sam” statue on campus.
UNC is trying to decide what to do with the “Silent Sam” statue on campus. 2015 N&O file photo

As cities across the South grapple with Confederate monuments, UNC’s administration faces a big decision that will define its values. These are troubling times for civil rights, and an ideal time to find guidance in the document that enshrines them: the U.S. Constitution.

Last weekend, Duke removed the Robert E. Lee statue from its chapel. Confederate monuments to the “lost cause” are like Swastikas to Jews – they stand in public squares to say, “you are less than us.” Duke’s bold decisive action – like others across the nation – followed a white supremacist march in Charlottesville that cut short the life of Heather Heyer and terrorized many others.

Duke also announced a new center on racial healing. In stark contrast, the UNC administration can’t muster the courage to take down the statue known as “Silent Sam.” Even worse, UNC’s Board of Governors is poised to cripple the Civil Rights Center, where students across disciplines experience connections between civil rights and health, education, environmental and legal challenges and work to solve our nation’s toughest problems. UNC is about to take all that away. The board wants to prevent the Center from practical civil rights work through litigation even though clinical opportunities are required for the law school to keep its accreditation. It is as if the board decreed that medical students may no longer see patients.

deborah gerhardt
Gerhardt Photo by Steve Exum

Taking such action will send a devastating message about UNC’s dedication to constitutional values. The board has another option: to look to the Constitution for a bipartisan solution. Just as Republicans and Democrats are joining to condemn Nazi ideas as antithetical to American ideas, UNC board members of both parties should join to support the constitutional rights to equality and freedom of speech. The Center is targeted because the board doesn’t like its message. That fact alone triggers First Amendment protection. We don’t need this right when the people in power agree with us. The founders left it as a gift for the dissenters.

This uniquely American freedom gives us a robust marketplace of ideas so that the best arguments – like cream – rise to the top.

Just as the First Amendment protects honoring and condemning public monuments, it protects the Center’s expressive activities, including litigation. What the Constitution forbids is for the state to rig the expressive market by eliminating the competition. The actions threatened by the UNC board would do just that. Their threatened action makes a mockery of academic freedom and violates the First Amendment as clearly as if the state banned a public university from teaching a course on the history of fascism, libertarianism or the civil rights movement. But more importantly, it violates the First Amendment’s bedrock rule that governments may not silence speech because they don’t like the message.

No right has any force if the person holding it cowers silently in a defensive crouch. Our rights as citizens are meaningless if we do not stand up and courageously assert them. That simple truth is the foundation for the UNC Center for Civil Rights. Its mission is to protect the constitutional rights of people without the means to defend themselves.

Despite the board’s threats, UNC still could pivot and emerge as a leader dedicated to equality and free expression. Like muscles, our constitutional rights atrophy when they are not used. If UNC holds strong and stands up for the Civil Rights Center, it will align its values with those set forth in the U.S. Constitution.

Duke is on the right side of history. It’s time for UNC to join it.

Deborah R. Gerhardt, a Duke graduate, is on the faculty at the UNC School of Law.