Memorandum of Law in Support of Changes to Stone Mountain Park
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Memorandum of Law in Support of Changes to Stone Mountain Park To: Whom It May Concern From: Stone Mountain Action Coalition Date: October 15, 2020 During public discourse regarding the legal entanglement between the Confederacy and Stone Mountain Park (the “Park”), some have argued that the Stone Mountain Memorial Association (“SMMA” or the “Board”) is powerless to make changes to the Park, claiming that the Board’s “hands are tied by the law.” To the contrary, the Board has discretion to make changes under current Georgia state law. Indeed, all boards created by law have discretion. Absent discretion, such entities would be powerless to take actions pursuant to their statutory mandates. Here, that discretion is front and center, listed in the code among the three primary purposes of the SMMA: (1) To preserve the natural areas situated within the Stone Mountain Park area; (2) To provide access to Stone Mountain for Georgia's citizens; and (3) To maintain an appropriate and suitable memorial for the Confederacy. See O.C.G.A. § 12-3-192.1 (emphasis added) (the complete “Stone Mountain Memorial Act,” O.C.G.A. § 12-3-190, et seq. is attached as Exhibit “A”). Thus, the General Assembly explicitly granted the Board discretion as to what is an “appropriate and suitable” memorial to the Confederacy. Page 1 of 11 I. THE STONE MOUNTAIN MEMORIAL ASSOCIATION IS PERMITTED UNDER GEORGIA STATE LAW TO MAKE CHANGES TO STONE MOUNTAIN PARK. A. The history of Stone Mountain Park and the SMMA underscores the urgent need to make changes at the Park. Examining the history behind the Park and the SMMA helps to understand the need for “appropriate and suitable” changes to the Park and why changes are not an attempt to “whitewash history,” erase “Southern heritage,” or create a “cancel culture.” In fact, the Stone Mountain Action Coalition’s (“SMAC”) proposed changes are efforts to correct the revisionist history and give a more accurate and complete historical picture of the South and the Civil War. (See SMAC’s Action Proposal presented to the Board on September 14, 2020 attached as Exhibit “B”.) Indeed, the statutory language “appropriate and suitable” demands that the SMMA make changes to the Park. As discussed in the November 20, 2017 City of Atlanta’s “Advisory Committee on City of Atlanta Street Names and Monuments Associated with the Confederacy” report (attached as Exhibit “C”), there are three (3) different categories of Confederate Monuments: 1) Post-Civil War Era (1866-1889); 2) Jim Crow Era Monuments (1890-1930s); and Massive Era Resistance Monuments (post-1954 after Brown v. Board of Education). While most Post-Civil War Era Monuments are memorials to the Confederate dead, the purposes behind Jim Crow Era and Massive Resistance Era Monuments were to intimidate and oppress Black Americans, promote white supremacy, and advance the “Lost Cause” mythology. The creation and carving at the Park fall within the time periods and purposes of the Jim Crow and Massive Resistance Monument Eras. As shown in the “Chronology of Stone Mountain” (attached as Exhibit “D”), the Confederate memorial at Stone Mountain was first proposed in 1914, in the middle of the Jim Page 2 of 11 Crow Era. In 1915, the Birth of a Nation film was released, and the Ku Klux Klan was revived with the burning of a sixteen-foot cross at the top of Stone Mountain. Work on the carving on Stone Mountain began in 1923 but was stopped in 1928. In 1954, the United States Supreme Court decided in Brown v. Board of Education that school segregation was unconstitutional. It was during this Massive Resistance Era that Georgia magnified and intensified its connections to the Confederacy. The state of Georgia adopted a new state flag in 1956 that incorporated the Confederate flag. In 1958, the state of Georgia purchased Stone Mountain and created the SMMA and the Park. Construction on the carving did not restart until 1964 and was finally completed in 1970. Georgia’s law protecting the carving on Stone Mountain was not added to Georgia’s monument protection law (See O.C.G.A. § 50-3-1, et. seq. attached as Exhibit “E”.) until 2001, when the Georgia General Assembly and then Governor Roy Barnes were involved in a battle to remove the Confederate flag from the Georgia state flag. The law was amended, strengthened, and reaffirmed in 2019 after state gubernatorial candidate Stacey Abrams called for the removal of the Stone Mountain carving and other Confederate monuments. (See December 1, 2019 Georgia State University Law Review Article SB 77 – Protection for Monuments attached as Exhibit “F”.) After studying the history of Stone Mountain Park and Georgia’s public monument laws, it is clear that the purposes of the Confederate symbols and carving at the Park are not innocent or historical. The reign in the South of the Confederacy was a period of cataclysmic suffering and death in which hundreds of thousands were enslaved, tortured, and killed. As discussed above, the genesis of the Confederate ties to Stone Mountain Park specifically are not about honoring the dead of war. They are about white supremacy and challenging the advance of civil Page 3 of 11 rights in the 1950’s. Further, the involvement of the Ku Klux Klan in the creation of Stone Mountain Park, and its rebirth there, is irrefutable. Today, white supremacists and other hate groups regularly display Confederate symbology as their own. Thus, the reality of Confederate symbology is inextricably tied to hate, oppression, and violence and the presence of these symbols at the Park is neither appropriate nor suitable. Therefore, the SMMA should immediately make appropriate changes to the Park and they have the authority to do so. Sound public policy demands that the SMMA minimize or eliminate the presence of the Confederacy at Stone Mountain Park so that Georgia’s citizens and other visitors may enjoy this incredible natural resource, without navigating through symbols related to slavery and white supremacy. The time for change has come to Stone Mountain Park. From a legal perspective, too much emphasis has been placed on what the law does not allow and too little has been placed on what the law does allow. While there is prohibitive language in the law, it is unarguable that the law also provides discretion and exceptions. B. SMMA has discretion to decide how to maintain “an appropriate and suitable memorial for the Confederacy.” The SMMA was created in 1958 by act of the General Assembly. See O.C.G.A. § 12-3- 190 et seq. The purpose of the SMMA is the following: (1) To preserve the natural areas situated within the Stone Mountain Park area; (2) To provide access to Stone Mountain for Georgia’s citizens; and (3) To maintain an appropriate and suitable memorial for the Confederacy. Page 4 of 11 See O.C.G.A. § 12-3-192.1 (emphasis added).1 Thus, the General Assembly explicitly granted the Board discretion as to what is an “appropriate and suitable” memorial to the Confederacy. Further discretion of the Board is found at O.C.G.A. § 12-3-194(12), which allows the SMMA “[t]o do and perform all things necessary or convenient to carry out the powers conferred upon the association” (emphasis added). Terms such as “appropriate,” “suitable,” “necessary” and “convenient” bestow broad discretionary authority on the Board and are contrary to any argument that the Board is without the legal ability to change certain Confederate features of the Park. The SMMA can make multiple changes to the Park without violating Georgia’s public monuments law because the changes are not to “monuments” as defined by state law. In addition, several items throughout the Park are not “appropriate” or “suitable” memorials. Finally, changes need to be made in the interest of public safety. 1. SMMA can make multiple changes to the Park without violating Georgia’s Public Monuments Law because the changes are not to “monuments” as defined under state law and are neither “appropriate” nor “suitable.” The Board has publicly stated that it cannot make changes to the Park because its “hands are tied by the law.” The assumption is that SMMA is referring to O.C.G.A. § 50-3-1 which governs, inter alia, “defacing public monuments; obstruction and relocation of monuments.” Such Code section defines “monument” broadly as follows: “Monument” means a monument, plaque, statue, marker, flag, banner, structure name, display, or memorial constructed and located with the intent of being permanently displayed and perpetually maintained that is: 1 It is telling that the General Assembly elected to list preservation of Stone Mountain Park’s “natural areas” and access of Georgia’s citizens to Stone Mountain before mention of a memorial to the Confederacy. Page 5 of 11 (i) Dedicated to a historical entity or historically significant military, religious, civil, civil rights, political, social, or cultural events or series of events; or (ii) Dedicated to, honors, or recounts the military service of any past or present military personnel of this state; the United States of America or the several states thereof; or the Confederate States of America or the several states thereof. See O.C.G.A. § 50-3-1(b)(1)(B). However, some of the changes outlined in SMAC’s Proposal, such as removing Confederate flags; changing references, graphics, signage and programming; and renaming features at the Park that have names associated with the Confederacy or white supremacy are permitted under the law because the items that would be changed (e.g., street names and flag displays) are not “monuments.” They were not added to the Park with the intent of being permanently displayed and dedicated to a historical entity.