A marker honoring a Confederate general is not protected from removal under South Carolina law because the way the 2000 act was written only protects monuments to specific wars and "Robert E. Lee is not a war," the city of Charleston plans to argue in court.
The city removed the marker from in front of the downtown Charleston Charter School for Math and Science last July after the principal said the stone memorial had become a "pain point" at the now majority-minority school which was also the first to integrate in the city.
State Attorney General Alan Wilson wrote a letter to Charleston saying the city broke South Carolina's monument protection law called the Heritage Act, which protects statues, street names, markers and anything else considered historic from being changed or removed without permission of the state Legislature.
But Charleston lawyers said a careful, exact reading of the 2000 law supports their actions.
The Heritage Act cites 10 conflicts from the Revolutionary War to the Persian Gulf War and says no "monuments or memorials erected on public property of the State or any of its political subdivisions may be relocated, removed, disturbed, or altered."
"Robert E. Lee is not a war — certainty not one of the named wars," the city lawyers wrote in their letter.
The law's next sentence says "no street, bridge, structure, park, preserve, reserve, or other public area of the State or any of its political subdivisions dedicated in memory of or named for any historic figure or historic event may be renamed or rededicated."
The city removed the marker to Lee instead of renaming or rededicating it, so the law was not broken there either, the attorneys said.
A state Supreme Court decision last year upholding the Heritage Act while striking down a requirement for a two-thirds vote to remove memorials strengthens the city's position because the justices praised lawmakers clarity saying the 10 wars protected in the law along with Native American and African American monuments "are narrow and clearly ascertainable."
The Attorney General's Office has not responded to the city's letter.
The city-donated marker calling the street in front of the school "Robert E. Lee Memorial Highway" was dedicated at what was then all-white Rivers High by the United Daughters of the Confederacy on Confederate Memorial Day in 1948.
The marker was there when the school was the first to integrate in Charleston, eventually being overgrown by ivy until someone not affiliated with the school trimmed away the branches, the school's principal told the city.
The principal, backed by famous Black barbecue chef Rodney Scott, whose restaurant is across the street, asked the city to remove the marker.
"This marker does not represent our community. Perhaps something honoring those students who first integrated the Rivers campus would be far more appropriate," the principal wrote.
The Heritage Act was part of the 2000 compromise that removed the Confederate flag from atop the South Carolina Statehouse dome and on to the capitol's front lawn. Other questions have been raised about the law over the past 22 years.
It provides no penalties if someone removes a statue or renames a street without permission.
South Carolina governors have apparently broken the act too. The law specifies only the U.S. and South Carolina flags can fly over the Statehouse, but flags representing Clemson University have been flown on the pole after the Tigers won the football national championship and Coastal Carolina University's flag flew after they won a baseball title.
Charleston's letter said it is not insensitive to Lee's place in history and is willing to work with interested groups in a more appropriate location for the marker.
But in a statement, city spokesman Jack O'Toole reiterated the city was right to remove it when the Heritage Act is read carefully.
"While it is true that General Robert E. Lee served in the War Between the States," O'Toole wrote, using the pro-Confederacy name for the Civil War mentioned in the law itself. "He is not himself that war, any more than Colonel Strom Thurmond is World War II, despite the senator's indisputably valiant service in that conflict."
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