The Legal Support for Park Changes

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.

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 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 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.

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:

(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. The presence of these items keeps the Park segregated because their presence makes huge areas of the Park unwelcoming to many Georgians.

Further, these items are not needed for the Board to fulfill its duty of maintaining “an appropriate and suitable memorial for the Confederacy.”[2] The SMMA may decide that it is no longer appropriate or suitable for streets and natural features of the Park to bear the names of Confederate figures. They may determine that it is neither appropriate nor suitable to force an African American child to walk by not one, but four Confederate flags, simply to use the trail that leads to the top of Stone Mountain. And they may conclude that it is neither appropriate nor suitable to use Georgia’s taxpayers’ money to maintain a state park that glorifies the Lost Cause of the Confederacy, presents a distorted view of the Civil War, and is divisive and offensive to the majority of Georgia citizens.

2. SMMA can make other changes to the Park without violating Georgia’s Public Monuments Law because the changes will allow for the “preservation, protection, and interpretation” of the monuments.

Even if some of SMAC’s proposed changes are to “monuments” as defined by Georgia state law, the Georgia Code provides exceptions to those prohibitions [that apply to “monuments”], as follows:

No publicly owned monument erected, constructed, created, or maintained on the public property of this state or its agencies, departments, authorities, or instrumentalities or on real property owned by an agency or the State of Georgia shall be relocated, removed, concealed, obscured, or altered in any fashion by any officer or agency; provided, however, that appropriate measures for the preservation, protection, and interpretation of such monument or memorial shall not be prohibited.

See O.C.G.A. § 50-3-1(b)(1)(C) (emphasis added). In legal parlance, the term “however” means notwithstanding the foregoing. And so, notwithstanding the restrictive language of O.C.G.A. § 50-3-1, the Board is free to take “appropriate measures for the preservation, protection, and interpretation” of the Park’s Confederate “monuments.” The law clearly provides that such actions by the Board “shall not be prohibited” regardless of the restrictions found in the Code.

Taken individually, the phrase “appropriate measures” unarguably conveys discretion upon the Board, as the term “appropriate” is inherently subjective. The topics of “preservation,” “protection” and “interpretation” each individually provide additional discretion, and are likewise subjective. This statutory structure demonstrates a clear intent by the General Assembly that there be exceptions to the oft-cited rules about “monuments,” which may be exercised through the sound discretion of the Board.[3]

The SMMA may change the features of the Park so that they may be better “interpreted.” Street, lake, and building names are limited to one or a few words and, therefore, cannot be properly “contextualized” or interpreted. The display of Confederate flags is grossly inappropriate from the perspective of interpretation as interpretation is completely absent. The Board surely has the authority to replace Confederate flags with the flag of the United States of America or the state flag of Georgia. To argue otherwise would be preposterous.  The Board needs only to cite the need for preservation, protection, and interpretation in doing so.

The term “interpretation” is especially powerful given national movements underway that demand racial equality and an appropriate telling of this nation’s history (e.g., Confederate political leaders were not heroes, they declared war on the United States of America and caused indescribable pain, suffering and death). Cities and counties around the state of Georgia are removing Confederate flags and monuments and placing them in locations where they are still on public display but where they can be “interpreted” with additional and complete information about the Civil War.[4] Confederate figures should be placed into a proper context, which falls well within the rubric of “interpretation.” For example, at this moment in history, preservation, protection and interpretation of the Park’s “memorials” may best be accomplished by condensing Confederate features of the Park into one single location, in a museum setting, rather than such symbols being scattered around the Park.

3. As a matter of public safety, the SMMA must remove the Confederate items from the Park.

Changes must be quickly made to the Park because its Confederate features are a public nuisance and a threat to public safety. According to Georgia law, a public nuisance is “any nuisance which tends to the immediate annoyance of the public in general, is manifestly injurious to the public health or safety, or tends greatly to corrupt the manners and morals of the public.” O.C.G.A. § 41-2-1. The presence of the carving and other Confederate items at the Park is an “immediate annoyance of the public in general” and has created conditions that are “manifestly injurious to the public health or safety.” The Park is frequently a flashpoint for armed protests and violence as evidenced by the July 4, 2020 and August 15, 2020 demonstrations. The Park was closed on August 15, 2020 to avoid a conflict on the Park’s grounds.  However, this resulted in the protesters (many of them with guns and other weapons) moving to the City of Stone Mountain, where clashes between opposing groups threatened and damaged the citizens and businesses of the City of Stone Mountain.

The SMMA should, indeed, they must, remove the Confederate items to avoid further conflict in the Park and to make the Park a place that is truly welcoming to all of Georgia’s citizens. The SMMA even noted in their FY19 Strategic Plan (attached as Exhibit “G”) that its goal of providing exceptional public safety services is inhibited by “threat of terrorism, civil disturbance, or the major public safety incidents.”[5] Frustrations are rising as the Board continues to stall, dodge, and avoid calls for change to the Park. National tensions are high as instances of racial injustices continue. It is only a matter of time before events spiral out of control at the Park.  The SMMA has already lost its partnership with Herschend Family Entertainment (HFE) because, according to HFE, the “Park feels increasingly less family-friendly, welcoming, and enjoyable, as the park is frequently the site of protests and division.”  Therefore, it is imperative that the Board act now, because with HFE’s departure, the opportunity for change is boundless. 

II. THE SMMA HAS THE POWER TO EFFECT CHANGE TO GEORGIA’S LAWS.

If the SMMA believes that certain changes to the Park cannot be made without legislative intervention, the Board has full authority to advance such action.  The Board can recommend changes to the current state law through the Department of Natural Resources Commissioner and the Recreational Authority Overview Committee (the “RAOC”). The RAOC can make a report to the Georgia General Assembly regarding any legislative changes or revisions that may be needed to assist the SMMA in accomplishing their duties and functions. See O.C.G.A. § 12-3-22. In addition, the SMMA can work with the Georgia Governor and state elected officials to support proposed legislation that will change current laws. Doing so will allow the Board to make needed changes to the Park that focus on the natural beauty of the Park. In addition, changes to the state law will open the Park to a much larger market, increasing revenue from entrance fees, events, and external corporate and private funders that will no longer fear backlash for associating with the Confederate symbols currently displayed at the Park. Listening to and engaging the community in creating a new vision for the Park will result in transforming a blight on Georgia’s soul into a place of healing, reconciliation, recreation, education, and nature that is appropriate, suitable, necessary, and welcoming to all people.

III.  CONCLUSION

In the year 2020, the SMMA Board has a duty and obligation to the citizens of the State of Georgia to make changes that will result in a Park that is a welcoming, inclusive and safe space for everyone who visits.  It is no longer “appropriate and suitable” for Stone Mountain Park to be a public space that glorifies the Confederacy and that inflames controversy, violence and division.  As outlined above, the SMMA board has the authority and discretion to make such changes or, at a minimum, to advocate at the legislative level for the necessary authority.  The Board cannot continue to ignore this pressing issue and avoid exercising the responsibility of which it is charged. It must and can act now.

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[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.

[2] Neither “appropriate” nor “suitable” are defined in O.C.G.A. § 12-3-192.1.  However, the Merriam-Webster dictionary defines “appropriate” as “especially suitable or compatible; fitting” and defines “suitable” as “adapted to a use or purpose.”  The changes suggested in SMAC’s Action Proposal would make the Park more compatible, fitting, and adaptive to the current times.

[3] This Memorandum does not address O.C.G.A. § 50-3-1(c), which is specific to the “memorial to the heroes of the Confederate States of America, graven upon the face of Stone Mountain . . . .” It should be noted that the restrictions contained in such subsection does not make reference to other Confederate features of the Park.

[4] Some Confederate monuments have also been removed to “preserve” and “protect” them from the growing outrage around the world against these memorials.  Multiple monuments have been vandalized, forcibly removed, and damaged because government officials refuse to move them to another location.

[5] The SMMA also noted in the FY19 Strategic Plan that its goal of “protecting the financial and public interests of the Association” has been inhibited because “periodic controversy and economic conditions have affected the number of visitors to the Park.”