When New Orleans Mayor Mitch Landrieu succeeded in removing three Confederate monuments, he said those three statues to Lee, Beauregard and Davis represented “terrorism.” “. . . [T]hey were erected purposefully to send a strong message to all who walked in their shadows about who was still in charge in this city,” he added. Mayor Ron Nirenberg of San Antonio made similar comments when the San Antonio Confederate monument was removed. On Aug. 31, 2017, he said the Confederate statue represented the darkest chapter in San Antonio history. Both mayors described their respective Confederate monuments as extensions of the Confederate States of America.
As a lawyer who has practiced employment law for some 25 years (with a couple of interruptions for military service), I cringe. Two elected leaders, both very bright and hard working, are conflating two different events, the Civil War and the monuments memorializing Confederate dead. Worse, they confuse motives for the war with motives for the monuments. Mayor Landrieu may have greater latitude, because at least, the New Orleans monuments commemorated actual CSA leaders. But, the state in San Antonio represented no leader. It represented the common Confederate soldier.
To be fair, both mayors doubtless relied on historians. In her book on Texas Confederate statues, Kelly McMichael said the Confederate statues sent a message of white supremacy.” Dr. McMichael in turn relied on John J. Winberry’s article, “Lest We Forget: The Confederate Monument and the Southern Townscape.” Mr. Winberry offers four reasons for the erection of Confederate monuments across the South. None of his reasons include sending a message of white supremacy. But, he does include political reasons, which was a rallying around the “Lost Cause” myth as a way to bring together white voters in Southern states.
In his 1983 article, he found 93% of the courthouse Confederate monuments were erected after 1895 and over half were erected between 1903 and 1912. He found a change in the 1890’s as the Confederate monuments moved from most often placed in cemeteries to more often erected in parks and courthouse squares. Why this timing and why this change? Dr. Winberry offered four possible reasons: 1) because many Confederate veterans were dying. Some groups wanted to memorialize their fathers, husbands and brothers while they still lived. 2) By 1900, it had been 25 years since the end of Reconstruction. The Southern economy had much improved and more resources were available. Mr. Winberry pointed to speakers at the unveiling of some monuments to make the point that now, white Southerners could afford such things as monuments. It was a way of pointing to the financial success of the Southern white society. 3) He also pointed to the Lost Cause theme. He described it as a nostalgic view of the past. The new South was not all some had hoped for and they wanted to look backward. He pointed to a Pearlsburg, Virgina monument which was inscribed with words from Jefferson Davis calling on the citizens to teach the children the values of the past. He also pointed to the creation of the UDC. He suggested the UDC was created to memorialize the Confederacy. He believed it was a reaction to 25 years of the Republicans waving the bloody short and pointing to the many crimes of the Southern traitors.
And, 4) he suggested the statues were used as a way to unify Southern democrats. The Bourbon aristocrats were seeking ways to appeal to the white working class, he said. The economic depressions of the 1890’s caused hardship in the South. Many voters were leaving the Democratic party and joining with the Populist movement. Populism involved both black and white voters. Small farmers were slipping away from the Democrats.
But, in the end, Mr. Winberry said no one of these four reasons is complete in itself. He seemed to be saying it could be all of these four reasons or just one or two of them.
I cringe because historians use a completely different methodology than lawyers for assigning racist motivation. I represent victims of discrimination. Like historians, I am in the business of accusing persons or entities of discrimination. But, if I tried to accuse a person or a statue of racist bias based solely on speeches by third parties, I would likely be sanctioned by the court for filing a frivolous lawsuit. But, we see in Mr. Winberry’s discussion the nub of the issue. There are several alternative explanations for why these statues were erected. In discrimination lawsuits, that is generally where the case is won or lost: do those alternative explanations hold water? Do they make sense? In discrimination cases, we almost never have an admission by the offending official that s/he fired someone because of his/her race. We are forced to rely on circumstantial evidence, which generally means undermining the explanation offered by the employer.
Civil rights case law has advanced a great deal since it first started in the 1960’s. We now have a well-defined process to analyze and discuss possible explanations for an otherwise suspicious firing. But, it was not always so well defined. For example, in one early case, Palmer v. Thompson, the court dealt with a lawsuit regarding the public swimming pools in Jackson, Mississippi. In every Southern city, swimming pools are essential for surviving that long, hot summer. African-Americans had sued to integrate the public pools in 1965. The court ordered the pools to be integrated. The city then closed all the pools. No one, black or white, could swim. The issue for an en banc court of appeals was did the decision to close all the pools amount to discrimination? The case was en banc, meaning the entire court would decide the case. The majority decision found the City of Jackson’s explanation for the closing was cost. It cost too much to keep them opened. The plaintiffs did not offer any countervailing evidence. That is, they offered no evidence suggesting the decision was not truly based on racist hopes of avoiding integrated pools.
The Fifth Circuit in 1969 was no ordinary court of appeals. That Circuit had lead the way for much of the country in civil rights decisions. The court, led by four judges, helped advance the rights of African-Americans to attend school, to vote, to sit on juries, to enjoy a wide variety of rights now taken for granted. Those four judges included John Minor Wisdom of New Orleans, Elbert Tuttle of Atlanta, Richard T. Rives of Alabama, and John R. Brown of Texas. These four were memorialized themselves in the book, Unlikely Heroes, by Jack Bass. These judges were remarkable not just for their decisions, but because of where they came from when they wrote those decisions. John Minor Wisdom’s grandfather was a Bourbon Democrat who fought the Metropolitan Police in New Orleans. That battle has become known as the Battle of Liberty Place. All four had strong ties to their home states. Judge Rives wrote the majority decision in Palmer. He wrote that there was no evidence that the City of Jackson closed the pools deliberately to avoid integrating them.
Judge Bell then wrote a brief concurring opinion noting there was no evidence that the City was motivated by racist intent when it closed the pools. He noted the pool closing affected white swimmers as well as black. Judge Bell noted the central difference between the main opinion and the dissent was facts. There were no facts indicating the city was motivated by racism. He said we can “surmise” the real reason for closing the pools was racial. But, he said, racial motivation does not mean a racial purpose. He meant that the Jackson city fathers were probably racist in general. But, that alone does not mean that in this one singular decision, they acted with racial intent. As important as constitutional principles are, they must nevertheless rest on facts, insisted Judge Bell.
Judge Wisdom wrote the dissent. He noted this court was “seasoned” in civil rights cases. He meant that these judges had reviewed dozens of civil rights cases. They ought to know that in civil rights cases, the true motivation often lies beneath the surface. He was suggesting the judges should not expect clear, smoking-gun type evidence of racist intent. He then went on to explain that the evidence did show that in times past, the city generally lost money on the pools. It usually cost more to keep the pools open than the revenue they produced. The pools had always been a losing proposition, he argued. He was essentially saying, “C’mon guys, we all know these reasons the city provided are false.” Judge Wisdom was joined in his dissent by Brown and Tuttle, and other judges.
In 1972, in another decision, the Fifth Circuit echoed Judge Bell. In Duke v. North Texas State University, the court addressed allegations that the university had discriminated against a faculty member. As in Palmer, there was no real evidence of that alleged racist intent. The court pointed to Judge Bell’s concurring opinion in Palmer and said alleged prejudice must be based on more than mere speculation and tenuous inferences. Courts “travel” on proof and the plaintiff failed to provide proof of racist intent by the university.
The courts are saying there must be proof of racist intent, even when we think we know the real reason. Judge Wisdom wanted the judges to expect less evidence because he felt they should know based on past behavior the city’s real reason. That is what historians are doing when they point to past behavior or other behavior and insist the statues must represent white supremacy. They point to little, it seems to me. Even speeches at an unveiling, while helpful, still do not describe the intent behind the builders. Most Confederate statues were erected by the United Daughters of the Confederacy. If those status were on trial in a federal lawsuit, we would have to examine the motives of the builders, not the speech makers or the “overall” city fathers. As Judge Bell said, constitutional principles are very important, perhaps paramount in our society. But, they must still rest on facts, not speculation and tenuous inferences. So, yes, I cringe inside when I see racism “established” so cheaply, so easily.
Racism is too important for superficial analysis. If we look at a Confederate statue as we would an employment lawsuit, we would need to look at the big picture. Who built the statue? Who approved the placement of the statue in a public space? The advantage of looking at statues as opposed to employment cases, we can look at the persons involved over a long span of time. In the typical discrimination lawsuit, we have to look at the persons involved in the termination decision, and look at the time period more or less closely linked to the termination decision.
Let us look at the San Antonio statue. The foundation was laid in 1899. The statue was erected in 1900. The statue was designed by an artist who lived in New Orleans, Virginia Montgomery. Ms. Montgomery was said to be the first female to design a monument. Virginia Montgomery was the daughter of Capt. John A. Montgomery of the “late” Confederate Army. The concept of the monument belonged to Julia Montgomery, the mother of Virginia.
Capt. Montgomery served in the 32d Alabaman Infantry as a Quartermaster. He joined late in the war. He was not part of the patriotic rush to enlist in April and May, 1861. He was commissioned as an officer near Mobile, where he lived. He was dropped from the rolls in June, 1864 with no explanation, suggesting he may have been wounded or ill. Before the war, John Montgomery was a clerk in a shipping business in Mobile. After the war, he tried to work as a cotton broker, but that did not last. He had a series of different jobs and was sometimes unemployed. His family of four children changed addresses every year after 1870. John disappeared from the Mobile City Directory in 1875. He did not appear in the 1880 census in Mobile. It appears he passed away.
John’s family did not appear in the Mobile census for 1880, indicating they all moved or passed away themselves. John’s oldest daughter, Elizabeth, disappears from public records. Capt. Montgomery’s oldest son, John Jr. disappears from the Mobile City Directory by 1880. John’s second oldest daughter, Faith, turns up married to a small upstate farmer in the 1880 census. Faith’s younger sister, Virginia is living with her. She is recorded as “Jiney.” John’s youngest son, Blocker, disappears entirely from public records. John’s wife, Julia, appears in no census for 1880. We will learn years later that she taught school for 30 years, starting about the 1870’s. His family was essentially gone or scattered to the four winds.
Other than being the wife and daughter of Capt. Montgomery, who were Julia and Virginia? At her death in 1922, Julia was noted for being a suffragette in New Orleans. She was, said the New Orleans Times Picayune, the oldest female voter in the 1920 presidential election. She was an advocate for the rights of women. She was involved in “educational work” for several years in San Antonio. She did “considerable newspaper work” in New Orleans. She participated in various clubs, such as the United Daughters of the Confederacy and the Daughters of the American Revolution. Her picture portrays a woman of grace and poise. Nothing of the suffering she must have endured after the war with John appears in her picture. Of her seven children, only one, Virginia, survived her. When she passed, she was living in a small home in New Orleans with Virginia.
It was said that Julia started teaching school when her husband, John, returned from the Civil War, “broken in body and fortune.” She taught school for 50 years in Alabama, New Orleans and in Texas.
Virginia Montgomery was a well-known artist in New Orleans. As an artist, she favored paintings of nature and African-Americans. In a 1927 Times Picayune article, she mentioned her most recent painting of an African-American woman with an “insolent swagger, the cunning and love of imitation, the carefree, volatile exuberance of the African nature.” She wrote an article for the Times Picayune in 1930, extolling the virtues of “Bachelor Girl: A World Leader.” The article explained that a woman could still live a productive life even if she never married and never had children. Virginia never married and she never had children. Even at the age of 87, she helped teach vacation bible school in Lower Algiers, a relatively poor part of New Orleans. Virginia was ahead of her time in regarding “Negroes” and independent women.
The unveiling speech in 1900 San Antonio noted the South had some responsibility for starting the war. Columbus Upson, a noted orator of the time, said the South was propelled by prejudice, errors, and imperfections. He agreed slavery helped lead to the war, but insisted it was not a leading cause of the war, especially when considering the tremendous sacrifices of the individual Confederate soldier. If Mr. Upson was a disciple of the Lost Cause, he did not display it in his speech.
Three groups participated in the laying of the cornerstone and later in the erection of the San Antonio monument, the Masons, the Daughters and the Confederate Veterans. The Daughters included a time capsule in the corner stone. Most of the items appear to have been collected by the Daughters. Included in the time capsule was a “beautiful tribute to Jeff Davis by Master Harry Hertzberg of the Seely Institute.” Master Harry would go on to become a leading state senator from San Antonio and a famed collector of circus memorabilia. But, on this day in June, 1899, he was just a 16 year old student at the school that would later become San Antonio Academy. He was the son of Eli and Anna Hertzberg. Eli owned a jewelry store that would become Hertzberg Jewelers and a well-known downtown landmark. Master Harry was also Jewish. If the Daughters sought to send a message about white supremacy, a tribute from a young Jewish student did not help.
All this and more would be relevant to a discussion of the motivations of those who erected the statue. One can argue that Mr. Upson’s speech would have the least relevance, since he did not raise the funds for the statue. Yet, the few times historians discuss motives for the erection of particular statues, they tend to focus on the speech offered the day of the unveiling. But, typically, the orators chosen are chosen not for their relationship to the statue, but for their ability to attract and entertain a crowd. More relevant are the motives of those persons who raised the money and those who paid for the statue. One of the challenges in every discrimination suit is numbers. If an employee attempts to accuse a large group of white persons of discrimination, s/he loses credibility. People just tend to not believe a large group of persons are guilty of discrimination. The challenge with Confederate statues is typically, the Daughters have raised nickels and dimes at a time to pay for the statue. The San Antonio statue was paid for with bake sales and bazaars. The Daughters sought subscriptions from local businesses when contributions fell short. The state and the region were hurting financially at the time. As the press mentioned at the time, the $3,000 was raised through the many contributions of an “impoverished people.”
The challenge in showing discrimination is that in relying on bake sales and bazaars, the San Antonio chapter of the UDC relied on contributions from hundreds of persons. On May 16, 1878, the Robert E. Lee Monumental Committee held a fund-raiser at the New Orleans Opera house. Entertainment was provided by a militia, the Continental Guards, assisted by the Washington Artillery. According to one participant, “such a jam was never seen” in New Orleans. “Thousands” had to be turned way. Hundreds or thousands is a lot of people. It is simply not credible in any discrimination case that hundreds or thousands are any more racist than the general population of any given community. If I tried to file a lawsuit alleging a large group of white persons discriminated against my client, I would expect to be sanctioned by the judge for filing a frivolous lawsuit. If modern day historians seek to look back and accuse an entire city of racism, then that charge would likely lie against any city in the U.S. at the time. It just stretches credibility to believe one city was guilty of excessive racism at any given point in time.
So, numbers is a significant obstacle to accusing any given Confederate statue of being motivated by racism. The funds for the monuments are typically raised by bake sales and bazaars. The Robert E. Lee Monumental Committee charged .50 cents for a lecture as a fund-raising venture. At the rate of .50 cents per contribution, $25,000 required contributions from thousands of persons. Even allowing for larger donations from businesses, that still means, as my ancestor indicted, “thousands” supported the Robert E. Lee monument. That means the Confederate monuments enjoyed a broad spectrum of support. It is just not credible to argue that hundreds or thousands of persons were any more bigoted than another set of hundreds or thousands of citizens.
The other very significant obstacle to accusing a particular Confederate statue of racist intent is alternative explanations. Discrimination lawsuits hinge often on the employer’s proffered explanation for why a person was fired. The employee will claim he was fired because of discrimination. But, if the employer can offer a legitimate, non-discriminatory reason for the firing, the employer will likely prevail. In most discrimination cases, the lawsuit will depend on the quality of the employer’s proffered explanation. The challenge regarding the Confederate monuments is there is always a legitimate alternative explanation. The United Daughters of the Confederacy was founded expressly to commemorate the deceased Confederate veteran. The Confederate States of America was not the United States of America. That means there was no government effort to mark the passing of these hundreds of thousands of veterans. If the UDC or some organization like the UDC did not raise the funds for these monuments, it would not be done.
The real question is what motivated the individual chapters of the UDC regarding a particular monument. Certainly, in most communities, the Daughters were part of the white power structure. But, being part of the dominant white society does not mean those Daughters necessarily sought to support Jim Crow laws when they erected those monuments. As Judge Bell said, a person or a city can have a racist motivation without also having a racist purpose in closing city pools. Yes, we can surmise racist intent. We think we can. But, surely racism is serious enough that it ought to be based on facts, not conjecture.
Discrimination law recognizes that persons can have multiple motivations for the same act. Discrimination law recognizes “mixed motives.” That is, an employer can fire a minority person for a legitimate reason and an unlawful reason at the same time. Discrimination law asks what was the leading or primary motive.
The trick is determining which is which. … Or, is it? If a monument is only tangentially motivated by a desire to commemorate a veteran, does that require the monument be removed? I am a veteran and am biased in favor of retaining any and all monuments to veterans no matter how slight the good intentions. As a veteran of the Iraq war, I find it hard to believe that any large group of persons would erect a monument to veterans solely or primarily to support political aims, such as Jim Crow laws. But, to be sure, we have to look closely at the persons involved in the erection of the monuments, not at those who might benefit politically from the erection of the monument. Racism is too important to reduce to sound bites. And, when we look closely, we see people like the Montgomerys. Julia and Virginia almost certainly were not intending a message of white supremacy when they developed a monument to the common, bottom-of-the-rung Confederate soldier. They were likely thinking of a father and husband, who may not have been the most patriotic, but who joined when his country called. He returned from the war broken, but he was still their father. How many more Capt. Montgomerys motivated other Confederate monuments?
As a young lawyer, I appeared in front of Judge Wisdom in an appeal. This was my first discrimination case. Our evidence was weak, but I did not realize that at the time. Expecting Judge Wisdom to be a favorable vote out of the of three judges to hear my case, I was surprised when he asked just one question, “what evidence do you have that the supervisor was motivated by racism?” That was the weakness of my case. The co-workers called my client, a young African-American man, a “pinche negro” (damned nigger). But, the supervisor who fired my client said nothing like that. In reality, we had no evidence that management acted out of racist impulse. Leaving the court room, I knew the judge was right. I needed evidence about the supervisor, because he was the person actually involved in the negative personnel action. The judge learned from the Palmer case and I learned from him: what matters is the person closely involved in the negative action.
 Mayoral Press Conference, May 19, 2017, p. 3, (accessed at https://www.nola.gov/getattachment/Mayor/Press-Conferences/5-19-17-Speech-Truth_Removing-Confederate-Monuments-in-New-Orleans_Mayor-Mitch-Landrieu.pdf/ (accessed on Jan. 7, 2018)
 Mayor remarks available at https://www.sanantonio.gov/Planning/Events/ArtMID/15322/ArticleID/11331/Mayor-Nirenberg’s-Statement-on-Confederate-Statue-removal (accessed on Jan. 7, 2018).
 Kelly McMichael, Sacred Memories, The Civil War Monument Movement in Texas (Denton 2009), p. 6.
 John J. Winberry, “Lest We Forget: The Confederate Monument and the Southern Townscape,” Southeastern Geographer, 23 (Nov., 1983): 107-121.
 Ibid, at 117-118.
 419 F.2d 1222 (5th Cir. 1969).
 419 F.2d at 1229
 469 F.2d 829 (5th Cir. 1972).
 Ibid, at p. 834.
 San Antonio Daily Express, Feb. 27, 1898, p. 10, col. 1.
 San Antonio Daily Light, July 24, 1899, p. 4, col. 5.
 San Antonio Daily Light, June 4, 1911, p. 4, col. 1.
 Confederate Service Records, available at fold3.com
 Farrow’s Mobile City Directory, 1870-1879; 1880 U.S. census.
 Faith Montgomery Dunlap, 1880 Alabama Census.
 New Orleans Times Picayune, Nov. 16, 1922, p. 9.
 New Orleans Historical website, accessed Aug. 12, 2017
 New Orleans Times Picayune, May 15, 1927, p. 111.
 New Orleans Times Picayune, Feb. 9, 1930, p. 67.
 New Orleans Times Picayune, June 10, 1945, p. 14.
 San Antonio Sunday Light, April 29, 1900, p. 5.
 San Antonio Daily Express, June 4, 1899, p. 15, col. 3.
 Appler’s San Antonio City Directory, 1883-1899; U.S. Census, 1900.
 Paula Allen, “Who Paid to have the Confederate statue in Travis Park made and then placed in Travis Park?” San Antonio Express News, Aug. 14, 2017.
 San Antonio Daily Express, April 29, 1900, p. 12, col. 5. The Panic of 1893 made raising the funds much more difficult.
 New Orleans Daily Picayune, May 16, 1878, p.1.
 George P. Crane Diary, in the possession of the author.
 New Orleans Daily Picayune, June 19, 1877, p. 1.