Jalane Schmidt, a community activist and professor of religious studies at UVA, was recently sued for defamation for a comment she made in a C-VILLE Weekly article. PC: Eze Amos
On a chilly Thursday evening last week, several dozen people gathered at the Central Library for a talk on “the risks and rewards of public engagement” by someone who knows them all too well.
Jalane Schmidt, a community activist and professor of religious studies at UVA, was recently sued for a comment she made in a C-VILLE Weekly article about the plaintiffs suing the city to stop it from moving its Confederate statues. One of those plaintiffs, Edward Dickinson Tayloe II, objected to the story’s mention of his family’s history of slaveholding, and to Schmidt’s observation that the family had been “roiling the lives of black people” for generations. He sued Schmidt, this paper, and former news editor Lisa Provence for defamation, seeking $1.7 million. The lawsuit was dismissed October 28.
Schmidt’s case highlights current threats to academic freedom and public engagement, says Herbert Tucker, president of the UVA chapter of the American Association of University Professors, which sponsored the event. “If she is at risk,” he wrote in an email to C-VILLE, “in pursuing a call to community engagement that UVA now expressly encourages, and speaking her mind on a topic of public urgency that she has extensively studied, then all of us are at risk.”
In the McIntire Room, named for the man who commissioned the Lee statue, Schmidt began her speech with a deep dive into her background. She became passionate about “participatory cultural work” while conducting research in Cuba, where “learning was often conducted in the streets, or other open air spaces, or public forums,” she said.
After receiving tenure at UVA in 2015, Schmidt began teaching critical whiteness studies, which, in turn, piqued her interest in Zyahna Bryant’s petition to remove the city’s Robert E. Lee statue. In 2016, she started going to meetings of the Blue Ribbon Commission on Race, Memorials, and Public Spaces, which the city created to consider the issue. She was disappointed that, of the few people who attended, most were in favor of keeping the Confederate statues.
Wanting to “step up” her game about Civil War history, she did more research and connected with historians on Twitter, leading her to the work of respected Civil War scholars.
“It was from Ervin Jordan that I learned…that 52 percent of the local population was enslaved [before emancipation,]” Schmidt said. “Because this was such a compelling fact, I began to mention it every time I spoke to the BRC…if 52 percent of the population was enslaved, then those statues are lying to us.”
She, along with several other community activists, encouraged more people to attend BRC meetings and speak out against the statues. Before the commission’s final meeting, they handed out T-shirts saying, “I stand with the 52%.”
Following the release of the BRC’s report, City Council voted in February 2017 to relocate the Lee statue, and the announcement of the Unite the Right rally soon followed.
“It was not an option for those of us who oppose white supremacy to allow these groups to appear in public spaces unopposed,” Schmidt said. “That is what happened in the 1920s when the Klan crested here. I have not found any record in all of my research of any white people standing up to the Klan.”
Schmidt helped to organize counterprotests and publicized the Klan’s 1921 gift to UVA. Though she was “shell-shocked” after witnessing the violence of the rally first-hand, she continued to voice her opposition to the monuments, including by leading popular tours, with Andrea Douglas of the Jefferson School African American Heritage Center, that aim to provide a more complete story about the Confederate statues.
Of the lawsuit filed against her, Schmidt said she stands by her statements about Tayloe’s family, one of the largest slave-holding dynasties in Virginia. She called the lawsuit a “textbook case of white fragility” and an attempt to silence her.
Though the case was dismissed, with Judge Claude Worrell ruling that it had no legal basis to proceed, Schmidt remains displeased with way UVA handled the lawsuit. Virginia’s Office of Risk Management turned down her case, and the university did not ask the Virginia attorney general to overturn that decision.
Instead, the ACLU represented Schmidt and covered all of her legal fees.
“UVA has been encouraging [professors], especially as of late, to do public engagement scholarship,” she said. “But then the institution has not yet figured out what that means.”
Despite the risks, especially for those who do not have tenure, Schmidt encouraged more professors to speak to the press and be publicly engaged.
“Not everybody needs to be out in the barricades. There’s a whole lot of infrastructure that…supports the people who are,” she said, offering the example of making food for an activist group, babysitting kids during a protest, or supporting activists in court.
“There’s so many ways to be supportive that don’t require actual physical presence in the line of fire.”
Plaintiffs Frank Earnest, Jock Yellott, and Dickie Tayloe leave Charlottesville Circuit Court after the latest hearing in their lawsuit to keep Confederate statues in city parks.
staff photos
Judge Rick Moore got one big issue out of the way in the two-years-long lawsuit against the city and City Council for its 2017 vote to remove statues of Confederate generals: The monuments of generals Robert E. Lee and Stonewall Jackson are indeed war memorials under state code, which prohibits their removal.
In court May 1, he started off the status hearing by explaining his April 25 ruling, because of misunderstandings that he said had occurred.
“It was a critical decision, but it is not the end of the court case,” said Moore, who took the opportunity to note the two boxes of case files and how busy he is to explain why it has taken so long to get rulings on the motions that have been filed. “This is just one case. I’m just one judge. This is an important case, but not the only one I have.”
The lawsuit was filed by 13 plaintiffs, including the Monument Fund and the Sons of Confederate Veterans, who allege councilors Wes Bellamy, Bob Fenwick and Kristin Szakos unlawfully voted to remove a statue of Lee donated to the city by Paul Goodloe McIntire. The vote to remove Jackson was added to the suit after August 12, 2017, when councilors Mike Signer and Kathy Galvin joined the unanimous vote to oust the Confederates.
All of the councilors were in court except for Fenwick, as were a number of the plaintiffs, including Frank Earnest with the Sons of Confederate Veterans, who has traveled from Virginia Beach for hearings over the past two years, Monument Fund organizer Jock Yellott, and Dickie Tayloe, whose First Family of Virginia was once one of the largest slave owners in the state.
Moore did issue a ruling, and denied a plaintiffs’ motion to keep the defense from using equal protection under the 14th Amendment as part of its case. That argument says because the Civil War was fought primarily over slavery, the statues are part of an effort to intimidate African Americans.
“Equal protection being constitutional, it would be hard for me to say you’re not going to argue that,” he said. “I’m not in a position to say the defendants cannot prevail on that.”
Yet to be ruled upon is a motion to determine whether councilors had statutory immunity when they voted to remove the statues, and Moore said that’s next on his list.
Plaintiffs attorney Braxton Puryear complained that councilors had not provided depositions or discovery that would help him determine whether they acted with gross negligence when they voted to remove the statues, a key in determining immunity.
Legal powerhouse Jones Day is representing pro bono all of the councilors except Fenwick, and attorney Esha Mankoti said that’s why the issue needs to be decided immediately, because if councilors have immunity, their emails would be protected as well.
“That argument has the flavor of a circular argument.” said Moore, who said he sympathized with the plaintiffs, who have been asking for discovery for two years. “You don’t postpone the depositions,” he said.
He said the emails they sent each other the night before the vote could be the “smoking gun” if councilors said, “We can do what we want.”
Still, the judge wasn’t ready to say council’s actions amounted to gross negligence.
Outside the courthouse, plaintiff Buddy Weber felt “very good” about the recent ruling that the statues are war memorials.
However, activist Ben Doherty described Moore’s ruling as buying into the Lost Cause narrative because it neutralizes what is “overt white supremacy.”
Attorney Janice Redinger, who is not involved in the case, says, “I think there’s a chilling effect that these legislators may be personally liable for passing an ordinance. Look at all the unconstitutional laws passed by the General Assembly.”
Sons of Confederate Veterans’ Frank Earnest is unwavering in his belief that the Civil War was not about slavery, and the statues of generals Lee and Jackson honor defenders of the state. Photo: Timothy C. Wright
Before August 12, 2017, many people thought of America’s Confederate statues as harmless pieces of history—if they thought of them at all. Then the hate groups came to Charlottesville, ostensibly to protest the monuments’ removal. The violent clashes that led to the death of Heather Heyer and the injury of dozens, and the sight of Confederate flags waving alongside Nazi flags, brought new urgency to the conversation about the meaning of Confederate symbols.
Cities like Baltimore and New Orleans quietly sent their monuments packing. Descendants of General Robert E. Lee and General Stonewall Jackson have said statues of their ancestors have become tributes to white supremacy and need to go. And many brought up the words of Lee himself, who was opposed to memorializing the Confederacy after the war was over.
But one group of citizens remains unconvinced—the 13 plaintiffs in the lawsuit known as Monument Fund v. Charlottesville.
The people and organizations suing to stop the city from moving its Confederate statues straddle a spectrum that ranges from First Families of Virginia to a heritage organization that has members who were here August 12 with a secessionist, neo-Confederate gang.
“You’ve got the bow tie, upscale people tied to the League of the South people who want to secede and are slavery apologists,” says activist and UVA professor Jalane Schmidt.
Three years ago, some City Council members and local activists raised the idea of removing the Confederate statues from downtown. The city appointed a community commission that spent months examining the issue and ultimately presented City Council with two options to consider: relocating the statues to McIntire Park or re-contextualizing them by transforming the existing sites. In February 2017, City Council voted 3-2 to remove the Lee statue, and in April voted to sell it.
Then came August 12. Following the trauma that made Charlottesville a national hashtag, former “no” votes Mike Signer and Kathy Galvin joined Wes Bellamy, Kristin Szakos, and Bob Fenwick in saying that both the Lee and Jackson statues should go.
And that’s the issue in the lawsuit: whether councilors violated Virginia state law, which forbids the removal of war memorials, when they voted to send the Confederate generals on their way.
The lawsuit is approaching its second anniversary March 20. It’s scheduled to be in court March 11, but plaintiff spokesman Buddy Weber is dubious that it will go to trial then because Jones Day, one of the largest law firms in the world, is representing four of the five councilors and has asked for a jury trial.
In the two years the case has been active, Judge Rick Moore has ruled that the councilors do not have immunity and are personally liable for voting to remove the monuments.
In January, Delegate David Toscano carried a bill to allow localities to decide for themselves whether they want Confederate statues in their midst. The bill was killed in subcommittee.
While much has been written about—and much blame thrown at—those who first raised the idea of removing Confederate monuments from the center of town, very little attention has been paid to those still fighting the city’s decision. C-VILLE reached out to the plaintiffs to find out why they joined the suit and whether anything had changed for them since 2017.
Here’s what we found out:
Edward Dickinson Tayloe II
Tayloe, 76, comes from a First Family of Virginia that was one of the largest slave-owning dynasties in Virginia. His ancestor, John Tayloe II, called “one of the richest men of his day,” built Mount Airy plantation in Warsaw.
John Tayloe III, ancestor of lawsuit plaintiff Edward Dickinson Tayloe II, was one of the wealthiest men of his generation and “bred horses and slaves,” says the New York Times review of Richard Dunn’s A Tale of Two Plantations.
Tayloe’s great-great-grandfather, Benjamin Ogle Tayloe, invested in his brother Henry’s plan to start a cotton plantation in the Black Belt of Alabama in 1835, according to Richard Dunn’s 2015 book, A Tale of Two Plantations: Slave Life and Labor in Jamaica and Virginia.
An 1807 ban on importing slaves had opened the domestic slave trade for Virginia and other coastal states. The Tayloes had a surplus of enslaved laborers at their Mount Airy plantation and they sent them to the Deep South.
In 1838, the Tayloe brothers forced 57 slaves to walk 800 miles to Alabama, where most were sold. It was “the cruelest act that I have found recorded in the Tayloe papers,” writes Dunn.
Benjamin Ogle Tayloe continued to send rebellious slaves to Alabama as a warning to remaining slaves, says Dunn.
Between 1833 and 1854, the Tayloes marched 120 enslaved people to Alabama, and another 98 were sent during the Civil War, says Dunn. The domestic migration of enslaved people separated families, made Virginia a major slave exporter, and further enriched the Tayloes.
Plaintiff Tayloe’s father, Edward Thornton Tayloe IV, was vice-chair of the Charlottesville Redevelopment and Housing Authority when the decision was made to raze theAfrican American community of Vinegar Hill over the objections of its residents, many of whom were unable to vote on the issue because of a poll tax.
And the plaintiff, a portfolio manager, was past president of the Lee-Jackson Foundation, which has an endowment of nearly $4 million, according to 2014 IRS filings, and awards scholarships to students who write essays examining the legacies of the Confederate generals.
According to the lawsuit, Tayloe saw combat during the Vietnam War and served in Special Forces, and has a “special interest in the protection and preservation of war memorials in the city.” The Lee-Jackson Foundation contributed money in 1997 to the restoration of the Lee and Jackson statues, says the suit.
A woman answering the phone at the Tayloe residence referred a reporter to spokesperson Weber.
The plaintiff’s cousin, Tayloe Emery, who lives at Mount Airy plantation and who used to work at C-VILLE Weekly, bristles at a reporter’s inquiry about whether family members share his uncle’s enthusiasm for Confederate monuments. He writes in an email, “It’s a shame that our family name is being dragged around by the media and that reporters have the audacity to ask me stupid questions, like ‘do all of your family support Confederate monuments?’
“The answer is of course, no. The vast majority of my Virginia family are against Confederate monuments and anything that pays lip service to white nationalism in any way, shape, or form. Though many of us do in fact disagree with this lawsuit, we still support family members who may think differently on the subject and we hope that through continued conversation that they might see things from a different perspective and understand the bitter feelings and abhorrent racism associated with Confederate monuments.”
Says Schmidt, “For generations this family has been roiling the lives of black people, and this is what [plaintiff Tayloe] chooses to pursue.”
Anthony Griffin
Britton Franklin Earnest
Virginia Division, Sons of Confederate Veterans
Smithfield resident Tony Griffin, 57, is a Sons of Confederate Veterans “commander,” and Frank Earnest, who lives in Virginia Beach, holds the title “heritage defense coordinator.”
Earnest, 63, has been representing the Sons for almost 30 years, he says. “We are the bloodline descendants of the Confederate Army,” and when people start “mudslinging” about the Confederacy, they’re “talking about my great-great-grandfather.”
The Sons of Confederate Veterans contributed money to the 1997 restoration of the Lee and Jackson statues, and to the litigation, according to the lawsuit. “We don’t want to see monuments to defending our state removed,” says Earnest.
Earnest was in town August 11, 2017, for a Katie Couric interview and then got the heck out of Dodge. “It’s pretty bad when you know a riot is coming,” he says.
But the violence and open white nationalism of the Unite the Right rally have not changed Earnest’s mind about Confederate monuments. “Absolutely not,” he says. “It’s not something that comes or goes. They honor our ancestors.”
And he maintains the SCV has nothing to do with the white supremacist and neo-Nazi groups that showed up here, adding that it advised its members to stay away. “We have always denounced racist groups over our hundred-year history,” he says. “We have nothing to do with those people.”
Yet some Sons of Confederate Veterans members were here and hold dual affiliations with League of the South, which describes itself as a “Southern nationalist organization.” Its website honors John Wilkes Booth for his service “to the South and humanity.”
“We’re an organization of thousands,” says Earnest when asked about brothers George and Gregory Randall. He believes they’re still SCV members. “I don’t think we determined anyone in SCV did anything that rose to the level of complete expulsion.”
And, he says, Sons of Confederate Veterans are “in no way associated” with League of the South.
Sons of Confederate Veterans member George Randall carries the flag of neo-Confederate League of the South at Unite the Right. Photo: Rodney Dunning
Gregory Randall, who portrays General Stonewall Jackson in Civil War reenactments, and his twin George were in Charlottesville August 12 with League of the South.
George Randall, who lives near Fredericksburg, says he keeps his memberships separate and describes Sons of Confederate Veterans as a “historical” group while League of the South is “more political.”
Of the latter, he explains, “We’re secessionists.” He cites his ancestors and the Lost Cause narrative in objecting to Confederate monument removal. “We were invaded.” And he insists, “The war had nothing to do with slavery.”
He also blames Wes Bellamy for the whole monument mess, and says Bellamy is a “black supremacist.”
Says Randall, “I’m tired of everything being about race, race, race.” He objects to being called a white supremacist for wanting to “protect our culture. If you stand up for your people, you’re a Nazi or racist. It has nothing to do with hate.”
Randall was here for a lawsuit hearing in 2017 to provide security for an unnamed person, he says, but did not seem keen on returning for the upcoming court date because the last time he was here, his tires were slashed.
“I think Charlottesville sucks,” he says, denouncing “anarchist communists” and “antifa” whom he says threw urine and feces at him and his League of the South colleagues August 12. Says Randall, “You can’t wear a MAGA hat. I think it’s a crying shame.”
“Did we have a couple of rogue members in Charlottesville?” queries Earnest. “Probably, but we told them not to come.”
Is there a perception that the Sons of Confederate Veterans is a racist organization? “How much more prejudiced and bigoted can you be to ask that?” says Earnest, who has had a lot of experience talking to the press, not all of it to his satisfaction.
For instance, he was not pleased with a November 28 Washington Post story about him titled “Sins of the Fathers: The Confederacy was built on slavery. How can so many Southern whites believe otherwise?”
“I was very disappointed,” he says.
Charles L. Weber Jr.
Buddy Weber was in the U.S. Navy for 27 years, serving as a combat pilot before getting his law degree from UVA in 1998. He was chair of the city GOP, and in 2013, he ran for City Council with former city cop Mike Farruggio.
Attorney and Vietnam War vet Buddy Weber worries that if memorials to unpopular wars can be removed, Vietnam War monuments could be next. Photo: Elli Williams
Weber, 73, initially was appointed defense attorney for Heather Heyer’s murderer, James Fields, but cited his role in the lawsuit as a conflict of interest.
He says he signed on as a plaintiff for two reasons. As a lawyer and firm believer in the rule of law, “it’s my earnest belief City Council had violated the law, whether you believe the statues should stay or go,” he says.
And as a veteran of the “very unpopular” Vietnam War, he worries that those memorials could be next, negating the sacrifice citizens made of life and limb to defend this country. Virginia state law “protects these memorials from the shifting tide of public opinion,” he says.
If the General Assembly decides to change that, it can, he says, but he thinks Toscano’s bill to allow localities to make their own decisions about Confederate monuments is “a cop out.”
Weber also distances himself from those who showed up to support the Confederate monuments in 2017, taking the battle to court instead. “We do it without lighting tiki torches,” he says. “I don’t personally feel tarred because we have no association with them.”
Lloyd Smith
The founding partner of law firm Tremblay and Smith and a founder of Guaranty Bank and Virginia Broadcasting, the parent company of today’s NBC29, died last summer at age 85.
From 1997 through 1999, the former Marine represented a private group of citizens who raised money to restore the Lee and Jackson statues. That was a major reason he signed onto the lawsuit, says his son, Garrett Smith.
“The city agreed to maintain the statues in perpetuity,” he says, adding that his father always felt that when he represented people as clients, he continued to represent them.
Lloyd Smith “had a great love of history” and would visit Civil War battle sites, says Garrett Smith. “He believed the facts of the Civil War and the oppression of enslaved people was a history that needed to be told and understood.”
According to Smith, when Weber and attorney Fred Payne were helping to organize the lawsuit, they knew his father as “a Democrat and he represented a different group. He wasn’t a hardcore conservative Republican.”
He says his father was saddened by the events of August 2017, but Garrett Smith doesn’t think that changedhis father’s mind about the statues. “The city had become a flashpoint for a larger national debate.”
Frederick W. Payne
Attorney Fred Payne declined to comment for this story. In the first court hearing on the case May 2, 2017, Payne testified as an expert on Civil War uniforms because he “grew up with Confederate insignias since he was 10 years old.”
Fred Payne, an attorney and lawsuit plaintiff, has testified as an expert on Civil War uniforms. Staff photo.
The founder of Payne and Hodous in 1992, he serves as county attorney for Fluvanna, and was deputy county attorney for Albemarle from 1974 to 1987. He was also was an assistant commonwealth’s attorney for the county in 1979, according to the Payne and Hodous website.
Payne graduated magna cum laude from Yale, and got his law degree at UVA. He’s been president of the Charlottesville Albemarle Bar Association, as well as head of the city and county criminal bar association.
One of Payne’s better-known cases was his defense of widow Shirley Presley, who, in 2002, strung razor wire to block Rivanna Trail hikers from a path on her property along the river. The Rivanna Trail Foundation neglected to get her permission or an easement for that portion of the trail. A judge ruled in Presley’s favor on a code violation, and she settled her $1.5 million lawsuit against the city and foundation in 2008.
John Bosley Yellott Jr.
The Monument Fund
Jock Yellott is the fourth plaintiff in the lawsuit who’s an attorney. He’s also executive director of the Monument Fund, a nonprofit formed in October 2016 to help fund the statues’ defense. In 2017, it raised nearly $119,000, according to its IRS 990 form.
Because of his fundraising, Yellott, 64, has a financial interest in the outcome of the suit, and he conducts history tours describing the monuments, according to the complaint. He testified that he walks his dog through Market Street or Court Square parks daily. He did not return C-VILLE’s call.
Betty Jane Franklin Phillips
Phillips, 82, is described in court documents as a collateral descendant of Paul Goodloe McIntire, who donated the controversial statues and the once-segregated parks they inhabit, along with a number of other monuments, parks, and buildings around town. The Keswick resident is a Lane High School graduate. She did not respond to phone messages from C-VILLE.
Edward Bergen Fry
Ned Fry, 31, is the youngest of the plaintiffs. His great uncle Henry Shrady was the sculptor McIntire hired to create the Lee statue, and Shrady also did the Ulysses S. Grant statue in Washington near the Capitol.
Fry is himself a sculptor and graduated with a degree in sculpture from Virginia Commonwealth University. The CHS grad did not get back to us to discuss further his participation in the lawsuit, but at a 2016 Blue Ribbon Commission on Race, Memorials and Public Spaces hearing, he said he was in favor of keeping the statues because, “They are historical works of art and, more importantly, because Henry Shrady is my great-great-great uncle.”
Virginia C. Amiss
The 94-year-old plaintiff remembers riding the trolley from downtown to the Rotunda when she was 7 years old to take violin lessons, and that’s when she decided she wanted to study nursing at UVA, she wrote to Virginia magazine in 2010. She graduated in 1946, and worked at UVA and in Houston, as an operating room supervisor.
Amiss had had dental surgery and didn’t feel up to talking when C-VILLE reached her, and she did not respond a follow-up call.
While she is suing to keep the Confederate statues, she was not a fan of other sculptures installed around town by the city’s Art in Place program, a nonprofit dedicated to public art. In 2005, she asked City Council to eliminate the $5,000 it gave to the program. As Cvilleindymedia.org reported, “At the last meeting, her immortal words rang out: ‘Rearranged junk is still junk.’”
On Facebook, she supports prayer in school—and in the White House.
And through marriage, Amiss is related to Unite the Right organizer Jason Kessler. According to Ancestry.com and U.S. Census records, her husband, Lester “Randy” Amiss was first cousin to Kessler’s great-grandfather, LaSalle Norvell.
Stefanie Marshall
Albemarle resident Marshall is chair of the Monument Fund and has “personally expended money and effort in cleaning graffiti from the Lee monument in 2011 and 2015,” says the complaint.
She and her husband own construction company M3, which specializes in masonry. The company supports the Fraternal Order of Police, Live Arts, The Paramount Theater, Albemarle Charlottesville Historical Society and various local charitable organizations, according to its website.
The lawsuit is not the first time the county resident has had a problem with city government. In 2016, she took issue with City Council’s decision to honor Khizr and Ghazala Khan, and told council: “It seems to me that in order for a Gold Star family to be honored and recognized by the current City Council, they must speak at the Democratic National Convention. This is not appropriate, nor is it acceptable. It reeks of choosing to honor specific families or individuals because they fit your narrative.”
Marshall, 52, did not respond to a message from C-VILLE.
Correction March 7: Tayloe Emery is a cousin, not nephew of Edward Tayloe, and this Stefanie Marshall did not graduate from Albemarle High.
