Louisiana Record

Monday, August 19, 2019

Professor seeks equal application of monument ordinance, not removal of Jackson statue

By Karen Kidd | Jul 24, 2016

NEW ORLEANS – Bringing down the statue of Andrew Jackson in New Orleans' Jackson Square isn't what the Tulane University professor suing city officials is after in his federal lawsuit filed earlier this month.

Richard Marksbury, currently on sabbatical from Tulane, says he filed his lawsuit in U.S. District Court for Louisiana's Eastern District because New Orleans' City Council failed to take his argument as seriously as it had that of city's mayor's arguments on the same ordinance. Marksbury still does not have the city council's attention and his argument is getting lost amid discussion over removal of Confederate monuments on city property, Marksbury said during Louisiana Record email and telephone interviews.

"I would like to explain in more detail the issue of the Jackson statue, vis-à-vis the wording of the so-called 'nuisance ordinance'," Marksbury said. "What was stated in various newspapers about the city council making a distinction between Confederate monuments and the Jackson statue is inaccurate. There has been no public vote by the council on the Jackson statue. Furthermore, to my knowledge the council has not spoken about this distinction at all."

Marksbury said he can't be sure because he hasn't heard from any city officials.

 "Neither the mayor nor the president of the city council has contacted me since the lawsuit - or at any time for that matter," Marksbury said.

However, the city has noticed Marksbury and his lawsuit, according to a single sentence email reply from New Orleans Mayor Mitchell J. Landrieu's Press Secretary C. Hayne Rainey in response to a Louisiana Record request for comment.

"We are aware of the unfounded lawsuit and will continue to defend the city’s position in this and all other pending litigation regarding the monuments," Rainey said.

Marksbury is a Orleans Parish resident and has been a registered voter in the parish since 1973, according to his lawsuit, which names the mayor and City Council Member-at-Large Jason Williams in their official capacities.

Marksbury's lawsuit follows in the wake of the city’s efforts to remove statues of Confederate-era political and military figures. Mayor Landrieu, council members and others maintain the statues are in violation of a city ordinance, specifically Section 146-611. Mayor Landrieu appeared before city council on July 9, 2015, amid months of attention and controversy, and appealed for the monuments to be relocated.

City council voted in December that the statues of Gen. Robert E. Lee in Lee Circle, Confederate President Jefferson Davis on Jefferson Davis Parkway and Gen. P.G.T. Beauregard at the entrance to City Park be taken down. The council vote also covered the removal of an historical marker on Iberville Street that honors the Battle of Liberty Place.

Not mentioned in the lead-up to that vote was Marksbury's letter to the clerk of city council requesting the opportunity to appear and present his own concerns about the ordinance, Marksbury said in his lawsuit. Marksbury is representing himself and refers to himself in third person in the lawsuit.

"In his letter to city council, plaintiff utilized the same rationale as that used by elector defendant Landrieu," Marksbury said in his lawsuit. "It was at this point, plaintiff contends, the city council, under the leadership of defendant Williams, failed to treat him, as an individual, in the same manner the city council treated elector defendant Landrieu when he made a similar request, 43 days earlier to the city council."

Instead of being allowed to address the full city council as had the mayor, Marksbury was given 15 minutes to present his concerns about the city's ordinance to the council's Government Affairs Committee on March 31.

Marksbury's appearance before the city council committee was little more than a week after the U.S. 5th Circuit Court of Appeal barred the city from removing three monuments to Confederate leaders to allow for a lawsuit already before the court.

Marksbury told council committee members that it isn't about which historical figures violate the city's ordinance and about whether action should be taken to bring down statues based on modern sensibilities. Instead, Marksbury said his point is about the ordinance itself, which he says is poorly written, ill conceived and dangerous because of how broadly it can be applied by any elector in the city.

"The main problem with the ordinance is that it requires us to re-examine and analyze historical figures using contemporary values," Marksbury told members of New Orleans Government Affairs Committee in March. "Nobody could sustain that. Roosevelt, Churchill, all the statues are down."

Marksbury then used Andrew Jackson's statue as an example, providing a lengthy retelling of Jackson's various sins and atrocities committed against multiple cultural groups and political opponents. This dwelling upon details seems to be what detracts attention from Marksbury's issues with the city ordinance. However, he apparently impressed and swayed the Government Affairs Committee Chair, Councilmember-At-Large Stacy Head, so much that she challenged city council to make the ordinance clearer.

"I challenge the council members and the mayor who supported removal of certain monuments to bring closure to this dangerous precedent in some way, one way or the other," Head said during the committee meeting in March. "Either we examine every single visual icon and every single item of respect that we have in this city and make a decision once and for all that they are allowed or not allowed in a way that is constitutional and in a way that is fair, in a way that is equitable so that we do not leave this, time and time again, for the next politician to pull the city apart for the next hot button issue that they decide. We need to bring an end to this discussion one way or another."

Head's vote in city council the previous December had been the only one cast against removing the Confederate monuments, claiming it would do nothing to address social and economic barriers in New Orleans.

Head's challenge in March apparently went no further and Marksbury said he heard nothing further and that it was clear his concerns were not given the same attention as the mayor had received. That lack of response, Marksbury said, is itself a violation of the city's ordinance, which states, "In any hearing conducted pursuant to this section, the council shall solicit the recommendations of the city planning commission when required by the City Charter and comments and recommendations of the historic district landmarks commission, the Vieux Carré Commission (if applicable), other government or private historical offices or societies, the chief administrative officer, the city attorney, the superintendent of police, and the director of the department of property management."

"Once again, under similar circumstances and conditions, elector defendant Landrieu was accorded preferential and biased treatment when compared to the lack of due process granted to the plaintiff," Marksbury's lawsuit said.

In receiving unequal treatment, Marksbury’s constitutional rights under the Equal Protection Clause had been violated, his lawsuit said.

“In a liberal democracy, the concept of equality means that when the law is applied, it must apply equally to all people,” the suit says. “The protection of all citizens against discrimination effectuates the broader original purpose of the equal protection clause.”

Marksbury is asking the court to assume jurisdiction of the case; to require city council implement review of its ordinances and apply it to the Andrew Jackson statue in Jackson Square; and to prohibit Landrieu from discussing his personal desires and requests with any individuals the mayor appoints in reference to the statue's possible violation of city ordinance.

The case initially was assigned to U.S. District Judge Susie Morgan but now is assigned to U.S. District Judge Carl Barbier, according to court documents.

While his position isn't getting city council action, Marksbury said he definitely has the mayor's attention and that Landrieu is working hard to change the narrative.

"Landrieu is trying to get folks, like [Aspen Institute President and CEO] Walter Issacson, to suggest the Jackson statue is different," Marksbury said. "It is not. Landrieu has been cornered on this since he wants Jackson but not Lee, Beauregard, etc. The law is the law and it should be applied equally."

Marksbury said his lawsuit is not a publicity stunt or a bid for attention, that it really is about the New Orleans' monument ordinance and its equal application.

"This simply is a situation where whoever wrote this didn't think about the consequences," he said. Marksbury added that he is as simply serious about his concerns over the city's monument ordinance and his lawsuit, which he will continue to pursue.

Meanwhile, Marksbury said he has stepped down as dean of Continuing Studies and Summer School at Tulane University and is taking a year of sabbatical before returning to the university as a faculty member.

"Right now, I have all the time in the world," he said.

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Tulane University U.S. District Court for the Eastern District of Louisiana

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