AUSTIN, Texas - Judges for the 5th U.S. Circuit Court of Appeals heard oral arguments Tuesday morning in the latest effort to counter the University of Texas' removal of several Confederate statues.

In 2017, after violent white supremacist demonstrations in Charlottesville, Va., UT President Gregory L. Fenves authorized the removal of statues of Confederate figures - Robert E. Lee, Albert Sidney Johnston and John Reagan - along with Gov. James Stephen Hogg from the UT South Mall. The statues of Lee, Johnston and Reagan were placed in storage; Hogg was later relocated to another spot on campus.

Days after the statues' removal, members of the Texas division of the Sons of Confederate Veterans, a nonprofit organization with chapters across the country, filed a lawsuit against Fenves. The organization's named plaintiffs, David McMahon and Steven Littlefield, argued that the removal of the statues was an illegal restriction of political speech and a breach of agreement with the estate of Maj. George Washington Littlefield, who donated the statues in 1921. The lawsuit argued the university agreed at that time the statues would remain as promotion of a "Southern understanding of the Civil War" on UT's campus.

"In removing the statues, Pres. Fenves has breached the University's long-standing promotion of American history from the Southern perspective that it promised to its generous donor, Maj. George Washington Littlefield," the lawsuit said.

Western District U.S. Court Judge Lee Yeakel dismissed the case in late June 2018, stating that the Sons of Confederate Veterans lacked standing, but he did not comment on whether the plaintiffs had a valid argument under the First Amendment.

The Sons of Confederate Veterans appealed Yeakel's decision to the 5th Circuit, where they presented oral arguments for why the removal was a violation of federal free speech laws. The case was consolidated with a similar lawsuit that originated in San Antonio where two residents and the Sons of Confederate Veterans sued city leaders for making plans to remove a Confederate monument in Travis Park.

Kirk Lyons, the attorney representing the plaintiffs in both cases, told the Austin American-Statesman on Tuesday he was arguing for standing, which lower courts had denied, saying the Sons of Confederate Veterans couldn't prove any injury from the statues' removal. He said his clients do have standing because the removal of Confederate monuments injures their rights to free speech. The effort is part of what Lyons believes is a national agenda to dishonor Confederate history and quiet conservatives.

"If you took every offensive monument out of Europe, their tourist industry would collapse," Lyons said. "These people are mentally unstable."

After Tuesday's oral arguments, Texas Attorney General Ken Paxton issued a statement saying the court should dismiss the suit.

"Those arguing against the removal of Confederate monuments at the University of Texas simply do not have the standing required to challenge the university's removal or relocation of monuments on campus," Paxton said in the statement.

Scott Schneider, a partner with experience in higher education litigation at the Austin law office of Husch Blackwell, said he would be shocked if the court did not dismiss the case for lack of standing.

"In order to bring a claim like that, you need to be able to demonstrate that you are being harmed by this decision being made by the University of Texas," Schneider said. "They are undoubtedly going to dismiss."

A university spokesman did not immediately respond to a request for comment, but at the time of the removal, Fenves said the decision was made after consulting with students, faculty and alumni.

"The university has a duty to preserve and study history," Fenves said in 2017. "But our duty also compels us to acknowledge that those parts of our history that run counter to the university's core values, the values of our state and the enduring values of our nation do not belong on pedestals in the heart of the Forty Acres."

Audio recordings of the oral arguments presented in the 5th Circuit Court in New Orleans was not available at the time of publication.

Visit Austin American-Statesman, Texas at www.statesman.com

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