UNC opposes injunction, seeks dismissal of Palestinian protesters’ suit

The University of North Carolina at Chapel Hill opposes a proposed federal court injunction from pro-Palestinian protesters banned from campus last year. The university also seeks to have the protesters’ lawsuit dismissed.

University lawyers filed court documents Tuesday in the case brought by protesters working with the ACLU of North Carolina Legal Foundation, Emancipate NC, and Washington, DC-based Muslim Advocates.

In April 2024, four of the case’s five plaintiffs “disregarded repeated directives to disperse from an encampment they and other individuals had established and occupied on the campus of the University of North Carolina at Chapel Hill (‘UNC-CH’), in violation of UNC-CH’s policies,” university lawyers wrote. “As a result, these Plaintiffs — none of whom were formally associated with UNC-CH at the time — were either arrested or detained by law enforcement. They were also issued trespass notices that excluded them from UNC-CH’s campus for two years.”

“Plaintiffs seek to preliminarily enjoin the foreseeable consequences of their conduct, alleging that the trespass notices violate their First Amendment rights as a ‘prior restraint’ on their speech and also violate their due process rights under the Fourteenth Amendment,” the court filing continued. “But Plaintiffs are unlikely to prevail on their claims and otherwise fail to justify preliminary relief.”

“UNC-CH is a public university with a core purpose of educating students,” university lawyers wrote. “Its viewpoint neutral removal of Plaintiffs from its campus was thus reasonably based on the limited purposes for which that campus may be used. Moreover, Plaintiffs — who are neither enrolled in nor employed by UNC-CH — simply cannot show that they have any constitutionally-protected interest in being physically present on UNC-CH’s campus. Nor can they show that the notice and hearings they were provided on the trespass notices violated their due process rights.”

“As a result, Plaintiffs will be unable to succeed on the merits of their claims. And they cannot show that any other factor weighs in favor of a preliminary injunction,” the court filing added.

A separate document explained the university’s motion to dismiss the lawsuit from two UNC students, a Duke student and professor, and a Meredith student.

“Plaintiffs participated in an encampment established on UNC-CH’s academic campus in April 2024, in violation of multiple, publicly available policies,” university lawyers explained. “Four of the five plaintiffs were detained and/or arrested when law enforcement cleared the encampment after providing notice. Plaintiffs claim these actions, in addition to trespass notices and disciplinary action initiated against several of them, constituted a violation of their First and Fourteenth Amendment rights, as well as their rights under the North Carolina Constitution. They also claim the actions of law enforcement officers violated the Fourth Amendment and North Carolina tort law.”

“Plaintiffs’ claims fail,” the document added. “[W]ell-established immunities bar both Plaintiffs’ official- and individual-capacity claims. But even if Plaintiffs could overcome these immunities, they have failed to allege facts sufficient to support any of their claims.”

A court filing on April 24 explained why the protesters sought to reverse their ban from the Chapel Hill campus.

“All Plaintiffs have been deeply concerned with ongoing violence against Palestinians in Gaza,” the protesters’ lawyers wrote. “Plaintiffs believe that this violence is deeply unjust and that the United States government has been complicit.”

“Last April, Plaintiffs — UNC Chapel Hill students and other concerned individuals — were engaged in political activity protected by the First Amendment,” the brief added. “On a grassy patch of a large, publicly accessible quad on UNC’s campus, Plaintiffs and approximately two-hundred others participated in a nonviolent, nondisruptive encampment to communicate their view that the United States had been complicit in genocide.”

Three of the five plaintiffs were arrested on April 30, 2024, when UNC police removed the encampment. One “suffered torn shoulder cartilage” and another “suffered a concussion” during the arrests, according to the court filing.

UNC banned four of the plaintiffs “from campus indefinitely, without prior notice and hearing,” the protesters’ lawyers argued.

“Three months later, Defendant UNC Chief of Police Brian James — the same official who ordered the arrests — upheld the bans after a cursory hearing,” the court filing added.

Criminal trespass charges were dismissed. Yet three of the plaintiffs “remain indefinitely banned from UNC’s campus. Access for a fourth “remains severely curtailed,” according to the court filing.

“These Plaintiffs now seek a preliminary injunction requiring Defendants to lift their bans from campus and refrain from banning them again without adequate process,” their lawyers wrote.

“Plaintiffs will likely succeed on their First Amendment prior restraint claims,” the court filing added. “Any prior restraint on expression bears ‘a heavy presumption against its constitutional validity.’ Here, Plaintiffs were engaged in political activity in a public forum and wish to continue doing so. Defendants have banned that activity. Now, Plaintiffs’ only recourse is to seek reconsideration every two years from a single administrator, Defendant James, who has total discretion over the matter.”

“This expansive sanction advances no legitimate state interest, and even if it did, it burdens far more constitutionally protected activity than necessary,” the protesters’ lawyers argued.

“Plaintiffs will also likely succeed on their procedural due process claims,” the court filing continued. “Holding a hearing before the government infringes on a constitutionally protected interest is ‘the root requirement of the Due Process Clause.’”

“Only exceptional circumstances will justify a post-deprivation process, and that process must adequately protect the individual interests at stake. Here, Plaintiffs have fundamental liberty interests in gathering and speaking in public forums. Yet Defendants banished Plaintiffs with no meaningful notice or hearing, and the post-deprivation hearing was a perfunctory sham — Defendants did not identify any witnesses or other evidence against Plaintiffs specifically except for their trespass citations. Defendant James invoked ‘other safety and security concerns’ to justify his decisions, but never explained what those were,” the protesters’ lawyers argued.

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