The University said in a statement to The Daily Tar Heel that its removal of the activists’ memorial did not apply to the 2015 law because the memorial isn't owned by the state.
Therefore, the University stated, it removed the memorial per its facilities use policy, which states that “temporary structures” are permitted in areas of campus if properly approved, and that “no temporary structures shall remain outdoors overnight.”
However, law student and activist, Gina Balamucki, who has acted as Maya Little's Honor Court counsel, said that the University’s argument does not apply to the protections that she and other activists referenced when first placing the memorial.
Now, Balamucki wants to take UNC to court over it.
The University cited in its statement a different subsection of the 2015 law, 100-2.1(a), which prohibits the removal of “a monument, memorial or work of art owned by the State” unless approved by the North Carolina Historical Commission.
Balamucki said that argument ignores subsection (b), the one initially cited by her and other activists.
She referenced a 2017 blog entry by UNC public law and government professor Adam Lovelady, which examined the law in question. In the entry, Lovelady wrote that only subsection (a), the one referenced by the University, applies to state-owned objects. In contrast, subsection (b) applies more broadly to all “objects of remembrance” located on public property, whether they are state-owned or not, Lovelady wrote.
The definition of an “object of remembrance” in subsection (b) requires the object to be “of a permanent character,” commemorating an event, person or military service from the state’s history.
Balamucki said the Cates memorial commemorates an important part of UNC’s history and denounced the University’s classification of the memorial as a temporary structure.
“It weighed 150 pounds approximately, it was weather-proofed,” Balamucki said. “This was designed to permanently be on the campus.”
Lovelady told the DTH that the Pit is definitely public property, making it an area subject to the law. He said that if the Cates memorial is commemorating an event and is permanent in character, he could see an argument being made in favor of the activists.
However, Lovelady said the memorial also may have required an approval process of some kind to be protected by the state law. UNC’s facilities policy states that “no permanent structures may be erected in exterior spaces unless approved by the Chancellor's Buildings and Grounds Committee.”
“I think the underlying thing is, the language of the statute is not perfectly clear, and that’s been part of the reason it’s been a challenge figuring out how it applies to various statues and objects across the state,” Lovelady said.
The University declined to comment when asked if it disputed the activists’ argument regarding the 2015 law. It also did not disclose where the display was being held.
Balamucki said the activists are seeking legal representation to have the monument returned to the Pit on the basis of the law. While they had not secured any representation as of publication, she said they were considering contacting the Southern Coalition for Social Justice in Durham and the UNC chapter of the National Lawyers Guild.
“We think that private jurisdictions and communities should have a right to remove monuments, objects of remembrance, whatever, that they don’t want,” Balamucki said.