Judge Blocks Texas Law Prohibiting Israel Boycotts, Including for K-12 Contractors

By Mark Walsh — April 27, 2019 3 min read
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A federal district judge has blocked a Texas law that prohibits boycotts of Israel as a condition of public contracting, including in the state’s school districts.

U.S. District Judge Robert Pitman of Austin, Texas, granted a preliminary injunction against the 2017 state law at the request of plaintiffs including several who contracted with K-12 school districts in the state.

Bahia Amawi, a speech pathologist who contracted with the Pflugerville Independent School District for nine years, was given an addendum to her contract renewal for the 2018-19 school year that required her to certify that she does not boycott Israel and will not boycott Israel during the term of her employment.

That requirement comes from the Texas statute, known as House Bill 89, which bars state entities from contracting with companies, including sole proprietorships, that refuse to deal with Israel or with a person or entity doing business with Israel or in Israel-controlled territory.

Amawi, a U.S. citizen of Palestinian origin, participates in the “BDS movement,” for boycotts, divestment, and sanctions, in response to Israel’s occupation of Palestinian territory and its treatment of Palestinian citizens and refugees. The movement seeks to pressure the Israeli government to end its occupation of the West Bank, Gaza, and the Golan Heights, among other goals.

Congress has passed a resolution opposing the movement, and 25 states have passed laws or issued executive orders that restrict boycotts of Israel.

Amawi says in court papers that she “support[s] peaceful efforts to impose economic pressure on Israel, with the goal of making Israel recognize Palestinians’ dignity and human rights.”

She declined to sign the anti-boycott addendum to her contract for this year, and thus was forced to end her services to the Pflugerville district. The school district has said in court papers that it will offer her a new contract if the courts invalidate the Texas statute.

Amawi challenged the state law on First Amendment free speech grounds in lawsuits organized by the Council on American-Islamic Relations. The American Civil Liberties Union filed a separate suit on behalf of two contractors at the college level and two people who have contracted with school districts to judge high school debate tournaments and who believe the new contract requirement interferes with the First Amendment rights to engage in a boycott against Israel.

In his April 25 opinion in Amawi v. Pflugerville Independent School District, Pitman held that the BDS movement’s boycotts are speech on a matter of public concern.

“The relationship between Israel and Palestine is an internationally significant political conflict and is the subject of intense international debate,” the judge said. “Now, with H.B. 89, plaintiffs allege that Texas has licensed one side of the contentious Israel-Palestine debate by singling out those who participate in boycotts against Israel for disfavored treatment.”

Pitman said the state statute is viewpoint-based discrimination meant “to silence speech with which Texas disagrees.”

The judge concluded that the plaintiffs “are likely to establish that H.B. 89 imposes an unconstitutional condition on public employment by requiring contractors to cease and refrain from engaging in constitutionally protected speech.”

Pitman declined motions to dismiss filed by trustees of the Klein Independent School District and the Lewisville Independent School District, the two districts where the plaintiffs who were debate judges had been contractors. The judge said they face potential municipal liability for violating the contractors’ First Amendment rights even though there were merely enforcing the state-law requirement

“The court finds that plaintiffs have plausibly alleged a policymaker (the [KISD and LISD] trustees), whose policy (including the no-boycott certification in their school districts’ contracts) is the moving force behind plaintiffs’ injuries (chilled speech),” the judge said.

A version of this news article first appeared in The School Law Blog.