Everyone is Misreporting the Texas BDS Lawsuit

No, a Texas school district did not require speech pathologist Bahia Amawi to sign a "pro-Israel oath," nor even to promise not to personally boycott Israel.

|The Volokh Conspiracy |

Speech pathologist Bahia Amawi, who works as a contractor for the Pflugerville Independent School District in Texas, has filed a lawsuit claiming that an anti-boycott-of-Israel pledge she was asked to sign violates her First Amendment right to freedom of speech. This was reported first by Glenn Greenwald at the Intercept, who set the tone for the media coverage by claiming, in his typical exaggerated and dishonest fashion, that the lawsuit arose after Amawi "refused to sign an oath vowing that she 'does not' and 'will not' engage in a boycott of Israel or 'otherwise tak[e] any action that is intended to inflict economic harm' on that foreign nation." (Greenwald's headline is even more misleading, and demagogic in a way that undoubtedly appeals to anti-Semites, claiming that Ms. Amawi was required to sign a "pro-Israel oath.")

There are a lot of things I could say about the law and the lawsuit, but I have some time constraints, so I will just explain why Greenwald's take, repeated ingenuously by reporters apparently too lazy to look up the actual text of the underlying law and what Ms. Amawi was asked to sign, is wrong.

Texas has a law banning state entities from contracting with businesses, including sole proprietorships, that boycott Israel. As a result, just like local governments require contractors to certify that they adhere to many other state laws, such as anti-discrimination laws and financial propriety laws, they also must certify, in compliance with state law, that their business does not boycott Israel.

Here is the specific language Ms. Amawi was asked to sign (see appendix A):

Pursuant to Section 2270.001 of Texas Government Code, the Contractor affirms that it: 1. Does not currently boycott Israel; and 2. Will not boycott Israel during the term of the contract Pursuant to Section 2270.001 of Texas Government Code:

  1. "Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes;and
  2. "Company" means a for-profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit.

Note that, consistent with the language and obvious intent of the law (see the text here, it's even titled "PROHIBITION ON CONTRACTS WITH COMPANIES BOYCOTTING ISRAEL"), the school district certification applies to the business, "it," not the individual "she." Contrary to what I've been reading all over the internet, Ms. Amawi is not being asked to pledge that she, in her personal capacity, will not privately boycott Israel, much less that, e.g., she will not advocate for boycotting Israel or otherwise refrain from criticizing Israel.

Briefly on the First Amendment issue, it's no different analytically than requiring a contractor to pledge that the business does not refuse to hire Muslims, or Jews, or blacks, veterans, or another state-designated group. [Clarification: "it" means the First Amendment analysis. There are obvious moral, practical, historical, and other differences between boycotting Israel and boycotting members of American minority groups; those differences just aren't constitutionally salient.] The sole proprietor contractor, or the certifying officer for a larger contractor, is still permitted to refuse to invite a Muslim to his house for dinner, or to advocate against Muslims in any way he chooses. The business simply can't engage in action that the state disapproves of. Supreme Court precedent, mostly to my chagrin, seems rather clear that this is constitutional, and that the protected class in question need not be an individual or minority group–in Rumsfeld v. FAIR, the Court held that the law school plaintiffs had no First Amendment right to boycott military recruiters in the face of a federal statute barring recipients of federal funds from discriminating against those recruiters.

In short, this story is being widely misreported, the hysterical claims that Amawi is being forced to sign a pro-Israel pledge or personally do or not do anything in particular regarding Israel outside the context of her business are false, and the First Amendment lawsuit will almost certainly lose. Moreover, it's nearly impossible to think of a way in which Ms. Amawi's speech pathology business would ever have an opportunity to in any way boycott or otherwise economically harm Israel, rendering this pure political theater.

*Other localities make this even clearer. The City of Waco's standard contract, for example, states: "CERTIFICATION REQUIRED BY TEXAS GOVERNMENT CODE SECTION 2270.001 By signing below, Company hereby certifies the following: 1. Company does not boycott Israel; and 2. Company will not boycott Israel during the term of the contract."

UPDATE: Just as I was posting this, a friend of mine posted on Facebook that "individual school teachers are being required to attest that they will not personally boycott Israel as private citizens, even when they are not at work." I can easily see how he thought that given the media's coverage of the lawsuit, and it's yet another example of why one should never, ever trust the media take on a controversy without confirming the original sources. I do it myself sometimes, and generally regret it.

FURTHER UPDATE: Judging from my social media feed, lots of non-lawyers seem to be under the mistaken impression that certain groups that are protected by civil rights law are so protected because they are "protected classes" under the Constitution. Nope. The Constitution does not ban or provide any remedy for private discrimination (or boycott if you prefer) against any group. If blacks, or Jews, or women, or gays, or Republicans, or whomever receive protection from private discrimination in the United States, it's for one reason, and one reason only: because a legislature at whichever level of government chose to pass legislation protecting a category from discrimination. Thus, for example, there is nothing legally anomalous about Texas protecting Israel from (what's seen as) a discriminatory boycott, but not protecting gay people from employment discrimination based on sexual orientation, because supporting Israel is more popular in Texas than supporting employment rights for gays.

Once you give government the authority to ban private discrimination (and remember, discrimination in housing, employment, etc., is a subset of "boycott"), and you weaken constitutional barriers to such legislation, the legislation will inevitably apply to whomever can get support of the legislature. Lest readers think I'm just reasoning backwards to somehow justify laws related to Israel, I will note that I wrote about this in my 2003 book, You Can't Say That!:

The concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? The U.S. Department of Education has proposed that using such tests in college admissions be considered discrimination against groups that get below-average scores. Is a credit card company denying applications to the non-creditworthy? That's discrimination based on financial status. (Sound absurd? Tell it to the New Zealand Human Rights Commission, a body modeled after American civil rights enforcement agencies, which has determined that refusing service on credit to a customer who is unemployed, has no credit card, earns less than $10,000 (approximately $5,500 U.S.) a year, and does not own a home is illegal discrimination on the grounds of employment status.) Is an employer hiring only the best qualified candidates? Well, that might be discrimination against everyone else!

The obvious retort from exasperated antidiscrimination activists is that only laws prohibiting "real" discrimination should receive constitutional exemption. Legislatures and courts should not allow the definition of discrimination to expand beyond what is reasonable. The problem is, of course, that there is no consensus about what constitutes "real" discrimination, nor does there appear to be any principled definition that legislatures have followed. What counts as discrimination will always depend on which interest groups have the power to influence legislatures to define their particular goals as antidiscrimination goals, and not on any objective definition of discrimination. [And note, BDS IS literally discrimination against Israel.]

Already, definitions of discrimination have proven extremely tractable. Some define discrimination as treating the alike unequally based on invidious preferences, but, even outside the controversial area of affirmative action preferences, antidiscrimination law does not always follow this definition. The Americans With Disabilities Act (ADA) defines discrimination not only as the unwillingness to treat the disabled and nondisabled alike, but also as the unwillingness make "reasonable accommodations" for the disabled. In the first enforcement action under the ADA, the government ordered a company to pay for a full-time sign translator for a hearing-impaired student in its review class for the CPA exam, even though the interpreter cost far more than the student's tuition. Undertaking this measure was obviously not treating the hearing impaired student just like everybody else.

Similarly, Title VII of the 1964 Civil Rights Act's ban on discrimination on the basis of religion actually mandates preferential treatment for religious employees. The statute requires that employers accommodate the religious beliefs and observances of their employees, unless doing so would cause the employer "undue hardship." Some hardship to the employer, which in economic terms constitutes a subsidy to the religious employee, is mandated where necessary. If failure to give members of a group a subsidy constitutes discrimination, then just about any law can be defined as an antidiscrimination statute that is potentially exempt from constitutional limitations. In short, exempting antidiscrimination laws from the civil liberties protections manifested in the Constitution might destroy those protections.

As a libertarian, I'm sympathetic that there generally should be a right to boycott, even in the context of government contracting. What I am not sympathetic to, however, is the notion that we should expand antidiscrimination laws and contract constitutional restraints on such laws until, and only until, someone figures out that they could apply these laws to causes and institutions the left doesn't like, such as the military (see Rumsfeld v. FAIR) or Israel, at which time we suddenly invent a broad First Amendment right to boycott. That, in essence, is the position the ACLU has taken for the past twenty years or so, and at best it's wildly optimistic about how politics actually works, and at worst it's simply intellectually dishonest. The Supreme Court certainly didn't buy it in FAIR.