A & R Eng'g & Testing, Inc. v. City of Hous.
| Decision Date | 28 January 2022 |
| Docket Number | Civil Action No. 4:21-CV-03577 |
| Parties | A & R ENGINEERING AND TESTING, INC., Plaintiff, v. CITY OF HOUSTON and Ken Paxton, in his official capacity as Attorney General of Texas, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Gadeir Abbas, Cair Legal Defense Fund, Justin Mark Sadowsky, Zanah Ghalawanji, Cair, Washington, DC, John T. Floyd, III, John T. Floyd Law Firm, Houston, TX, for Plaintiff.
Brian Anthony Amis, City of Houston Legal Department, Houston, TX, for Defendant City Of Houston.
Cynthia Ann Morales, William Sumner Macdaniel, Office of the Texas Attorney General, Austin, TX, for Defendant Ken Paxton.
Andrew S. Hanen, United States District Judge The State of Texas ("Texas" or "Defendant") enacted a law that in relevant part specifies: "A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract." Tex. Gov't. Code § 2271.002(b) ("Chapter 2271"). Plaintiff A & R Engineering and Testing, Inc. ("A&R" or "Plaintiff") is a company that has done business with the City of Houston ("Houston") in the past and wants to continue to do so. Its contract is up for renewal, and Houston has tendered A&R a new contract, which contains language requiring A&R to certify it does not and will not boycott Israel. While A&R wants to continue to work for Houston, it also wants to have the option to boycott Israel and it wants to do so without worrying about any recriminations or a claim of breach of contract. It does not complain about any other provisions of the pending contract. In order for A&R to honor its contract and be able to boycott, it wants this Court to find Chapter 2271 of the Texas Government Code unconstitutional as infringing on its First Amendment rights. Texas wants Chapter 2271 to remain in force and does not want taxpayer funds going to those who discriminate against Israel. Houston wants to comply with the law and is willing to employ A&R if it can do so legally. Otherwise, Houston does not have a dog in the fight.
This fact pattern concerns a legal question that is surprisingly perplexing, though not uncommon. This lawsuit is one of many filed nationwide seeking to set aside pieces of legislation passed in various states known as "Anti-BDS laws," which preclude a person or entity receiving government funds from boycotting Israel. More than a few courts have addressed this issue, and their decisions have not been necessarily uniform.
For instance, one of the Court's colleagues on the district bench in Arkansas was called upon to address a similar issue. He began his opinion:
I routinely instruct jurors to follow my instructions on the law, even if they thought the law was different or think it should be different. This case presents an occasion in which I must follow the same principle, which is that I have a duty to follow the law even though, before researching the issue, I thought the law required a different outcome than the one ultimately reached.
Arkansas Times LP v. Waldrip , 362 F. Supp. 3d 617, 619 (E.D. Ark. 2019), rev'd and , 988 F.3d 453 (8th Cir. 2021), reh'g en banc granted, opinion vacated (June 10, 2021). This is about as good a "teaser" as one can use to begin an opinion.
A colleague in the Western District of Texas began his order with a less provocative, but more direct, introduction of the primary issue that it had before it:
This case is about whether Texas may prohibit boycotting the State of Israel as a condition of public employment. Plaintiffs in this case are all participants or supporters of the "BDS" movement. The BDS movement—referring to boycotts, divestment, and sanctions—arose in response to Israel's occupation of Palestinian territory and its treatment of Palestinian citizens and refugees.
Amawi v. Pflugerville Indep. Sch. Dist. , 373 F. Supp. 3d 717, 730 (W.D. Tex. 2019).
Both judges accurately described the same issue in their well-reasoned opinions (albeit the Arkansas case dealt with an Arkansas law). Both considered in depth the possible implications that an Anti-BDS law might have on First Amendment rights. Yet they reached opposite conclusions. This issue has confounded more than a few judges, and there seems to be no consensus. The Arkansas Times case demonstrates the schism. The district court's decision was reversed by the Eighth Circuit in a 2-1 decision. That decision has since been vacated, and it is now set for en banc consideration. See Arkansas Times LP v. Waldrip , 988 F.3d 453, 464 (8th Cir. 2021), reh'g en banc granted, opinion vacated (June 10, 2021).
The fact that the two cases referenced above reached opposite conclusions is not a reflection on either jurist, as both are well-regarded members of the Judiciary. The differing results are indicative of how a seemingly simple fact pattern can encompass any number of complex legal issues—enough issues to puzzle even the most erudite professor of constitutional law. This opinion should accentuate that complexity, as the Court agrees with some aspects of each of the opinions.
Among the issues the Court will address is whether A&R has standing to bring this case and whether it has the right as a Texas corporation to claim the full panoply of protections found in the First Amendment. The Court will also need to decide if this issue is ripe. Assuming Plaintiff does have standing and that the issue is ripe, the Court will then address whether the First Amendment is implicated and, if so, the extent of its protection. The Court is also faced with the question of whether Texas can regulate how its taxpayers' dollars are used, and to whom they are given; and whether the Constitution requires Texas to fund activities with which it disagrees and that are actively contrary to the policies it is pursuing. There are many sub-issues as well, including: Is an economic boycott speech or association that falls under the penumbra of the First Amendment? Does Texas have a right to "punish" a company for exercising its First Amendment rights (as Plaintiff phrases it) or must Texas provide taxpayer funds to support Plaintiff's boycott (as Texas might phrase it)? Stated another way, must Texas taxpayers support a cause they may or may not believe in and that is clearly at odds with Texas's current pursuit of business with Israel?
Plaintiff's owner, Ramsy Hassouna, has testified that he is not anti-Semitic, but that he is a proponent of the Boycott, Divestment, and Sanctions ("BDS") movement. The BDS movement allegedly seeks to apply international, nonviolent pressure on Israel, so long as it continues to occupy the West Bank, Gaza, and East Jerusalem. What is BDS? , https://bdsmovement.net/what-is-bds (last visited Jan. 25, 2022). Per its website, the BDS movement has three goals: (1) to end Israeli occupation of what it views as Palestinian land; (2) the recognition of "full equality" for Arab-Palestinian citizens of Israel; and (3) a guarantee that Palestinian refugees can return to the lands from which they were displaced following the establishment of Israel in 1948. Id. The organization that claims ownership of the BDS movement is the Palestinian BDS National Committee (BNC), a "coalition of Palestinian organisations [sic] that leads and supports the BDS movement," and the Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI). Id. The BDS movement officially launched on July 9, 2005, the one-year anniversary of the International Court of Justice's advisory concerning the Gaza-Israel barrier. See Palestinian Civil Society, Palestinian Civil Society Call for BDS , BDS (July 9, 2005), https://bdsmovement.net/call; see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 3 (July 9). The BDS movement describes itself as "an inclusive, anti-racist human rights movement that is opposed on principle to all forms of discrimination, including anti-semitism and Islamaphobia." What is BDS? , https://bdsmovement.net/what-is-bds (last visited Jan. 25, 2022).
Others, however, describe this movement as being anti-Semitic. See, e.g., BDS: The Global Campaign to Delegitimize Israel , ADL (last visited Jan. 25, 2022), https://www.adI.org/resources/backgrounders/bds-the-global-campaign-to-delegitimize-israel; Daniel Schwammenthal, BDS is Antisemitic , AM. JEWISH COMM. (Sept. 23, 2019), https://www.ajc.org/news/bds-is-antisemitic. Consequently, whether accurate or not, the specter of anti-Semitism overlays this entire situation.
Israel holds a unique position in the world as the only Jewish state. For centuries, the Jewish people have suffered at the hands of anti-Semitic individuals and nations. In Europe, for example, they have historically suffered pogrom after pogrom in one form or another, all of which culminated in the Nazi-driven Holocaust. From the tragedy of the Holocaust, the nation of Israel was born. See Israeli Declaration of Independence , KNESSET , https://main.knesset.gov.il/en/about/pages/declaration.aspx (last visited Jan. 25, 2022).
Now, over 70 years later, the current political climate has given rise to an uptick in anti-Semitic behavior, including some that clearly exceeds the protection of the First Amendment.1 This rise no doubt concerns not only Jews in Israel, but also those in the Jewish diaspora and those who care about their wellbeing.
Hassouna, as a proponent of the BDS movement, describes the passage of the Texas law in question (and those in other states) as a backlash against the BDS movement. He has personally boycotted Israel, and the Complaint allows that A&R has as well. (Doc. No. 1, p. 8).2 There is no doubt some truth in this characterization of the motivating factor behind the actions taken by the Texas Legislature. Nevertheless, it would be a mistake to...
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