TEXAS GOVERNMENT CODE

TITLE 10. GENERAL GOVERNMENT

SUBTITLE F. STATE AND LOCAL CONTRACTS AND FUND MANAGEMENT

Sec. 2270.002. PROVISION REQUIRED IN CONTRACT. 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.

Added by Acts 2017, 85th Leg., R.S., Ch. 1 (H.B. 89), Sec. 1, eff. September 1, 2017.

The Daily Beast  by Audrey McNamara 12.17.18

Texas Elementary School Speech Pathologist Lost Her Job for Refusing to Sign Pro-Israel Oath

A Texas educator says she was fired from her job working with speech-impaired elementary school students because she refused to sign a pledge of loyalty to Israel.

On Monday, The Intercept first reported, she sued the state and the school district that gave her the boot.

“Texas’s ban on contracting with any boycotter of Israel constitutes viewpoint discrimination that chills constitutionally-protected political advocacy in support of Palestine,” reads the lawsuit filed by children’s speech pathologist Bahia Amawi.

Amawi has worked with developmentally disabled, autistic, and speech-impaired elementary school students in Austin, Texas, for nine years, speaks three languages, and holds a master’s in her field.

The Pflugerville Independent School District included new language in their contracts this year requiring that employees “will not boycott Israel during the term of the contract,” and will refrain from any action “that is intended to penalize, inflict economic harm on, or limit commercial relations with Israel, or with a person or entity doing business in Israeli or in an Israel-controlled territory.”

Amawi, an American citizen and mother of four, said she was prepared to renew until she noticed the new clause.

“Absolutely not. I couldn’t in good conscience do that. If I did, I would not only be betraying Palestinians suffering under an occupation that I believe is unjust, and thus become complicit in their repression, but I’d also be betraying my fellow Americans by enabling violations of our constitutional rights to free speech and to protest peacefully,” she told The Intercept.

Amawi was told there was no alternative: Either Amawi signed the oath or the district, as a public institution, would not pay her.

And so she filed a federal lawsuit on Monday against Texas Attorney General Ken Paxton and the Pflugerville school district, arguing that her dismissal was a violation of her First Amendment right to free speech.

“It’s baffling that they can throw this down our throats, and decide to protect another country’s economy versus protecting our constitutional rights,” Amawi said.

To her knowledge, Amawi was the only Arabic-speaking child’s speech specialist in the district, which lies in an area with a growing Arabic population.

“I got my master’s in this field and devoted myself to this work because I always wanted to do service for children,” Amawi told The Intercept. “It’s vital that early-age assessments of possible speech impairments or psychological conditions be administered by those who understand the child’s first language.”

The oath was included in Amawi’s contract as the result of an Israel-specific Texas law enacted in May 2017. The same law blocked some victims of Hurricane Harvey from receiving state disaster relief unless they first signed a pledge to never participate in the Boycott, Divestment and Sanctions (BDS) movement against Israel.

Similar laws are on the books in 25 other states—including Democratic-run states such as California and New York—meaning the vast majority of Americans are currently barred from supporting a boycott of Israel without facing some form of legal retribution.

In 2016, New York Democratic Gov. Andrew Cuomo issued an executive order directing all state government agencies to terminate any business with companies that support the BDS movement.

Government employees are freely allowed to boycott American states or companies that conflict with their personal beliefs—as many officials did in reaction to anti-LGBT laws in North Carolina and Indiana.

Amawi could engage in any political activism against her own country and keep her job. That right seemingly does not apply to her activism on Israel.

If the courts strike down Texas’s anti-BDS government contracting requirement, then all anti-discrimination government contracting requirements will be at risk of being eliminated. Do we really want state governments to give contracts to vendors who engage in blatant racial or sexual discrimination?

BDS boycotters (and vendors engaging in other types of discrimination) also cannot optimally perform government contracts. For example, even if an Israeli company (or an American company that does business with Israel) manufactures speech-pathology equipment that is 10 times better than any other speech-pathology equipment for the same price, Ms. Amawi will refuse to buy this vital superior equipment. The Texas students receiving Ms. Amawi’s services will suffer because of her discriminatory economic practices. It is surely legitimate for Texas to refuse to contract with someone whose bigotry towards Israel results in harm to Texas’ students and the Texas public.

In large-scale government contracts, there can and will be large-scale deleterious consequences to Texas if Texas is required to contract with vendors who boycott Israeli companies and boycott American companies that do business with Israel. Indeed, the BDS movement has targeted all-American companies such as Caterpillar, HP, and Motorola, which provide the types of equipment and services the government often needs.

Texas also has the constitutional right to go even further than the Texas anti-BDS goes. Texas could restrict the speech employed in a contract for a Texas-financed program. The US Supreme Court held that the government may prohibit Federal fund recipients from using those funds to express speech with which the government disagrees, stating: “[A] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right” (Rust v. Sullivan, 500 U.S. 173, 1991).

Unfortunately, there is a great deal of misinformation being spread about the scope and content of anti-BDS laws in Texas and other states. To try to make Ms. Amawi seem sympathetic, some groups are falsely and misleadingly portraying her as a mere employee who didn’t sign a “loyalty oath” that impinges on her First Amendment rights.

The facts are that these laws do not affect “free association” or free-speech rights; the laws only concern discriminatory economic boycott activity. Second, the Texas anti-BDS law only concerns companies that contract with the government, including sole proprietorships such as Ms. Amawi’s business. State employees are not affected by the law. Third, the law requires contractors to sign an agreement not to boycott the products of Israeli companies and other companies (including American companies) that do business with Israel during the term of the contract; it is not a “loyalty oath.”

Anti-Israel boycotts also blatantly violate the Oslo Accords signed by Israel and the Palestinian Authority (PA). The Oslo accords require the PA to cooperate economically with Israel. But instead, the PA and terror groups Hamas and the Popular Front for the Liberation of Palestine, instigated anti-Israel BDS as a form of economic warfare against the Jewish state. It should also be borne in mind that Federal anti-boycott legislation targeting the Arab League boycott, enacted almost 40 years ago, has never been overturned.

There are multiple victims of anti-Israel boycotts, including Jews with no relation to Israel (such as the singer Matisyahu), Israeli Jews, Israeli and Palestinian Arabs, and American and European companies targeted by the expansive BDS cordon. BDS has shuttered companies or forced companies to move, causing thousands of Jews and Arabs to lose their livelihoods through no fault of their own. By contrast, Ms. Amawi can easily obtain a government contract if she simply agrees not to engage in discriminatory boycott economic activity. And she can work in the private sector if she continues to refuse to end her bigoted boycott economic activity.

Ms. Amawi’s misguided boycott moreover hurts the very people whom she purports to want to help. Arab people on the ground in Israel and Judea-Samaria (aka, the West Bank) want more Jewish businesses to open and expand there. The 2015 Palestinian Center for Public Opinion poll found that despite theoretical “lip service” support for BDS, 55 percent of West Bank Palestinian Arabs said that they would “like to see Israeli companies offer more jobs inside” Judea-Samaria-the West Bank.

For the sake of all concerned, let’s hope that the courts toss out Ms. Amawi’s baseless, counterproductive lawsuit.

Morton Klein is the national president of the Zionist Organization of America. Elizabeth A. Berney is the ZOA director of special projects.