On Tuesday, a federal court in Kansas suspended a state law requiring contractors to swear they will not boycott Israel, saying it violates speech rights.
The decision by the U.S. Court for the District of Kansas is not final, and the parties — a teacher trainer and the Kansas secretary of education — may still go to trial. But the decision’s unusually strong language suggests that the Kansas state government has the tougher case to make.
The defendant, Esther Koontz, brought the case in October with the assistance of the American Civil Liberties Union.
Koontz was denied a state contract because she participates in the anti-Israel boycott. The law, which took effect on July 1, requires that any person or company that contracts with the state submit a written certification that they are “not currently engaged in a boycott of Israel.”
“Plaintiff’s harm stems not from her decision to refuse to sign the certification, but rather from the plainly unconstitutional choice the Kansas law forces plaintiff to make: She either can contract with the state or she can support a boycott of Israel,” the court said in its decision. “Her harm is ongoing because the Kansas law is currently chilling plaintiff’s and other putative state contractors’ speech rights.”
Koontz, who said she shares her opposition to Israel’s treatment of the Palestinians with other members of her Mennonite congregation in Hutchinson, Kansas, had sought a training position with the Kansas Department of Education’s Math and Science Partnerships Program.
The ACLU is mounting similar challenges to laws passed recently in other states that ban state entities from doing business with those who adhere to the Boycott, Divestment and Sanctions Movement targeting Israel. More than 20 states have passed anti-BDS laws and Missouri may consider such a law this year.
Kansas state officials are not happy with the ruling.
“We are disappointed in the decision and will continue to review it,” stated Jennifer Montgomery, public information officer for the Kansas attorney general’s office.
State Rep. William Sutton, who supported the bill in the Kansas House of Representatives last year, is also disappointed in the court’s ruling.
“It certainly isn’t something that makes me happy to see. It appeared in the writings of the judge that anti-Semitism is defined as a constitutional right. He actually used the First Amendment in its defense. That opens a can of worms that no one would want to open,” said the Republican from Gardner, Kansas.
“I don’t understand that defense, but it will have to be decided in court,” he added.
On Tuesday afternoon Margie Robinow, a local advocate for the anti-BDS movement, said the ruling “is part of the process that will be long and has many steps. I look forward to the next steps.”
The ACLU calls the ruling an early victory.
“The court has rightly recognized the serious First Amendment harms being imposed by this misguided law, which imposes an unconstitutional ideological litmus test,” said ACLU attorney Brian Hauss, who argued the issue in court. “This ruling should serve as a warning to government officials around the country that the First Amendment prohibits the government from suppressing participation in political boycotts.”
In his opinion, U.S. District Judge Daniel Crabtree wrote, “[T]he Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.”
According to the ACLU, The Supreme Court ruled decades ago that political boycotts are protected by the First Amendment, and other decisions have established that the government may not require individuals to sign a certification regarding their political expression in order to obtain employment, contracts or other benefits.
“Today’s ruling marks a notable victory for the First Amendment,” said Micah Kubic, executive director of the ACLU of Kansas. “The government has no right telling people what they can and can’t support, and this preliminary injunction will protect other Kansans from enduring the First Amendment violation that Ms. Koontz has endured.”
In a statement made when the lawsuit was filed, Koontz said, “You don’t need to share my beliefs or agree with my decisions to understand that this law violates my free speech rights. The state should not be telling people what causes they can or can’t support.”
“I’m disappointed that I can’t be a math trainer for the state of Kansas because of my political views about human rights across the globe,” the statement continued.
While most of the largest Jewish groups have celebrated the passage of anti-BDS laws in Kansas and at least 20 other states, the ACLU suit drew support from the left-leaning New Israel Fund.
“No friend of democracy, nor any friend of Israel can, in good conscience, support this or any gag bill that silences dissent and erases the Green Line” marking the distinction between Israel and the West Bank, said Daniel Sokatch, CEO of the New Israel Fund, in a statement. “We don’t support the global BDS movement, but we’re grateful to the ACLU for its work challenging this damaging legislation at the federal and state levels.”
