The Louis D. Brandeis Center for Human Rights Under the Law described a U.S. federal court’s ruling against the Texas anti-BDS law as an “Israel exception” that “has no basis in the law” and called on the federal court of appeals to reverse the judge’s injunction.
The public interest advocacy organization said in a statement that the court’s decision was “nothing less than a naked assault on principles of equal treatment.”
The Brandeis Center, along with Hadassah, The Women’s Zionist Organization of America, filed a legal brief in federal court on Thursday asking for the lower court’s decision to be overturned.
In January, a federal district judge ruled that the Texas law barring government entities from doing business with contractors that participate in a boycott of Israel violated a Palestinian-American contractor’s First Amendment rights. The ruling was appealed by the Texas attorney general and the U.S. Court of Appeals for the Fifth District began reviewing briefs submitted in the case.
The Brandeis Center warned in its brief that the lower court “misinterpreted the law and its decision severely jeopardizes the government’s ability to promote equality and prevent discriminatory conduct.”
According to the brief, the Texas anti-BDS law targets “discriminatory conduct, not speech” and discrimination is not protected by the First Amendment.
“The judge failed to recognize longstanding precedent upholding the constitutionality of laws that prevent government employees and contractors from discriminating,” the Brandeis Center said. “It is common practice for states to impose conditions on government contracts to discourage discrimination.”
The Brandeis Center added that “states cannot be required to use public funds to subsidize discrimination.”
The Brandeis Center argued that conditions on contractors are a “pillar” of anti-discrimination laws at all levels of government.
“Federal, state and local governments across the United States regularly and appropriately use similar conditions on government contracts to promote equality under the law, combat discrimination, and ensure that public funds are not used for illegal or invidious purposes,” they wrote in their brief. “Many of those laws, like the act at issue here, require government contractors to refrain from discrimination on the basis of national origin, race, religion, or other classifications as a condition to receiving government contracts,”
Noting that 32 states have anti-boycott laws similar to Texas, and 22 require contractors to certify their compliance, they added that the federal government also conditions contracts on refraining from discrimination based on national origin and race.
“It is well-settled that states may advance legitimate interests, such as combating the scourge of discrimination, through the imposition of conditions on government contracts, and that they are not required to deploy state funds to subsidize discriminatory conduct. The district court, however, refused to apply this basic principal here, where the State of Texas seeks to refrain from contracting with entities that partake in discriminatory boycotts against Israel.”
The Brandeis Center explained that “this Israel-exception to the states’ established authority to set conditions for government contracts has no basis in the law.”
“The result is that the State of Texas must now subsidize conduct - economic sanctions directed at a particular nation and its citizens - that the people of Texas, through their elected representatives, has determined to be discriminatory and sought to disincentivize. This court should remedy this problematic state of affairs by reversing the district court’s order,” the brief said.