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Amawi v. Pflugerville Independent School District

United States District Court, W.D. Texas, Austin Division

April 25, 2019

BAHIA AMAWI, Plaintiff,
v.
PFLUGERVILLE INDEPENDENT SCHOOL DISTRICT, et al., Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court in this consolidated action are two motions for a preliminary injunction filed by Plaintiff Bahia Amawi (“Amawi”) and Plaintiffs John Pluecker, Zachary Abdelhadi, Obinna Dennar, and George Hale (the “Pluecker Plaintiffs”) (together, “Plaintiffs”), (Amawi Mot. Prelim. Inj., Dkt. 8; Pluecker Mot. Prelim. Inj., 1:18-CV-1100, Dkt. 14), [1] and responsive briefing, (Dkts. 24, 25, 39, 40, 42, 45). Also before the Court are motions to dismiss filed by Defendant Ken Paxton, in his official capacity as Attorney General of the State of Texas (“Texas” or the “State”), (Dkt. 55), Defendants the Board of Regents of the University of Houston System and the Board of Regents of the Texas A&M University System (the “Boards” or the “Universities”), (Dkt. 24), Defendants the Trustees of the Klein Independent School District and the Trustees of the Lewisville Independent School District (the “Trustees” or the “School Districts”), (Dkts. 43, 44), and responsive briefing, (Dkts. 38, 45, 49, 51, 60, 61, 63). Having considered the parties' arguments, the evidence, and relevant law, the Court will grant Plaintiffs' motions for a preliminary injunction and deny Defendants' motions to dismiss.

         I. INTRODUCTION

         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. (Abbas Decl., Dkt. 14-2, at 16-18; Clay Decl., Dkt. 14-2, at 6). Modeled after the South African anti-apartheid movement, the BDS movement seeks to pressure the Israeli government to end its occupation of the West Bank, Gaza, and Golan Heights, end discrimination against Arab-Palestinian citizens of Israel, permit Palestinian refugees to return to their homes, and otherwise comply with international law. (Pluecker Mot. Prelim. Inj., Dkt. 14-1, at 10; Clay Decl., Dkt. 14-2, at 6). The BDS movement claims to be nonviolent and opposed to all forms of discrimination, including anti-Semitism and Islamophobia. (Clay Decl., Dkt. 14-2, at 7, 11).

         Congress, however, has declared that it “opposes politically motivated actions that penalize or otherwise limit commercial relations specifically with Israel, such as boycotts of, divestment from or sanctions against Israel.” 19 U.S.C. § 4452. Twenty-five states have enacted legislation or issued executive orders restricting boycotts of Israel, (Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 3), and several more have introduced legislation to that effect, (Abbas Decl., Dkt. 8-4, at 12-14). In every state to consider such legislation, the proposed measures have passed by considerable margins. (Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 4).

         In 2017, Texas joined those states opposing the BDS movement when it enacted House Bill 89, codified at Tex. Gov. Code § 2270.001 et seq. (“H.B. 89”). Texas emphasizes that H.B. 89 was “widely supported” and “passed unanimously in the House, and 26-5 in the Senate.” (Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 1; Texas Mot. Dismiss, Dkt. 55, at 1). As a result of the State's disapproval of the BDS movement, Plaintiffs allege that they have lost the benefit of public employment with the State of Texas, or fear losing such employment, and that H.B. 89 prohibits them from exercising their First Amendment right to boycott the State of Israel.

         A. House Bill 89

         H.B. 89 prohibits state entities from contracting with companies that “boycott Israel.” It provides:

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. Code § 2270.002.

         The term “boycott Israel” is defined to mean “refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict 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.” Tex. Gov. Code § 808.001.

         The term “company” includes “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.” Tex. Gov. Code § 808.001.

         It is indisputable that H.B. 89 targets participation in BDS campaigns. Both Representative Phil King, the bill's sponsor, and Governor Gregg Abbott have referred to H.B. 89 as the “anti-BDS bill.” (See Clay Decl., Dkt. 14-2, at 16-19). Representative King has described the BDS movement as “economic warfare” and stated that H.B. 89 reflects Texas's disapproval of the movement because “[t]he BDS movement is directed at harming and destroying Israel, pure and simple.” (Abbas Decl., Dkt. 8-4, at 56). Upon signing the bill, Governor Abbott proclaimed that “[a]nti-Israel policies are anti-Texas policies, and we will not tolerate [boycott] actions against an important ally.” (Clay Decl., Dkt. 14-2, at 20). Similarly, King stated that “[t]he bill sends a strong message that Texas stands with its friends, ” and Abbott responded to a news report about this litigation by tweeting “Texas stands with Israel. Period.” (Id. at 23, 26). When asked by a media outlet what motivated him to introduce H.B. 89, King provided four reasons:

First, as a Christian, my religious heritage is intrinsically linked to Israel and to the Jewish people. Second, as an American, our national security is dependent in great part on a strong Israel, often our only friend in the Middle East. Third, as a Texas legislator, our state has a substantial Jewish population and this issue is important to them. Texans have historical ties and do a lot of business with Israel. Fourth, it's just the right thing to do.

(Abbas Decl., Dkt. 8-4, at 56).

         B. Plaintiffs' Boycotts

         Plaintiffs in this consolidated action are five sole proprietors who allege that H.B. 89 violates their First and Fourteenth Amendment rights. Because the nature of Plaintiffs' boycotts is relevant to this dispute, they are described in detail below.

         1. Bahia Amawi

         Plaintiff Amawi is a speech pathologist. (Amawi Decl., Dkt. 8-3, ¶ 1). She is a United States citizen and Muslim of Palestinian origin, has family members living in Palestine, and claims that she has “seen and experienced the brutality of the Israeli government against Palestinians.” (Id. ¶ 8). She testifies that the Israeli government cuts off main roads for Palestinians but not Israelis in the West Bank, imposes “curfews that last for weeks” despite the need to obtain groceries or health treatments, closes schools, subjects Palestinians to constant searches, and takes Palestinian children into custody during the night. (Hr'g Tr., Dkt. 81, at 15:3-19). Amawi claims to participate in the BDS movement because she “advocate[s] for Palestinian human rights and justice, ” and to that end, “support[s] peaceful efforts to impose economic pressure on Israel, with the goal of making Israel recognize Palestinians' dignity and human rights.” (Amawi Decl., Dkt. 8-3, ¶¶ 8-9). Amawi asserts that she “frequently make[s] economic decisions on the basis of [her] support for Palestine and [her] ethical objections to Israel's mistreatment of Palestinians, ” including buying Palestinian olive oil and refusing to buy the Sabra brand of hummus because of the company's connections to Israel. (Id. ¶ 9).

         For nine years, Amawi has contracted with the Pflugerville Independent School District (“PISD”) to provide speech therapy and early childhood evaluations for three- to five-year-old children in the school district. (Id. ¶ 2). She refused to sign an addendum in her renewal contract with PISD for the 2018-19 school year, however, because the addendum required her to certify that she does not boycott Israel and will not boycott Israel during the term of her employment. (Id. ¶ 4, 5, 7). Amawi contacted PISD regarding the addendum before refusing to sign it. (Id. ¶ 5). Initially, PISD informed Amawi that it thought she could strike out the “No Boycott of Israel” paragraph and initial it, but later confirmed that “agreeing to [the] Paragraph . . . was mandatory to receive payment for [her] services.” (Id. ¶ 6). Amawi refused to sign the contract because she believed that the “No Boycott of Israel” paragraph “violate[d] [her] First Amendment right to advocate for human rights in Palestine.” (Id. ¶ 10). She was therefore forced to terminate her contractual relationship with the school district. (Amawi Compl., Dkt. 1, ¶ 4). PISD has stipulated that it will offer Amawi another contract to provide speech pathology service, one not containing the no-boycott certification paragraph, if this Court invalidates or enjoins H.B. 89. (Not. Cond. Stip., Dkt. 18, at 2).

         2. John Pluecker

         Plaintiff Pluecker is a freelance writer, artist, interpreter, and translator. (Pluecker Decl., Dkt. 14-6, ¶ 1). As an interpreter and writer, Pluecker volunteers his time and talent to civil rights and immigrant rights organizations. (Id. ¶ 4). Through his involvement in the art community and through civil rights advocacy, he has developed friendships with Palestinian artists and political activists and learned about the conflict between Palestine and Israel. (Id. ¶ 5). Pluecker has become an “active supporter of Palestinian rights and liberation, ” and he expresses this support by supporting Palestinian art exhibits and presentations and by participating in BDS campaigns. (Id. ¶¶ 5-6). Pluecker claims to participate in BDS campaigns with the goal of “promot[ing] justice and effectuat[ing] human rights in Israel and the Palestinian territories.” (Id. ¶ 6). Specifically, he boycotts Sabra products due to the company's support for the Israel Defense Forces (“IDF”), which he considers “a particularly controversial section of the Israeli military.” (Id.).

         For the past few years, Pluecker has contracted with the University of Houston. (Id. ¶ 9). In March 2018, a representative for the Blaffer Art Museum at the University of Houston offered him a contract to translate an art essay. (Id. ¶¶ 10). Pluecker began work on his translation before reviewing or signing the contract due to his prior relationship with the University. (Id.). After reviewing the contract, Pluecker crossed out the “No Boycott of Israel” provision before submitting it. (Id. ¶ 12). The representative informed Pluecker that he would not be paid for his translation unless he certified that he did not boycott Israel. (Id. ¶ 13). Pluecker did not sign the contract because he “did not want to forfeit [his] participation in a BDS campaign against Sabra and [his] support of pro-Palestinian presentations and art exhibits.” (Id. ¶ 14). Nor did he want “to disavow [his] right to participate in BDS boycott campaigns in the future.” (Id.).

         Pluecker was offered another contract with the University of Houston in September 2018, this time by a faculty member to be a guest speaker for a class of college students. (Id. ¶ 15). Pluecker emailed the University of Houston to inform them that he would not sign the contract because “it includes language that requires me to affirm that I am opposed to the boycott of the State of Israel.” (Id. ¶ 16). The University denied him the contract. (Id. ¶ 17).

         3. Zachary Abdelhadi

         Plaintiff Abdelhadi is a sophomore at Texas State University in San Marcos, Texas. (Abdelhadi Decl., Dkt. 14-3, ¶ 3). He is Palestinian-American; his father is from Palestine, and his mother was born in the United States. (Id. ¶ 5). He is an active participant in the BDS movement because he “agree[s] with their efforts to seek an end to the Israeli occupation of Palestinian homelands, equal rights for Arab-Palestinian citizens of Israel, and the right of return for Palestinians.” (Id.). As part of his participation in the BDS movement, Abdelhadi claims to boycott only those Israeli companies he views as “supporting Israel's occupation of Palestinian territories, those that support Israeli policies that oppress Palestinian people, [and] those supporting the Israel Defense Forces.” (Id. ¶ 7). He therefore avoids purchasing PepsiCo, Hewlett Packard (“HP”), and Strauss Group products, and avoids using booking services such as VRBO that list vacation rental homes in Israeli settlements in the West Bank. (Id.).

         Abdelhadi participated in his high school's debate program. (Id. ¶ 4). After graduation, his former debate teacher offered him the opportunity to judge debate tournaments for Lewisville Independent School District (“LISD”). (Id. ¶ 9). He sent Abdelhadi a “Lewisville ISD School Contractor/Consultant contract for speech and debate judging” in September 2017. (Id. ¶ 10). The contract contained a “Not [sic] Boycott Israel” clause. (Id.). Abdelhadi refused to sign the contract because doing so would “violate [his] political beliefs, ” “force [him] to discontinue [his] current and future participation in BDS campaigns, ” and “would be a public declaration on a position that is contrary to [his] political beliefs.” (Id. ¶¶ 13-14). Consequently, Abdelhadi was unable to judge the debate tournaments. (Id. ¶ 17). Because he “anticipated judging about 15 debate tournaments a year for LISD, ” Abdelhadi testifies that he has “already lost income amounting to over three semesters' worth of textbooks, several vehicle payments, or several months of rent in San Marcos.” (Id. ¶¶ 4, 17).

         4. Obinna Dennar

         Plaintiff Dennar is a graduate student at Rice University. (Dennar Decl., Dkt. 14-4, ¶ 3). He actively participates in BDS campaigns by “boycott[ing] consumer products offered by businesses supporting Israel's occupation of the Palestinian territories or that, directly or indirectly, economically benefit the Israeli government, including Sabra and L'Oreal.” (Id. ¶ 5). He does this in protest of what he believes to be “Israel's occupation of Palestinian lands, illegal settlements constructed on internationally recognized Palestinian territory, and violation of the human rights of Palestinians.” (Id.). Dennar testifies, however, that he would not boycott Israeli companies supporting “the plight of the Palestinian people, ” and he would not boycott “an American company solely because its owner was of Israeli origin.” (Id.). In addition to his BDS activities, Dennar is a member of the National Students for Justice in Palestine, and its Houston chapter. Through these organizations, Dennar participates in “educational presentations, college tabling, and . . . meetings relating to Palestinian justice.” (Id.).

         Since 2015, Dennar has contracted with public school districts to judge about ten debate tournaments per year. (Id. ¶ 3). In 2017, he contacted the debate coordinator for Klein High School to serve as a judge in an upcoming debate tournament. (Id. ¶ 6). Like Pluecker, Dennar provided his services before reviewing and signing the contract he was offered because he assumed it would be similar to the ones he had signed before. (Id.). Upon reviewing the contract, however, Dennar discovered that it included a clause requiring him to certify that he did not boycott Israel and would not boycott Israel for the duration of the contract agreement. (Id. ¶ 7). Dennar states that he “was required to sign the boycott form in order to be paid.” (Id.). He did not sign the contract because he was currently engaged in a boycott of Israel and did not want to disavow his boycott. (Id. ¶ 8). Dennar was not paid for his work. (Id.).

         Because he understands that all Texas public high schools are required to include the “No Boycott of Israel” certification in their contracts, Dennar testifies that he has been forced to forgo all contract work as a debate tournament judge at public high schools in the state. (Id. ¶ 10). He believes that signing the certifications would require him “to forfeit [his] BDS-related activities, including [his] past and present affiliations with pro-Palestine organizations” that “engage in BDS campaigns” because associating with those groups “could be seen as dealing with or taking any action ‘intended to penalize, inflict economic harm on, or limit commercial relations' with Israel, ” in contravention of H.B. 89. (Id. ¶¶ 12-13).

         5. George Hale

         Plaintiff Hale is a radio reporter for KETR, the NPR station for northeast Texas, which is licensed to Texas A&M University-Commerce (“TAMUC”). (Hale Decl., Dkt. 14-5, ¶ 3). Hale joined KETR after spending nearly eight years reporting on the Israel-Palestine conflict for various news agencies, including overseas from Israel, the Palestinian territories, Egypt, and Jordan. (Id. ¶ 5). Hale also lived with Palestinians in Bethlehem from September 2008 to May 2016. (Id.). During that time, “[d]espite . . . liv[ing] within the internationally recognized Palestinian territory, ” Hale testifies that he “had to go through checkpoints and roadblocks operated by Israeli security forces” whenever he entered or left Bethlehem, “was subjected to numerous strip searches and prolonged questioning about [his] work, ” and “was exposed to tear gas in [his] apartment and car from Israeli forces on a regular basis.” (Id. ¶ 6). Based upon these “dehumanizing” experiences, Hale considers himself “politically aligned with the Palestinian people, ” and he “support[s] their struggle for liberation.” (Id.).

         Hale “previously boycotted consumer goods offered by businesses supporting Israel's occupation of the Palestinian territories.” (Id. ¶ 9). He boycotted products produced by Ahava, a popular Israeli Dead Sea cosmetics company, “because some of its operations are conducted in the West Bank.” (Id.). He also boycotted HP products due to the company's “role in the ID system that Israel uses to control the movement of Palestinians.” (Id.). Hale boycotted these companies “to protest both the Israeli occupation of the Palestinian territories and the settlements, which [he] believe[s] violate the human rights of Palestinians.” (Id.).

         Hale is not currently active in BDS campaigns, however. (Id. ¶ 7). He testifies that the reason for this is that he “was forced to sign a No Boycott of Israel certification” as a condition of his employment with KETR. (Id. ¶ 10). In February 2018, TAMUC contracted with Hale to provide KETR segments of the “Buried” podcast series, of which Hale is the host and lead reporter. (Id. ¶¶ 3, 11). The contract contained the “No Boycott of Israel” certification clause, which Hale “did not approve” of, but which he signed because he “was committed to the ongoing investigative project” of the podcast and “did not feel that [he] could quit midway through the work.” (Id. ¶ 12). Hale's discomfort from signing the contract grew in the following months, and when his contract was up for renewal, he attempted to sign it under protest because he felt “that the anti-BDS clause . . . violated [his] rights to free speech and free association.” (Id. ¶¶ 14-16). Hale made a notation in the renewal contract indicating his disapproval of the “No Boycott of Israel” clause, but when a copy of the contract was sent to TAMUC's Assistant Director of Procurement Services, the Assistant Director rejected the notation and stated that Hale “can sign a clean copy or he won't work. We are not forcing him to sign under duress or protest.” (Id. at 6-7, 28). “Faced with the prospect of losing [his] job, ” Hale felt he “had no choice but to sign the contract.” (Id. ¶ 18).

         Now, in addition to “discontinu[ing] his boycott, ” Hale is “unsure whether [he] could even decline to purchase” the products he previously boycotted because “refusing to purchase Ahava or HP products . . . could be interpreted by others as violating the [No Boycott of Israel] certification” he has given. (Id. ¶¶ 19-20) (original emphasis). Hale worries that he could not decline to make such purchases unless he can justify that decision with a “business purpose.” (Id. ¶ 20). He also worries that his “affiliations and support of pro-Palestinian issues would be seen as dealing with or taking any action ‘intended to penalize, inflict economic harm on, or limit commercial relations' with Israel.” (Id. ¶ 21). Hale continues to experience discomfort with the fact that he signed a document that “is a public declaration on a position that is contrary to [his] . . . personal and political beliefs.” (Id.).

         II. LEGAL STANDARD

         Amawi and the Pluecker Plaintiffs have each moved for a preliminary injunction. All Defendants except PISD have moved to dismiss this case under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).[2] The relevant standard for each motion is as follows.

         A. Motion for Preliminary Injunction

         A preliminary injunction is an extraordinary remedy, and the decision to grant such relief is to be treated as the exception rather than the rule. Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking injunctive relief carries the burden of persuasion on all four requirements. PCI Transp. Inc. v. W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005). To show a likelihood of success, the plaintiff must present a prima facie case, but need not prove that it is entitled to summary judgment. Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 582 (5th Cir. 2013).

         B. Motion to Dismiss

         Motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) are subject to the same standard of review. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). The party bearing the burden of proof, however, differs. The movant (here, Defendants) bears the burden of proof for a 12(b)(6) motion; the party asserting subject matter jurisdiction (here, Plaintiffs) bears the burden for a 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

         1. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject matter jurisdiction as a defense to suit. Fed.R.Civ.P. 12(b)(1). Federal district courts are courts of limited jurisdiction and may only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming, 281 F.3d at 161 (5th Cir. 2001). “Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Id. In ruling on a Rule 12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).

         2. Rule 12(b)(6)

         Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a 12(b)(6) motion, a “court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

         A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted). A court may also consider documents that a defendant attaches to a motion to dismiss “if they are referred to in the plaintiff's complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). But because the court reviews only the well-pleaded facts in the complaint, it may not consider new factual allegations made outside the complaint. Dorsey, 540 F.3d at 338. “[A] motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.'” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

         III. DISCUSSION

         A. Subject Matter Jurisdiction

         Before the Court can reach the merits of Plaintiffs' claims, it must first determine whether it has subject matter jurisdiction over those claims. Texas argues that Plaintiffs lack standing to challenge the constitutionality of H.B. 89 because it does not apply to Plaintiffs' boycott activities.

         (Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 9-11). The Universities argue that this Court lacks jurisdiction over them because they have Eleventh Amendment immunity from suit. (Univ. Ds.' Mot. Dismiss, Dkt. 24, at 3-5). Finally, the School Districts argue that Plaintiffs' claims are not ripe for judicial review and that Plaintiffs allege harms not causally connected to the Trustees of LISD and KISD. (LISD Mot. Dismiss, Dkt. 43, at 7-11; KISD Mot. Dismiss, Dkt. 44, at 6-11). As explained below, the Court finds that it has subject matter jurisdiction over all of Plaintiffs' claims as to all Defendants to this action.

         1. Standing

         Article III of the Constitution restricts the jurisdiction of federal courts to “cases” and “controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). To establish Article III standing, a plaintiff must demonstrate that she has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560-61). The purpose of these requirements is to ensure that plaintiffs have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” Massachusetts v. EPA, 549 U.S. 497, 517 (2007) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). The standing requirements are heightened somewhat in the context of a motion for a preliminary injunction, in which case a plaintiff must make a “clear showing” that she has standing to maintain the preliminary injunction. Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017) (citing Winter, 555 U.S. at 22).

         Plaintiffs have made a clear showing that they satisfy each Lujan element of standing at this stage in the litigation. With respect to the injury-in-fact requirement, all five Plaintiffs allege that the inclusion of the no-boycott clauses in their contracts has chilled their First Amendment right to free expression. (Amawi Decl., Dkt. 8-3, ¶ 10; Pluecker Decl., Dkt. 14-6, ¶¶ 14, 16; Abdelhadi Decl., Dkt. 14-3, ¶ 12; Dennar Decl., Dkt. 14-4, ¶¶ 8-9; Hale Decl., Dkt. 14-5, ¶¶ 12-13, 15). Four of the Plaintiffs further allege that because they refused to sign anti-boycott certifications in their contracts with Texas entities, they lost the opportunity to contract with those entities. (Amawi Reply Mot. Prelim. Inj., Dkt. 39, at 14; Pluecker Reply Mot. Prelim. Inj., Dkt. 40, at 9). The fifth Plaintiff- Hale-alleges that while he remains under contract with TAMUC, he is harmed because he cannot boycott Israel during the term of his employment. (Pluecker Reply Mot. Prelim. Inj., Dkt. 40, at 9). Texas does not dispute that Plaintiffs suffered these harms; rather, it argues that the harms were not caused by H.B. 89. In the State's view, the statute applies only to acts taken by government contractors in their “company” capacities. (Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 9-10). According to the State, because Plaintiffs' boycott activities were taken in their “personal” capacities, they were “entirely divorced from the content of the contracts they signed with the State as sole proprietors.” (Id. at 9). Plaintiffs read H.B. 89 differently; they argue that H.B. 89 applies to all boycotting activity undertaken by companies during the contract period regardless of whether the boycotts are related to the content of the contract. (Amawi Reply Mot. Prelim. Inj., Dkt. 39, at 13- 14; Pluecker Reply Mot. Prelim. Inj., Dkt. 40, at 9-10). In other words, Plaintiffs read H.B. 89 to reach the acts of contracting companies, not merely “company” acts. Moreover, Plaintiffs argue that as sole proprietors, there is no legal distinction between their “company” acts and “personal” acts because under Texas law, a sole proprietor has no legal existence apart from his sole proprietorship. (Id. (citing CU Lloyd's of Texas v. Hatfield, 126 S.W.3d 679, 684 (Tex. App.-Houston [14th Dist.] 2004, pet. denied); Black's Law Dictionary (7th ed. 1999) (a sole proprietorship is “[a] business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity”))). Consequently, Plaintiffs' “personal consumption and financial decisions . . . affect and belong to the sole proprietorship” and so are affected by H.B. 89. (Pluecker Reply Mot. Prelim. Inj., Dkt. 40, at 10; see also Amawi Reply Mot. Prelim. Inj., Dkt. 39, at 14).

         The Court finds that Plaintiffs' injuries are “fairly traceable” to H.B. 89. Lujan, 504 U.S. at 560-61. By its plain terms, the statute affects all actions taken by a company contracting with the State. It requires contractors to certify that they “(1) do not boycott Israel; and (2) will not boycott Israel during the term of the contract.” Tex. Gov. Code § 2270.002. The terms do not distinguish between “company” and “non-company” acts. However characterized, Plaintiffs' boycott activities fall within the scope of H.B. 89's terms because they are actions taken by companies (here, sole proprietors) contracting with the State. Indeed, several state actors have already interpreted H.B. 89 to apply to Plaintiffs' boycott activities. (See Amawi Decl., Dkt. 8-3, ¶¶ 5-6; Pluecker Decl., Dkt. 14-6, ¶¶ 12-13; Hale Decl., Dkt. ...


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