United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
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),
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.
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).
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).
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.
House Bill 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.
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.
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.
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
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).
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
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).
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).
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.”
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.).
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).
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.).
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).
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
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.).
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.
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
“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.).
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).
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.”
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). The relevant standard for each motion is
Motion for Preliminary Injunction
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).
Motion to Dismiss
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).
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).
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).
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)).
Subject Matter Jurisdiction
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
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.
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).
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).
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.,