“Loyalty oath” lawsuit reporting mis-represents Texas anti-BDS law

On May 2, 2017, Texas Governor Greg Abbott signed an anti-BDS bill at the Jewish Community Center in Austin

Faced with a growing number of states pushing back against groups that would boycott Israel, a new tactic for boycott supporters is playing out in Texas —portraying anti-boycott measures as a violation of individual free speech, and even claiming that government workers are having to pledge loyalty to Israel.

According to many media outlets, that is what happened with Bahia Amawi, a speech pathologist who has worked with autistic elementary school children in the Austin area for nine years. On Dec. 16, a lawsuit was filed in federal court stating that she lost her job because she refused to sign what is being characterized as a “loyalty oath” to Israel.

Supporters of the anti-BDS laws, however, say the suit was a result of a mis-application of the law, and efforts are being made to clarify it.

While groups like the ACLU are challenging anti-BDS laws as a matter of free speech, defenders state they are commercial anti-discrimination clauses, concerned with commercial conduct and not what individuals do in their private capacities.

Amawi’s suit starts off with a statement about the First Amendment, then states that while “the conflict between Israel and Palestine is a longstanding issue of considerable public concern,” Texas in 2017 “chose to categorically take Israel’s side” by barring government contracts with companies that boycott Israel.

In August, the Pflugerville Independent School District, where she has been a contract worker, sent her a contract for Arabic assessment services. On Sept. 10, they sent her an addendum stating that she “does not currently boycott Israel and will not boycott Israel during the term of the contract.” She told the district that she could not sign it “citing moral issues” and was forced to terminate her relationship with the district.

The contract addendum includes 10 sections, of which the Israel part is the ninth. Other sections deal with criminal history, non-discrimination, the Clean Air and Water Act, and so forth.

The suit, filed with the assistance of the Council on American Islamic Relations, states that Amawi “boycotts products created in Israel in support of the peaceful Palestinian Boycott, Divestment and Sanctions movement.”

If she signed that section, she said in an interview, “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.”

Born in Austria, Amawi has been in the U.S. for 30 years and is a citizen. She has relatives in the territories.

Joel Schwitzer, who is regional director of the American Jewish Committee in Dallas, said the suit is over a mis-application of the anti-BDS law. As an individual, she can boycott Israeli products, but that doesn’t affect her ability to provide speech pathology services.

Rep. Phil King, who wrote the law, said it was narrowly crafted to refer to “discriminatory commercial activity,” not individual criticism or boycotts of Israel. In other words, Amawi can boycott Israeli products as an individual, but in her professional capacity may not discriminate against any Israeli student who might need her services at the school, if that unlikely situation were to ever occur.

On its Facebook page, the school district said “Unfortunately, Pflugerville ISD and all Texas school districts are at the mercy of the state and the regulations printed into law and in situations such as this, we are forced to spend time on state political issues and not on our core mission — educating students. Although Pflugerville ISD is the focus of the lawsuit, this is a state issue that affects all Texas public school districts and should be addressed at the state level.”

In a statement, King said he will file “a simple bill” to eliminate any confusion and misapplication of the law, clarifying that it does not apply to individuals or sole proprietors, so “it doesn’t apply to a small individual who is doing a single contract such as this lady in Pflugerville.”

The law was also mis-applied by one town in taking applications for relief aid following Hurricane Harvey in 2017.

Texas Attorney General Ken Paxton is also named in the suit. A spokesman said private citizens and companies “have every right to express their views on any issue they wish by boycotting companies and citizens. They do not, however, have a right to use money they obtain from government contracts to make that statement. The taxpayers of Texas do not want their money used to marginalize and attack a key ally and trading partner of Texas, and they have said so at the ballot box.”

Jonathan Tobin, editor of Jewish News Syndicate, said that framing the debate as over the First Amendment makes such anti-BDS laws appear unconstitutional. But, he said, that is a misrepresentation, because the laws are prohibiting discriminatory commercial conduct.

“It is well understood that those who wish to be connected to the state government in this manner cannot expect to do business in such a way as to discriminate against African-Americans, Hispanics or other minority groups without running afoul of the law,” Tobin pointed out. “What anti-BDS laws do is to extend those protections to Israel and Israelis because they are subject to an international campaign of discrimination that is indistinguishable from anti-Semitism.”

Tobin points out that far from being “peaceful,” the BDS movement’s often-stated goal is the elimination and replacement of Israel, denying self-determination to the Jewish people.

Currently, there are 26 states which have anti-BDS laws, including Georgia, the Carolinas, Florida, Alabama, Louisiana and Arkansas. Kentucky recently became the 26th such state.

There is precedent for anti-boycott legislation. When Israel became independent in 1948, the Arab League instituted a boycott on all businesses from Israel or that had business relationships with Israel — which is why, for example, for decades one could find Coca-Cola in Israel and Pepsi in Arab countries, but not vice versa. In the 1970s, Congress passed legislation punishing companies that adhered to the boycott.