Kansas state capitol building in winter (Credit: Jeff Zehnder / Shutterstock)

Court strikes down Kansas BDS law

By February 13, 2018

Last year, Kansas passed a law requiring state contractors to certify that they are not engaged in a boycott of Israel, and prohibiting them from participating in “Boycott, Divestment, Sanction” (BDS) campaigns. Contractors who did not want to sign the certification could apply for a waiver, which was to be granted when “compliance is not practicable.” (The statute did not define the word “practicable.”)

While the law did not directly touch on college and university campuses, it isn’t difficult to imagine the myriad of ways in which this law could infringe upon student or faculty members’ expressive rights. For example, the law would have affected faculty hiring and the ability of student organizations to host speakers, or even enter into information technology contracts. In October, Kansas resident Esther Koontz, who is being represented by the national American Civil Liberties Union (ACLU), filed a lawsuit challenging the law after she was not able to serve as a teaching coach in public schools because she refused to sign a certification confirming that she was not boycotting Israel. After filing her suit, Koontz moved for a preliminary injunction and asked the court to enjoin enforcement of the law. And now, in what the ACLU is describing as the “first ruling addressing a recent wave of laws nationwide aiming to punish people who boycott Israel,” a federal court has enjoined the enforcement of the law.

In response to Koontz’s challenge, Kansas first argued that its law was not ripe for review because it did not present a live controversy. The court disagreed and held that the suit was ripe because: (1) the law imposed a hardship on Koontz (and others) who were disqualified from contracting with the state; (2) the law failed to define the word “practicable,” which was a potentially vague term; (3) Koontz presented a valid facial challenge to the law; and (4) Koontz did not have an obligation to apply for a waiver. (Kansas also argued that the law was moot, but the court quickly dispensed with that argument.)

The court moved on to the substance of Koontz’s challenge and recognized that “states cannot retaliate or impose conditions on an independent contractor” which infringe upon their First Amendment rights. The court then turned to the framework established in Pickering v. Board of Education (1968), which sets out the standard determining whether a public employee’s speech is protected by the First Amendment. Under Pickering, Koontz first needed to show that the First Amendment applied to her conduct, and Kansas then had to show a sufficiently strong countervailing interest to justify its action. Koontz easily met her initial burden: “The First Amendment protects the right to participate in a boycott as the Supreme Court held explicitly in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 (1982).

Kansas fared no better under the second part of the Pickering test, as the court held that Kansas failed to show a “strong, legitimate interest” in enforcing its law. First, the court found that legislative history showed that the goal of the law was to “undermine the message of those participating in a boycott of Israel,” which was impermissible as either viewpoint discrimination or subject matter discrimination. The court then went on to find that even if the law had been passed for permissible reasons, it was still unconstitutional because it was not narrowly tailored to achieve its stated goals. In other words, the court found that the law was simultaneously overbroad and underinclusive. The court explained that if Kansas had “passed its law to regulate boycotts intended to suppress economic competition coming from Israel,” the law would have been overbroad because it would have banned political boycotts. Likewise, if the law had been passed to promote trade relations, it would have been underinclusive because it would have regulated boycotts but not other conduct affecting trade.

During oral argument, Kansas argued that the law was constitutional under Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006). In Rumsfeld, the Supreme Court held that it was constitutional to require that a law school “offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access” because the law at issue regulated conduct and not speech. But Judge Daniel D. Crabtree distinguished the Kansas law, finding that it regulated inherently expressive conduct because “[i]t is easy enough to associate plaintiff’s conduct with the message that the boycotters believe Israel should improve its treatment of Palestinians. And boycotts — like parades — have an expressive quality.”

The court found that Koontz established that she would suffer irreparable harm without an injunction because the loss of one’s First Amendment rights constitutes irreparable harm. Kansas also attempted to argue that Koontz did not need injunctive relief because she would be able to establish proof that she had suffered monetary harm. While the court acknowledged the “pragmatic appeal” of this argument, the argument “is not one the First Amendment will abide.” The court granted the injunction after finding that Kansas would suffer little harm if the law was not enforced and that the injunction was not adverse to the public interest.

FIRE’s take on BDS programs was best explained in 2015 by FIRE President and CEO Greg Lukianoff:

FIRE’s position on the Israel-focused BDS movement is driven by our concern for academic freedom—for students and professors, and for its continuing importance as a meaningful concept in and of itself. Students and professors must be perfectly free to support boycott, divestment, and/or sanctions against Israel or any other country they wish, and they must not face punishment for this support. As you might expect, FIRE has opposed attempts to punish organizations for supporting BDS, and we have certainly defended professors’ rights to be highly critical of Israel—or, frankly, any other country, person, or idea.

But while students and professors are entirely free to support and campaign for the BDS movement, some of the actual goals of that movement are seriously at odds with fundamental aspects of academic freedom. In particular, the “boycott” part of BDS, which would require American academics not to cooperate with Israeli scholars or institutions, is incompatible with academic freedom. Academic freedom is a vast and majestic idea that relies on open communication across lines of difference in a global system of checking, arguing, researching, collaborating, and competing to produce better ideas. It’s a critical part of the way we come by new knowledge, creative solutions, and novel perspectives. The idea that a college might ban its scholars from working with scholars of a particular nationality or who work in a particular country in the name of opposing that country’s government is incompatible with this open, liberal system. It’s also foolhardy on any number of levels, including the fact that individual professors’ opinions often in no way reflect or even oppose the policies of their own governments.

This isn’t the first time we’ve written about the constitutional infirmities associated with legislative attempts to prohibit BDS campaigns, and it probably won’t be the last. For example, Minnesota passed a law that prohibits state agencies from doing business with persons or entities engaged in a boycott of Israel (FIRE warned Minnesota before the law was passed that it would limit who students or faculty members could invite to speak). Last spring, New York’s State Senate passed a bill we described as “patently unconstitutional,” which would have prohibited student groups engaged in BDS campaigns from receiving funding from their schools. And last January, Fordham University refused to recognize a student group that supported a BDS campaign. At the time we wrote that Fordham administrators were “engaging in flagrant viewpoint discrimination because they don’t agree with SJP’s beliefs.” Fordham now finds itself in court over its failure to recognize the group, and yesterday we named it one of our 10 worst colleges for free speech in 2018.

FIRE will continue to monitor this case and update our readers on its progress.