Washington Times ~ By Kenneth L. Marcus – – Monday, May 9, 2022 ~ Federal courts shouldn’t force Texas to subsidize discrimination OPINION: Must Texas taxpayers subsidize antisemitism? Strangely enough, a federal district court required them to do so. Days ago the federal court of appeals began reviewing the legality of the lower court’s decision. In A&R Engineering and Testing v. City of Houston, a federal trial court blocked enforcement of the Texas law that bans anti-Israel boycotters from state contracts during the duration of their boycotts. If allowed to stand, Texas would be compelled to contract with and subsidize parties who discriminate. The Texas anti-boycott statute provides that state governmental agencies may not contract with a company for goods or services unless the company verifies that it does not boycott Israel and will not boycott Israel during the term of the contract. State contractors must certify that they will refrain from this conduct. It is well-settled that states may prevent state funds from being used to pay for discriminatory conduct. The district court refused to apply this basic principle to Texas’s anti-boycott law. The result is that Texas taxpayers must now pay for conduct that the people of Texas, through their elected representatives, have commendably sought to limit. Texas is not legally required to subsidize any other form of discrimination. There is no justification for a rule that applies differently to antisemitism than to other forms of hate. The Texas statute is consistent with the legislature’s prior decisions to prevent public funds from subsidizing other forms of evil. The statute’s legislative sponsor explained, “State law currently restricts investment in Iran and Sudan to prevent public funds from going to organizations that support terrorism or genocide. Similar legislation is needed to prevent Texas’s taxpayer resources from supporting businesses engaged in discriminatory trade practices against Israel. In this case, Texas does not stand alone. Thirty-two other states have enacted similar laws. Twenty-two of these states require contractors to certify their compliance. Such rules are commonplace. Governments at all levels routinely impose similar conditions. Many such laws require contractors to refrain from discrimination based on national origin, race, religion or other grounds. These rules are a pillar of anti-discrimination law. The long history of anti-Jewish discrimination — including the recent attack on a Colleyville, Texas, synagogue — demonstrates the Texas legislature’s wisdom. There is nothing new about the use of boycotts to attack Jews. Boycott campaigns have provided a conduit for antisemitism since at least the 18th century. In the 20th century, Nazi encouragement led to a resurgence of anti-Jewish boycotts. In Germany, the Nazi regime’s first nationwide action against Jews was a boycott. Post-World War II boycotts have formally targeted the State of Israel, but they have been closely associated with this history of general boycotts against Jews. The pre Nazi, Nazi, Arab League and modern Boycott, Divestment and Sanctions boycotts all seek to deny Jewish legitimacy or normalcy as punishment for supposed Jewish transgressions. The modern BDS campaign is antisemitic, just as its predecessors were, because some of its proponents act out of conscious hostility to the Jewish people; others act from unconscious or tacit disdain for Jews; and still others operate out of a climate of opinion that contains elements that are hostile to Jews and serve as the conduits through whom anti-Jewish tropes and memes are communicated; while all of them work to sustain a movement that attacks the commitment to Israel that is central to the identity of the Jewish people as a whole. The anti-boycott law was deliberately drafted in a way that would protect speech while reducing bias. Discriminatory boycotts are not protected by the First Amendment, because they are not speech. The Texas anti-boycott statute preserves the freedom of speech by requiring only that state contractors refrain from discriminatory conduct. Crucially, the statute does not limit speech in support of a boycott. Rather, it permits contractors to speak out against Israel anywhere and anytime they choose. If they wish to go beyond speech and engage in discriminatory conduct, they remain free to do so. They just may not do so at Texas taxpayers’ expense. In a just world, the state of Texas would receive universal applause for its decision to protect taxpayers from having their hard-earned money used to support discriminatory activity. Instead, the state was hit with a lawsuit. Worse, the trial court bought the absurd argument that the First Amendment requires Texas to support the antisemitic anti-Israel boycott movement. The court of appeals should reverse the ill-considered trial court decision. To do otherwise would create an Israel exception to the anti-discrimination law. Texas should remain free to decide who gets to compete for its contractors. If the legislature doesn’t want to pay for bigotry, the federal courts should not force them to do so. • Kenneth L. Marcus is founder and chair of the Louis D. Brandeis Center for Human Rights Under Law and author of “The Definition of Anti-Semitism.” He served as the 11th assistant U.S. secretary of Education for Civil Rights.