Fifth Circuit Court dismisses anti-BDS lawsuit, upholding Texas' stand against discrimination

The Israeli-American Coalition for Action on Monday celebrated a victory against the BDS movement, after the federal Fifth Circuit Court of Appeals dismissed a lawsuit challenging a Texas law targeting the Boycott, Divestment, and Sanctions (BDS) movement against Israel.

The decision, based on jurisdictional grounds, reinforces Texas’s stance against national origin-based discrimination and upholds the state’s refusal to contract or invest with entities engaged in such practices.

The dismissed challenge was brought by A&R Engineering, which sought to overturn a law prohibiting businesses with state contracts from participating in the anti-Israel BDS movement. The ruling, which removes an injunction imposed by the lower court, affirms the constitutionality of anti-BDS laws in 37 states aimed at curbing discriminatory practices against Israel and safeguarding US-based companies conducting business with or in the country.

IAC For Action chairman Shawn Evenhaim expressed his appreciation for the efforts of Texas citizens and the government in “upholding the state’s commitment to combatting commercial discrimination against Israel.” He commended the Texas Attorney-General’s Office, Solicitor-General Judd Stone, and Solicitor Eric Hamilton for their dedication and hard work throughout the case.

A&R Engineering had argued that they had a First Amendment right to receive state contracts while refusing to comply with a state non-discrimination certification requirement. The certification aims to ensure that local businesses do not engage in economic discrimination against Israel or companies associated with it. This nondiscrimination clause aligns with various state contract clauses that promote equal treatment based on characteristics such as gender, race, religion, national origin, and veteran status.

Joseph Sabag, executive director of IAC for Action and one of the key figures involved in drafting the Texas law, expressed satisfaction with the Fifth Circuit’s ruling. He highlighted the fact that every state that has adopted an anti-BDS law currently has it in full effect, and challenges to these laws have consistently failed in court. Sabag stated, “The forces of BDS are running out of plaintiffs, and their legal arguments have proven lacking through every case they’ve lost.”

Sabag emphasized that anti-BDS laws are specifically crafted to combat discrimination and protect various categories of individuals, including women, racial minorities, and LGBTQ individuals. He reaffirmed the organization’s readiness to vigorously defend the law should the plaintiff appeal to the Supreme Court, noting that a similar appeal was recently rejected by the court in another circuit.

With this latest ruling, the number of states with anti-BDS laws within the jurisdiction of federal courts now stands at 12 out of 13, solidifying the legal framework to combat national origin-based discrimination and support strong ties between the United States and Israel.

In April, an appeal of a challenge to the constitutionality of a Texas anti-BDS was rejected due to lack of standing by the US Fifth Circuit Court of Appeals. The ruling was claimed as a victory in the defense of the law, which prohibits state investment in companies that boycott Israel.

StandWithUs also reacted to the ruling. “StandWithUs was proud to arrange an amicus brief for this case,” they said in a statement. Roz Rothstein, CEO of StandWithUs, noted: “This last month has been monumental for the fight against BDS and national-origin discrimination. Parties who sought to defend their states’ anti-BDS laws have prevailed victoriously in both the Fifth and the Eleventh Circuit Court of Appeals.” She added that “on July 6, New Hampshire became the newest state to adopt anti-BDS as state policy. Let the record reflect that anti-BDS laws are here to stay.”