The Boycott, Divestment, and Sanctions movement, has been embraced by both organizations and academics who oppose the occupation these lands and the treatment of Palestinians. Clearly many disagree with both the merits and the means of this movement. However, Kansas has declared that no agency can “engage in commercial relations with persons and entities engaged in business with Israel and Israeli-controlled territories.”
The Kansas legislature passed House Bill 2409, which prohibits state contracts with individuals who refuse to say they will not engage in such boycott activity. The law has raised core free speech concerns in state governments punishing those who are not willing to cut any support for the many organizations that are part of boycott movement. The political view itself is immaterial to the right to hold a view contrary to the position of the state. Kansas, which has a history of supporting free exercise rights, will now be sued over denying a position to a teacher because of her support for the Mennonite Church and its underlying policies.
This controversy raises obvious comparisons to National Association for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886 (1982), where the Supreme Court unanimously ruled (8-0 with the participation of Thurgood Marshall, who would undoubtedly have voted with the majority) for the NAACP against states cracking down on boycotts of white business. The Court ruled that the authority over economic regulations does not curtail political speech in such cases:
Speech itself also was used to further the aims of the boycott. Nonparticipants repeatedly were urged to join the common cause, both through public address and through personal solicitation. These elements of the boycott involve speech in its most direct form. In addition, names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper. Petitioners admittedly sought to persuade others to join the boycott through social pressure and the “threat” of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.
For most of us on the civil liberties side, this has nothing to do with the merits of the boycott or the underlying conflict in Israel. It is about the right of a teacher to belong to a church that holds an opposing political view from the majority of a state. Under the same logic, another state could bar teachers who do not support the boycott. Likewise, a state could bar teachers who belong to organizations or churches that support a boycott of the NFL as demanded by President Trump.
Koontz was selected to be a teacher trainer in the Kansas Department of Education’s Math and Science Partnerships program. However, her employment papers now require a signed statement that she does not boycott Israel. She declined to sign the form and was therefore barred from being a contractor, even though her views of the boycott movement will have nothing to do with her position as a teacher.
ACLU is now suing the state of Kansas and the case could raise some important issues on the right of public teachers and employees to participate in political and social movements. There is a great need to establish some clear lines protecting the personal lives and values of public employees outside of their employment. It will come as no surprise to many on this blog that I would favor free speech rights in such conflicts. This case could be quite significant in determining where the Court will draw that line.