Case 1:18-cv-01091-RP Document 82 Filed 04/25/19 Page 1 of 56
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`Plaintiff,
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`BAHIA AMAWI,
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`v.
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`PFLUGERVILLE INDEPENDENT
`SCHOOL DISTRICT, et al.,
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`Defendants.
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`ORDER
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`1:18-CV-1091-RP
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`Consolidated with:
`1:18-CV-1100-RP
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` Before the Court in this consolidated action are two motions for a preliminary injunction
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`filed by Plaintiff Bahia Amawi (“Amawi”) and Plaintiffs John Pluecker, Zachary Abdelhadi, Obinna
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`Dennar, and George Hale (the “Pluecker Plaintiffs”) (together, “Plaintiffs”), (Amawi Mot. Prelim.
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`Inj., Dkt. 8; Pluecker Mot. Prelim. Inj., 1:18-CV-1100, Dkt. 14),1 and responsive briefing, (Dkts. 24,
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`25, 39, 40, 42, 45). Also before the Court are motions to dismiss filed by Defendant Ken Paxton, in
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`his official capacity as Attorney General of the State of Texas (“Texas” or the “State”), (Dkt. 55),
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`Defendants the Board of Regents of the University of Houston System and the Board of Regents of
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`the Texas A&M University System (the “Boards” or the “Universities”), (Dkt. 24), Defendants the
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`Trustees of the Klein Independent School District and the Trustees of the Lewisville Independent
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`School District (the “Trustees” or the “School Districts”), (Dkts. 43, 44), and responsive briefing,
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`(Dkts. 38, 45, 49, 51, 60, 61, 63). Having considered the parties’ arguments, the evidence, and
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`relevant law, the Court will grant Plaintiffs’ motions for a preliminary injunction and deny
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`Defendants’ motions to dismiss.
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`1 The Pluecker Plaintiffs’ motion for a preliminary injunction is hereafter cited as: (Pluecker Mot. Prelim. Inj.).
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`1
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`Case 1:18-cv-01091-RP Document 82 Filed 04/25/19 Page 2 of 56
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`I. INTRODUCTION
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`This case is about whether Texas may prohibit boycotting the State of Israel as a condition
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`of public employment. Plaintiffs in this case are all participants or supporters of the “BDS”
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`movement. The BDS movement—referring to boycotts, divestment, and sanctions—arose in
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`response to Israel’s occupation of Palestinian territory and its treatment of Palestinian citizens and
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`refugees. (Abbas Decl., Dkt. 14-2, at 16–18; Clay Decl., Dkt. 14-2, at 6). Modeled after the South
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`African anti-apartheid movement, the BDS movement seeks to pressure the Israeli government to
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`end its occupation of the West Bank, Gaza, and Golan Heights, end discrimination against Arab-
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`Palestinian citizens of Israel, permit Palestinian refugees to return to their homes, and otherwise
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`comply with international law. (Pluecker Mot. Prelim. Inj., Dkt. 14-1, at 10; Clay Decl., Dkt. 14-2, at
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`6). The BDS movement claims to be nonviolent and opposed to all forms of discrimination,
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`including anti-Semitism and Islamophobia. (Clay Decl., Dkt. 14-2, at 7, 11).
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`Congress, however, has declared that it “opposes politically motivated actions that penalize
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`or otherwise limit commercial relations specifically with Israel, such as boycotts of, divestment from
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`or sanctions against Israel.” 19 U.S.C. § 4452. Twenty-five states have enacted legislation or issued
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`executive orders restricting boycotts of Israel, (Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 3), and
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`several more have introduced legislation to that effect, (Abbas Decl., Dkt. 8-4, at 12–14). In every
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`state to consider such legislation, the proposed measures have passed by considerable margins.
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`(Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 4).
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`In 2017, Texas joined those states opposing the BDS movement when it enacted House Bill
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`89, codified at Tex. Gov. Code § 2270.001 et seq. (“H.B. 89”). Texas emphasizes that H.B. 89 was
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`“widely supported” and “passed unanimously in the House, and 26-5 in the Senate.” (Texas Resp.
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`Mots. Prelim. Inj., Dkt. 25, at 1; Texas Mot. Dismiss, Dkt. 55, at 1). As a result of the State’s
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`disapproval of the BDS movement, Plaintiffs allege that they have lost the benefit of public
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`2
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`Case 1:18-cv-01091-RP Document 82 Filed 04/25/19 Page 3 of 56
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`employment with the State of Texas, or fear losing such employment, and that H.B. 89 prohibits
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`them from exercising their First Amendment right to boycott the State of Israel.
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`A. House Bill 89
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`H.B. 89 prohibits state entities from contracting with companies that “boycott Israel.” It
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`provides:
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`A governmental entity may not enter into a contract with a company
`for goods or services unless the contract contains a written
`verification from the company that it:
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`(1) does not boycott Israel; and
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`(2) will not boycott Israel during the term of the contract.
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`Tex. Gov. Code § 2270.002.
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`The term “boycott Israel” is defined to mean “refusing to deal with, terminating business
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`activities with, or otherwise taking any action that is intended to penalize, inflict harm on, or limit
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`commercial relations specifically with Israel, or with a person or entity doing business in Israel or in
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`an Israeli-controlled territory.” Tex. Gov. Code § 808.001.
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`The term “company” includes “a for-profit sole proprietorship, organization, association,
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`corporation, partnership, joint venture, limited partnership, limited liability partnership, or any
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`limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent
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`company or affiliate of those entities or business associations that exist to make a profit.” Tex. Gov.
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`Code § 808.001.
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`It is indisputable that H.B. 89 targets participation in BDS campaigns. Both Representative
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`Phil King, the bill’s sponsor, and Governor Gregg Abbott have referred to H.B. 89 as the “anti-BDS
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`bill.” (See Clay Decl., Dkt. 14-2, at 16–19). Representative King has described the BDS movement as
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`“economic warfare” and stated that H.B. 89 reflects Texas’s disapproval of the movement because
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`“[t]he BDS movement is directed at harming and destroying Israel, pure and simple.” (Abbas Decl.,
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`3
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`Dkt. 8-4, at 56). Upon signing the bill, Governor Abbott proclaimed that “[a]nti-Israel policies are
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`anti-Texas policies, and we will not tolerate [boycott] actions against an important ally.” (Clay Decl.,
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`Dkt. 14-2, at 20). Similarly, King stated that “[t]he bill sends a strong message that Texas stands with
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`its friends,” and Abbott responded to a news report about this litigation by tweeting “Texas stands
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`with Israel. Period.” (Id. at 23, 26). When asked by a media outlet what motivated him to introduce
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`H.B. 89, King provided four reasons:
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`First, as a Christian, my religious heritage is intrinsically linked to
`Israel and to the Jewish people. Second, as an American, our national
`security is dependent in great part on a strong Israel, often our only
`friend in the Middle East. Third, as a Texas legislator, our state has a
`substantial Jewish population and this issue is important to them.
`Texans have historical ties and do a lot of business with Israel.
`Fourth, it’s just the right thing to do.
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`(Abbas Decl., Dkt. 8-4, at 56).
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`B. Plaintiffs’ Boycotts
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`Plaintiffs in this consolidated action are five sole proprietors who allege that H.B. 89 violates
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`their First and Fourteenth Amendment rights. Because the nature of Plaintiffs’ boycotts is relevant
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`to this dispute, they are described in detail below.
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`1. Bahia Amawi
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`Plaintiff Amawi is a speech pathologist. (Amawi Decl., Dkt. 8-3, ¶ 1). She is a United States
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`citizen and Muslim of Palestinian origin, has family members living in Palestine, and claims that she
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`has “seen and experienced the brutality of the Israeli government against Palestinians.” (Id. ¶ 8). She
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`testifies that the Israeli government cuts off main roads for Palestinians but not Israelis in the West
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`Bank, imposes “curfews that last for weeks” despite the need to obtain groceries or health
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`treatments, closes schools, subjects Palestinians to constant searches, and takes Palestinian children
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`into custody during the night. (Hr’g Tr., Dkt. 81, at 15:3–19). Amawi claims to participate in the
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`BDS movement because she “advocate[s] for Palestinian human rights and justice,” and to that end,
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`“support[s] peaceful efforts to impose economic pressure on Israel, with the goal of making Israel
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`recognize Palestinians’ dignity and human rights.” (Amawi Decl., Dkt. 8-3, ¶¶ 8–9). Amawi asserts
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`that she “frequently make[s] economic decisions on the basis of [her] support for Palestine and [her]
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`ethical objections to Israel’s mistreatment of Palestinians,” including buying Palestinian olive oil and
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`refusing to buy the Sabra brand of hummus because of the company’s connections to Israel. (Id.
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`¶ 9).
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`For nine years, Amawi has contracted with the Pflugerville Independent School District
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`(“PISD”) to provide speech therapy and early childhood evaluations for three- to five-year-old
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`children in the school district. (Id. ¶ 2). She refused to sign an addendum in her renewal contract
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`with PISD for the 2018–19 school year, however, because the addendum required her to certify that
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`she does not boycott Israel and will not boycott Israel during the term of her employment. (Id. ¶ 4,
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`5, 7). Amawi contacted PISD regarding the addendum before refusing to sign it. (Id. ¶ 5). Initially,
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`PISD informed Amawi that it thought she could strike out the “No Boycott of Israel” paragraph
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`and initial it, but later confirmed that “agreeing to [the] Paragraph . . . was mandatory to receive
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`payment for [her] services.” (Id. ¶ 6). Amawi refused to sign the contract because she believed that
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`the “No Boycott of Israel” paragraph “violate[d] [her] First Amendment right to advocate for
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`human rights in Palestine.” (Id. ¶ 10). She was therefore forced to terminate her contractual
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`relationship with the school district. (Amawi Compl., Dkt. 1, ¶ 4). PISD has stipulated that it will
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`offer Amawi another contract to provide speech pathology service, one not containing the no-
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`boycott certification paragraph, if this Court invalidates or enjoins H.B. 89. (Not. Cond. Stip.,
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`Dkt. 18, at 2).
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`2. John Pluecker
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`Plaintiff Pluecker is a freelance writer, artist, interpreter, and translator. (Pluecker Decl.,
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`Dkt. 14-6, ¶ 1). As an interpreter and writer, Pluecker volunteers his time and talent to civil rights
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`and immigrant rights organizations. (Id. ¶ 4). Through his involvement in the art community and
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`through civil rights advocacy, he has developed friendships with Palestinian artists and political
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`activists and learned about the conflict between Palestine and Israel. (Id. ¶ 5). Pluecker has become
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`an “active supporter of Palestinian rights and liberation,” and he expresses this support by
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`supporting Palestinian art exhibits and presentations and by participating in BDS campaigns. (Id.
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`¶¶ 5–6). Pluecker claims to participate in BDS campaigns with the goal of “promot[ing] justice and
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`effectuat[ing] human rights in Israel and the Palestinian territories.” (Id. ¶ 6). Specifically, he boycotts
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`Sabra products due to the company’s support for the Israel Defense Forces (“IDF”), which he
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`considers “a particularly controversial section of the Israeli military.” (Id.).
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`For the past few years, Pluecker has contracted with the University of Houston. (Id. ¶ 9). In
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`March 2018, a representative for the Blaffer Art Museum at the University of Houston offered him a
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`contract to translate an art essay. (Id. ¶¶ 10). Pluecker began work on his translation before reviewing
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`or signing the contract due to his prior relationship with the University. (Id.). After reviewing the
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`contract, Pluecker crossed out the “No Boycott of Israel” provision before submitting it. (Id. ¶ 12).
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`The representative informed Pluecker that he would not be paid for his translation unless he
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`certified that he did not boycott Israel. (Id. ¶ 13). Pluecker did not sign the contract because he “did
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`not want to forfeit [his] participation in a BDS campaign against Sabra and [his] support of pro-
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`Palestinian presentations and art exhibits.” (Id. ¶ 14). Nor did he want “to disavow [his] right to
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`participate in BDS boycott campaigns in the future.” (Id.).
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`Pluecker was offered another contract with the University of Houston in September 2018,
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`this time by a faculty member to be a guest speaker for a class of college students. (Id. ¶ 15).
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`Pluecker emailed the University of Houston to inform them that he would not sign the contract
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`because “it includes language that requires me to affirm that I am opposed to the boycott of the
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`State of Israel.” (Id. ¶ 16). The University denied him the contract. (Id. ¶ 17).
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`3. Zachary Abdelhadi
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`Plaintiff Abdelhadi is a sophomore at Texas State University in San Marcos, Texas.
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`(Abdelhadi Decl., Dkt. 14-3, ¶ 3). He is Palestinian-American; his father is from Palestine, and his
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`mother was born in the United States. (Id. ¶ 5). He is an active participant in the BDS movement
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`because he “agree[s] with their efforts to seek an end to the Israeli occupation of Palestinian
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`homelands, equal rights for Arab-Palestinian citizens of Israel, and the right of return for
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`Palestinians.” (Id.). As part of his participation in the BDS movement, Abdelhadi claims to boycott
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`only those Israeli companies he views as “supporting Israel’s occupation of Palestinian territories,
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`those that support Israeli policies that oppress Palestinian people, [and] those supporting the Israel
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`Defense Forces.” (Id. ¶ 7). He therefore avoids purchasing PepsiCo, Hewlett Packard (“HP”), and
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`Strauss Group products, and avoids using booking services such as VRBO that list vacation rental
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`homes in Israeli settlements in the West Bank. (Id.).
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`Abdelhadi participated in his high school’s debate program. (Id. ¶ 4). After graduation, his
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`former debate teacher offered him the opportunity to judge debate tournaments for Lewisville
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`Independent School District (“LISD”). (Id. ¶ 9). He sent Abdelhadi a “Lewisville ISD School
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`Contractor/Consultant contract for speech and debate judging” in September 2017. (Id. ¶ 10). The
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`contract contained a “Not [sic] Boycott Israel” clause. (Id.). Abdelhadi refused to sign the contract
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`because doing so would “violate [his] political beliefs,” “force [him] to discontinue [his] current and
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`future participation in BDS campaigns,” and “would be a public declaration on a position that is
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`contrary to [his] political beliefs.” (Id. ¶¶ 13–14). Consequently, Abdelhadi was unable to judge the
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`debate tournaments. (Id. ¶ 17). Because he “anticipated judging about 15 debate tournaments a year
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`for LISD,” Abdelhadi testifies that he has “already lost income amounting to over three semesters’
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`worth of textbooks, several vehicle payments, or several months of rent in San Marcos.” (Id. ¶¶ 4,
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`17).
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`4. Obinna Dennar
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`Plaintiff Dennar is a graduate student at Rice University. (Dennar Decl., Dkt. 14-4, ¶ 3). He
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`actively participates in BDS campaigns by “boycott[ing] consumer products offered by businesses
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`supporting Israel’s occupation of the Palestinian territories or that, directly or indirectly,
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`economically benefit the Israeli government, including Sabra and L’Oreal.” (Id. ¶ 5). He does this in
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`protest of what he believes to be “Israel’s occupation of Palestinian lands, illegal settlements
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`constructed on internationally recognized Palestinian territory, and violation of the human rights of
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`Palestinians.” (Id.). Dennar testifies, however, that he would not boycott Israeli companies
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`supporting “the plight of the Palestinian people,” and he would not boycott “an American company
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`solely because its owner was of Israeli origin.” (Id.). In addition to his BDS activities, Dennar is a
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`member of the National Students for Justice in Palestine, and its Houston chapter. Through these
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`organizations, Dennar participates in “educational presentations, college tabling, and . . . meetings
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`relating to Palestinian justice.” (Id.).
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`Since 2015, Dennar has contracted with public school districts to judge about ten debate
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`tournaments per year. (Id. ¶ 3). In 2017, he contacted the debate coordinator for Klein High School
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`to serve as a judge in an upcoming debate tournament. (Id. ¶ 6). Like Pluecker, Dennar provided his
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`services before reviewing and signing the contract he was offered because he assumed it would be
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`similar to the ones he had signed before. (Id.). Upon reviewing the contract, however, Dennar
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`discovered that it included a clause requiring him to certify that he did not boycott Israel and would
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`not boycott Israel for the duration of the contract agreement. (Id. ¶ 7). Dennar states that he “was
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`required to sign the boycott form in order to be paid.” (Id.). He did not sign the contract because he
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`was currently engaged in a boycott of Israel and did not want to disavow his boycott. (Id. ¶ 8).
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`Dennar was not paid for his work. (Id.).
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`Because he understands that all Texas public high schools are required to include the “No
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`Boycott of Israel” certification in their contracts, Dennar testifies that he has been forced to forgo
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`all contract work as a debate tournament judge at public high schools in the state. (Id. ¶ 10). He
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`believes that signing the certifications would require him “to forfeit [his] BDS-related activities,
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`including [his] past and present affiliations with pro-Palestine organizations” that “engage in BDS
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`campaigns” because associating with those groups “could be seen as dealing with or taking any
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`action ‘intended to penalize, inflict economic harm on, or limit commercial relations’ with Israel,” in
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`contravention of H.B. 89. (Id. ¶¶ 12–13).
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`5. George Hale
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`Plaintiff Hale is a radio reporter for KETR, the NPR station for northeast Texas, which is
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`licensed to Texas A&M University-Commerce (“TAMUC”). (Hale Decl., Dkt. 14-5, ¶ 3). Hale
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`joined KETR after spending nearly eight years reporting on the Israel-Palestine conflict for various
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`news agencies, including overseas from Israel, the Palestinian territories, Egypt, and Jordan. (Id. ¶ 5).
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`Hale also lived with Palestinians in Bethlehem from September 2008 to May 2016. (Id.). During that
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`time, “[d]espite . . . liv[ing] within the internationally recognized Palestinian territory,” Hale testifies
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`that he “had to go through checkpoints and roadblocks operated by Israeli security forces”
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`whenever he entered or left Bethlehem, “was subjected to numerous strip searches and prolonged
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`questioning about [his] work,” and “was exposed to tear gas in [his] apartment and car from Israeli
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`forces on a regular basis.” (Id. ¶ 6). Based upon these “dehumanizing” experiences, Hale considers
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`himself “politically aligned with the Palestinian people,” and he “support[s] their struggle for
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`liberation.” (Id.).
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`Hale “previously boycotted consumer goods offered by businesses supporting Israel’s
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`occupation of the Palestinian territories.” (Id. ¶ 9). He boycotted products produced by Ahava, a
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`popular Israeli Dead Sea cosmetics company, “because some of its operations are conducted in the
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`West Bank.” (Id.). He also boycotted HP products due to the company’s “role in the ID system that
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`Israel uses to control the movement of Palestinians.” (Id.). Hale boycotted these companies “to
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`protest both the Israeli occupation of the Palestinian territories and the settlements, which [he]
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`believe[s] violate the human rights of Palestinians.” (Id.).
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`Hale is not currently active in BDS campaigns, however. (Id. ¶ 7). He testifies that the reason
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`for this is that he “was forced to sign a No Boycott of Israel certification” as a condition of his
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`employment with KETR. (Id. ¶ 10). In February 2018, TAMUC contracted with Hale to provide
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`KETR segments of the “Buried” podcast series, of which Hale is the host and lead reporter. (Id.
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`¶¶ 3, 11). The contract contained the “No Boycott of Israel” certification clause, which Hale “did
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`not approve” of, but which he signed because he “was committed to the ongoing investigative
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`project” of the podcast and “did not feel that [he] could quit midway through the work.” (Id. ¶ 12).
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`Hale’s discomfort from signing the contract grew in the following months, and when his contract
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`was up for renewal, he attempted to sign it under protest because he felt “that the anti-BDS clause . .
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`. violated [his] rights to free speech and free association.” (Id. ¶¶ 14–16). Hale made a notation in the
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`renewal contract indicating his disapproval of the “No Boycott of Israel” clause, but when a copy of
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`the contract was sent to TAMUC’s Assistant Director of Procurement Services, the Assistant
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`Director rejected the notation and stated that Hale “can sign a clean copy or he won’t work. We are
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`not forcing him to sign under duress or protest.” (Id. at 6–7, 28). “Faced with the prospect of losing
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`[his] job,” Hale felt he “had no choice but to sign the contract.” (Id. ¶ 18).
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`Now, in addition to “discontinu[ing] his boycott,” Hale is “unsure whether [he] could even
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`decline to purchase” the products he previously boycotted because “refusing to purchase Ahava or
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`HP products . . . could be interpreted by others as violating the [No Boycott of Israel] certification”
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`he has given. (Id. ¶¶ 19–20) (original emphasis). Hale worries that he could not decline to make such
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`purchases unless he can justify that decision with a “business purpose.” (Id. ¶ 20). He also worries
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`Case 1:18-cv-01091-RP Document 82 Filed 04/25/19 Page 11 of 56
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`that his “affiliations and support of pro-Palestinian issues would be seen as dealing with or taking
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`any action ‘intended to penalize, inflict economic harm on, or limit commercial relations’ with
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`Israel.” (Id. ¶ 21). Hale continues to experience discomfort with the fact that he signed a document
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`that “is a public declaration on a position that is contrary to [his] . . . personal and political beliefs.”
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`(Id.).
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`II. LEGAL STANDARD
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`Amawi and the Pluecker Plaintiffs have each moved for a preliminary injunction. All
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`Defendants except PISD have moved to dismiss this case under Federal Rules of Civil Procedure
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`12(b)(1) and 12(b)(6).2 The relevant standard for each motion is as follows.
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`A. Motion for Preliminary Injunction
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`A preliminary injunction is an extraordinary remedy, and the decision to grant such relief is
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`to be treated as the exception rather than the rule. Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047,
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`1050 (5th Cir. 1997). “A plaintiff seeking a preliminary injunction must establish that he is likely to
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`succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,
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`that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
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`Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking injunctive relief carries the burden
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`of persuasion on all four requirements. PCI Transp. Inc. v. W. R.R. Co., 418 F.3d 535, 545 (5th Cir.
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`2005). To show a likelihood of success, the plaintiff must present a prima facie case, but need not
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`prove that it is entitled to summary judgment. Daniels Health Scis., L.L.C. v. Vascular Health Scis.,
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`L.L.C., 710 F.3d 579, 582 (5th Cir. 2013).
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`B. Motion to Dismiss
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`Motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) are subject
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`to the same standard of review. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). The party
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`2 PISD also does not oppose Amawi’s motion for a preliminary injunction. The term “Defendants” in this Order
`therefore refers to Texas, the Trustees, and the Boards, collectively.
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`bearing the burden of proof, however, differs. The movant (here, Defendants) bears the burden of
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`proof for a 12(b)(6) motion; the party asserting subject matter jurisdiction (here, Plaintiffs) bears the
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`burden for a 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
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`1. Rule 12(b)(1)
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`Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject matter
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`jurisdiction as a defense to suit. Fed. R. Civ. P. 12(b)(1). Federal district courts are courts of limited
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`jurisdiction and may only exercise such jurisdiction as is expressly conferred by the Constitution and
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`federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court
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`properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or
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`constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143
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`F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on
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`the party asserting jurisdiction.” Ramming, 281 F.3d at 161 (5th Cir. 2001). “Accordingly, the plaintiff
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`constantly bears the burden of proof that jurisdiction does in fact exist.” Id. In ruling on a Rule
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`12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone; (2) the
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`complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and
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`the court’s resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
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`2. Rule 12(b)(6)
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`Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
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`which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a 12(b)(6) motion, a “court accepts
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`‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’” In re Katrina
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`Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dallas
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`Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To survive a Rule 12(b)(6) motion to dismiss,
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`a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff’s grounds for
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`entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to
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`12
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`Case 1:18-cv-01091-RP Document 82 Filed 04/25/19 Page 13 of 56
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`relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient factual
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`matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
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`A claim has facial plausibility “when the plaintiff pleads factual content that allows the court
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`to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The
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`tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to
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`legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
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`conclusory statements, do not suffice.” Id. A court ruling on a 12(b)(6) motion may rely on the
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`complaint, its proper attachments, “documents incorporated into the complaint by reference, and
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`matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338
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`(5th Cir. 2008) (citations and internal quotation marks omitted). A court may also consider
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`documents that a defendant attaches to a motion to dismiss “if they are referred to in the plaintiff’s
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`complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
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`Cir. 2004). But because the court reviews only the well-pleaded facts in the complaint, it may not
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`consider new factual allegations made outside the complaint. Dorsey, 540 F.3d at 338. “[A] motion to
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`dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.’” Turner v. Pleasant, 663 F.3d
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`770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir.
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`2009)).
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`III. DISCUSSION
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`A. Subject Matter Jurisdiction
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`Before the Court can reach the merits of Plaintiffs’ claims, it must first determine whether it
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`has subject matter jurisdiction over those claims. Texas argues that Plaintiffs lack standing to
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`challenge the constitutionality of H.B. 89 because it does not apply to Plaintiffs’ boycott activities.
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`Case 1:18-cv-01091-RP Document 82 Filed 04/25/19 Page 14 of 56
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`(Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 9–11). The Universities argue that this Court lacks
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`jurisdiction over them because they have Eleventh Amendment immunity from suit. (Univ. Ds.’
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`Mot. Dismiss, Dkt. 24, at 3–5). Finally, the School Districts argue that Plaintiffs’ claims are not ripe
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`for judicial review and that Plaintiffs allege harms not causally connected to the Trustees of LISD
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`and KISD. (LISD Mot. Dismiss, Dkt. 43, at 7–11; KISD Mot. Dismiss, Dkt. 44, at 6–11). As
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`explained below, the Court finds that it has subject matter jurisdiction over all of Plaintiffs’ claims as
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`to all Defendants to this action.
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`1. Standing
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`
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`Article III of the Constitution restricts the jurisdiction of federal courts to “cases” and
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`“controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). To establish Article III
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`standing, a plaintiff must demonstrate that she has “(1) suffered an injury in fact, (2) that is fairly
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`traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
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`favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S.
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`at 560–61). The purpose of these requirements is to ensure that plaintiffs have “such a personal
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`stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
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`presentation of issues upon which the court so largely depends for illumination.” Massachusetts v.
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`EPA, 549 U.S. 497, 517 (2007) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). The standing
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`requirements are heightened somewhat in the context of a motion for a preliminary injunction, in
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`which case a plaintiff must make a “clear showing” that she has standing to maintain the preliminary
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`injunction. Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017) (citing Winter, 555 U.S. at 22).
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`Plaintiffs have made a clear showing that they satisfy each Lujan element of standing at this
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`stage in the litigation. With respect to the injury-in-fact requirement, all five Plaintiffs allege that the
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`inclusion of the no-boycott clauses in their contracts has chilled their First Amendment right to free
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`expression. (Amawi Decl., Dkt. 8-3, ¶ 10; Pluecker Decl., Dkt. 14-6, ¶¶ 14, 16; Abdelhadi Decl., Dkt.
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`
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`14
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`Case 1:18-cv-01091-RP Document 82 Filed 04/25/19 Page 15 of 56
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`14-3, ¶ 12; Dennar Decl., Dkt. 14-4, ¶¶ 8–9; Hale Decl., Dkt. 14-5, ¶¶ 12–13, 15). Four of the
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`Plaintiffs further allege that because they refused to sign anti-boycott certifications in their contracts
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`with Texas entities, they lost the opportunity to contract with those entities. (Amawi Reply Mot.
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`Prelim. Inj., Dkt. 39, at 14; Pluecker Reply Mot. Prelim. Inj., Dkt. 40, at 9). The fifth Plaintiff—
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`Hale—alleges that while he remains under contract with TAMUC, he is harmed because he cannot
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`boycott Israel during the term of his employment. (Pluecker Reply Mot. Prelim. Inj., Dkt. 40, at 9).
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`Texas does not dispute that Plaintiffs suffered these harms; rather, it argues that the harms
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`were not caused by H.B. 89. In the State’s view, the statute applies only to acts taken by government
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`contractors in their “company” capacities. (Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 9–10).
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`According to the State, because Plaintiffs’ boycott activities were taken in their “personal” capacities,
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`they were “entirely divorced from the content of the contracts they signed with the State as sole
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`proprietors.” (Id. at 9). Plaintiffs read H.B. 89 differently; they argue that H.B. 89 applies to all
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`boycotting activity undertaken by companies during the contract period regardles