The United States is seeing a cultural shift toward increased concern over Israel’s human rights record. Over the past decade, groups from the Bill & Melinda Gates Foundation to the United Methodist Church to dozens of university student governments have taken steps that challenge the status quo of abuses of Palestinian rights.1×1. Brief of Amici Curiae, the Center for Constitutional Rights and Palestine Legal, In Support of Plaintiffs-Appellees and Affirmance at 13–15, Jordahl v. Arizona, No. 18-16896 (9th Cir. Jan. 24, 2019) [hereinafter CCR and PalLegal Brief]. Meanwhile, opponents have long argued that Palestinian rights work is anti-Semitic or anti-Israeli.2×2. See, e.g., David French, The Anti-Semitic BDS Movement Advocates Illegal Discrimination, Nat’l Rev. (July 18, 2019, 3:59 PM), https://www.nationalreview.com/2019/07/the-anti-semitic-bds-movement-advocates-illegal-discrimination [https://perma.cc/ZFF5-GDY9]. In recent years, these accusations have escalated from a merely political or rhetorical argument to a claim of legally cognizable discrimination. Since 2014, twenty-seven states have adopted laws penalizing businesses’ participation in the Palestinian-led Boycott, Divestment, Sanctions (BDS) movement, and such laws are pending in another fourteen states.3×3. Anti-boycott Legislation Around the Country, Palestine Legal, https://perma.cc/YBJ4-K2QQ]. Facing First Amendment challenges, states have justified anti-BDS measures as standard antidiscrimination laws, combatting religious discrimination against Jewish people and national-origin discrimination against Israelis. Similar discrimination claims have been raised in other contexts, including: lawsuits against Airbnb under the Fair Housing Act4×4. 42 U.S.C. §§ 3604–3619 (2012). (FHA) for withdrawing from West Bank settlements; Title VI5×5. Id. § 2000(d). complaints against universities for pro-Palestine student activism; and a new legal definition of anti-Semitism that includes criticism of Israel that is deemed disproportionate.6×6. See infra section II.B, pp. 1366–68. Across these contexts, civil rights law has been leveraged to defend Israel against the movement for Palestinian rights. This Note focuses on anti-BDS laws as the most significant manifestation of the claim that anti-Zionist movement work unlawfully discriminates.
Much has been written arguing that anti-BDS laws violate the First Amendment.7×7. See, e.g., Timothy Cuffman, Note, The State Power to Boycott a Boycott: The Thorny Constitutionality of State Anti-BDS Laws, 57 Colum. J. Transnat’l L. 115, 134–62 (2018); Recent Legislation, S.C. Code Ann. § 11–35–5300 (2015), 129 Harv. L. Rev. 2029 (2016). However, there has been far less focus on the discrimination claim itself. This Note debunks the claim that BDS constitutes legally cognizable discrimination. It argues that antidiscrimination doctrines do not support this claim. While BDS has grown into a diffuse, multistakeholder movement, this analysis focuses on BDS as led by the Palestinian BDS National Committee (BNC).8×8. Palestinian BDS National Committee, BDS, https://bdsmovement.net/bnc [https://perma.cc/3B9T-LG9Z]. Part I explains the background of BDS and anti-BDS laws. Part II explores how the discrimination claim has gained legal force through anti-BDS laws and other legal tools. Part III summarizes the implications of the anti-discrimination argument for First Amendment challenges to anti-BDS bills. A strong antidiscrimination justification for these laws would constitute a compelling state interest that could trump countervailing First Amendment interests. However, as Part IV explains, anti-BDS laws are not backed by a valid antidiscrimination interest.
I. The BDS Movement and Anti-BDS Laws
A. Palestinian Rights & the Birth of BDS
The Palestinian community today is made up of distinct populations, each facing a range of human rights abuses by the Israeli government. In Gaza, 1.8 million people live under an air, land, and sea blockade that restricts movement out of the Gaza Strip and access to basic necessities.9×9. Gaza Blockade, United Nations Off. for Coordination Humanitarian Aff., https://www.ochaopt.org/theme/gaza-blockade [https://perma.cc/G8PR-A7JS]. Palestinians in the West Bank face a military occupation marked by segregated roads, home demolitions,10×10. See Human Rights Watch, Separate and Unequal 4, 11, 66 (2010), https://www.hrw.org/sites/default/files/reports/iopt1210webwcover_0.pdf [https://perma.cc/489V-9VYD]. unprecedented settlement expansion,11×11. See Noura Erakat, Justice for Some: Law and the Question of Palestine 211 (2019) (noting a 200% increase in settler population since 1993). and widespread military detentions — with as much as 40% of the male population having been detained by Israeli authorities.12×12. Addameer Prisoner Support & Human Rights Ass’n, Palestinian Political Prisoners in Israeli Prisons 4 (2014)
Against this backdrop, BDS was founded in 2005 to leverage non-violent pressure on Israel, based on the recognition that “[t]he most fundamental problem . . . [is] not in deciding what sort of arrangement should replace the current system; the problem [is] forcing Israel to change it at all.”19×19. Nathan Thrall, BDS: How a Controversial Non-violent Movement Has Transformed the Israeli-Palestinian Debate, The Guardian (Aug. 24, 2018, 7:00 AM), https://www.theguardian.com/news/2018/aug/14/bds-boycott-divestment-sanctions-movement-transformed-israeli-palestinian-debate [https://perma.cc/9XGE-5RV9]. The movement aims to: (1) end the occupation and dismantle the wall; (2) secure the equal rights of Arab-Palestinian citizens of Israel; and (3) uphold the right of Palestinian refugees to return to their homes, per UN Resolution 194.20×20. Palestinian Civil Soc’y, Palestinian Civil Society Call for BDS, BDS (July 9, 2005), https://bdsmovement.net/call“>https://bdsmovement.net/call”>https://bdsmovement.net/call [https://perma.cc/C33F-CUYL]. Inspired by the antiapartheid movement in South Africa, BDS leverages boycotts, institutional divestment, and government sanctions to target entities deemed complicit in Israel’s violations of Palestinian rights.21×21. See id.; Email from Omar Barghouti, Co-founder of BDS, to author (Aug. 24, 2019) (on file with the Harvard Law Review). The international movement has become increasingly mainstream22×22. Erakat, supra note 11, at 229. and has successfully moved some companies to cease operations implicated in Israel’s rights abuses.23×23. Examples include telecommunications company Orange ending its partnership with an Israeli company operating in settlements, see Jack Moore, Orange to End Partnership with Israeli Company as BDS Claims Another Scalp, Newsweek (Jan. 6, 2016, 1:19 PM), https://www.newsweek.com/orange-ends-partnership-israeli-company-bds-claims-another-scalp-412202 [https://perma.cc/KT4W-ZFA3], and the U.S. Presbyterian Church divesting from companies complicit in the occupation, see Presbyterian Church Votes to Divest Holdings to Sanction Israel, The Guardian (June 21, 2014, 12:01 PM), https://www.theguardian.com/world/2014/jun/21/presbyterian-church-votes-divest-holdings-to-sanction-israel [https://perma.cc/XU3V-YBBF]. However, Israel’s overall international trade has actually increased since BDS began. See Thrall, supra note 19.
B. Emergence of U.S. Anti-BDS Laws
Alongside its wins, BDS has seen substantial political opposition. In 2014, Israeli Prime Minister Netanyahu’s administration devoted $25.5 million to an anti-BDS task force24×24. Doron Peskin, Israel Commits $25 Million to New Anti-BDS Task Force, but What Exactly Will They Do?, Al-Monitor (Dec. 23, 2015), https://www.al-monitor.com/pulse/originals/2015/12/boycott-bds-movement-israel-government-office-gilad-erdan.html#ixzz60AkZIHbV [https://perma.cc/PDB4-ZCNM]. and reportedly discussed “whether to activate the pro-Israel lobby in the US . . . to promote legislation” to undermine BDS.25×25. Thrall, supra note 19. By September 2014, the American Israeli Public Affairs Committee (AIPAC) was drafting legislation to counteract BDS in the United States.26×26. Rosie Gray, Pro-Israel Activists Aim to Block Boycott Movement with Legislation, BuzzFeed News (Sept. 9, 2014, 5:17 PM),
In July 2015, Illinois became the first state to pass an anti-BDS law.29×29. Illinois Governor Signs Anti-BDS Bill into Law, Palestine Legal (July 24, 2015), https://palestinelegal.org/news/2015/7/24/illinois-governor-signs-anti-bds-bill-into-law?rq=illinois [https://perma.cc/TE9X-XLYF]. Today, all but nine states have introduced or instituted anti-BDS measures that either require state contractors to pledge that they will not boycott Israel or require the divestment of state funds from boycotting companies that are placed on a “blacklist.”30×30. Ten Things to Know About Anti-Boycott Legislation, Palestine Legal (Mar. 27, 2019), https://palestinelegal.org/news/2016/6/3/what-to-know-about-anti-bds-legislation [https://perma.cc/2DSC-48XC]. One anti-BDS law was met with international outrage in 2017 when Hurricane Harvey victims were required to pledge not to boycott Israel before receiving relief aid.31×31. Anat Rosenberg, Still Recovering from Harvey, Texas Hit with “Hurricane Israel” over Anti-BDS Provision, Haaretz (Oct. 21, 2017, 7:17 PM), https://www.haaretz.com/us-news/recovering-from-harvey-texas-suburb-hit-with-hurricane-israel-1.5459316 [https://perma.cc/DZH5-R99G]. Still, such laws have received support across most states, and fifty governors have signed a statement rejecting BDS.32×32. 50 U.S. Governors Unite to Support Israel, Fight BDS, Am. Jewish Committee, https://www.ajc.org/sites/default/files/pdf/2017-09/AJC_WSJAD%202017_FINAL.PDF [http://perma.cc/TK6F-3K65].
Recently, federal anti-BDS laws have also arisen, harkening back to 1970s legislation opposing the Arab League’s boycott of Israel.33×33. See Office of Antiboycott Compliance (OAC), Bureau Industry & Security, U.S. Dep’t Com., https://www.bis.doc.gov/index.php/enforcement/oac [https://perma.cc/6PGB-7ZGQ] (discussing 1976 Ribicoff Amendment to the Tax Reform Act and 1977 amendments to the Export Administration Act). In 2017, Congress considered the Israel Anti-Boycott Act (IABA), which would have criminalized supporting anti-Israel boycotts fostered by international governmental organizations.34×34. Israel Anti-Boycott Act, S.720, 115th Cong. (2017). In 2019, the Senate passed the Combatting BDS Act to clarify that state anti-BDS bills are not preempted by federal law,35×35. Strengthening America’s Security in the Middle East Act of 2019, S.1, 116th Cong. (2019). while the House passed a resolution condemning BDS and “all efforts to delegitimize the State of Israel.”36×36. H.R. Res. 246, 116th Cong. (2019).
II. Claims of Unlawful Discrimination
A. Claims of Discrimination Used Against BDS
Anti-BDS laws have been justified as tools for combatting religious discrimination against Jewish people and national-origin discrimination against Israelis. As nine states argued in an amicus brief: it is “intuitively obvious . . . [that] targeting a particular group (and those associating with them) for the intentional infliction of economic harm is discrimination, by definition,” and BDS does just that.37×37. Brief of Amici Curiae States of Arizona et al. at 21–22, Amawi v. Paxton, No. 19-50384 (5th Cir. Sept. 6, 2019). Some note, just because BDS does not target all Israelis does not make the movement any less discriminatory: “[D]iscrimination is not immunized simply because it is not carried out to its furthest ends.”38×38. State of Arizona’s Reply Brief at 19, Jordahl v. Arizona, No. 18-16896 (9th Cir. Feb. 28, 2019). Moreover, the claim goes, BDS “doesn’t pass the anti-Semitism smell test”; supporters feed anti-Semitic stereotypes39×39. Gil Troy, The BDS Movement Is Nefarious, but It’s Better to Push Back Politically — Not Legally, CBC (Mar. 10, 2019, 4:00 AM), https://www.cbc.ca/news/opinion/bds-law-1.5034567 [https://perma.cc/32DV-KE6H]. and single out the world’s only Jewish state — a democracy — “for the most exacting scrutiny,” while ignoring worse human rights abuses elsewhere.40×40. French, supra note 2. Opponents claim, of all groups on Earth, BDS denies only the Jewish people the right of national self-determination.41×41. David Harris, Letter to the Editor, Why Anti-Zionism Is Malign, N.Y. Times (Dec. 12, 2018), https://nyti.ms/2GcOn77 [https://perma.cc/U36W-JE35]. Many trace a line from centuries-old exclusions of Jewish people from commerce to BDS, arguing that BDS is the latest manifestation of “economic warfare” against the Jewish people.42×42. Dan Diker, Unmasking BDS: Radical Roots, Extremist Ends 5, 8–10 (2015).
This claim of discrimination is not new. It is commonplace to allege that anti-Zionism43×43. Anti-Zionism can be defined as “a loose term referring to criticism of the current policies of the Israeli state, and/or moral, ethical, or religious criticism of the idea of a Jewish nation-state.” Our Approach to Zionism, Jewish Voice for Peace, https://jewishvoiceforpeace.org/zionism [https://perma.cc/W4KX-HAJ3]. is anti-Semitic.44×44. For example, in 2002, then-president of Harvard University Lawrence Summers called a petition to divest the university from Israel “anti-Semitic.” Karen W. Arenson, Harvard President Sees Rise in Anti-Semitism on Campus, N.Y. Times (Sept. 21, 2002), https://www.nytimes.com/2002/09/21/us/harvard-president-sees-rise-in-anti-semitism-on-campus.html [http://perma.cc/k56Z-LLY2]. A primary tool of Israeli advocacy organizations has long been public vilification of Palestinian rights supporters as anti-Semitic,45×45. Palestine Legal & Ctr. for Constitutional Rights, The Palestine Exception to Free Speech 17 (2015), https://ccrjustice.org/sites/default/files/attach/2015/09/Palestine%20Exception%20Report%20Final.pdf [https://perma.cc/PV5S-8M25] [hereinafter Palestine Exception]; see, e.g., About Us, Canary Mission, https://canarymission.org/about [https://perma.cc/54Z2-YSVX] (labeling anti-Zionist activists anti-Semitic). a charge that carries a powerful chilling effect.46×46. See Judith Butler, No, It’s Not Anti-Semitic, 25 London Rev. Books 19, 19 (2003) (“If we think that to criticise Israeli violence . . . is to be ‘effectively anti-semitic’, we will fail to voice our opposition for fear of being named as part of an anti-semitic enterprise.”). However, in recent years, this allegation of anti-Jewish and anti-Israeli discrimination has transitioned from a political and rhetorical claim to one treated as legally cognizable. Several anti-BDS laws rest on the antidiscrimination rationale, alongside other justifications.47×47. Other rationales include: protecting trade relations with Israel; avoiding contractors that make “unsound business practice[s]”; and honoring Israel as a “key all[y].” See, e.g., Minn. Stat. § 16C.053(b)(2) (2017); 2017 N.C. Sess. Laws 193. Many of the laws penalize limiting business with Israel “in a manner that discriminates on the basis of nationality, national origin or religion.”48×48. Nev. Rev. Stat. § 332.065(5)(a) (2019); see also Ga. Code. Ann. § 50-5-85(a)(1)(B) (West 2017); Minn. Stat. § 16C.053(b)(2) (2017); Ariz. Rev. Stat. Ann. § 35-393(1)(b) (2016); Md. E.O. 01.01.2017.25; Cal. Pub. Cont. § 2010 (2016). For other laws, the antidiscrimination rationale is absent from the text but emerges in the legislative history.49×49. See, e.g., Leah Vukmir, AB 553, Assembly Committee on Government Accountability and Oversight 3 (Jan. 17, 2018), http://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_materials/2017/ab553/ab0553_2018_01_17.pdf [https://perma.cc/U2NP-DKZE] (“This bill shows that we will not stand for anti-Semitic policies . . . .”). Alongside contracting laws, several states have passed virtually identical resolutions naming BDS “one of the main vehicles for spreading anti-Semitism.”50×50. S. Res. 136, 2015 Gen. Assemb. (Pa. 2015); see also Assemb. J. Res. 122, 216th Leg. (N.J. 2015).
States have partially relied on the antidiscrimination justification when defending anti-BDS laws against First Amendment challenges. Thus far, five federal cases have been decided at the preliminary injunction stage, reviewing challenges to anti-BDS laws in Maryland, Texas, Arkansas, Arizona, and Kansas.51×51. Ali v. Hogan, No. 19-0078, 2019 WL 4861198 (D. Md. Oct. 1, 2019) (dismissed for lack of standing); Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717 (W.D. Tex. 2019); Ark. Times LP v. Waldrip, 362 F. Supp. 3d 617 (E.D. Ark. 2019) (dismissed); Jordahl v. Brnovich, 336 F. Supp. 3d 1016 (D. Ariz. 2018); Koontz v. Watson, 283 F. Supp. 3d 1007 (D. Kan. 2018). Texas defended that BDS engages in “invidious, status-based discrimination,” and the State has the power to prohibit “discrimination based on historically protected characteristics.”52×52. Defendant Ken Paxton’s Omnibus Response to Plaintiffs’ Motions for Preliminary Injunction at 21, 25, Amawi, 373 F. Supp. 3d 717 (No. 18-CV-1091). The district court rejected this rationale, finding that the law was aimed not at combatting national-origin discrimination, but instead at “silenc[ing] speech with which Texas disagrees.” Amawi, 373 F. Supp. 3d at 749. Arizona, Maryland, and Arkansas similarly argued that BDS is quintessentially discriminatory, “rooted in animus” toward Jewish people53×53. Defendants-Appellees’ Brief at 2, Ark. Times LP v. Waldrip, No. 19-1378 (8th Cir. May 31, 2019); see also State of Arizona’s Reply Brief, supra note 38, at 18. and constituting “national-origin discrimination under any reasonable construction of that term.”54×54. Memorandum in Support of Governor Hogan’s Motion to Dismiss at 30, Ali, 2019 WL 4861198.
B. Claims of Discrimination Beyond BDS
Not only has the discrimination claim been used defensively against legal challenges to anti-BDS laws, but it has also been wielded offensively in complaints against entities advancing Palestinian rights work.
1. Airbnb Cases. — In November 2018, following advocacy by human rights groups,55×55. See, e.g., Human Rights Watch, Bed and Breakfast on Stolen Land 2 (2018), https://www.hrw.org/sites/default/files/report_pdf/israel1118_web_0.pdf [https://perma.cc/2HQ2-V9Y8]. Airbnb announced that it would delist rentals in Israeli West Bank settlements,56×56. Listings in Disputed Regions, Airbnb Newsroom (Nov. 19, 2018), https://press.airbnb.com/listings-in-disputed-regions [https://perma.cc/9URZ-SYLS]. which violate Article 49 of the Fourth Geneva Convention.57×57. See Erakat, supra note 11, at 61–62, 68–69. The company was promptly met with four lawsuits.58×58. Julia Jacobs, Airbnb Reverses Policy Banning Listings in Israeli Settlements in West Bank, N.Y. Times (Apr. 9, 2019), https://nyti.ms/2KnxgSk [https://perma.cc/5Q4W-UBGK]. Some plaintiffs alleged that Airbnb’s policy violated the FHA by discriminating on account of race, religion, and national origin because it “effectively targets only those residential dwellings and accommodations in Judea and Samaria that are owned or managed by Jews.”59×59. Complaint at 15–16, Harow v. Airbnb, Inc., No. 19-cv-00395 (N.D. Cal. Jan. 22, 2019); see also Amended Complaint at 9–10, Silber v. Airbnb, Inc., No. 18-cv-01884 (D. Del. Dec. 21, 2018). In April 2019, Airbnb settled by reversing its policy, announcing that it “always opposed the BDS movement.”60×60. Update on Listings in Disputed Regions, Airbnb Newsroom (Apr. 9, 2019), https://press.airbnb.com/update-listings-disputed-regions [https://perma.cc/B2Q3-C56H].
2. Title VI. — The discrimination claim has also gained traction through the U.S. Department of Education’s (DOE) response to Title VI complaints. As of 2015, at least six Title VI complaints had been filed against universities alleging that Palestine-related events harassed, targeted, or “create[d] a ‘hostile educational environment’ for Jewish students.”61×61. See Palestine Exception, supra note 45, at 36. Under the Obama Administration, the DOE dismissed such complaints for lack of legal merit.62×62. Id. at 36–37. According to Kenneth Marcus, the “architect of [this] Title VI strategy,” even when rejected, these Title VI complaints successfully chilled speech by “expos[ing] administrators to bad publicity” and “getting [students] caught up in a civil rights complaint.”63×63. Id. at 37. In 2018, Marcus was appointed by President Trump to serve as the DOE’s Assistant Secretary for Civil Rights.64×64. President Donald J. Trump Announces Key Additions to His Administration, White House (Oct. 26, 2017), https://perma.cc/8SCL-9HTR]. Marcus is working to shift DOE policy toward upholding discrimination claims that were rejected under the Obama Administration through steps like reopening a previously terminated investigation against Rutgers University for alleged anti-Semitism.65×65. Letter from Kenneth L. Marcus, Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ., to Susan B. Tuchman, Zionist Org. of Am. (Aug. 27, 2018), https://www.insidehighered.com/sites/default/server_files/media/Rutgers%20Appeal.pdf [https://perma.cc/5HJ3-GSX9].
3. Redefining Anti-Semitism. — The discrimination claim is also gaining legal force through the formal redefining of anti-Semitism to include anti-Zionism. In 2010, the U.S. State Department adopted a definition of anti-Semitism that includes the “3 D’s” of demonizing, delegitimizing, and applying double standards to Israel.66×66. Defining Anti-Semitism, U.S. Dep’t of State (June 8, 2010), https://perma.cc/W7QX-98EZ]. This definition regards as anti-Semitic acts like: “[m]ultilateral organizations focusing on Israel only for peace or human rights investigations” and “requiring of [Israel] a behavior not expected or demanded of any other democratic nation.”67×67. Id. In 2019, the Florida legislature passed HB 741, requiring state educational institutions to treat anti-Semitism — as defined by the State Department — the same as racial discrimination.68×68. Fla. Stat. § 1000.05 (2019). A town in Florida has gone further, passing an ordinance that integrates this definition of anti-Semitism into its criminal law and directs police to investigate instances of demonizing, delegitimizing, or applying double standards to Israel.69×69. Bal Harbour, Fla., Code of Ordinances § 2-112 (2019). In 2016, the International Holocaust Remembrance Alliance promulgated a similar definition,70×70. See Working Definition of Antisemitism, Int’l Holocaust Remembrance Alliance, https://www.holocaustremembrance.com/working-definition-antisemitism [https://perma.cc/Y6WK-KLM9]. which has been adopted by thirty-one countries, and eight have enshrined it into national law.71×71. See Daniel Sugarman, What Is the IHRA Definition of Antisemitism? And Why Has Labour Outraged Jews by Rejecting It?, Jewish Chron. (July 20, 2018, 3:31 PM), https://perma.cc/A2KQ-7MPE].
In these ways, the claim that anti-Zionism constitutes religious and national-origin discrimination has gone from a merely rhetorical argument to one taken seriously by legislatures, federal agencies, and courts as legally cognizable.
III. Implications for First Amendment Challenges
The discrimination claim impacts whether anti-BDS laws that burden political speech can withstand First Amendment scrutiny. This Part explores whether BDS is First Amendment–protected and, if so, whether a valid antidiscrimination rationale could save anti-BDS laws from constitutional rebuke. The First Amendment protects both speech and expressive conduct.72×72. See Texas v. Johnson, 491 U.S. 397, 404 (1989). Under strict scrutiny, a content-based regulation of protected expression must be justified by a compelling state interest and be narrowly tailored to further that interest.73×73. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2222 (2015).
A preliminary question in anti-BDS litigation is whether BDS is protected expression. Litigants who consider anti-BDS laws unconstitutional cite NAACP v. Claiborne Hardware Co.74×74. 458 U.S. 886 (1982). for the proposition that the First Amendment protects nonviolent, politically motivated consumer boycotts.75×75. See Brief of Amici Curiae First Amendment Scholars in Support of Plaintiffs-Appellees at 12–13, Jordahl v. Arizona, No. 18-16896 (9th Cir. Jan. 24, 2019) [hereinafter Knight Brief]. Some note that anti-BDS laws are content-based by “singling out only politically motivated refusals to do business” with Israel, and even if BDS does not qualify as speech, the First Amendment still restrains the government from forbidding conduct precisely because of what it communicates.76×76. Lindsey Lawton, A New Loyalty Oath: New York’s Targeted Ban on State Funds for Palestinian Boycott Supporters, 42 N.Y.U. Rev. L. & Soc. Change 649, 666 (2019). Conversely, supporters of anti-BDS laws’ constitutionality argue that BDS is not protected because it is merely the nonexpressive conduct of withholding business and requires additional explanation in order to be expressive,77×77. See, e.g., Brief of Profs. Michael C. Dorf, Andrew M. Koppelman, and Eugene Volokh as Amici Curiae in Support of Defendants-Appellees at 14, Ark. Times LP v. Waldrip, No. 19-1378 (8th Cir. June 5, 2019) [hereinafter Dorf Brief]. citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc.78×78. 547 U.S. 47 (2006) (holding that ROTC boycott was unprotected conduct). They interpret Claiborne to mean that,
while expression supporting a boycott (picketing, marches, speeches) is protected, the act of boycotting itself is not.79×79. See, e.g., Dorf Brief, supra note 77, at 6–8, 10.
Almost all federal courts that have ruled on this matter have concluded that BDS is constitutionally protected expression.80×80. See Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717, 745 (W.D. Tex. 2019); Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1043 (D. Ariz. 2018); Koontz v. Watson, 283 F. Supp. 3d 1007, 1023 (D. Kan. 2018). But see Ark. Times LP v. Waldrip, 362 F. Supp. 3d 617 (E.D. Ark. 2019). Therefore, if subject to strict scrutiny, anti-BDS laws can survive only if narrowly tailored to advance a compelling state interest. Roberts v. U.S. Jaycees81×81. 468 U.S. 609 (1984). and its progeny establish that “the State’s strong historical commitment to eliminating discrimination . . . serves compelling state interests of the highest order.”82×82. Id. at 624 (citation omitted). Thus, a compelling antidiscrimination justification could possibly trump BDS’s First Amendment protections. However, the Supreme Court has not fully resolved the core constitutional tension between First Amendment interests and neutral antidiscrimination laws.83×83. This issue was raised but not reached in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), because the state displayed religious animus. See id. at 1727–31. Under Supreme Court precedent such as Boy Scouts of America v. Dale,84×84. 530 U.S. 640 (2000). First Amendment interests may override antidiscrimination laws when discrimination is integral to the expression and the law forces individuals to “alter the[ir] expressive content.”85×85. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 572–73 (1995); see Erwin Chemerinsky & Catherine Fisk, The Expressive Interest of Associations, 9 Wm. & Mary Bill Rts. J. 595, 599 (2001). If BDS’s policy of anti-Zionism were considered discriminatory, plaintiffs could argue that anti-Zionism is core to the organization’s purpose, at least as much as antihomosexuality was core to the Boy Scouts’s mission in Dale,86×86. Dale, 530 U.S. at 649. and BDS’s integral expressive message is being unconstitutionally undermined. Thus, anti-BDS laws may not survive strict scrutiny even if a compelling antidiscrimination interest is at stake.
Still, the State may argue that it has an additional defense to First Amendment challenges when it contracts with private entities. Several cases affirm that the State may decline to contract with a private actor when doing so would effectively subsidize violations of public policy.87×87. See Eugene Volokh, Freedom of Expressive Association and Government Subsidies, 58 Stan. L. Rev. 1919, 1924–27 (2006) (providing examples of activities the state has no duty to subsidize). Under this principle, in 2014 President Obama passed an executive order that prohibits federal contractors from practicing anti-LGBT employment discrimination.88×88. Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (July 23, 2014). Obama announced that “America’s Federal contracts should not subsidize discrimination against the American people”89×89. Remarks on Signing an Executive Order on Lesbian, Gay, Bisexual, and Transgender Employment Discrimination, 2014 Daily Comp. Pres. Doc. 552 (July 21, 2014). — mirroring the justification States now use for anti-BDS laws.
Indeed, strong antidiscrimination interests should trump First Amendment rights. Progressive activists and lawyers have worked for decades to ensure that entities cannot opt out of antidiscrimination laws simply by raising an associational or expressive interest in discrimina-ting.90×90. Cf. Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 944–45 (D.S.C. 1966). And labeling discriminatory acts a political boycott shouldn’t shield them from antidiscrimination contracting laws. If Obama’s executive order were challenged by contractors claiming a First Amendment interest in banning LGBT employees, the Administration’s antidiscrimination interest should trump. If a white supremacist organization coordinates a boycott of black-owned businesses, the State should be entitled to refuse to contract with the organization. Likewise, if BDS were to invidiously discriminate based on religion or national origin, the State’s interest in combatting such discrimination may outweigh countervailing First Amendment claims. However, as explained below, BDS cannot properly be considered discriminatory. The State therefore has no legitimate antidiscrimination interest in suppressing BDS activity.
IV. Debunking the Discrimination Claim
Courts soon may have to decide whether BDS is unlawfully discriminatory. This question arises indirectly in First Amendment challenges to anti-BDS laws as a prerequisite to deciding whether states have a compelling antidiscrimination interest in penalizing BDS. The question also arises directly in lawsuits alleging that BDS participants violate existing public accommodation laws.91×91. See, e.g., Athenaeum v. Nat’l Lawyers Guild, Inc., No. 653668/16, 2017 WL 1232523, at *3 (N.Y. Sup. Ct. Mar. 30, 2017) (reviewing whether National Lawyers Guild’s BDS participation was discriminatory). And as anti-BDS legal strategies develop,92×92. See Barak Ravid, Netanyahu Convenes Ministers to Discuss Growing Israel Economic Boycott Threats, Haaretz (Feb. 9, 2014, 7:09 PM), https://www.haaretz.com/.premium–1.5320445 [https://perma.cc/W6KM-2AS4] (discussing strategy to bring suit against BDS proponents). a hypothetical state or federal statute could even be passed to prohibit religious or national-origin discrimination in commercial transactions, including consumer purchases, and be used to bring suit against BDS participants. In each scenario, courts should consider whether a valid, nonpretextual discrimination claim has been raised and whether BDS constitutes illegal discrimination. Because there is no specific test for whether a consumer boycott constitutes discrimination, courts can instead look to two types of discrimination widely recognized in existing law: discriminatory intent and disparate impact discrimination. This Part analyzes whether BDS can be considered discriminatory, borrowing from intent and impact doctrines developed to address employment, public accommodations, disability, and housing discrimination. Section A argues that the discrimination claim levied against BDS is likely pretextual. Section B explains why BDS cannot be considered discriminatory based on discriminatory intent and disparate impact doctrines.
A. Pretextual Nature of the Discrimination Claim
Governments likely adopted the discrimination rationale as pretext to help overcome anticipated constitutional challenges. Consider what these laws would look like if their goal were actually to root out religious and national-origin discrimination by state contractors engaged in boycotts. Anti-BDS laws as written would be both oddly underinclusive and overinclusive. They would be underinclusive because the vast majority apply only to discrimination against Israelis.93×93. See Knight Brief, supra note 75, at 2; Anti-boycott Legislation Around the Country, supra note 3 (compiling anti-BDS laws, of which only seven of the twenty-seven appear to apply beyond boycotts targeting Israel). Despite the range of boycotts practiced in the United States,94×94. E.g., Alistair, Blog: Should We Boycott Chinese Goods?, Free Tibet (Dec. 4, 2015), https://www.freetibet.org/news-media/na/blog-should-we-boycott-chinese-goods [https://perma.cc/N9EA-8LLF] (pro-Tibet boycott of Chinese goods); Sever Ties with the Saudi Regime, CodePink,
At the same time, many of the laws would be overinclusive by prohibiting not just boycotts of Israel that are deemed discriminatory but all boycotts of Israeli goods, even absent a finding of discrimination. Kansas’s anti-BDS bill describes two categories of prohibited boycotts: (1) those undertaken “in . . . adherence to calls for a boycott of Israel” and (2) those that “discriminate on the basis of nationality, national origin or religion, and . . . [are] not based on a valid business reason.”97×97. 2017 Kan. Sess. Laws 1126; see also Ga. Code Ann. § 50-5-85 (West 2017). If the second definition does any work, it must indicate that the Kansas legislature does not consider all boycotts of Israeli goods to be discriminatory98×98. Knight Brief, supra note 75, at 14–16. — undermining the claim that BDS is inherently discriminatory. Meanwhile, some bills provide exemptions from the certification requirement for contractors who bid 20% less than the lowest business that is certified.99×99. See, e.g., Ark. Code Ann. § 25-1-503 (West 2017). If anti-BDS laws were meant to combat invidious discrimination, it would be inconsistent for states to freely permit such discrimination as long as the contractor offered a low enough bid. Finally, the legislative history of several bills reveals a desire to undermine BDS’s growth,100×100. See, e.g., Press Release, U.S. Senate Comm. on Foreign Relations, Cardin, Portman, Roskam, & Vargas Lead Bipartisan, Bicameral Bill to Reject Attempts to Economically Isolate Israel (Mar. 23, 2017) (on file with the Harvard Law School Library) (sponsor statement that IABA “sends a clear message that politically-motivated boycotts of Israel are unacceptable to the United States”); Hearing on HB2617 Before the H. Comm. on Federalism and States’ Rights, 52d Leg., 2d Sess. (Ariz. 2016), http://azleg.granicus.com/MediaPlayer.php?view id=26&clip id=16722 [https://perma.cc/569C-C4W3] (“[T]he whole reason for [HB2617]” is to address the “movement underway.”). further suggesting that the goal of chilling a disfavored political movement, rather than genuine concern over discrimination by state contractors, motivated the passage of anti-BDS bills.
B. Doctrinal Weakness of the Discrimination Claim
Even if we assume that combatting discrimination were the true motive behind anti-BDS bills, the argument would be legally baseless. This section explains that BDS does not manifest discriminatory intent or produce a disparate impact. Constitutional claims of discrimination under the Fourteenth Amendment require showing that a government actor has discriminatory intent.101×101. See Washington v. Davis, 426 U.S. 229, 240–41 (1976). Conversely, many federal and local statutes address private discrimination and recognize disparate impact claims.102×102. See, e.g., Equal Employment Opportunities Act, 20 U.S.C. § 2000e-2(k) (2012); Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634 (2012) (established in Smith v. City of Jackson, 544 U.S. 228 (2005)); New York City Human Rights Law, N.Y.C., N.Y., 8 Admin. Code §§ 8-101–8-703 (2019).
1. No Discriminatory Intent. — The doctrine of discriminatory intent, or “disparate treatment,” entails decisionmaking that was “actually motivated by [one’s] . . . membership in a . . . protected class.”103×103. Susan S. Grover, The Business Necessity Defense in Disparate Impact Discrimination Cases, 30 Ga. L. Rev. 387, 402 (1996) (emphasis added). Intent can be shown through direct or circumstantial evidence.104×104. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 717 (1983).
(a) Direct Evidence. — First, there is no direct evidence that BDS exhibits discriminatory intent toward Jewish or Israeli individuals. Direct evidence is evidence that facially links behavior to a discriminatory motive, such as “conduct or statements . . . [that] directly reflect the alleged discriminatory attitude.”105×105. Kriss v. Sprint Commc’ns Co., 58 F.3d 1276, 1282 (8th Cir. 1995) (quoting Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992)). Neither BDS’s conduct nor statements are facially discriminatory. The BNC’s official stance is that it “does not tolerate any act or discourse which adopts or promotes . . . anti-Semitism,” and it affirms Universal Declaration of Human Rights principles rejecting religious and national-origin discrimination.106×106. Palestinian BDS National Committee, “Racism and Racial Discrimination are the Antithesis of Freedom, Justice & Equality,” BDS (Mar. 7, 2017), https://bdsmovement.net/news/ %E2%80%9Cracism-and-racial-discrimination-are-antithesis-freedom-justice-equality%E2%80%9D [https://perma.cc/NC2C-UYZ9]. The BNC encourages supporters to select targets based on their complicity in Israel’s human rights violations, potential for cross-movement solidarity, media appeal, and likelihood of success.107×107. Palestinian BDS National Committee, Join the BDS Movement and Make an Impact!, BDS (Aug. 31, 2014), https://bdsmovement.net/make-an-impact [https://perma.cc/3WH2-55RC]; Email from Omar Barghouti, supra note 21. The movement does not select targets based on their national origin or religious identity.108×108. See Brief of Amici Curiae, American Friends Service Committee et al., In Support of Plaintiffs-Appellants and Affirmance at 16, Jordahl v. Arizona, No. 18–16896 (9th Cir. Jan. 22, 2019) [hereinafter AFSC Brief].
Opponents counter that BDS leaders’ statements advocating the end of Israel’s existence as a Jewish state are direct evidence of anti-Semitism.109×109. See, e.g., Marc A. Greendorfer, Boycotting the Boycotters: Turnabout Is Fair Play Under the Commerce Clause and the Unconstitutional Conditions Doctrine, 40 Campbell L. Rev. 29, 47–48 (2018). However, that argument assumes its own conclusion. Such statements are anti-Zionist, and equating anti-Zionism (a political ideology that opposes Jewish ethno-nationalism) with anti-Semitism (anti-Jewish animus) requires a logical leap that defeats finding direct evidence of religious discrimination. Similarly, opposing Israel’s existence as a Jewish state is logically distinct from animus toward individual Israelis on the basis of national origin, such that equating the two requires inferences, which are incompatible with what courts require for direct evidence.110×110. See Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993) (“Direct evidence is evidence which, if believed, proves the fact without inference or presumption.”). Because direct evidence requires facial proof without circumstantial inferences, such evidence of discrimination rarely exists111×111. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 526, 534–35 (1993) (Souter, J., dissenting). and is absent in this context.
(b) Circumstantial Evidence. — Second, there is no circumstantial evidence of discriminatory intent. BDS’s opponents often infer discriminatory intent from the premise that the movement ignores human rights abuses in other countries and singles out Israel, the world’s only Jewish state, for disproportionate critique.112×112. See, e.g., Mark Goldfeder, Stop Defending Discrimination: Anti-Boycott, Divestment, and Sanctions Statutes Are Fully Constitutional, 50 Tex. Tech L. Rev. 207, 234 (2018). This argument essentially says that anti-Jewish or anti-Israeli animus is a motivating factor, or even the but-for cause, behind BDS’s focus on Israel. The McDonnell Douglas Corp. v. Green113×113. 411 U.S. 792 (1973). framework applies to discriminatory intent claims resting on circumstantial evidence and “but-for” causation.114×114. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1237 (11th Cir. 2016) (explaining that most courts apply McDonnell’s framework only to “but-for” claims). Some antidiscrimination laws require showing the discriminatory motive was the “but-for” motive behind the conduct, while others recognize mixed-motive claims where animus was a motivating factor alongside others. Compare id. at 1235 (allowing mixed-motive claim), with Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009) (disallowing mixed-motive claims under the Age Discrimination in Employment Act (ADEA)). A plaintiff must first make a prima facie showing of discrimination due to her membership in a protected class; the burden of production then shifts to the defendant to offer a “legitimate, nondiscriminatory reason” for the conduct, which the plaintiff can rebut by showing that the proffered reason is pretextual.115×115. McDonnell, 411 U.S. at 802–04. This framework was developed for employment discrimination cases and would not be directly applied to BDS, but it offers a useful guide for assessing the claim that BDS would not target Israeli companies but for their Jewish or Israeli identity.116×116. Alternatively, if a mixed-motive test were applied to BDS, challengers would have to prove that anti-Jewish or anti-Israeli animus is a “motivating factor” behind BDS’s decisions, even if human rights motives also exist. See Quigg, 814 F.3d at 1235. While an in-depth analysis of a mixed-motives claim is beyond the scope of this Note, for the reasons discussed in section B, establishing a discriminatory motive would be difficult absent proof of animus.
(i) Prima Facie Showing. — First, it must be shown that BDS participants discriminate due to national origin or religion. This nexus cannot be established. Under Hazen Paper Co. v. Biggins,117×117. 507 U.S. 604 (1993). discrimination against an identity cannot be inferred from actions penalizing an independent, analytically distinct category — even if that category is related to the identity.118×118. Id. at 611–12 (rejecting the claim that the employer penalizing years of service constituted age discrimination under ADEA because years of service was an independent category). Here, disfavoring a nation-state for its governmental policies is analytically distinct from national-origin discrimination, defined as disfavoring an individual due to “the country where a person was born, or . . . from which his or her ancestors came.”119×119. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). BDS can consider the former while ignoring the latter, which undermines a finding of discrimination based on national origin.120×120. See Biggins, 507 U.S. at 611. The Supreme Court has declined to expand national-origin discrimination to include citizenship discrimination,121×121. Espinoza, 414 U.S. at 88–91. and targeting nation-states for their policies is even further removed from the concept of national-origin discrimination than citizenship. If political boycotts of countries were cognizable as “national-origin discrimination,” all sorts of current and historical boycotts would be swept into the net of illegal discrimination.122×122. Revolutionary War–era boycotts of Britain, antiapartheid boycotts of South Africa, and current boycotts of China would all constitute national-origin discrimination. Cf. Plaintiffs’ Combined Response to the State’s Motion to Dismiss and Reply in Support of Plaintiffs’ Motion for Preliminary Injunction, with Accompanying Declaration at 23, Jordahl v. Arizona, 336 F. Supp. 3d 1016 (D. Ariz. 2018) (No. 17-cv-08263). Furthermore, Israel’s religious character does not necessarily render such a boycott discriminatory. Analogously, Iran, like Israel, self-defines based on religion, yet current U.S. refusals to buy from Iran do not give rise to anti-Shia religious discrimination claims, because Iran’s national policies, rather than its identity, are the target.123×123. See, e.g., Lawton, supra note 76, at 679–80.
BDS’s opponents might counter that Israeli and Jewish identities are “closely correlated” with the conduct of supporting Israel in ways that put an entity on the boycott list — and therefore to disfavor the latter is to disfavor the former. This argument mirrors one that arose in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,124×124. 138 S. Ct. 1719 (2018). where a baker refused to make a cake for a gay couple’s wedding ceremony125×125. Id. at 1723. — which some have likened to BDS’s refusal to engage economically with Israel.126×126. See, e.g., Andrew Koppelman, BDS and Masterpiece Cakeshop, Balkinization (Feb. 12,2019, 7:29 AM), https://balkin.blogspot.com/2019/02/bds-and-masterpiece-cakeshop.html [https://perma.cc/G2N8-PDUG]. The baker argued that he was discriminating against the couple not based on their status as gay, but rather based on their conduct of entering into a same-sex marriage.127×127. Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 280 (Colo. App. 2015), rev’d sub nom. Masterpiece Cakeshop, Ltd., 138 S. Ct. 1719. The Colorado court rejected such a distinction when conduct is “closely correlated” with status and concluded that same-sex marriage is closely correlated with being gay because “it is ‘engaged in exclusively or predominantly’ by gays, lesbians, and bisexuals.”128×128. Id. at 281. The Supreme Court has explained that, when conduct is disfavored, discrimination against a status can be inferred if the disfavored conduct is not only “engaged in exclusively or predominantly by a particular class of people,” but is also an “irrational object of disfavor.”129×129. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993). For example, “[a] tax on wearing yarmulkes is a tax on Jews,” because it is irrational to disfavor yarmulkes and they are worn predominately by Jews.130×130. Id. Conversely, disfavoring the conduct of abortion does not mean disfavoring the status of being a woman; even though abortions are engaged in predominately131×131. The Supreme Court stated that abortion is practiced “only” by women, id. at 271, but this fails to account for transgender men. by women, in the Court’s view there are “respectable reasons for opposing [abortion].”132×132. Id. at 270.
By the Supreme Court’s logic, the analogy of BDS to Masterpiece Cakeshop falls flat. Disfavoring conduct that is complicit in Israel’s treatment of Palestinians does not imply an intent to disfavor the status of being Jewish or Israeli. If there are respectable political reasons for disfavoring abortion, there are certainly respectable reasons for disfavoring complicity in Israel’s human rights record. Moreover, the status of being Jewish is not “inextricably tied” to such conduct of complicity — and to suggest otherwise would in fact ring anti-Semitic.133×133. See Butler, supra note 46, at 21 (“To say that all Jews hold a given view on Israel[,] or . . . the acts of Israel . . . stand for the acts of all Jews, is to . . . commit an anti-semitic reduction of Jewishness.”). Zionism does not reflect the views of all Jewish people,134×134. See, e.g., First-Ever: 40+ Jewish Groups Worldwide Oppose Equating Antisemitism with Criticism of Israel, Jewish Voice for Peace (July 17, 2018), https://jewishvoiceforpeace.org/first-ever-40-jewish-groups-worldwide-oppose-equating-antisemitism-with-criticism-of-israel [https://perma.cc/XSU8-MAMX]. and the types of conduct that lead to becoming a BDS target are not done “exclusively or predominately” by Jewish individuals. Similarly, one’s status as Israeli is not closely correlated with the conduct of operating a business that is implicated in Israel’s rights violations. The majority of targeted businesses are in fact not Israeli but are instead foreign companies that operate inside Israel and Palestine.135×135. See Email from Omar Barghouti, supra note 21; cf. AFSC Brief, supra note 108, at 16. Unlike Masterpiece Cakeshop, where the couple’s status as gay was necessary for being subjected to the baker’s discrimination, for BDS, it is neither necessary nor sufficient that an entity be Jewish or Israeli. To become a target, the entity must be actively complicit in Israel’s violations of Palestinian rights136×136. See CCR and PalLegal Brief, supra note 1, at 3. — conduct that is not closely correlated with a specific identity.
(ii) Legitimate, Nondiscriminatory Justification. — Even if a prima facie case of discrimination could be made, BDS can present a “legitimate, nondiscriminatory reason” for its actions through evidence that Israel’s human rights record, rather than religious or national identity, motivates boycott decisions. Some BDS opponents might argue that BDS’s political goals may constitute a legitimate justification but not a nondiscriminatory one, just as a boycott of Catholics to protest the Catholic Church’s policies could be motivated by a legitimate political reason yet still be discriminatory.137×137. Cf. Dorf Brief, supra note 77, at 2 (offering such an analogy in the context of a brief on the constitutionality of anti-BDS laws). However, this analogy fundamentally misunderstands BDS. Like boycotting Catholics, boycotting all Jewish people to challenge the Israeli government’s policies would indeed be discriminatory. But BDS does not boycott Jewish individuals. Nor does it categorically target goods made in Israel, individual Israelis, or Israeli-owned businesses operating exclusively outside of Israel and Palestine that are not involved in rights violations.138×138. See AFSC Brief, supra note 108, at 16; Palestinian Campaign for the Acad. & Cultural Boycott of Isr., PACBI Guidelines for the International Cultural Boycott of Israel, BDS (July 16, 2014), https://bdsmovement.net/pacbi/cultural-boycott-guidelines [https://perma.cc/J7K5-2HPG]. Instead, the movement relies on thorough documentation139×139. BDS reviews research by the Israeli organization Who Profits from the Occupation. Who Profits Research Center, WhoProfits, https://whoprofits.org/about-who-profits [https://perma.cc/4449-MHXF]. to carefully select targets based on complicity in Israel’s alleged violations of international law. Unlike the hypothetical anti-Catholic boycott, BDS targets individual complicity rather than group identity.
(iii) Pretext. — Opponents could attempt to demonstrate that BDS’s human rights justification is pretextual by showing that it is implausible, inconsistent, incoherent, or contradictory.140×140. See, e.g., Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Persuading a factfinder of this point would be difficult given thoroughly documented rights abuses in Israel-Palestine141×141. See, e.g., Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, U.N. Doc. A/HRC/25/67 (Jan. 13, 2014). and the longstanding role of boycotts as a tool for addressing such abuses. Some maintain that the human rights justification is pretextual because BDS ignores severe rights abuses outside Israel.142×142. See, e.g., French, supra note 2. However, the argument that BDS has “singled out” Israel by not targeting similarly situated countries would seem to require that a human rights movement focus on all injustices in a region or facing a community to overcome a claim that it discriminatorily selected a particular injustice as its focus. Such logic might have required the antiapartheid movement to address not just injustice by white South Africans, but also abuses by the black African National Congress leadership or by other African countries. This requirement is neither politically reasonable nor supported by existing law.
A more persuasive argument of pretext might say: even though BDS does not target all Israelis and targets many non-Israeli entities, it is still discriminatory if animus is the impetus behind focusing on Israel. Discriminatory intent against a group can exist even when some members of the group are exempted from disfavor and some non–group members are included in the disfavor. For example, many consider President Trump’s Muslim Ban discriminatory even though not all Muslim-majority nations are targeted and some non-Muslim countries are banned.143×143. See Trump v. Hawaii, 138 S. Ct. 2392, 2421 (2018) (noting that “the policy covers just 8% of the world’s Muslim population” and that North Korea and Venezuela were included in the ban). For that reason, discerning discriminatory intent requires context. To many, including Justices Ginsburg and Sotomayor,144×144. Id. at 2435–36 (Sotomayor, J., dissenting). Trump’s anti-Muslim campaign statements were crucial evidence that his national security justification was pretextual. For BDS, there is no comparable evidence of pretext. While the movement displays blatant anti-Zionism, there is no evidence that the official movement displays animus toward Jewish or Israeli individuals. BDS is a diffuse movement rather than a centralized organization and, like in any movement, some individual supporters may be motivated by animus and fail to abide by BDS’s principles. But the principles, statements, and strategy of the official movement, as coordinated by the BNC, all point toward finding that the human rights motive is a genuine nondiscriminatory justification for its actions, defeating a discriminatory intent claim.
2. No Disparate Impact. — Second, BDS is not discriminatory under a disparate impact theory. The claim that BDS commits disparate impact discrimination says: in targeting entities complicit in Israeli rights violations, BDS may not intend to specifically hurt Israeli or Jewish entities, but in effect it disproportionately inflicts economic harm on them.145×145. See, e.g., Michael Safyan, On BDS, Anti-BDS Laws, and Anti-Semitism, Medium (Jan. 31, 2019), https://medium.com/@michaelsafyan/on-bds-anti-bds-laws-and-anti-semitism-a67539e1c5b0 [https://perma.cc/T7RB-EDYQ] (“BDS has created a disparate impact . . . on Israeli citizens . . . [and] on non-Israeli Jewish Americans who are more likely to have Israeli relatives, . . . to travel to Israel, and for whom Israel holds a unique . . . significance.”). Disparate impact law prohibits conduct that is “fair in form, but discriminatory in operation.”146×146. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). This doctrine was developed with employment discrimination in mind147×147. Id. at 424. and often does not apply to public accommodations statutes,148×148. See Hardie v. Nat’l Collegiate Athletic Ass’n, 876 F.3d 312, 319 (9th Cir. 2017) (citing cases). which anti-BDS laws are sometimes framed as.149×149. For example, the Unruh Civil Rights Act, Cal. Civ. Code §§ 51–52 (West 1872), a public accommodations law, justified California’s anti-BDS law, but the statute doesn’t recognize disparate impact claims, see Harris v. Cap. Growth Inv’rs XIV, 805 P.2d 873, 893 (Cal. 1991), except with disability discrimination, see Munson v. Del Taco, Inc., 208 P.3d 623, 634 (Cal. 2009). And for BDS participants that are not public establishments but are individual consumer purchasers, a disparate impact theory may be even less applicable. Still, even if a disparate impact theory were applied to BDS, the discrimination claim would likely fail. Under the traditional test: A plaintiff must establish that the challenged practice caused a significant disparate effect on a particular group; statistical disparities alone cannot create liability.150×150. See Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2523 (2015). The burden of proof then shifts to the defendant to show that its practice is based on a legitimate consideration, “consistent with business necessity.”151×151. Civil Rights Act of 1991, Pub. L. No. 102-166, § 105(a), 105 Stat. 1071, 1074–75 (codified as amended in scattered sections of the U.S. Code); see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577–78 (1978). The plaintiff can win by showing that a less exclusionary, “equally effective” alternative serves the same goal.152×152. Hardie, 876 F.3d at 319. Like the discriminatory intent test above, this framework was developed for employment discrimination cases and would not directly apply to BDS, but it offers a rough outline for analyzing whether BDS is discriminatory under a disparate impact theory.
First, it is unclear whether a prima facie case of disparate impact discrimination could be established. Because the majority of BDS targets are non-Israeli companies headquartered in Europe and the United States,153×153. See Email from Omar Barghouti, supra note 21; cf. AFSC Brief, supra note 108, at 16. statistical analysis actually may not indicate a significant adverse impact on Israeli or Jewish businesses — though a second-order impact on communities indirectly affected by boycotts may exist. Second, if a causal disproportionate effect can be shown, a BDS participant could then present a defense akin to a “business necessity.” Courts have struggled to determine how “necessary” a practice must be to constitute a business necessity but generally do not require that the practice be indispensable.154×154. See Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 517–18, 522 (2003) (discussing doctrinal confusion following Congress’s 1991 amendment to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)); see also Miller-Spencer v. Dillon Cos., Inc., No. 09-2470-CM, 2010 WL 4792393, at *8 (D. Kan. Nov. 18, 2010). Instead courts require it to be significantly related to the defendant’s goal, rather than an “artificial, arbitrary, or unnecessary barrier.”155×155. Connecticut v. Teal, 457 U.S. 440, 451 (1982); see also Easterling v. Connecticut, 783 F. Supp. 2d 323, 341 (D. Conn. 2011). The challenged practice of boycotting Israeli goods could be likened to a “business necessity” because it significantly serves the legitimate goal of shifting Israel’s human rights practices. Some argue that BDS’s strategy is disconnected from its goal because boycotted companies are private, often foreign, entities that lack the influence to pressure the Israeli government to change its policies.156×156. See Greendorfer, supra note 109, at 58–59. While reasonable people can disagree about the efficacy of boycotts, they along with divestment and sanctions have helped shift government policies historically157×157. Kathleen C. Schwartzman, Can International Boycotts Transform Political Systems? The Cases of Cuba and South Africa, 43 Latin Am. Pol. & Soc. 115, 117–20 (2001). and have long been recognized by U.S. courts as legitimate political strategies.158×158. See, e.g., Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d 1406, 1416 (9th Cir. 1996) (“Boycotts . . . have a time-honored place in American history . . . .”). Though boycotting is not “indispensable” for individuals to assert political pressure, it does significantly serve to advance such pressure, and likely qualifies as a “business necessity.”
Third, once a business necessity defense is raised, BDS opponents must show equally effective ways to advance BDS’s goal without a disparate effect. While some strategies to advance Palestinian rights may produce no disparate harm for Israeli or Jewish businesses, courts do not require that defendants in disparate impact cases “adopt alternatives that are less effective” or more burdensome.159×159. Reva B. Siegel, Race-Conscious but Race-Neutral: The Constitutionality of Disparate Impact in the Roberts Court, 66 Ala. L. Rev. 653, 657 & n.16 (2015) (“[C]ost or other burdens . . . are relevant . . . [to] whether [alternatives] would be equally as effective . . . .” Id. at 657 n.16 (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 998 (1988) (plurality opinion))); see also N.Y. City Transit Auth. v. Beazer, 440 U.S. 568, 590 (1979). Given the failure of other measures that have attempted to achieve basic rights for Palestinians,160×160. See supra section I.A, pp. 1361–62. BDS can convincingly argue that alternatives to boycotts, divestment, and sanctions are ineffective or overly burdensome. However, as noted above, this test was developed to assess employment practices rather than political movements, and there is danger in courts weighing the efficacy of protest tactics — highlighting the limits of this framework for assessing whether BDS is unlawfully discriminatory. Still, even under this traditional test, challengers cannot successfully argue that BDS commits disparate impact discrimination.
To underscore the weakness of this claim, consider Claiborne, which vindicated black Mississippi residents’ boycott of white-owned businesses during the Civil Rights Movement.161×161. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915 (1982). The Claiborne boycott no doubt disproportionately affected the local white community, given that whites were more likely to own and be employed by the businesses. However, it was the exclusionary policies of the businesses themselves that made their staffs white-only,162×162. See Brief for Petitioners at 2–3, Claiborne, 458 U.S. 886 (No. 81-202). resulting in a disproportionate effect on whites. Equally, Israel’s policies of carefully maintaining a Jewish-majority state and Jewish-only settlements in the West Bank would be responsible for any disproportionate effect that boycotts have on Jewish communities, and are precisely the policies that BDS seeks to change. For Claiborne’s boycotters and BDS alike, there is irony in the claim that a boycott challenging a group’s exclusionary policies discriminates against that group because only they are affected by the boycott.
Finally, disparate impact claims have become increasingly difficult to raise successfully. Conservative Justices on the Supreme Court have narrowed the disparate impact theory,163×163. Siegel, supra note 159, at 667 (noting “a stream of conservative challenges to disparate impact” law). and historically, “the Court has only seen discrimination . . . in the most overt or obvious situations . . . that could not be explained on any basis other than race”164×164. Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 284 (1997); see, e.g., Ricci v. DeStefano, 557 U.S. 557, 579–80 (2009). — which is not the case in the BDS context. The difficulty of raising a successful disparate impact claim reflects the concerning shortcomings of antidiscrimination law, but also means allegations that BDS is discriminatory should almost certainly fail under existing U.S. law.
At bottom, anti-BDS laws cannot properly be viewed as combatting discrimination. The claim that BDS constitutes religious and national-origin discrimination fits neither the framework of discriminatory intent nor disparate impact law. Some may counter that, while BDS may not be discriminatory as a doctrinal matter, BDS is conceptually discriminatory based on the legal philosophies underlying antidiscrimination law. However, common theories for when discrimination is wrongful — when it expresses prejudice, demeans individuals, structurally subordinates, classifies by identity, or penalizes identity-based expression — are inapposite in the context of BDS.165×165. BDS’s political boycott of Israeli goods does not: (1) manifest prejudice toward individual Israeli or Jewish people, see Richard J. Arneson, What Is Wrongful Discrimination?, 43 San Diego L. Rev. 775, 787 (2006) (animus theory); (2) demean Israeli or Jewish individuals as “less worthy of equal . . . respect,” see Deborah Hellman, Equal Protection in the Key of Respect, 123 Yale L.J. 3036, 3047 (2014) (demeaning theory); (3) classify targets by identity rather than treating them as individuals, see Sophia Moreau, What is Discrimination?, 38 Phil. & Pub. Aff. 143, 147 (2010) (anticlassification theory); (4) contribute to the systematic exclusion of Jewish or Israeli communities from basic opportunities in the United States, see Samuel R. Bagenstos, “Rational Discrimination,” Accommodation, and the Politics of (Disability) Civil Rights, 89 Va. L. Rev. 825, 839–40 (2003) (structural subordination theory); or (5) unjustly penalize outward expressions of identity, see Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights (2006) (accommodation theory). While some may sincerely believe that advancing Israel’s policies is a core expression of Jewish religious beliefs, the accommodation theory does not protect expressions of identity when compelling countervailing interests are at stake, id. at 179–80 — such as preventing the material harm of Palestinians. Thus, BDS cannot be considered discriminatory even on a philosophical basis.
The weakness of the discrimination claim is constitutionally significant for anti-BDS litigation. It reveals that, despite states’ assertions to the contrary, the government does not have a compelling antidiscrimination interest that could trump countervailing First Amendment interests. Moreover, the weakness of the discrimination claim matters beyond anti-BDS laws. The past decade has seen antidiscrimination law weaponized to undercut a human rights movement that has opponents at the highest levels of the U.S. government — a trend that threatens other controversial political movements that the government may seek to undermine. Chilling disfavored political movements is precisely what the First Amendment is meant to protect against. While First Amendment protections can and should bow to strong antidiscrimination interests, governments must not adopt baseless discrimination claims in an attempt to override First Amendment protections.
Note: A prior version of this Note incorrectly suggested that the authors of the Dorf Brief — Professors Michael C. Dorf, Andrew M. Koppelman, and Eugene Volokh — are supporters of anti-BDS laws in the text accompanying note 77 and opponents of BDS in note 137. Dorf, Koppelman, and Volokh do not advocate for or against the laws in their brief, but only evaluate the laws’ constitutionality. The Review regrets the error.