Kansas acknowledged on Friday it’s made no arguments defending the constitutionality of a law that prohibits state agencies from doing business with those who boycott Israel.
Attorneys for the state and the American Civil Liberties Union met in federal court over whether a judge should block the law, which has been on the books since July. The ACLU called it “blatantly unconstitutional.”
A decision striking down the law, House Bill 2409, would have national implications. More than 20 states have some form of anti-boycott law.
“I didn’t see, in all candor, that HB 2409 is constitutional,” Judge Daniel Crabtree said, referring to written arguments made by Kansas.
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Shon Qualseth, an assistant attorney general, responded that the judge was correct. Crabtree asked whether there is a defense that can be made of the law, and Qualseth said there is, though he didn’t go into great detail during a hearing in Topeka late Friday afternoon. He indicated the state could address its constitutionality in later court filings.
Qualseth argued against granting a preliminary injunction against the law. He said “there’s no imminent harm” to Esther Koontz, a curriculum coach at Horace Mann Dual Language Magnet School in Wichita who is suing to block the law.
Koontz refused to sign a certification that she is not participating in a boycott of Israel.
Koontz is qualified to train teachers statewide as a contractor with the Kansas Department of Education’s Math and Science Partnerships program. But the state won’t give her new assignments under the law.
Koontz could have sought a waiver from the law’s requirements, Qualseth said. But Brian Hauss, an attorney for the ACLU who is representing Koontz, said Koontz had no way of knowing a waiver was available and that the law could still stop others from participating in boycotts.
“The First Amendment clearly protects the right to participate in political boycotts,” Hauss said.
Crabtree didn’t issue a ruling on Friday and didn’t say when he will make a decision.