Texas Labor Code § 101.109 (No aliens or felons) Tex. Lab. Code 101.109

The District Court's Holding in Faculty Rights Coalition v. Hossein Shahrokhi

Acknowledging that the statute prevents an alien from serving as a labor union officer or as a labor organizer,
the district court initially noted that no reported case has addressed the provision since 1945. American
Federal of Labor v. Mann, 188 S.W.2d 276 (1945).

The court nevertheless declined to adjudicate the constitutional claim on the merits and dismissed it on lack of
standing grounds, reasoning that the University had not invoked this provision to prevent any activity the
Named Adjunct wanted to pursue. “Because [the plaintiff] has not alleged or presented evidence that as an
“alien,” he would be precluded by the statute from the activities he alleges that he intends to pursue, he lacks
standing to seek to invalidate the statute.“ The court cites the Supreme Court’s decision in the pledge-of-
allegiance case in support. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 124 S.Ct. 2301, 2308, 159 L.
Ed.2d. 98 (2004).

Accordingly, the district court denied the Named Adjuncts’s motion for partial summary judgment seeking a
declaration that the Texas statute is unconstitutional and granted the University’s motion for summary judgment.
Tex. Lab. Code. Ann. § 101.101 (1996).

The Faculty Rights Plaintiffs' Argument on Appeal

THE DISTRICT COURT ERRED IN DISMISSING THE CONSTITUTIONAL CHALLENGE TO
ALIEN EXCLUSION CLAUSE IN THE TEXAS LABOR CODE FOR LACK OF JURISDICTION

Tex. Labor Code §101.109 expressly prohibits aliens from becoming labor union organizers. Appellant, a citizen of Texas and of
the European Union, and a resident alien of the United States for two decades (Record on Appeal p. 735), formed an organization
to pursue the improvement of pay, benefits, and working conditions of adjunct faculty at UHD. He informed UH-D officials of his
plans, who promptly invoked the Texas Labor Code and UHD’s administrative memorandum on labor unions. (RoA 771-73).

To achieve standing, a plaintiff must have suffered an injury in fact, see Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301,
2308, 159 L.Ed.2d 98 (2004), and generally, “must submit to the challenged policy” before pursuing an action to dispute it. Ellison
v. Connor , 153 F.3d 247, 254-55 (5th Cir. 1998). However, strict adherence to the standing doctrine may be excused when a
policy’s flat prohibition would render submission futile. Ellison, 153 F.3d at 255 (citing Moore v. United States Dept. of Agric., 993
F.2d 1222 (5th Cir. 1993)).

Because the Labor Code provision prohibited what Appellant proposed to do, Appellant was forced to refrain from outright union
organizing and recruitment of members, and had to pursue his goals as an individual instead. Appellant registered a name for an
advocacy organization as a sole proprietorship at the Harris County Clerk’s office.[1] It remains a sole proprietorship to this day. [2]

Appellant clearly has standing to challenge a statute that gives him explicit notice that he may not form and run a labor
organization as defined by the Texas Labor Code, and bars him from working and making a living as a union organizer, be it for
an existing union, are one to be newly founded. Appellant should not be forced to break the law to acquire standing to complain of
the denial of labor organizing rights on the basis of resident alien status, a classification subject to strict scrutiny. In re Griffiths,
413 U.S. 717, 93 S. Ct. 2851 (1973); Graham v. Richardson, 403 U.S. 365, 371, 91 S. Ct. 1848 (1971).

Arguably, if Appellant were to set up a union and thus violate state law, he could no longer credibly claim that the law had a
deterrent and thus chilling effect on what he asserts is conduct protected by the First Amendment.

Accordingly, the District Court’s dismissal of Appellant’s challenge to the alien exclusion provision for lack of standing was
erroneous and should be reversed. The matter should be remanded to the court below for a decision on the merits.

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[1] Under Texas law, a sole proprietorship has no separate legal existence apart from the sole proprietor. See Ideal Lease Serv.,
Inc. v. Amoco Prod. Co., Inc., 662 S.W.2d 951, 952 (Tex. 1983).

[2] Appellant would also point out that the District Court suggests that Appellant’s equal protection claim is a claim by a “class of
one.” (Slip op. at 17, RoA1058). A union, by contrast, could litigate on behalf of its entire membership under the associational
standing principles. Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 103 S. Ct. 948 (1983) (union brought action).

[3] The Supreme Court’s treatment of resident aliens recognizes that resident aliens are similarly situated to citizens in their
economic, social, and civic. In Griffiths, the Court observed that resident aliens, like citizens, contribute in a myriad of ways to our
society. Therefore, the state bears a heavy burden when it deprives resident aliens of employment opportunities. Griffiths, 413 U.
S. at 722, 93 S. Ct. at 2855.

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CASE LAW ON DISCRIMINATION AGAINST ALIENS

Denial of Bar Admission to Alien Attorneys

Fifth Circuit rules on aliens' complaint about denial of admission to the practice of law
LeClerk v. Webb, No. 03-30752 (5th Cir. 2006)

LeClerk v. Webb (5th Cir. March 27, 2006) Dissenting opinion (on denial of motion for rehearing en banc)

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