The State of Arizona is demanding that Essence Farmer license her hands with the government.
No, Essence is not a secret agent trained in the martial arts; she is a 23-year-old African hairbraider who merely wants to use her considerable skills to earn an honest living at the occupation of her choice—an occupation the State says she may not practice unless she receives a government-issued license that requires 1,600 hours of training not one hour of which actually teaches her to braid hair.
On December 8, 2003, the Institute for Justice Arizona Chapter (IJ-AZ) filed a lawsuit in Maricopa County Superior Court challenging Arizona’s cosmetology licensing statutes and regulations on behalf of practitioners of African hairbraiding and other forms of natural hairstyling. The cosmetology laws needlessly stifle job and entrepreneurial opportunities and suppress a vibrant means of cultural expression.
The ramifications of this lawsuit extend far beyond those involved. Occupational licensing laws in all 50 states restrict entry into hundreds of professions. A study of barriers to entrepreneurship in Arizona,1 conducted by IJ-AZ staff attorney Tim Keller and published by the Goldwater Institute, concluded that such laws have the effect of cutting off the bottom rungs of the economic ladder, thereby preventing aspiring entrepreneurs from earning their share of the American Dream. The fact that occupational licensing laws are typically enforced by boards comprised of practitioners within the regulated industry—the very people those seeking licensing hope to compete with—exacerbates the inherent exclusionary effect of occupational licensing laws. This lawsuit directly addresses the boundaries of government power to regulate entry into businesses and professions.
The plaintiff in this lawsuit is Essence Farmer whose right to pursue her chosen profession is stifled by Arizona’s oppressive cosmetology licensing laws. This lawsuit is the opening salvo of IJ-AZ’s efforts to reinvigorate judicial protection for “economic liberty”—the basic civil right of every American to pursue a lawful business or profession free from arbitrary or excessive government regulation. Economic liberty is an essential part of our nation’s promise of opportunity.
The History and Art of African Hairbraiding
The art and foundation of hairbraiding traces back thousands of years to Africa. Today, thousands of practitioners engage in the intricate crafts of twisting, braiding, weaving and locking natural styles, mostly for African-American clients whose characteristically textured hair is perfect for such styling. These distinct techniques generally are grouped together under the rubric of “natural hair care” because they do not use any chemicals or other artificial hairstyling techniques.
Hairbraiding is more than a means of entrepreneurship; it is an important form of cultural expression. Until very recently, the dominant standard of beauty had been defined in white terms, and black women (particularly professionals) have struggled to comport with this definition, often at great damage (because of the use of chemical straighteners and relaxers) to their hair and self-esteem. More recently, traditional African hairstyles geared toward the natural texture and beauty of black hair have re-emerged and steadily gained popularity. The hairstyles are remarkably artistic and individualized, and avoid serious damage that can occur when hair is treated with chemicals and other artificial products.
Nationwide, natural hair care has grown into a multi-million dollar industry. Because it requires fairly little capital and modest training, in a free and open market the natural hair care industry would have unlimited potential to provide entrepreneurial and employment opportunities, as well as popular services and products to millions of consumers.
But because of cosmetology licensing laws in all 50 states, mainstream cosmetologists have a virtual monopoly over all forms of hairstyling, including braiding (though several states have deregulated the hairbraiding industry2). Most hairbraiders are forced to operate underground, and many would-be practitioners are discouraged altogether. As a result, the natural hair care industry is consigned to the status of an outsider, still fighting against prevailing orthodoxy enforced by the state.
Hairbraiding and Occupational Licensing
Government at all levels restricts entry into trades and professions. When those regulations exceed legitimate health and safety objectives, they needlessly cut off the bottom rungs of the economic ladder, particularly for people with little capital or few skills. Among the most pervasive and oppressive barriers discussed in the Goldwater Institute study are occupational licensing laws. Occupations requiring government licenses include not only the medical, legal and other highly specialized professions, but also professions in which justification for restrictions on entry is virtually nonexistent. Nationwide, occupational licensing laws govern entry into about 10 percent of all jobs in America.3 All 50 states require barbers and beauticians to be licensed.
Typically, licensing boards are comprised of members of the regulated profession, with the coercive power of government at their disposal. As a result, licensing requirements often exceed valid public health and safety objectives, and instead are used to reduce competition from newcomers. As economist Walter Williams observes, these laws and regulations “discriminate against certain people,” particularly “outsiders, latecomers and the resourceless,” among whom members of minority groups disproportionately are represented.4
Ironically, the licensing laws that now shackle African hairbraiders were put in place during the 1930s by hairdressers (today’s cosmetologists), who at that time, like natural hairstylists today, were renegades fighting an entrenched monopoly. Prior to the 1920s, barbers and cosmeticians (who performed skin care and some hair cutting) enjoyed an exclusive monopoly, bestowed by government through occupational licensing laws, over all types of hair treatment.5 Hairdressers were arrested in several states for violating the licensing laws.6 During that time, hairdressers organized their own trade association and sought to break the barbers’ monopoly through lobbying and litigation. The following resolution, passed by National Hairdressers Association at its 1923 convention, parallels the hairbraiders’ struggle today:
RESOLVED, while expressing our good will to those engaged in business as barbers and repudiating any thought of encroaching on the domain of their work or of soliciting the patronage of men for work ordinarily done in the barber shop, we condemn the antagonistic legislation which would attempt to classify as barbers and subject to barbers’ laws those who are engaged in the practice of our profession, and we assert the right of engaging in all work. . .ordinarily done in the hairdressing and beauty parlor on women and children, free from the domination of barbers’ laws.7
The cosmetologists ultimately succeeded in freeing themselves from the barbers’ monopoly and obtaining a separate licensing process—through which they then created a state-enforced cartel of their own that subjects everyone engaged in the care or styling of women’s hair, skin or fingernails to their domination. It is a cartel the National Cosmetology Association fiercely protects.
The Arizona cosmetology law is typical of licensing laws around the nation. Enacted in 1996, the current statutory scheme8 places regulation of all hairstyling under the control of the Arizona Board of Cosmetology, which is comprised of one public member and six members representing the professions. The board in turn issues and enforces extensive regulations,9 including 1,600 hours of prescribed training in board-approved cosmetology schools and an examination. Schools, instructors and salons also must obtain licenses. Cosmetology schools do not teach African hairbraiding and the licensing examination does not test it. The effect is that in order to lawfully offer hairbraiding services, a person must take a year-long course costing approximately $10,000 and pass an examination, neither of which has anything whatsoever to do with the services she will offer to the public. Literally not one hour of training teaches individuals how to braid hair.
The entire system creates a mismatch between regulatory objectives and realities. In the name of protecting public health and safety, the regulatory process licenses people who have no training in certain services, yet forbids people who are proficient in those same services. No separate or specialized license is available for braiding, even though separate licenses are offered for others who specialize in nails or skin.
As a result, most braiders are compelled either to give up their profession or to operate outside the law and, ironically, outside the reach of health and safety regulations. The authorities generally have turned a blind eye to home-based salons. However, when braiders attempt to go “legitimate” by applying for capital or opening salons outside their homes, they find their efforts barred by the absence of a license. Neither entrepreneurs nor consumers are served well by the current system.
The Current Controversy
The IJ-AZ lawsuit challenges the constitutionality of requiring hairbraiders and natural hairstylists to obtain a cosmetology license. The plaintiff, Essence Farmer, is an Arizona native who started braiding hair when she was 10 years old and who has braided hair on a regular basis since 1996. She does not object to legitimate health and safety regulations—indeed, braiders have developed their own training and safety standards—but she does object to a system that destroys and delegitimizes her livelihood.
Essence began braiding out of her parents’ West Valley home, serving five to six clients each week for her first two years. By 1999 and into 2000, Essence was weekly braiding numerous clients, primarily for a male clientele, including people who were traveling from the East Valley to get their hair braided.
Essence moved to Maryland in 2000 to attend Prince George’s Community College. In Maryland, she worked at Blowouts Salon and a barbershop, Hairstons, braiding many clients per week. Maryland specifically exempts African hairbraiders from its cosmetology regulations.10 Essence has returned home to Arizona and wants to open a salon specializing strictly in braiding and natural hair locks. She not only wishes to own and operate a salon, thereby employing other people and creating economic opportunities, but she also wishes to practice her craft in a safe and legal environment.
The Importance of Economic Liberty
Of all the rights Americans cherish, the right to earn an honest living is the least protected against government interference. That right was foremost among the “privileges or immunities” protected by the 14th Amendment. But ever since the 5-4 Supreme Court ruling in the 1872 Slaughter-House Cases,11 economic liberty has received virtually no protection against government regulation, no matter how irrational or excessive.
This lawsuit is the opening salvo in IJ-AZ’s campaign to restore economic liberty as a basic civil right under both the state and federal constitutions. Our goal is to create a rule of law whereby governments must demonstrate that restraints on entry into businesses or professions must be rationally related to legitimate public health and safety objectives.
IJ litigates in support of fundamental individual liberties, including economic liberty—the right to earn a living free from arbitrary or excessive government regulation. IJ has scored significant victories on behalf of entrepreneurs and in the process opened up long-closed markets. These include:
· Craigmiles v. Giles—A federal appeals court upheld a lower court ruling that found Tennessee’s government-imposed cartel on casket sales was unconstitutional. This is the highest pro-economic liberty court decision since the New Deal.
· Swedenburg v. Kelly—A federal judge declared unconstitutional New York State’s laws that barred the interstate direct shipment of wine into New York.
· Cornwell v. California Board of Barbering and Cosmetology—IJ represented JoAnn Cornwell, who created the Sisterlocks technique of hairbraiding and locking, in defeating the cosmetology licensing requirement for African hairbraiders in California.
· Ricketts v. City of New York—IJ helped commuter vans fight a public bus monopoly that would not allow the vans to put people to work and take people to work in underserved metropolitan neighborhoods.
· Clutter v. Transportation Services Authority—IJ represented independent limousine drivers who defeated Las Vegas’ Transportation Services Authority and entrenched limousine companies that had stifled competition. Through IJ’s litigation, the once-closed market was opened.
· Jones, et. al. v. Temmer, et. al.—Leroy Jones, Ani Ebong and Girma Molalegne opened Freedom Cabs, Inc., in Denver after IJ helped them overcome Colorado’s protectionist taxicab monopoly. Stemming from pressure in the court of public opinion created by their lawsuit, the state legislature enabled Freedom Cabs to become the first new cab company in Denver in nearly 50 years. Jones’ testimony also contributed to the breakdown of government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.
· Uqdah v. D.C. Board of Cosmetology—Although they lost in court, Taalib-Din Uqdah and his wife Pamela Ferrell prevailed against the District of Columbia to eliminate a 1938 Jim Crow-era licensing law for African hairbraiders when the District subsequently deregulated cosmetology.
This case, Farmer v. Arizona Board of Cosmetology, filed in Phoenix in Maricopa County Superior Court, hopes to build on the ruling in California and bring the same results to Arizona. It alleges violations of the Arizona Constitution’s due process and equal protection clause, as well as the 14th Amendment’s due process, equal protection, and privileges or immunities guarantees. IJ-AZ’s efforts will not cease until the right of every Arizonan to earn an honest living is secure.
The lead attorney in this case is Institute for Justice Arizona Chapter Staff Attorney Tim Keller. Also on the litigation team is Clint Bolick, vice president and national director of state chapters. Bolick litigated the Cornwell case; and both attorneys recently led the Arizona Chapter’s successful defense of brake shop owner Randy Bailey from the City of Mesa’s attempt to seize his property by eminent domain for the benefit of a private developer.
The Institute for Justice is a nonpartisan, nonprofit public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through strategic litigation, training, communication and outreach, the Institute secures greater protection for individual liberty and illustrates and extends the benefits of freedom to those whose full enjoyment is denied by the government. From its offices in Phoenix, the Institute for Justice Arizona Chapter litigates under the state constitution to reinvigorate economic rights in the state and will additionally work through the courts to preserve property rights, promote educational choice and defend the right of Arizonans to freely speak, write and publish on all subjects. The national organization trains law students, lawyers and others in the tactics of public interest litigation with the goal of limiting governmental power and advancing individual freedom. The Institute was formed in 1991 by Chip Mellor and Clint Bolick.
For more information contact:
John Kramer, Vice President for Communications
Lisa Knepper, Director of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
Timothy D. Keller
Institute for Justice Arizona Chapter
398 S. Mill Avenue, Suite 301
Tempe, AZ 85281