Minnesota Hair Braiding

Introduction

The State of Minnesota demands that Lillian Awah Anderson license her hands. If she fails to comply, she could face up to 90 days in jail and up to $1,000 in fines.

No, Lillian is not a secret agent. Instead, Lillian emigrated from Cameroon to America to realize her dreams of living free, raising a family, and operating an African hair braiding salon. Minnesota government officials have the power to end one of her dreams—they may close her salon in Minneapolis, fine and incarcerate her if she does not obtain a license that has nothing to do with braiding.

The State of Minnesota requires Lillian to obtain a cosmetology license to practice the art of braiding hair naturally—an art that cosmetology schools do not teach and licensing examinations do not test. To Lillian, it is inconceivable that such a law and potential penalties exist in America. She simply wants to earn an honest living by running her braiding salon, Extensions Plus, that she opened in Minneapolis in 1998, which moved to its current location in 2000.

The State says Lillian is unqualified to practice the art of African hair braiding—a technique that women in Cameroon and elsewhere in Africa have shared for beauty and empowerment for thousands of years—unless she obtains a government-issued license. A State Attorney has interpreted Minnesota’s Statute section 155A.07 as covering African hair braiding[1] and requiring practitioners of this unique skill to obtain a cosmetology license. Under the law, braiders like Lillian have to enroll in 1,550 hours of needless “training” that does not include even one hour of training in braiding[2] and take a State-mandated examination that does not test it.

Training of 1,550 hours required for a person to lawfully braid hair is especially incongruous when compared to the training required to perform other, far more dangerous jobs and activities in Minnesota.[3] Becoming a certified emergency medical technician in Hennepin County, for example, requires only 142 hours of skills and clinical training.[4] Similarly, after a 6-hour class, one can apply for a license to carry a concealed weapon.[5]

Minnesota’s bureaucrats at the Board of Barber and Cosmetology Examiners leave practitioners like Lillian with three choices: get licensed (costing nearly $15,000 in tuition and requiring at least 10 months of schooling and forgone earnings); quit braiding hair altogether; or operate illegally.

The consequences of not complying with the Board’s bizarre and irrational licensing scheme may be extremely serious.  Section 155A.16 of the Cosmetology Act states “[a]ny person who violates any of the provisions of sections 155A.01 to 155A.16 is guilty of a misdemeanor;” and, under section 609.03 of the Minnesota Criminal Code, a misdemeanor carries with it the possible penalty of up to 90 days in jail in addition to a $1,000 fine.

On April 20, 2005, the Institute for Justice Minnesota Chapter (IJ-MN) filed a lawsuit on Lillian’s behalf in Hennepin County District Court in Minneapolis challenging Minnesota’s cosmetology licensing laws.

Cosmetology laws stifle economic opportunities and cultural expression. At a time when record levels of immigrants are entering the workforce and welfare reform laws encourage individuals to seek work, irrational government regulations should not create barriers to a brighter future for those, like Lillian, who just want to serve their customers.

The impact of this lawsuit, however, extends beyond Lillian Anderson and the other plaintiffs. Currently, occupational licensing laws govern entry into about 10 percent of all jobs in America.[6] Minnesota’s Legislative Auditor found that (1) the number of regulated occupations in the State is growing rapidly, (2) the State’s policy on occupational regulation is not applied consistently, (3) occupational regulations are used to “fence out” competitors, allowing those already in the field to charge higher prices and limit access to various jobs, (4) these problems disproportionately affect disadvantaged groups, and (5) the regulatory process is often captured by the occupation being regulated.[7]

Occupational licensing laws like this one cut off the bottom rungs of the economic ladder, thereby preventing aspiring entrepreneurs from realizing their American Dream. The fact that occupational licensing laws are typically enforced by boards comprised of practitioners within the regulated industry—the very people with whom those seeking licensing hope to compete—exacerbates the inherent exclusionary effect of occupational licensing laws. Minnesota’s Board of Barber and Cosmetologist Examiners oversees the administration, enforcement, regulation and adoption of rules regulating the two professions. It is comprised of seven members who are appointed by the governor including three barbers, three cosmetologists and one public member.[8] Frequently, one of the members is also affiliated with a cosmetology school. This lawsuit directly addresses government’s power to regulate entry into businesses and professions.

The Institute for Justice Minnesota Chapter is bringing this lawsuit as part of its strategy to reinvigorate judicial protection for “economic liberty”—the basic civil right of every Minnesotan and American to pursue a lawful occupation free from arbitrary or excessive government regulation. Economic liberty is an essential part of our nation’s promise of opportunity.

The Art and Business of African Hair Braiding

Hair braiding traces its to Africa where it has been practiced for years. Today, practitioners engage in the highly specialized and intricate craft of braiding, weaving and locking natural hair, mostly for African-American clients whose characteristically textured hair is perfect for such styling. These distinct techniques are grouped together as “natural hair care” because they do not use any chemical or other artificial hairstyling technique. In fact, the use of chemicals and other techniques that alter the hair from its natural state is antithetical to adherents of natural hair care.

Hair braiding is more than a business. It is a form of artistic and cultural expression. Until recently, beautiful hair was defined by terms such as “long,” “straight” or “blonde.” African-American women struggled to comport with these images and turned to chemical straighteners, often at great cost to the health of their hair and their self-esteem.[9] More recently, the traditional African hairstyles that emphasize the natural texture and beauty of African-American hair have gained in popularity. The hairstyles are artistic and avoid the possibility of serious damage from chemicals.

Nationwide, natural hair care has grown into a multi-million dollar industry. Because the creation of a natural hair care business requires little capital and is based on skills that are often passed from one generation to the next, a free and open market in the natural hair care industry has enormous potential to provide entrepreneurial and employment opportunities while delivering popular services and products to millions of consumers. Indeed, it is a nearly ideal occupation for Lillian and other immigrants who are currently practicing the trade.

But because of cosmetology licensing laws in the majority of states, mainstream cosmetologists enjoy a near monopoly over all legal forms of hairstyling.[10] As a result, most braiders operate underground and many would-be practitioners are discouraged altogether. The natural hair care industry is consigned to the status of an outsider that must fight the orthodoxy enforced by the State.

Hair Braiding and Occupational Licensing

Government at all levels restricts entry into occupations. When those regulations exceed legitimate health and safety objectives, they impact individuals the government should be working with, rather than against—particularly those with little capital or few skills.[11]

The Institute for Justice has studied the regulatory barriers to entry-level entrepreneurship in Baltimore, Boston, Charlotte, Detroit, New York, Phoenix, San Antonio, San Diego, Seattle and Tucson.[12] Minnesota’s State Legislative Auditor found that occupational regulation is justified when consumers need protection from the incompetent delivery of services that can cause serious and immediate harm.[13]

Applying this rationale, African hair braiders should not be regulated. Braiders operate neighborhood businesses and they develop reputations for quality that spread easily and at a low cost among consumers. Secondly, braiding is safe because braiders manually weave customers’ hair. Braiders do not use chemicals or scissors beyond the infrequent snip of the ends of extensions. There is no risk of serious or immediate harm to consumers.

The Legislative Auditor went on to find that occupational regulation often protects credentialed workers in regulated occupations more than the public at large.[14] Such regulations “fence out” potential workers by raising educational requirements, mandating exams, or imposing entry fees.[15] In some cases, these barriers limit the entry of poor, minority or elderly individuals into a given profession.[16] In all cases, these barriers discourage people from starting their own businesses, creating job opportunities, and providing services.

Lillian and other braiders in Minnesota must overcome such barriers. Current cosmetologists fence out braiders by requiring a certificate that can cost nearly $15,000 for a 10-month class followed by an exam that tests students on the State-mandated way to cut, color, and style hair as well as to give pedicures, manicures and facials.[17] Minnesota’s curriculum is a waste of time for braiders because braiders use none of the skills taught in the required classes or tested on the State’s mandatory examination.

Moreover, the threat of regulatory enforcement has a disproportional effect on the opportunities for recent immigrants and low-income people because their opportunities tend to be limited to starting service businesses that do not require large capital investments.

A Nationwide Problem of Over-Regulation

On a national basis, nearly 500 occupations are regulated by states, and about half of those require government-issued licenses.[18] Occupations requiring 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—such as beekeepers, lightning rod salesmen, fence installers, flower arrangers and septic tank cleaners. All 50 states require barbers and cosmetologists to be licensed.

Ironically, many licensing laws that now burden braiders were put in place during the 1930s by hairdressers (today’s cosmetologists), who were renegades fighting against an entrenched monopoly. Prior to the 1920s, barbers and cosmeticians (who performed skin care and some hair cutting) enjoyed an exclusive monopoly over all types of hair treatment bestowed on them by the government through occupational licensing laws.[19] Hairdressers were arrested in several states for violating the licensing laws.[20] During that time, hairdressers organized their own trade association and sought to break the barbers’ monopoly through lobbying and litigation.[21]

The cosmetologists ultimately succeeded in freeing themselves from the barbers’ monopoly and obtained a separate licensing process. Regrettably, the cosmetologists eventually created their own government-enforced cartel that subjects all engaged in the care of women’s hair, skin or nails to their captured agencies.

Minnesota’s Regulations

Minnesota requires a cosmetology license for any person who, for compensation, performs cleaning, conditioning, shaping, reinforcing, coloring and enhancing the body surface in the areas of the head, scalp, face, arms, hands, legs and feet.[22] The State regulates cosmetologists and places regulation under the control of the Board of Barber and Cosmetologist Examiners—a board comprised of practitioners who have a financial incentive to raise the threshold for braiders.[23]

Absurdly, hair braiders cannot lawfully offer their services to the public without a cosmetology license—regardless of their proficiency. No separate or specialized license is available for braiders, even though separate licenses are offered for those who specialize in nails or skin. The entire system creates a mismatch between regulation and reality. In the name of protecting public health and safety, the regulatory process licenses people to braid hair who have no experience in braiding, yet it forbids others who are proficient in braiding from plying their trade.

The Current Controversy

This lawsuit challenges the constitutionality of requiring a natural hairstylist and hair braider to obtain a cosmetology or barbering license. Five years after immigrating to the U.S. from Cameroon, Lillian Awah Anderson opened Extensions Plus. Lillian built a successful business the old-fashioned way, by working hard to establish a loyal clientele. She serves men and women of all races.

Extensions Plus is a clean, professional salon that specializes strictly in braiding, weaving and natural hair styles—skills Lillian learned 20 years ago from a local school in Buea, Cameroon. To practice her skills as a teenager, Lillian and her two sisters would sit in a circle and braid each other’s hair. Lillian strongly believes that these techniques celebrate a connection to her family and African culture. Lillian considers her services to be far more than cosmetic. Indeed, part of Lillian’s mission is to teach her customers the value of natural hair care as an emotional and spiritual pilgrimage deserving of love and respect as an ancient African art form.

Lillian possesses a business license from Minnesota’s Secretary of State but does not have a cosmetology or barbering license—nor should she need one. Soon after arriving in the United States in 1993, Lillian attempted to enroll in cosmetology classes at a local community college. Her efforts to comply with the regulations went unfulfilled because the course was cancelled for lack of other students enrolling. Undaunted, Lillian began braiding at home and later in a local beauty supply store.

Joining Lillian and the Institute for Justice Minnesota Chapter in the challenge to the State’s over-regulation of hair braiding are Ms. Ejgayehu Beyene Asres and Ms. Saleemah Salahud-Din Shabazz. Ejgayehu (known as “Gigi”), a legal resident alien living in Hennepin County, was born in Addis Ababa, Ethiopia, and came to the United States in 1999, as a political refugee fleeing the horrors of civil war. She is an experienced African hair braider who has worked gainfully at the Braid Factory in Minneapolis for many years.

Saleemah was born in the United States. She learned her hair braiding skills as a member of the African American community, benefiting from cultural knowledge that has been passed down through the generations. Saleemah has developed and maintained valuable client relationships with prominent members of the African American community in the Twin Cities.

The Legal Battle for Economic Liberty

Of all the rights Minnesotans and Americans cherish, the right to earn an honest living is one of the least judicially protected from governmental interference. That right, however, was foremost among the “privileges or immunities” protected by the 14th Amendment to the U.S. Constitution and Article I, Section 2 of the Minnesota Constitution.

This lawsuit is the initial step in the Institute for Justice Minnesota Chapter’s campaign to restore economic liberty as a basic civil right under both the Minnesota State and U.S. Constitutions. IJ-MN’s goal is to create a rule of law whereby governments must demonstrate that restraints on entry into businesses or professions must be actually related to legitimate public health and safety objectives.

The Institute for Justice litigates in support of fundamental individual liberties, including economic liberty—the right to earn a living free from arbitrary or excessive government regulation. IJ’s headquarters and state chapters have scored significant victories on behalf of entrepreneurs and, in the process, have opened long-closed markets. These important victories include:

1.       Uqdah v. D.C. Board of Cosmetology—Although they lost in court, Taalib-Din Uqdah and his wife Pamela Ferrell prevailed in the court of public opinion in 1993 against the District of Columbia, which eliminated a 1938 Jim Crow-era licensing law for African hair braiders when the District deregulated cosmetology.

2.       Cornwell v. California Board of Barbering and Cosmetology—IJ represented JoAnne Cornwell, creator of the Sisterlocks technique of hair locking, in defeating California’s cosmetology licensing requirement for African braiders in 1999.

3.       Farmer v. Arizona Board of Cosmetology—In 2003, Institute for Justice Arizona Chapter (IJ-AZ) filed a lawsuit on behalf of braider Essence Farmer to dismantle Arizona’s onerous cosmetology regime, which required braiders to attend 1,600 hours of courses that taught nothing about braiding. As a result of the case, Arizona’s legislature exempted braiders from the regime.

4.       Armstrong v. Lunsford—Filed in 2004 in the U.S. District Court for the Southern District of Mississippi, this case challenged Mississippi’s cosmetology regulations, which barred braiders from practicing their craft. Prior to receiving a ruling from the court, Mississippi’s legislature exempted braiders from the cosmetology licensing requirement in 2005. This result allows IJ’s client to continue to practice without obtaining a license.

5.       Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board—After being sued by the IJ’s Washington Chapter, Washington State’s Department of Licensing filed an “Interpretative Statement” exempting braiders from the State’s cosmetology licensing requirements.

6.       Jones, et. al. v. Temmer, et. al.—Taxi entrepreneurs Leroy Jones, Ani Ebong and Girma Molalegne opened Freedom Cabs, Inc., in Denver in 1995 after IJ helped them overcome Colorado’s protectionist taxicab monopoly. Stemming from pressure in the court of public opinion created by their lawsuit, the Colorado legislature enabled Freedom Cabs to become the first new cab company in Denver in nearly 50 years. Testimony by Jones and Institute for Justice President Chip Mellor also contributed to the breakdown of government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.

7.       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 in New York.

8.       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 in 2001.

9.       Craigmiles v. Giles—In 2003, 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.

10.    Swedenburg v. Kelly—In 2002, a federal judge declared unconstitutional New York State’s laws that bar the interstate direct shipment of wine into New York. The case was heard by the U.S. Supreme Court on December 7, 2004. The Court is expected to issue its ruling by June 30, 2005.

IJ-MN filed this case, Anderson v. Minnesota Board of Barber and Cosmetologist Examiners, on April 20, 2005, in Hennepin County District Court in Minneapolis. The case challenges violations of the due process, privileges or immunities, and equal protection guarantees in the Minnesota State Constitution and the 14th Amendment to the U.S. Constitution.

In its complaint, IJ-MN explains how Minnesota unlawfully deprives Lillian Anderson of her constitutional rights by enacting regulations unrelated to any public health, safety or welfare concern and that prevent her from pursuing her chosen livelihood. IJ-MN will demonstrate that the application of the cosmetology regulations to African braiders like Lillian subjects braiders to unreasonable and arbitrary barriers not imposed on other professionals. The complaint also maintains that the State’s legitimate protection of consumers’ health and safety is not achieved by a process that subjects Lillian and other African hair braiders to unrelated licensing requirements. Because Lillian and all other braiders will continue to suffer harm to their constitutional rights if the disputed regulations are allowed to stand, IJ-MN seeks a declaration that the regulations are unconstitutional and an injunction preventing the State from enforcing the regulations.

IJ’s efforts will not cease until the right of every American to earn an honest living is secure.

Litigation Team

The attorneys in Anderson v. Minnesota Board of Barber and Cosmetologist Examiners are Institute for Justice Minnesota Chapter Executive Director Lee McGrath and Staff Attorney Nick Dranias.

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 civil 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.

Headquartered in Washington D.C., the Institute for Justice has state chapters in Arizona, Washington State and Minnesota, which was opened in April 2005.

From its office in Minneapolis, the Institute for Justice Minnesota Chapter litigates under the state and federal constitutions to reinvigorate economic liberty, to preserve property rights, promote educational choice and defend the free flow of information essential to informed choices in political and economic markets. Formed in 1991, this national organization trains law students, lawyers and others in the strategies of public interest litigation with the goal of limiting governmental power and advancing individual freedom in civil society.

For more information contact:

John Kramer                                  Lisa Knepper VP for Communications                 Director of Communications

Institute for Justice                         [email protected] Suite 200 717 Pennsylvania Avenue N.W.

Arlington, VA 22203(703) 682-9320

[email protected]

Lee McGrath Executive Director Institute for Justice Minnesota Chapter 1600 Rand Tower 527 Marquette Avenue Minneapolis MN 55402-1330 (612) 435-3451

[email protected]

[1] Letter from Donna M. Watz, Staff Attorney, Minnesota Department of Commerce to Lee McGrath, Executive Director of the Institute for Justice Minnesota Chapter (Feb. 9, 2005) on file at Institute for Justice Minnesota Chapter.

[2] Minn. R. 2644.0510 (1997).

[3] Minn. R. 2644.0510D (1997).

[4] Hennepin County Emergency Medical Technician – Basic Course available at http://www.hcmc.org/education/ems/basicrefresher.htm#emt.

[5] Minn. Stat. ¤ 624.714. See also http://www.ellegon.com/courses/.

[6] Id. See also Simon Rottenberg, ed., Occupational Licensure and Regulation (Washington: American Enterprise Institute, 1980); and Benjamin Shimberg, et al., Occupational Licensing: Practices and Policies (Washington: Public Affairs Press, 1973).

[7] Occupational Regulation (99-05), Office of the Legislative Auditor, State of Minnesota 5, 50-51 (1999).

[8] Minn Stat. ¤ 154.22.

[9] See JoAnne Cornwell, That Hair Thing (Sisterlocks Pub., 1997). One expert estimates that 80 percent of black women suffer damaged hair or hair loss. See Willie Morrow, “20 Million Women Going Bald,” Beauty Express 36 (4th Quarter 1996).

[10] Arlington, VA, Maryland, Michigan, New York, Tennessee, Florida, Arizona, California and, most recently, Mississippi and Washington State have exempted African hair braiding from the general cosmetology regulations. See D.C. Code ¤¤ 2-421(17) and (19) and 2-432(a); Md. Bus. Occ. & Prof. Code ¤ 5-101(k) (2)(iii); Mich. Comp. L. Ann. ¤ 339.1203a(3); N.Y. Gen. Bus. Law ¤ 400(5); Tenn. Code Ann. ¤ 62-4-102(a) (14)-(15); Fla. Stat. Ann. ¤ 477.0132; 2004 Ariz. Sess. Laws 102; Cal. Bus. & Prof. Code ¤ 7316(2) (2).

[11] See Walter Williams, The State Against Blacks (New York: McGraw-Hill, 1982).

[12] See Scott G. Bullock, Baltimore: No Harbor for Entrepreneurs (Institute for Justice, 1997); Dana Berliner, Running Boston’s Bureaucratic Marathon (Institute for Justice, 1997); Clint Bolick, Entrepreneurship in Charlotte: Strong Spirit, Serious Barriers (Institute for Justice, 1997); Dana Berliner, How Detroit Drives Out Motor City Entrepreneurs (Institute for Justice, 1997); William H. Mellor, Is New York City Killing Entrepreneurship? (Institute for Justice, 1996); Donna G. Matias, Entrepreneurship in San Antonio: Much to Celebrate, Much to Fight For (Institute for Justice, 1997); Clint Bolick, Brightening the Beacon: Removing Barriers to Entrepreneurship in San Diego (Institute for Justice, 1997); Timothy D. Keller, Burdensome Barriers: How Excessive Regulations Impede Entrepreneurship in Arizona (Goldwater Institute, 2003); Jeanette M. Petersen, Entrepreneurship in the Emerald City: Regulations Cloud the Sparkle of Small Businesses (Washington Policy Center, August 5, 2004). Copies of all studies may be obtained from the Institute for Justice, (703) 682-9320.

[13] Occupational Regulation, supra note 2, at 4.

[14] Id. at 5, referencing Kara Schmitt and Benjamin Shimberg, Demystifying Occupational and Professional Regulation: Answers to Questions You May Have Been Afraid to Ask, 6-9 (Lexington KY: Council on Licensure, Enforcement and Regulation, 1969).

[15] Id. at 5, referencing Dan B. Hogan, The Regulation of Psychotherapists, A Study in the Philosophy and Practice of Professional Regulation, 238-39 (Cambridge, Mass. Ballinger Publishing 1979).

[16] Id. at 5, referencing Stuart Dorsey, “The Occupational Licensing Queue” 15 Journal of Human Resources, 424-34 (1980).

[17] Cosmetology Curriculum of the Aveda Institute available at http://aveda.aveda.com/grow/inst_schools/mn_cosmetology.asp.

[18] See S. David Young, The Rule of Experts: Occupational Licensing in America 4-5 (Washington: Cato Institute, 1987).

[19] NCA’s Diamond Jubilee Years (Korea: National Cosmetology Association, 1995).

[20] Id. at p.7; see also Keith v. State Barber Bd., 212 P. 871 (Kan. 1923); accord, Jeffs v. Bd. of Examiners of Barbers, 30 N.W.2d 445 (Mich. 1948); Johnson v. Ervin, 285 N.W. 77 (Minn. 1939); Lane v. State, 232 N.W. 96 (Neb. 1930); Banghart v. Walsh, 171 N.E. 154 (Ill. 1930); cf. Whitcomb v. Emerson, 46 Cal.App.2d 263, 115 P.2d 892 (Cal. App. 4th Dist. 1941) (striking down application of California cosmetology licensing to facial massage); New York State Hairdressers & Cosmetologists Ass’n v. Cuomo, 369 N.Y.S.2d 965 (Sup. Ct. N.Y. Cty. 1975) (invalidating law allowing only barbers and not cosmetologists to cut hair of both sexes).

[21] National Hairdressers Assoc. passed the following resolution at its 1923 convention that parallels the hair braiders’ 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. Id.

[22] Minn. Stat. ¤ 155A.03 (2).

[23] Minn. Stat. ¤ 155A.01.