Nivea Earl and Christine McLean had both been braiding hair for most of their lives. Both had turned their passion for natural hair care into entrepreneurial success by starting their own braiding and natural hair care salons. But Arkansas law required them to have expensive, time-consuming and irrelevant cosmetology training. Nivea and Christine could not afford to spend thousands of dollars on hundreds of hours of irrelevant training just to do something as safe and common as braiding hair. So they joined with the Institute for Justice to fight for their economic liberty.
The government can’t license something as safe and common as braiding hair, especially when cosmetology training does not teach or test braiding, but instead requires hundreds of hours of instruction that is completely unrelated to braiding. That is why, in June 2014, IJ filed a federal lawsuit on Nivea’s and Christine’s behalf to challenge Arkansas’s hair braiding regulations as part of its national Hair Braiding Initiative.
Before the judge could even hear the case, Arkansas came to its senses. Representative Bob Ballinger and 14 co-sponsors introduced the “Natural Hair Braiding Protection Act” to free Arkansas braiders. The Act, which was based on IJ model legislation, exempts hair braiders from having to obtain a cosmetology license and instead creates an optional certification. IJ also helped braiders in Arkansas—which is known as the “Natural State”—organize themselves into the “Natural State Braiders Association” to support the legislation.
In March 2015, and with Nivea and Christine at his side, Governor Asa Hutchinson signed the Natural Hair Braiding Protection Act into law. Braiders in Arkansas are now free to earn an honest living and Arkansas became one of four states—along with Texas, Colorado, and Washington—to deregulate braiding in 2015 alone. Overall, 14 states totally exempt braiders from licensing and another handful require only a simple license.
But this still leaves too many states imposing too many burdens on the simple act of braiding hair. The right to earn an honest living is an essential part of our nation’s promise of opportunity. IJ will continue our Hair Braiding Initiative and our drive to free the braiders.
The History and Art of African Hair Braiding
The art and foundation of “traditional” or “natural” hair braiding traces back thousands of years to Africa. Today, thousands of practitioners engage in the intricate crafts of braiding, twisting, weaving and locking natural styles, mostly for African-American clients whose characteristically textured hair is perfect for such styling. These distinct techniques are generally grouped together under the rubric of “natural hair care” because they do not use any chemicals or other artificial hair styling techniques.
Hair braiding is an important form of cultural expression. Until very recently, the dominant standard of beauty had been defined in Western terms, and black women (particularly professionals) have struggled with this standard, often at great damage to their hair because of the use of chemical straighteners and relaxers. Traditional African hairstyles geared toward the natural texture and beauty of black hair have steadily gained popularity. The hairstyles are a form of artistic, cultural and individualized expression, and the techniques avoid serious damage that can occur when hair is treated with chemicals and other artificial products. And because traditional hair braiding does not use these harmful chemicals to change black hair, it is part of the “natural hair care” industry.
Hair braiding is also a means for entrepreneurs to take the first steps up the economic ladder and to help others up the ladder as well. Nationwide, natural hair care has grown into a multi-million dollar industry. In a free and open market, natural hair care would have great potential for entrepreneurial and employment opportunities by providing popular services and products to millions of consumers, because it requires fairly little capital and modest training.
But because of cosmetology licensing laws in all 50 states, mainstream cosmetologists, trained in Western hair care techniques, have had a virtual monopoly over all forms of hairstyling. This means that most braiders in the United States have been forced to operate under burdensome rules that bear no relationship to their own practice. This has forced braiders into the underground economy, and many would-be practitioners are discouraged altogether. As a result, natural hair care providers have been consigned to the status of outsiders, or worse, outlaws, fighting not just dominant standards of beauty, but also against prevailing cosmetology orthodoxy enforced by the state.
Hair Braiding and Occupational Licensing
Government regulators at all levels restrict entry into trades and professions. Among the most pervasive and oppressive barriers are occupational licensing laws. Supporters of these laws claim that they exist to protect the health and safety of the public. Occupations requiring government licenses include, however, not only the medical, legal and other highly specialized professions, but also professions in which justification for restrictions on entry is virtually nonexistent. In the 1950s, less than five percent of the workforce was required to obtain a government license to do their job 1 . Today, that number exceeds 30 percent 2 .
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. Research demonstrates that occupational licensing laws, such as those governing hair braiding, create artificial barriers to entry for entrepreneurs. That’s especially true for occupations that traditionally cater to individuals just beginning a professional career.
These laws are often designed to protect industry insiders from new competition. Typically, licensing boards are comprised of members of the regulated profession. As a result, these boards and the insiders they represent use licensing requirements not to serve valid public health and safety objectives, but instead 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.
Ironically, the licensing laws that now restrict African hair braiders were put in place during the 1930s by hairdressers (today’s cosmetologists). At that time, they were renegades fighting an entrenched monopoly, similar to what hair braiders face today. 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. 3 Hairdressers were arrested in several states for violating the licensing laws 4 . During that time, hairdressers organized their own trade association and sought to break the barbers’ monopoly through lobbying and litigation. 5
The hairdressers ultimately succeeded in freeing themselves from the barbers’ monopoly and obtained 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 hair, skin or fingernails to their domination. Today, all 50 states require cosmetologists to be licensed. 6
Arkansas’s Licensing Scheme
Arkansas’s cosmetology law is typical of cosmetology licensing laws across the country. The statutory scheme 7 places regulation of all hairstyling under the control of the Arkansas Department of Health and the Cosmetology Technical Advisory Committee. The Cosmetology Technical Advisory Committee is made up entirely of industry insiders. 8
Arkansas treats braiders as cosmetologists, and thus requires braiders to take a minimum of 1,500 hours of prescribed training at approved cosmetology schools, as well as pass two examinations. 9
Cosmetology schools do not teach natural hair braiding and the licensing exams do not test it. The effect is that Arkansas requires would-be braiders to spend as much as $20,000 to take 1,500 hours of instruction—none of which actually teaches them how to braid hair.
Regulations like these explain why an Institute for Justice study found that Arkansas had the second most burdensome licensing laws in the country and was the fifth most broadly and onerously licensed state. 10
The entire system creates a mismatch between regulatory objectives and realities. In the name of protecting public health and safety, the regulatory process does nothing to protect public health and safety. Rather, in Arkansas, a person completely proficient in natural braiding may not braid without a cosmetology license, and at the same time, a person with a cosmetology license does not need to have any training in natural braiding.
The net effect is that Arkansas’s cosmetology cartel blocks opportunities for entrepreneurs, forces consumers to pay more for worse service and does nothing to protect the public.
Many braiders and their clients are thus forced into an underground economy of “kitchen braiding.” Some consumers even travel to other states to get their hair braided. 11 And those braiders who have tried to operate in the open have been repeatedly cited for unlicensed braiding, even though the Department of Health does not find any real health or safety violations by braiders. 12 For the offence of braiding hair without a license, braiders face fines of hundreds of dollars that, because each day of work is a new fine, can quickly build to thousands of dollars, and even present the possibility of jail time. 13
Nivea Earl is an Arkansas native with a long-held passion for natural hair care. She has been braiding since she was just 16 years old. She has attended seminars about natural braiding from nationally-recognized experts in braiding like Isis Brantley 14 and others. As a wife and mother of two, she wanted to provide for her family while pursuing her passion. So, in February 2013, Nivea started her own natural hair business, Twistykinks.
Nivea wants to be an upstanding business woman. But Arkansas’s laws force her to operate underground and illegally. The Arkansas Department of Health told Nivea that she had to have a cosmetology license to braid hair. Worse yet, the Department of Health told her that there were no programs in Arkansas that trained students in natural African hair braiding. In other words, if Nivea wants to operate legally, she has to spend thousands of dollars on 1,500 hours of irrelevant government-mandated training. Undaunted, Nivea continues to pursue her dream to use her talent to earn an honest living.
Christine McLean is originally from the Ivory Coast, where she learned how to braid as a child. She came to the United States in 1998 and began supporting herself by braiding. Christine braided legally in Florida for six years because Florida only requires braiders to take 16 hours of classes in order to braid—about 1 percent of the hours that Arkansas requires. Christine managed a braiding shop in Missouri for several years before coming to Arkansas, where she had the opportunity to buy her own shop. She has now owned and run LaBelle African Hair Braiding for two-and-a-half years.
Christine has been fined several times by the Department of Health for braiding without a license. The fines total nearly $2,000 dollars. She wants to continue to run her own business without incurring additional fines and penalties levied under a burdensome and irrational regulatory scheme.
In an era when entrepreneurism is on the decline, 15 Christine demonstrates how Americans can be successful business owners; at least until occupational licensing laws get in the way.
The defendants in this case are the Arkansas government officials who are tasked with enforcing Arkansas’s Cosmetology Act against braiders like Nivea Earl and Christine McLean. These officials, who are all sued in their official capacity, are Nathaniel Smith, Director, Arkansas Department of Health; Kelli Kersey, Cosmetology Section Chief of the Department of Health; and the members of the Arkansas Cosmetology Advisory Committee.
Braiding Laws Nationwide
As explained in IJ’s forthcoming report about the legal status of braiding across the country, far too many braiders are being subjected to onerous, irrational and unconstitutional licensing laws.
Twenty-four states—Arkansas, Alaska, Colorado, Delaware, Hawaii, Idaho, Indiana, Iowa, Kentucky, Maine, Massachusetts, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, North Dakota, Rhode Island, South Dakota, Vermont, West Virginia, Wisconsin and Wyoming—do not have separate regulations for hair braiders. Instead, braiders are regulated as hairstylists, hairdressers or cosmetologists, leading to extremely onerous course requirements. These range from a 1,000-hour hairstylist course in West Virginia and Wyoming to 2,100 hours needed to become a licensed cosmetologist in Iowa, Nebraska and South Dakota.
The District of Columbia and 10 states—Alabama, Illinois, Louisiana, Nevada, New York, North Carolina, Ohio, Oklahoma, Pennsylvania and Tennessee—have separate, but still burdensome, licensing requirements. The mandated coursework can be very time-consuming, from 100 hours in Washington, D.C., to 600 hours for Oklahoma’s hair braiding “technician” license.
Five states—Florida, Minnesota, Oregon, South Carolina and Texas—have created a separate license for hair braiders, but their requirements are not onerous. Under these licensing regimes, a braider will have to take, at most, one full week of coursework to obtain a license. The required coursework ranges from six hours in South Carolina 16 to 35 hours in Texas. 17
Braiders are not required to obtain a license to work in 11 states: Arizona, California, Connecticut, Georgia, Kansas, Maryland, Michigan, Mississippi, Utah, Virginia and Washington.
Thus, braiders in 34 states and the District of Columbia today labor under burdensome, irrational laws. And the braiders in the remaining 16 states mostly had to fight the government for their freedom. The laws in Arizona, California, Minnesota, Mississippi, Utah, and Washington were changed only after braiders, with the help of the Institute for Justice, sued the states. In other states, like Oregon, the laws were changed only after years of effort by braiders. While it is good that these states have, ultimately, changed their laws, no one should have to bargain with the legislature for the right to earn an honest living.
Legal Claims—The Right to Earn an Honest Living
Nivea Earl and Christine McLean are bringing their lawsuit under the Fourteenth Amendment to the United States Constitution, specifically under the Due Process, Equal Protection, and Privileges or Immunities Clauses of the amendment. The Fourteenth Amendment provides that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Fourteenth Amendment prevents the government from arbitrarily interfering with people’s ability to earn a living in their chosen occupation. At a minimum, the government may only restrict braiders’ right to run their businesses when there is some “rational basis” for that restriction. To demonstrate that rational basis, the government must show a reasonable connection between the restrictions in question and public health and safety. But there is no threat to public health or safety presented by braiding hair—and certainly not any threat that can justify 1,500 hours of irrelevant cosmetology classes that cost as much as $20,000. In fact, in two other cases brought by the Institute for Justice, federal courts in California 18 and Utah 19 have already struck down similar laws under the Fourteenth Amendment.
Nivea Earl and Christine McLean are asking the court to declare that, under the Fourteenth Amendment, Arkansas’s Cosmetology Act, as applied to hair braiders, violates the right to earn an honest living, equal protection, and the right to economic liberty protected by the Due Process, Equal Protection, and Privileges or Immunities Clauses. The Constitution protects every individual’s right to earn an honest living in her chosen occupation free from arbitrary and irrational government regulations. But this constitutional right is meaningless unless courts enforce it. That is what these women are asking the court to do in this lawsuit.
The Institute for Justice: 20 Years of Protecting Economic Liberty
Founded in 1991, the Institute for Justice is the national law firm for liberty. IJ engages in cutting-edge litigation and advocacy to defend individual rights nationwide.
The challenge to Arkansas’s regulation of braiders is one of three cases launched on the same day as part of a new IJ National Hair Braiding Initiative. IJ is also taking on Missouri’s and Washington’s regulation of braiders. These three cases are just the most recent challenges on behalf of braiders. IJ has represented braiders in the District of Columbia, 22 Ohio, 23 California, 24 Arizona, 25 Washington 26 , Mississippi, 27 Minnesota, 28 Utah, 29 and is currently representing a braider and her school in Texas. 30
For more information, please contact:
J. Justin Wilson Director of Communications Institute for Justice 901 N. Glebe Rd # 900 Arlington, VA 22203-1854 [email protected] (703) 682-9320 x 206
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