Can the government require hundreds of hours of training and an expensive license for any job? That is the question that the Institute for Justice (IJ) and three hair braiders have put before a court in Baton Rouge, Louisiana, where the State Board of Cosmetology has grossly overstepped the constitutional line by attempting to license natural hair braiding.
Getting the braiding license in Louisiana entails completing 500 hours of unnecessary and irrelevant training, passing an exam and paying annual licensing fees. But even those who want to comply with the requirements find it nearly impossible to do so since the only cosmetology school that offers the course is four hours away from New Orleans. The difficulty in braiding legally in Louisiana has caused many hair braiders to move to bordering states—Mississippi, Texas and Arkansas—where no license is required to braid. What is safe across the border does not suddenly become dangerous in Louisiana.
The Louisiana Constitution does not allow the government to license something as safe and common as braiding hair. The practice has existed, and existed safely, for thousands of years. People who want to make their living from hair braiding—experts like IJ clients Ashley N’Dakpri, Lynn Schofield and Michelle Robertson—cannot be required to get a state license before going to work. But the Louisiana State Board of Cosmetology has imposed the nation’s most burdensome braiding license, requiring braiders with even decades of experience to comply with its impractical requirements. That is not just wrong; it’s unconstitutional.
Across the state line in Texas, IJ won a major victory in 2015 when the Texas Supreme Court struck down that state’s eyebrow threading license. 1 Eyebrow threading, like braiding, is a non-invasive cosmetology technique that involves no chemicals, dyes or sharp objects. The court in Texas made clear that the state must have real and substantial reasons for regulating a person’s profession and that licensing laws cannot be unduly burdensome in relation to the government’s objectives. 2 The Louisiana Constitution, like the Texas Constitution, robustly protects economic liberty and, here, that means Louisiana’s braiding license cannot survive constitutional review.
The braiders who have remained are made to feel unwelcome. For example, Lynn moved to Louisiana in 2000 and opened Louisiana’s first braiding-only salon. In the following years, she was so successful that she was able to open three more locations. After the Board adopted the state’s first braiding license, in 2003, Lynn was forced to close all but one of her salons because she couldn’t find enough licensed braiders to staff four locations.
It didn’t have to be this way. Louisiana’s elected lawmakers never decided that hair braiding demands a license; the Board did. In creating the license, the Board ignored pleas from Lynn and dozens of other experienced hair braiders, as well as the evidence (and common sense) about the safety of hair braiding. Worse, the Board has commandeered lawmaking authority from the Louisiana State Legislature. Only the Legislature can pass laws, but by devising the braiding license, the Cosmetology Board impermissibly stepped into the role of legislating. That is why Ashley, Lynn and Michelle filed a lawsuit, demanding that hair braiders be left alone to continue pursuing their livelihood without obtaining a hair braiding license.
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Response to MTD
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Louisiana’s “Alternative Hair Design” License and Its Economic Impacts
In 2003, the State Board of Cosmetology unilaterally declared it illegal to braid hair in Louisiana without first obtaining an “alternative hair design” permit. 3 Before 2003, braiders were free to practice their trade throughout the state without government intrusion. Now, hair braiders risk $5,000 in fines every time they braid without a license. 4 But obtaining a braiding license is expensive, time-consuming and, as a practical matter, nearly impossible. The Board’s alternative hair design curriculum requires that individuals complete 500 hours of training in a private cosmetology school and take a practical exam.
It is all but impossible for most Louisianans to obtain a braiding license. There are more than 50 cosmetology schools in the state, but only one currently offers the braiding course. 5 That school is located in Monroe, Louisiana, and requires 600 hours of instruction. Predictably, while braiding itself remains popular, interest in the state’s hair braiding license has been low—there are currently only 19 licensed braiders statewide—in part due to the real-world challenges of obtaining the license. Pursuing the license is especially irrational for people with decades of experience braiding hair without incident.
Worse, members of the Board have a personal interest in forcing braiders to obtain this unnecessary license. Because the Board is composed of licensed cosmetologists and school owners, its members have a vested interest in enforcing, promulgating and expanding the state’s cosmetology regulations. In fact, one board member has an ownership interest in one of the three schools that has offered the alternative hair design permit curriculum.
Louisiana’s braiding license prevents the natural hair care industry from flourishing. Twenty-seven states 6 recognize that braiding is inherently safe and that licensing hair braiding provides no benefit to the public, but causes real economic harms. For example, more than 1,200 braiders work across the border in Mississippi, where no braiding license is required. 7 Texas and Arkansas also allow braiders to work freely without a license. 8 As one might imagine, braiders in Louisiana frequently cross state lines to braid legally, or leave the state for good to pursue their American Dream elsewhere.
Hair braiders are not the only ones harmed by Louisiana’s irrational and unnecessary license. Consumers also suffer. Locking experienced braiders out of the marketplace allows the few licensed braiders or cosmetologists who know how to braid to charge much higher prices for braiding services. Salon owners suffer from the state’s braiding license, too, because they are prohibited from hiring unlicensed braiders and so prevented from offering the full range of natural hair braiding services requested by their clients. Nineteen licensed braiders cannot meet the needs of 4.5 million Louisianans.
Plaintiff Lynn Schofield
Growing up in the Ivory Coast, Lynn Schofield learned to braid from her family. More than 30 years ago, she moved to the United States and brought with her the knowledge and passion for braiding. When Lynn moved to Louisiana, she opened her own braiding salon: Afro Touch. It was so successful that Lynn expanded the business to four locations with more than 20 employees.
What started as a way for Lynn to support her family soon grew to be something larger. Braiding offered a great way for her employees to support themselves and their families without a formal education. Lynn was very proud that she was able to employ so many people, especially young black women, and give them a chance to take the first steps toward their American Dream.
But that all changed in 2003, when the Board began requiring braiders to obtain a license. As a result, Lynn could no longer staff her salons. Instead of opening more locations, as she had planned, Lynn was forced to shut down her salons. Today, only one remains.
Plaintiff Ashley N’Dakpri
Ashley N’Dakpri is Lynn’s niece. Ashley was born in the United States, but still travels to the Ivory Coast to visit family. As a young child, Ashley learned to braid hair by practicing on family and friends, including her Aunt Lynn.
At 16, Ashley began braiding hair for money. Today, she manages the one remaining Afro Touch location. Now 31, Ashley has lived and studied around the world, cultivating an entrepreneurial and artistic lifestyle.
As the new manager of Afro Touch, Ashley wants to grow the salon and bring on more braiders. But instead of focusing on managing the salon and marketing its services, Ashley spends the majority of her time braiding and scheduling appointments. Although there is no shortage of capable braiders, they are all unlicensed, and the Board’s licensing requirements prevent Ashley from hiring unlicensed braiders. There is constant demand for braiding services at Afro Touch, but there are not enough licensed braiders in the whole state of Louisiana to satisfy demand there.
Plaintiff Michelle Robertson
Michelle Robertson is a former resident of Shreveport, Louisiana, where she dreamed of opening her own braiding salon before relocating to Texas. Michelle spent years planning for her business, but was forced to give it up because—like Lynn and Ashley—the braiding license made it impossible to find people who could legally braid hair. It was also impossible for Michelle to stop working, enroll in the 500-hour braiding course (which she did not need) and take a test. A skilled braider with decades of experience, Michelle decided she would rather move to a place where braiding is legal and where she can pursue other opportunities.
Michelle still returns to Louisiana to braid hair sometimes. Other times, her Louisiana clients drive to Texas just to see her. What is legal on one side of the state line is illegal on the other. And yet, it cannot be said that braiding is dangerous in Louisiana but safe anywhere you cross the state line into Texas, Arkansas or Mississippi.
Louisiana’s Braiding License Is Unconstitutional
The braiding license is all burden with no public benefit. And it runs afoul of the state constitution in two ways.
First, the due process clause of the Louisiana Constitution provides robust protection for economic liberty—the right to pursue one’s chosen profession without undue interference from the government. 9 But the braiding license stands in the way of braiders who want to practice a safe profession for a living. Said another way, entrepreneurs like Lynn and Ashley shouldn’t need a government permission slip to pursue the American Dream.
There is no legitimate reason to require a license for hair braiding. The only reason to do so is the illegitimate purpose of protecting the private interests of cosmetologists and cosmetology schools. This case is part of IJ’s ongoing effort to build upon a landmark 2015 ruling from Texas. 10 There, the court decided that occupational regulations must bear a real and substantial relationship to their purpose and that a regulation is unconstitutional if the means employed to achieve a government interest are unduly burdensome. 11 Likewise, in considering whether government regulations have a lawful purpose, such as protecting public health and safety, Louisiana courts consider a regulation’s real-world effects. 12 A victory in Louisiana will confirm the rights of all Louisianans to provide for themselves free from unreasonable government restrictions.
Second, the state Constitution vests the Legislature with the sole authority to make state laws. 13 This means that even if it wants to, the Legislature cannot hand that authority to the Cosmetology Board. It is the duty of the Legislature to the craft the laws and the duty of the Board to enforce them. 14 This makes sense since the Legislature is elected by the public, while the members of the Board are unelected and therefore accountable only to themselves. Simply put, the Board cannot designate itself lawmaker.
Occupational Licensing Is A National Problem
The problem with the over-regulation of trades and occupations is not unique to the braiding industry—it is a problem that is growing across the United States. Government increasingly uses licensure to unreasonably restrict entry into all kinds of fields, and to collect revenue from licensing and examination fees. These forces have caused an explosion in licensing in the United States. In the 1950s, less than five percent of the American workforce needed a license to do their jobs. Today, that number has ballooned to around 25 percent. 15
Proponents of licensure say that government oversight is necessary to protect health and safety; however, research finds that licensing more frequently imposes punishing burdens—including expensive schooling, testing and fees—with little or no corresponding benefit to the public. 16 For example, Louisiana is the only state that requires florists to obtain a license. 17 Far from benefiting the public (or florists), one licensee described the state exam as a government “hazing process.” 18 Irrational licensing only benefits existing businesses by artificially protecting them from competition and innovation. In fact, efforts to deregulate florists are not opposed by the public, but only by the existing florist industry. 19
The negative impacts of occupational licensing are well documented. Licensing restricts employment opportunities and harms consumers by reducing competition and raising the price of goods and services. 20 Licensing also disproportionately affects immigrants, lower income workers, minorities and aspiring entrepreneurs—for whom tuition, lost wages and hundreds of hours of needless instruction are especially burdensome. 21
The Institute for Justice
The Institute for Justice is the national law firm for liberty. Since 1991, IJ has worked to protect the right to earn an honest living. Its first lawsuit was filed on behalf of hair braiders in Washington, D.C. 22 Since D.C. repealed its license, IJ has won another dozen hair braiding lawsuits, either when courts struck down or lawmakers repealed the challenged licenses. 23 This latest lawsuit in Louisiana marks IJ’s first challenge to a specialty braiding license, demonstrating IJ’s tireless commitment to freeing braiders nationwide and ensuring the economic liberty of all Americans.
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