Jasna Bukvic-Bhayani is a North Carolina-based professional makeup artist who wanted to open up a school to teach others how to apply makeup like her. But there was a catch. The state would only give Jasna a license to open her school if she agreed to turn it into a full-fledged esthetics school, forcing her to spend 500 hours teaching things makeup artists do not do— like hair removal and facials— and at least $10,000 on useless equipment.
Jasna was surprised to learn about this after receiving a personal visit from a member of the North Carolina Board of Cosmetic Art Examiners, who found Jasna’s Facebook ad for makeup instruction. To the Board, it did not matter that Jasna’s students do not want to learn these unnecessary skills and that Jasna does not want to teach them. She either had to comply with the Board’s demands or she would not be allowed to open.
But makeup artistry is not the same as esthetics. Estheticians offer services like microdermabrasion, body waxing and facials. The Board refused to make this distinction and instead forced makeup artists who simply wanted to teach others their craft to comply with its 600-hour one-size-fits-all curriculum or face thousands of dollars in fines.
North Carolina has no problem with Jasna applying makeup to someone: The state requires almost anyone who applies makeup for a living to become a state-licensed esthetician before working and Jasna went through 600 hours of schooling to get that license several years ago. Yet it had a problem with Jasna teaching people how to apply makeup unless she got an additional license and turns her makeup school into an esthetics school.
It does not make sense to force makeup schools to spend hundreds of hours teaching skills makeup artists do not use. People like Jasna should not need the government’s permission to provide useful information. Jasna only wants to teach makeup and her students only want to learn about makeup. Under the First Amendment, the government cannot require a license just to teach something, including makeup artistry.
That is why Jasna and her prospective student Julie Goodall teamed up with the Institute for Justice to challenge North Carolina’s requirements in federal court. The U.S. Constitution protects the right to speak for a living—whether the speakers are authors, journalists or makeup artists like Jasna— and it protects the rights of listeners to hear from those speakers.
After six months of litigating, the Board agreed to allow stand-alone makeup schools to operate without an unnecessary, government-issued license. The shift means that Jasna is finally free to open the school of her dreams.
Plaintiffs' Memo in Support of Motion for Preliminary Injunction
Reply in Support of Motion for Preliminary Injunction
Plaintiffs' Memorandum in Opposition to Motion to Dismiss
Makeup Artistry is Jasna’s Life
Jasna’s journey as a makeup artist began as a student in a makeup program at a Sarajevo college more than 20 years ago. She came to the United States after her family obtained asylum as war refugees and she became a U.S. citizen.
But Jasna’s passion for makeup artistry never wavered and she was determined to become a makeup artist and an entrepreneur. After settling in Charlotte, Jasna completed the state-mandated 600-hour esthetics course and passed an exam to become a licensed makeup artist.
Today, Jasna owns a successful business where she employs five workers, some of whom perform eyelash extensions, hair removal, and hair coloring services. To this day, however, Jasna views herself solely as a makeup artist. In fact, this year, Jasna has appeared twice on local television to share makeup lessons with viewers.
Jasna Wants to Teach, But North Carolina Won’t Allow It
Now, Jasna would like to open a second business—a school that focuses solely on teaching makeup application. She would like to teach two kinds of students: already-licensed estheticians and hobbyists. Both groups would benefit immensely from Jasna’s instruction.
As Jasna learned when she had to attend an esthetics school, state-licensed esthetics schools teach very little makeup artistry. And the little they do teach is rudimentary. According to Jasna, the 600-hour esthetics course she completed included less than 10 hours of makeup-related instruction.
Currently, no schools in North Carolina offer advanced makeup programs for licensed estheticians who want to learn about makeup artistry at a higher level than that provided by esthetics schools. If Jasna were allowed to teach makeup artistry, her school would fill this gap in North Carolina’s education market.
Jasna’s school would be great for hobbyists like Julie Goodall who are interested in creatively applying makeup as a hobby rather than as a profession. Since these students do not want to apply makeup for pay, they have no need for an esthetician license, and they have no interest in the other subjects taught by the state-mandated 600-hour esthetics curriculum. This means that North Carolina deprives hobbyists like Julie of learning opportunities, as no makeup schools serving their specific needs can lawfully exist in the state.
For potential students like Julie, the 600-hour esthetics curriculum is both too much and too little. The course would teach her far less makeup artistry than she would like, but force her to pay for hundreds of hours of instruction on topics in which she is completely uninterested.
Instead, Julie would like to attend Jasna’s makeup school, if it were ever allowed to open. Having known Jasna for more than six years and seeing how skilled Jasna is at applying makeup, Julie is confident that Jasna’s school would improve her makeup skills and allow her to derive even more enjoyment from her hobby.
Speak the Board’s Way or Be Quiet
When Jasna created a Facebook page earlier this year announcing her plans to open a school, she was surprised to receive a personal visit from the North Carolina Board of Cosmetic Art Examiners. The Board told her that she could not open her school without a license for it. 1 The Board also told her that, in order to get the license, she would need to agree to follow its mandatory esthetics curriculum and purchase a long list of required equipment. The curriculum would entail teaching over 500 hours of non-makeup instruction. 2 And the list of required equipment—a facial vaporizer, galvanic current apparatus, multiple wax systems, suction and exfoliation machines, facial treatment chairs, and various lamps—bears no connection to makeup artistry.
These requirements make no sense. Makeup teachers and students should not be forced to endure hundreds of hours of mandatory classes that are unrelated to makeup artistry. And makeup schools should not be forced to buy equipment that has nothing to do with teaching makeup. Jasna refuses to comply with North Carolina’s nonsensical requirements. She is unwilling to spend five hours teaching irrelevant materials for every 60 minutes she can spend teaching makeup. And she is also unwilling to spend more than $10,000 on unnecessary equipment.
Jasna has spent almost a year pleading her case to the Board, both in person and over email. But, thanks to North Carolina’s Cosmetic Art Act, her efforts have been fruitless. The law is the law, even if it accomplishes nothing but harm. Breaking the law would expose Jasna to thousands of dollars in fines.
Sadly, North Carolina’s red tape is no outlier. More than 30 states license makeup artistry and instruction.
The First Amendment Protects The Right to Speak and The Right to Listen
Jasna and Julie are fighting back with a civil rights challenge in federal court. They are asking the court to hold that North Carolina’s licensing scheme for makeup schools violates the First Amendment of the U.S. Constitution. Under the First Amendment, the government could not require authors of books or articles on makeup artistry to get a government license. And the government certainly could not order those authors to write about unrelated topics and purchase unrelated equipment, before being allowed to write what they want. By singling out verbal speech about makeup, a licensing requirement would discriminate among speech based on who speakers are and how they are choosing to communicate. Therefore, North Carolina’s scheme is an impermissible content-based restriction on speech.
Like books and articles, teaching is constitutionally-protected speech. The federal courts have repeatedly explained this point, including the 4th U.S. Circuit Court of Appeals, which covers North Carolina. For instance, it has held that the teaching of geography and fiber arts, and gun safety are all constitutionally-protected speech. The same must be true of teaching makeup artistry.
Because teaching constitutes speech, the government may not impose a content-based licensing requirement compelling speech, and requiring equipment purchases, on schools that teach a particular subject, such as makeup artistry.
The Litigation Team
The case is being litigated by IJ attorney Milad Emam and IJ senior attorney Justin Pearson. They will be assisted by North Carolina attorney David Guidry of Rabon Law Firm, PLLC.
The Institute for Justice
The Institute for Justice is the national law firm for liberty. IJ has successfully challenged occupational licensing laws for a nationwide syndicated columnist in Kentucky; a North Carolina blogger and tour guides in Washington, D.C., and Savannah.
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