Isis Brantley’s Fight for Economic Liberty

Isis Brantley is an expert African hair braider.  Her decades of experience have allowed her to work with everyone from Grammy-award-winning artist Erykah Badu to clients whose hair has been damaged by the use of chemicals and practices taught at state-licensed cosmetology schools.  For nearly 30 years, Isis has taught African hair braiding to everyone from out-of-work women seeking a new skill as a first step on the economic ladder to state-licensed cosmetologists interested in learning the art of African hair braiding.

In this lawsuit, Isis seeks to vindicate the right of African hair braiding instructors to earn an honest living free from unreasonable government interference, so that she may teach her craft to the next generation of braiders who want to earn their living braiding hair.  Though Isis has been teaching African hair braiding for decades, the state of Texas refuses to accept the instruction she provides her students in satisfaction of the state’s 35-hour hair braiding license.

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 twisting, braiding, 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, heat, or other artificial hairstyling techniques.

Hair braiding is more than a means of entrepreneurship; it is an important form of cultural expression.  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 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.

Nationwide, natural hair care has grown into a thriving 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 due to cosmetology and barber licensing laws in all 50 states, mainstream barbers and cosmetologists, trained in Western hair care techniques, have a virtual monopoly over all forms of hairstyling, including braiding (though several states have deregulated the hair braiding industry[1]).  Most hair braiders are thus forced to operate underground, and many would-be practitioners are discouraged altogether.  As a result, natural hair care providers are consigned to the status of an outsider, still fighting for their right to economic liberty.

Isis Brantley’s Decades-Long Fight for the Right to Braid

Isis Brantley, who has worked as a professional African hair braider in Dallas, Texas, since 1979, is no stranger to the fight between natural hair care providers and cosmetology licensing boards.  For years, however, the state of Texas imposed the state’s full-blown 1500-hour cosmetology license on African hair braiders, prohibiting them from braiding for a living unless they became licensed cosmetologists.

Isis’s personal fight first began in 1997 when several undercover officers entered Isis’s hair braiding shop and arrested her for braiding hair without a cosmetology license.  That experience made Isis a passionate advocate of the rights of braiders.

After ten years of advocacy, in 2007, the Texas Legislature passed, and the governor signed, HB 2106 during the 80th Regular Session, which freed braiders from the state’s cosmetology-licensing requirement.  In its place, HB 2106 created Texas’s 35-hour hair braiding license, and inserted the license under Texas’s barbering statute.[2]  Isis Brantley was granted a hair braiding license after demonstrating that she had practiced hair braiding in Texas for at least 10 years.

Unfortunately, while HB 2106 freed Isis to braid, it also created new legal challenges.  In addition to selling her services as a braider, Isis has also taught hair braiding at her business—the Institute of Ancestral Braiding—which she opened almost twenty years ago at 2642 South Beckley in Dallas, Texas.  Under the new law, however, Isis’s classes cannot be used to satisfy Texas’s 35-hour instruction requirement for hair braiders.

Because Texas wedged its hair braiding license into the state’s barbering statute, Isis must now become a licensed barber instructor and convert her hair braiding school into a 2,000 square foot barber college before Texas will allow the students she teaches to qualify for Texas’s hair braiding license.  The Institute for Justice is representing both Isis and her hair braiding business, The Institute of Ancestral Braiding, located at 2642 South Beckley in Dallas, Texas.

Texas’s Licensing Scheme

In Texas, hair braiding is considered both “barbering” [3] and “cosmetology,”[4] and requires a license.[5]  Applicants for a “Hair Braiding Specialty Certificate of Registration” must sit through a 35-hour “commission approved training program” before obtaining a license to braid hair.[6]  The hair braiding curriculum consists of eleven hours of “technical skills,” sixteen hours covering health and safety regulations, and eight hours addressing “hair analysis and scalp care.”[7]

Isis is legally allowed to teach that course right now, but only if she does so at a state-licensed barber school. Under Texas’s new law, to teach the course at her own school, Isis must first attend barber school for 2,250 hours, build a state-licensed barber college she does not need and pass four examinations just so she can teach a 35-hour hair braiding curriculum that is impossible to fail because the state requires no exam at the end.

The Barber Instructor Requirement

On June 25, 2013, the Texas Department of Licensing and Regulation (“TDLR”) notified Isis that, in order to teach hair braiding at her own hair braiding school, she must first become a state-licensed barber instructor, a process that takes months and costs thousands of dollars.[8]  The requirements include completing a 1500-hour curriculum for a class-A barber license; a 750-hour curriculum for barber instructors; and passing four exams, a written and practical exam for each the class-A barber license and barber instructor license.”[9]

Adding insult to injury, the 1500-hour curriculum for the class-A barber license is wholly irrelevant to African hair braiding and includes, among other things:  cutting hair (800 hours); shaving (80 hours); shampooing and rinsing (40 hours); bleaching hair using chemicals (30 hours); straightening hair using chemicals (25 hours); and studying beards and mustaches (15 hours).[10]

The eligibility requirements for becoming a state-licensed barber instructor are also irrelevant to hair braiding, and include completing 750 hours of instruction in “barber courses and methods of teaching in a barber school.”[11]  The required curriculum for obtaining the 750-hour barber instructor license includes spending at least 350 hours “assisting with students” who are attending barber college to become barbers, and 150 hours assisting barber instructors to teach barbering theory.[12]

Finally, although Texas has no exam requirement for its 35-hour hair braiding license, Texas requires candidates seeking to teach the 35-hour hair braiding curriculum for licensure to pass four examinations, consisting of a written and practical exam for both the class-A barber license and the “Barber Instructor License.”[13]  Neither of these exams tests anything about hair braiding.

The Barber School Requirement

In addition to being forced to become licensed as a barber instructor, Isis is also being required to needlessly convert her existing hair braiding business into a barber school.  That process would cost her over $20,000 and quadruple her current monthly rent.  In addition, Isis must comply with a long list of other unreasonable requirements, including:  (1) maintaining a facility with a minimum of 2,000 square feet of floor space;[14] (2) ensuring she has at least ten student workstations with reclining chairs, at least ten classroom chairs, an instructor’s desk, a back bar, mirrors and no less than five sinks;[15] (3) providing barbering textbooks to her students;[16] (4) requiring that each hair braiding student have thirteen separate “personal tools” for barbering and prohibiting them from taking classes unless they have them;[17] and (5) requiring that Isis’s hair braiding school purchase items that have nothing to do with hair braiding, including a wig, a hairpiece, and a hooded hair dryer.[18]

The barber school permit application even requires Isis to place signs on the front of her hair braiding school and on each interior wall that say “BARBER SCHOOL – STUDENT BARBERS,” which is literally false—she would not be teaching barbering and her students would not be student barbers.[19]

It is arbitrary and unreasonable for Texas to impose these requirements on African hair braiding instructors.  African hair braiders aren’t barbers, and braiding instructors shouldn’t be forced to build barber schools or take classes from barbers.

Legal Challenge:  The Constitutional Right to Earn an Honest Living

Isis Brantley has fought the state of Texas before, and she’s ready to fight them again.  That is why she is asking a federal court to vindicate her constitutional right to earn an honest living free from unreasonable government interference.  She has teamed up with the Institute for Justice and filed a lawsuit in the United States District Court for the Western District of Texas against the executive director of TDLR in his official capacity, and the commissioners on the Texas Commission of Licensing and Regulation in their official capacities.  Enforcement of Texas’s barbering occupational licensing laws and regulations by the state deny Isis her rights under the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment of the United States Constitution.

The Fourteenth Amendment protects economic liberty—the right to earn an honest living free from unreasonable government interference.  Texas’s licensing scheme violates this right.  Because Isis could teach exactly the same material in exactly the same way if she did so at a competing school, the law does not address any health or safety concerns.  Instead, the law arbitrarily forces African hair braiding instructors to obtain an unnecessary barber instructor’s license and meet Texas’s irrelevant standards for barber schools before they can teach the thirty-five hour hair braiding curriculum required by the government to students seeking to work as hair braiders.  That’s not just bad policy, it’s unconstitutional.

Occupational Licensing:  A Nationwide Problem

Unfortunately, Isis’s situation is just one illustration of a nationwide epidemic of occupational licensing.  By restricting entry into trades and professions, many occupational licensing laws needlessly cut off the bottom rungs of the economic ladder, particularly for people with little capital or few skills.  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.  In the 1950s, less than five percent of the workforce was required to obtain a government license to do their job.[20]  Today, that number exceeds 30 percent.[21]  The Institute for Justice report, “License to Work: A National Study of Burdens from Occupational Licensing,” shows that for lower-income Americans, these government-imposed “occupational licensing” hurdles are not only widespread, but often unreasonably high.

Research shows that occupational licensing laws make it more difficult for people—especially poor, minority, immigrant and older workers—to start or change careers, and these laws do little more than protect industry insiders from new competition.  Typically, licensing boards are composed of members of the regulated profession, with the coercive power of government at their disposal.  As a result, licensing requirements often have nothing to do with public health and safety, and everything to do with restricting 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.[22]

Litigation Team

IJ Attorney Arif Panju will lead the litigation team, assisted by Matt Miller, Executive Director for the Institute for Justice Texas Chapter.  IJ litigates across the country for economic liberty, private property rights, educational choice, free speech, and other vital liberties secured by the United States and state constitutions.

The Institute for Justice is the national law firm for liberty, and has successfully represented hair braiders and other entrepreneurs in state and federal lawsuit nationwide. For more on the Institute for Justice and its work, visit www.ij.org.

[1] See, e.g., Ariz. Rev Stat. § 32-506(10); Cal. Bus. & Prof. Code § 7316(d)(2).

[2] The 35-hour hair braiding license is now contained in Tex. Occ. Code § 1601.259, 16 Tex. Admin. Code §§ 82.20(h), 82.120(k).

[3] Tex. Occ. Code § 1601.002(1)(K).

[4] Tex. Occ. Code § 1602.002(a)(2) .

[5] Id. at § 1601.251.

[6] Id. at § 1601.259.

[7] 16 Tex. Admin. Code § 82.120(k).

[8] See Letter from Lynn Latombe,  Assistant General Counsel, Texas Dept. of Licensing and Regulation, to Isis Brantley (June 25, 2013) (on file with IJ-TX).

[9] Tex. Occ. Code §§ 1601.253(2), 1601.254(4)-(5); 16 Tex. Admin. Code §§ 82.20(c)-(d), 82.21(c)-(d), 82.120(b),(d).

[10] 16 Tex. Admin. Code § 82.120(d).

[11] Tex. Occ. Code § 1601.254(b).

[12] See 16 Tex. Admin. § Code 82.120(b).

[13] 16 Tex. Admin. Code § 82.21(c)-(d).

[14] Id. at § 1601.353(1)(A).

[15] Id. at § 1601.353(2), 16 TEX. ADMIN. CODE § 82.72(h)(9).

[16] 16 Tex. Admin. Code § 82.72(e).  The required courses include haircutting, shaving, shampooing, bleaching and dyeing hair, administration of facial treatments, scientific fundamentals of barbering, the laws governing the practice of barbering, hygienic bacteriology, and the history of the hair, skin, muscles, and nerves.

[17] Id. at § 82.72(f)(1)-(13).

[18] Id. At § 82.72(l).

[19] Tex. Occ. Code § 1601.553; see also Barber School Permit Application Instructions, Texas Department of Licensing (“Required Facilities and Equipment Checklist”).

[20]  Morris M. Kleiner, Licensing occupations: Ensuring quality or restricting competition, at 1 (Kalamazoo, MI: Upjohn Institute, 2006).

[21]  Morris M. Kleiner & Alan B. Krueger, Analyzing the Extent and Influence of Occupational Licensing on the Labor Market, NBER Working Paper Series #14979, available at http://www.nber.org/papers/w14979.

[22]  Walter Williams, The State Against Blacks (New York: McGraw-Hill, 1982), p. xvi.