Washington Hair Braiding 2

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 do not use any chemicals, glues or other substances.

Hair braiding is an important form of cultural expression. Until very recently, the dominant standard of beauty was 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 the 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 their 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 not only the medical, legal and other highly specialized professions, however, 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. Today, that number exceeds 30 percent.i

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 is especially true for occupations that traditionally cater to those individuals who are just beginning their professional careers.

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.ii

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, hairdressers 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. Hairdressers were arrested in several states for violating the licensing laws. During that time, hairdressers organized their own trade association and sought to break the barbers’ monopoly through lobbying and litigation. 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 control. Today, all 50 states require cosmetologists to be licensed.

The Washington Department of Licensing and Its Efforts to Regulate Hair Braiders

Washington law does not explicitly regulate hair braiding.iii Nonetheless, last year two Department of Licensing inspectors visited Salamata’s salon and informed her that she can only continue braiding hair for compensation if she obtains a state cosmetology license. The inspectors issued Salamata a form that ordered her to obtain a cosmetology-operator license and a salon-shop license.iv

Eight years earlier, however, the Department publicly announced that hair braiding does not require any form of cosmetology license, issuing a statement that reads in part:

The Department of Licensing has carefully considered the practice of natural hair braiding. Natural hair braiding does not include hair cutting, application of dyes, reactive chemicals or other preparations to alter the color of the hair or to straighten, curl or alter the structure of the hair and therefore does not meet the requirements for licensure as set forth in RCW 18.16.v

The Department made this announcement in response to another lawsuit filed by African hair braider Benta Diaw, who sued Washington’s cosmetology officials in King County Superior Court with help from IJ.vi As a Department official explained in Ms. Diaw’s case, “natural hair braiding does not and will not require a cosmetology or barbering license.”vii

That should be enough to allow hair braiders to practice their art without fearing government regulators. But now the Department is backing off its earlier position by claiming that Salamata’s practice of African hair braiding is not “natural hair braiding.”viii Despite efforts to understand the Department’s position, the Department will not say what makes Salamata’s practice of African hair braiding (which it says requires licensure) materially different from Ms. Diaw’s practice of African hair braiding in 2005 (which it said did not).

The Department has verbally suggested to Salamata that her use of extensions to weave into customers’ natural hair means that she is not practicing “natural hair braiding.” However, weaving also does not involve cutting, curling, dyeing, gluing or treating hair any more than braiding natural hair does—if the law cannot regulate one, it cannot regulate the other. Moreover, extensions are an important part of hair braiding. Many, if not most, customers want them, and virtually all braiders provide them. Regardless of the Department’s reasons, however, the end result is clear: Salamata must obtain a cosmetology license.

The Washington Department of Licensing needs to stop playing games with hair braiders’ livelihoods and keep its word.

The Irrational Burdens of Cosmetology Licensure

Washington state requires 1,600 hours of cosmetology training, followed by successfully passing two examinations—one written and one practical—to become a licensed cosmetologist. State law and the Department’s regulations determine what cosmetology schools must teach and what content must be covered on the licensing examinations.

The state’s insistence that Salamata obtain a cosmetology license is ironic, however, because while the Department treats African hair braiding as if it were cosmetology, the Department’s cosmetology curriculum does not require cosmetology schools to teach African hair braiding, natural hair care, braiding, twisting, cornrowing, weaving, locking or any other aspect of the unique needs of African or textured hair. Nor does the licensing examination test African hair braiding or natural hair care techniques and the Department does not require schools to test students on African hair braiding.

On the other hand, successfully completing the cosmetology examinations requires extensive knowledge of conventional cosmetology practices that are contrary to the practices, principles and cultural foundations of African hair braiding.

Thus, under the Department’s illogical interpretation of Washington law, someone like Salamata, who is highly skilled in African hair braiding, may not practice hair braiding for pay without a cosmetology license, while at the same time, a person with a cosmetology license is allowed to practice hair braiding although nothing guarantees that licensees know the first thing about hair braiding.

Put another way, the Department’s interpretation of state law has the perverse effect of limiting the lawful practice of African hair braiding only to those who are not required to know anything about African hair braiding, while precluding people like Salamata, who are highly skilled in hair braiding, from lawfully offering their services to the public. The Department’s interpretation will thus drive skilled African hair braiders underground, meaning that hair braiders will not advertise to the general public, expand their businesses or hire employees without fear of enforcement. Because these normal competitive forces are squelched, customers will not be able to find hair braiders that they would otherwise find and will end up paying more for hair braiding than they otherwise would.

The end result is bad for both hair braiders and consumers: Washington’s cosmetology licensing program will result in a shortage of lawful options for consumers who wish to purchase African hair braiding services. The practical consequences of this regime will be that the vast majority of licensed cosmetologists may not offer African hair braiding services and, if a licensed cosmetologist does braid, she can charge large fees because of a lack of lawful competition. The Department’s rules will thus result in fewer, more expensive choices with no corresponding improvement in public health or safety.

Braiding Licensing Laws Nationwide

The Department’s interpretation is, unfortunately, consistent with cosmetology licensing laws across the country.

As explained in a forthcoming IJ 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 to 35 hours in Texas.

State law does not require braiders to obtain a license to work in only 11 states: Arizona, California, Connecticut, Georgia, Kansas, Maryland, Michigan, Mississippi, Utah, Virginia and Washington. As this case shows, however, overly aggressive bureaucrats can interpret even clear laws to cover braiders when they do not.

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, and Utah were changed only after braiders, with the help of IJ, 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.

The Plaintiff

Salamata “Sally” Sylla is originally from Senegal. She moved to the United States in 1999 in search of economic opportunities and a better life. Salamata has been braiding hair since she was a girl. She learned hair braiding the way many African girls do—by practicing on her family, friends and herself.

Salamata learned the business of hair braiding in New York City, at her sister’s Harlem salon. There she taught herself African-American hairstyles, improved her English-language skills and learned how to run a successful hair braiding business.

In March 2005, Salamata moved to Renton, Wash. and began working in a Seattle hair braiding salon. Salamata recently relocated to Kent, Wash., where she raises her three children as a single mom.

In 2012, Salamata opened her own salon, Sally’s Africain Hair Braiding, in Kent. (Salamata and other Senegalese prefer to use the French spelling, “Africain.”) Salamata exclusively practices African hair braiding. She does not cut hair. She does not curl hair. She does not use any chemicals, adhesives or dyes. She does not apply makeup or nail polish. The only thing that Salamata does is African hair braiding. African hair braiding is the only service available at her salon.

The Defendants

The defendants in this case are the Washington government officials who are tasked with interpreting and enforcing Washington’s Cosmetology Act. These officials, each of which is sued in their official capacity, are Patricia Kohler, Director, Washington Department of Licensing, and Susan Collard, the Administrator of the Washington State Department of Licensing’s Cosmetology Program.

Legal Claims—The Right to Earn an Honest Living

Salamata is bringing this 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 protecting public health and safety. But there is no threat to public health or safety presented by braiding hair—and certainly not any threat that justifies spending 1,600 hours and thousands of dollars in irrelevant cosmetology classes. Nor does the Fourteenth Amendment permit the government to make irrational distinctions between braiders who weave in extensions and those that do not. In two other cases brought by the Institute for Justice, federal courts in California and Utah have already struck down restrictions on hair braiding under the Fourteenth Amendment.ix

Salamata is asking the court to declare that, under the Fourteenth Amendment, the Department’s interpretation of Washington’s Cosmetology Act, as applied to her, 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 their chosen occupation free from arbitrary and irrational government regulations. But this constitutional right is meaningless unless courts enforce it. That is what Salamata is asking the court to do in this lawsuit.

Litigation Team

The litigation team consists of Institute for Justice attorneys Wesley Hottot and Bill Maurer.

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 Washington’s regulation of braiders is one of three cases IJ launched on the same day as part of its new National Braiding Initiative. IJ is also taking on Missouri’s and Arkansas’ regulation of braiders. These three cases are just the most recent challenges on behalf of braiders. IJ has represented braiders in Washington, D.C., Ohio, California, Arizona, Washington, Mississippi, Minnesota and Utah, and is currently representing a braider and her school in Texas.

For more information, please contact:

Nico Perrino Communications Coordinator Institute for Justice 901 N. Glebe Rd # 900
 Arlington, VA 22203-1854 [email protected] (703) 682-9320 x 254

i 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.

ii Walter Williams, The State Against Blacks, xvi (1982).

iii Specifically, Washington regulates the “practice of cosmetology.” That is defined as the “arranging, dressing, cutting, trimming, styling, shampooing, permanent waving, chemical relaxing, straightening, curling, bleaching, lightening, coloring, waxing, tweezing, shaving, and mustache and beard design of the hair of the face, neck, and scalp; temporary removal of superfluous hair by use of depilatories, waxing, or tweezing; manicuring and pedicuring, limited to cleaning, shaping, polishing, decorating, and caring for and treatment of the cuticles and nails of the hands and feet, excluding the application and removal of sculptured or otherwise artificial nails; esthetics limited to toning the skin of the scalp, stimulating the skin of the body by the use of preparations, tonics, lotions, or creams; and tinting eyelashes and eyebrows.”

iv Inspection Form dated June 25, 2013.

v Department of Licensing Interpretative Statement COS1.

vi Order Granting Defendants’ Motion to Dismiss/for Summary Judgement in Diaw v. Stephens, et al., No. 04-2-19698-1 SEA (Mar. 11, 2005).

vii Declaration of Trudie Touchette ¶ 6 in Diaw v. Stephens, et al., No. 04-2-19698-1 SEA (Mar. 11, 2005).

viii Letter from William Maurer to Pat Kohler, July 26, 2013: Ltr. from Susan Colard to William Maurer, Oct. 16, 2013.

ix Cornwell v. Hamilton, 80 F. Supp. 2d 1101 (S.D. Cal. 1999) and Clayton v. Steinagel, 885 F. Supp. 2d 1212 (D. Utah 2012).