WASHINGTON—Can the government make you spend tens of thousands of dollars on a thousand or more hours of job training, even though it admits that the training is almost totally irrelevant to your job? Common sense—and American constitutional history—says no. But, splitting with that history of legal decisions, the United States Court of Appeals for the 8th Circuit said yes. On Wednesday, the Institute for Justice (IJ) filed a petition for certiorari with the U.S. Supreme Court asking the court to address the conflicts created by the 8th Circuit’s ruling on behalf of Ndioba “Joba” Niang and Tameka Stigers—two St. Louis-area African-style hair braiders whose livelihoods are threatened by a nonsensical Missouri law.
Natural, African-style hair braiding is a centuries-old practice that uses no dyes, chemicals or heat treatments. Braiders do not even cut hair, let alone offer other services found at cosmetology salons or barber shops. But unless you have a cosmetology or barber license, you cannot legally braid hair in Missouri. A cosmetology license requires 1,500 hours of training at a cosmetology school and a barber license requires 1,000 hours of training at a barber school. The average cost of cosmetology or barber school is more than $12,000 and can cost more than $21,000.
But Missouri admits that these licenses are almost totally irrelevant to braiding. Braiding is a different occupation than cosmetology and barbering. And Missouri admits that at least 1,400 of the required 1,500 hours of cosmetology training—and 895 of the required 1,000 hours of barber training—are totally irrelevant to braiding.
“I should not need a license in a completely different occupation to braid hair,” said Joba, who has offered braiding services in the St. Louis suburb of Florissant since 2001. “I have been braiding hair without complaints for decades to provide for my family. I cannot afford to spend tens of thousands of dollars and months of my life learning about techniques that I don’t need and dangerous chemicals that I refuse to use.”
“Requiring African-style hair braiders to get a cosmetology license is unconstitutional,” said Dan Alban, an attorney with the Institute for Justice, which has represented the braiders in the case since 2014. “The U.S. Constitution protects every individual’s fundamental right to earn an honest living free from arbitrary and irrational government regulations like these.”
But the 8th Circuit ruled otherwise in January. Even though the court recognized that the required licenses had little, if anything, to do with braiding, the court ruled that Missouri was free to impose “a needless, wasteful requirement” on braiders if any small part of the licensing scheme is potentially relevant to braiding.
The 8th Circuit’s decision is at odds with two nearly identical federal cases in California and Utah, where courts struck down similar laws for violating the U.S. Constitution. But the 8th Circuit ignored those cases because of a split between the U.S. Circuit Courts regarding the right to earn an honest living. Some courts evaluate whether a law that restricts the right to earn an honest living is irrationally burdensome. Other courts, like the 8th Circuit here, refuse to.
“The ruling in Missouri highlights what happens when courts ignore the facts and rubber-stamp harmful government regulations. Courts cannot abdicate their constitutional responsibility to protect the right to earn an honest living,” said IJ Senior Attorney Paul Avelar, who oversees IJ’s Braiding Freedom Initiative.
“The 8th Circuit’s decision conflicts with decisions from other federal circuit courts, braiding decisions from other federal courts, and decisions from the U.S. Supreme Court itself,” added Alban. “The Supreme Court should take this case to address these conflicts and protect the fundamental American right to earn an honest living.”