Hairbraider to Utah Legislature: Don’t Put Me Out of Work Again

J. Justin Wilson
J. Justin Wilson · October 23, 2012

Arlington, Va.—Only two months after a federal judge ruled Utah’s hairbraiding licensing scheme unconstitutional, lobbyists for industry insiders are at it again in the legislature trying to close down entrepreneur Jestina Clayton’s hairbraiding business.

In August, in Clayton v. Steinagel, a case brought by the Institute for Justice (IJ), a federal court struck down Utah’s requirement that hairbraiders like Jestina spend thousands of dollars on 2,000 hours—one full year—of government-mandated cosmetology training. The Honorable David Sam of The U.S District Court for the District of Utah ruled, “Utah’s cosmetology/barbering licensing scheme is so disconnected from the practice of African hairbraiding, much less from whatever minimal threats to public health and safety are connected to braiding, that to premise Jestina’s right to earn a living by braiding hair on that scheme is wholly irrational and a violation of her constitutionally protected rights.” Judge Sam recognized that hairbraiders do not use chemicals, shampoo, cut or color hair, or do facials, shaves, esthetics, or nails.

But the same group of politically connected industry insiders who opposed Jestina’s successful lawsuit and insisted that 2,000 hours of training were necessary, are trying to persuade Utah legislators to pass a new law that would require hairbraiders to spend an unnecessary and burdensome 600 hours in unnecessary government-mandated classes. These insiders are claiming that the law would “protect the public,” but during the one-and-a-half years of legal proceedings, the defenders of the now-invalid licensing scheme could not produce a single piece of evidence showing that hairbraiders are a threat to the public.

“This new proposal was misleadingly pitched to the legislature as an ‘exemption’ for hairbraiders, but it is nothing of the sort,” said Paul Avelar, an attorney with the Institute for Justice and lead attorney in the successful Clayton lawsuit. “The bill’s industry-insider backers have also claimed the bill is a ‘compromise.’ Again, it is not. The Institute for Justice and all those who support the free market will fight this bill because it is just another crony-capitalism power grab by an industry group trying to prevent honest competition that would benefit consumers.”

“I’m deeply troubled that Utah might, once again, try to infringe my constitutional right to earn an honest living,” said Jestina Clayton, the long-time hairbraider who won her challenge against the state. “In my recent case, Utah could not prove that braiding causes any risk to public safety. Unfortunately, Utah cosmetology schools are trying to prevent competition and add to their profits by getting the government to set them up as the gatekeepers of a profession they know little about.”

Several states, including Arizona, California, Georgia, Maryland, Michigan and Washington, completely exempt hairbraiders from licensure. Other states, like Kansas and Mississippi, require only a simple test on sanitation and infection control techniques. Even Washington, D.C., which passed a law for a “specialty license” requiring 100 hours of training 20 years ago after the law was challenged by IJ, has never bothered to actually implement licensing for hairbraiders. In each of these jurisdictions, hairbraiders create jobs for themselves and provide much-sought-after services for consumers.

Avelar concluded, “This 600-hour proposal begs the question: Why is the Utah Legislature wasting their time trying to fix a problem that doesn’t exist? We urge them to leave the braiders alone and turn their attention to issues that actually matter.”

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