If you want to braid hair for a living in Missouri, you must spend thousands of dollars on at least 1,500 hours of cosmetology training that teaches you nothing about African-style hair braiding. That’s far more time and money than it takes to become a licensed EMT in the state.
Joba Niang and Tameka Stigers have been braiding hair for much of their lives and each woman owns a successful hair braiding business. African hair braiding is a centuries-old natural hair care technique that uses no dyes or chemicals; it is safe for the braider to perform and does not hurt the person getting their hair braided. But Missouri wants to turn the two women into criminals.
Licensing schemes like Missouri’s are exploding across the country. In the 1950s, less than five percent of the workforce was required to obtain a government license to do their job. Today, that number is over 30 percent. There are now more than 1,100 different occupations that require a government license in at least one state.
No one should have to hire a lawyer or lobbyist just to braid hair. The right to earn an honest living is an essential part of our nation’s promise of opportunity.
On June 17, 2014, the Institute for Justice (IJ) filed a lawsuit against the Missouri Board of Cosmetology and Barber Examiners in the United States District Court for the Eastern District of Missouri to end the state’s hair braiding licensing scheme.
This case is one of three lawsuits IJ filed as part of its National Braiding Initiative. IJ’s very first case was an economic liberty challenge on behalf of African-style hair braiders to Washington D.C.’s cosmetology laws.
The art and foundation of African-style hair braiding traces back thousands of years. Today, thousands of people engage in the intricate crafts of braiding, twisting, weaving and locking natural styles. These distinct techniques are generally grouped together under the rubric of “natural hair care” because they do not use any chemicals or heat.
African-style hair braiding is an important form of cultural expression. Until very recently, the dominant standard of beauty had been defined in Western terms. Many black women (particularly professionals) have struggled to comport with this standard and often damage to their hair applying chemical straighteners and relaxers. Traditional African hairstyles geared toward the natural texture and beauty of black hair has steadily gained popularity. These hairstyles are a form of artistic, cultural and individualized expression, and the techniques avoid serious damage that can occur when hair is treated with artificial products.
African-style hair braiding is also a means for entrepreneurs to take the 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 the natural hair care industry 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. That means 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 some 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.
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, however, not only medical, legal and other highly specialized professions, but also professions for which entry restrictions serve no purpose. 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.
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 African-style hair braiding, create artificial barriers to entry for entrepreneurs.
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 resource-less,” among whom members of minority groups are disproportionately represented.
Ironically, the licensing laws that now restrict African-style hair braiders were put in place during the 1930s by hairdressers (today’s cosmetologists). At that time, they 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, subjecting everyone engaged in the care or styling of hair, skin or fingernails to their domination. Today, all 50 states require cosmetologists to be licensed.
Missouri’s cosmetology law is typical of licensing laws around the nation. The statutory scheme places regulation of all hairstyling under the control of the Missouri Board of Cosmetology and Barber Examiners. The Board is made up almost entirely of industry insiders.
Missouri treats African-style hair braiders as cosmetologists, which requires braiders to take at least 1,500 hours of prescribed training in a licensed cosmetology school and pass both a written and practical exam.
Cosmetology schools do not teach African-style hair braiding, and the licensing examinations do not test it. Missouri thus requires would-be braiders to take 1,500 hours of instruction—which can cost more than $16,000—none of which actually teaches how to braid hair.
The entire system creates a mismatch between regulatory objectives and reality. The Board’s active cosmetology licensing regime limits the lawful practice of African-style hair braiding to only those who are not required to know anything about African-style hair braiding, while precluding people, like Joba and Tameka, who are highly skilled in hair braiding from lawfully offering their services to the public.
The net effect is that Missouri’s cosmetology cartel blocks opportunities for entrepreneurs, forces consumers to pay more for worse service and does nothing to protect the public.
Many braiders and their customers are thus forced into an underground economy of “kitchen braiding.” Some consumers even travel to other states to get their hair braided. And those braiders who have tried to operate in the open have been repeatedly cited for the unlicensed practice of cosmetology, even though they do not provide cosmetology services. Just for braiding hair, braiders face fines of hundreds of dollars.
Joba Niang, originally from Senegal, emigrated from France in 1998 to pursue the American dream. Growing up she had learned to braid hair for family and friends. Upon arriving in St. Louis, Joba realized she could use her braiding skills to help support her growing family. For the past 13 years, Joba has successfully operated her own business providing critical financial stability for her family
The Board’s active enforcement of Missouri’s cosmetology regulations against African-style hair braiders has caused her to live in fear that she is only one visit away from losing her business and being unable to provide for her family. Joba cannot afford to spend 1,500 hours and thousands of dollars to comply with Missouri’s cosmetology training requirements, particularly when that training is irrelevant to African-style hair braiding. Joba believes it is only a matter of time before the Board attempts to shut her down.
Tameka Stigers is a Missouri native and a passionate advocate for natural hair care. Tameka had completed her Master’s in public health when she was inspired to change her career due to frequent requests to braid the hair of children in her neighborhood. Tameka undertook training to become a certified consultant in Sisterlocks, a proprietary African-style hair braiding technique developed by Dr. JoAnne Cornwell, and started a new career dedicated to providing a valuable service to her local community.
Since 2008 Tameka has successfully operated her business, Locs of Glory. In order to provide comprehensive service to her customers, Tameka has partnered with her two sisters, who have received cosmetology and barber training respectively, and moved to a new store-front location. Fearful that the Board will prevent her from offering her hair braiding services, Tameka had made plans to enter into a cosmetology apprenticeship, which requires at least 3,000 hours of training unrelated to the practice of African-style hair braiding. Tameka does not want to practice cosmetology and does not need to learn how to perform cosmetology services, but to avoid a criminal conviction and $300 fines Tameka needs to acquire a cosmetology license simply to braid hair.
Tameka’s African-style hair braiding business has made an important contribution to her community, particularly for interracial foster and adoptive parents who are often at a loss for how to care for textured hair and are unfamiliar with the cultural significance of natural hair care. Tameka wants to continue to advocate for natural hair care, provide African-style hair braiding and contribute to her local community. The Board’s enforcement of Missouri’s arbitrary and irrational cosmetology regime threatens entrepreneurs like Tameka and the communities they are committed to improving.
The defendants in this case are the Missouri government officials who enforce Missouri’s cosmetology laws against braiders like Joba Niang and Tameka Stigers. These officials, who are all sued in their individual official capacities, are Emily Carroll, Executive Director, Missouri Board of Cosmetology and Barber Examiners; Wayne Kindle, President, Missouri Board of Cosmetology and Barber Examiners; and the other members of the Board.
As explained in IJ’s forthcoming report about the legal status of braiding across the country, Untangling Cartels: Natural Hair Braiders’ Fight Against Economic Protectionism, far too many braiders are being subjected to onerous, irrational and unconstitutional licensing laws.
Twenty-four states do not have separate regulations for hair braiders. Instead, braiders are regulated as hairstylists, hairdressers or cosmetologists, resulting in onerous, irrational licensing requirements. These range from 1,000 hours of hairstylist instruction 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 have separate, but nonetheless 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 have created a separate license for hair braiders, but their requirements are manageable. Under these licensing regimes, a braider must complete, at most, one full week of coursework to obtain a license. The required instruction ranges from six hours in South Carolina to 35 hours in Texas.
Braiders are not required to obtain a license to work in only 11 states.
Thus, braiders in 34 states and the District of Columbia today labor under burdensome, irrational licensing laws. And in many of the remaining 16 states braiders had to fight the government for their freedom. The laws in Arizona, California, Minnesota, Mississippi, Utah, and Washington were changed only after braiders—represented by the Institute for Justice—sued. In other states, like Oregon, the laws were changed only after years of effort by braiders. While it is good that these states eventually changed their laws, no one should have to bargain with the legislature for the right to earn an honest living.
Joba Niang and Tameka Stigers are bringing their lawsuit under the 14th Amendment to the U.S. Constitution, specifically under the Due Process, Equal Protection and Privileges or Immunities Clauses. The 14th 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 14th 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’ rights 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 licensing requirements and public health and safety. But hair braiders do not threaten public health and safety and there is no justification for 1,500 hours and potentially more than $16,000 in tuition and fees for irrelevant cosmetology classes. In fact, in two other cases brought by the Institute for Justice, federal courts in California and Utah have already struck down similar laws under the 14th Amendment.
Joba Niang and Tameka Stigers are asking the court to declare that, under the Fourteenth Amendment, Missouri’s cosmetology licensing laws, as applied to hair braiders, violate the right to earn an honest living, 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 these women are asking the court to do in this lawsuit.
The litigation team consists of Institute for Justice Attorneys Dan Alban and Greg Reed, and assisted by local counsel Jerry M. Hunter of Bryan Cave.
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 Missouri’s regulation of braiders is one of three cases launched on June 15, 2014. IJ is also taking on Arkansas’ and Washington’s regulation of braiders. These three cases, part of IJ’s National Braiding Initiative, are just the most recent challenges on behalf of braiders. IJ has represented braiders in Washington, D.C., Ohio, California, Arizona, Washington, Mississippi, Minnesota, Utah, and is currently representing a braider and her school in Texas.
For more information, please contact:
Assistant Director of Communications
Institute for Justice
901 N. Glebe Rd
Arlington, VA 22203