Since the advent of hair braiding more than 5,000 years ago, it has been a simple and safe practice that government has no business regulating. African-style hair braiding uses no dyes or chemicals, and it is safe for braiders to perform and safe for the people getting their hair braided. But in most states, if you want to braid hair for a living, you need to get permission from the government first.
Hair braiding is a time-tested, safe practice that is deeply rooted in African cultural heritage and carries with it significant historical importance. But across the country, state governments make it illegal for braiders to make money from their braiding skills unless they first spend thousands of dollars and attend hundreds, if not thousands, of hours of government-mandated cosmetology training. To add insult to injury, this training typically does not even teach them to braid hair, but does require them to learn totally irrelevant things.
The Constitution protects citizens’ right to earn an honest living without unreasonable government interference. Government can’t license something as safe and common as braiding hair, especially when cosmetology training does not teach or test braiding, but instead requires hundreds of hours of instruction that is completely unrelated to braiding.
That is why on June 17, 2014, the Institute for Justice (IJ) launched its national Braiding Initiative by filing lawsuits challenging onerous and anti-competitive hair braiding regulations. This Initiative is just IJ’s latest effort on behalf of braiders. From its beginning, IJ has represented African hair braiders and has repeatedly defeated license requirements like these to free braiders across the country to pursue their American dream. IJ’s Braiding Initiative seeks to continue to increase braiding freedom and economic liberty nationwide.
The ramifications this Initiative extend far beyond braiding. Occupational licensing laws in all 50 states restrict entry into hundreds of professions. 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. There are now more than 1,100 different occupations that require a government license in at least one state.
Research demonstrates that occupational licensing laws, such as those governing hair braiding, create artificial and unnecessary barriers to entry for entrepreneurs seeking to take their first step on the economic ladder. That’s especially true for occupations that traditionally cater to individuals just beginning a professional career. The right to earn an honest living is an essential part of our nation’s promise of opportunity.
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 are generally grouped together under the rubric of “natural hair care” because they do not use any chemicals or other artificial hair styling techniques.
Hair braiding is an important form of cultural expression. Until very recently, the dominant standard of beauty had been 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 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 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, 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.
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 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. 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 hair braiding, create artificial barriers to entry for entrepreneurs. That’s especially true for occupations that traditionally cater to individuals just beginning a professional career.
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 are disproportionately represented.
As explained in IJ’s forthcoming 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 the District of Columbia, 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.
Braiders are not required to obtain a license to work in 11 states: Arizona, California, Connecticut, Georgia, Kansas, Maryland, Michigan, Mississippi, Utah, Virginia and Washington.
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, Utah, and Washington were changed only after braiders, with the help of the Institute for Justice, 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.
IJ represents two lifelong braiders—Nivea Earl and Christine McLean—who each own their own braiding business. Arkansas treats braiders as cosmetologists, and thus requires braiders to obtain a cosmetology license before braiding. This license requires a minimum of 1,500 hours of prescribed training at approved cosmetology schools, two examinations and other requirements. But cosmetology schools in the state do not teach natural hair braiding and the licensing exams do not test it. Thus, Arkansas requires would-be braiders to spend as much as $20,000 to take hundreds of hours of totally irrelevant instruction, just to braid hair.
Nivea and Christine offer natural hair care services to their loyal customers and want to continue to practice their craft freely and without fear of government retribution. To free themselves and other braiders in Arkansas, they have joined with IJ to challenge Arkansas’s braiding licensing laws.
Like in Arkansas, IJ has joined with braiders and successful business women with years of experience—Ndioba “Joba” Niang and Tameka Stigers—who are being threatened by Missouri’s braiding regulations. Joba and Tameka want to continue to support themselves and their families though their passion for African-style hair braiding without having to skirt state laws, being crushed by fines, or wasting their time and money on irrelevant “training.”
Missouri requires braiders to have a cosmetologist license. This means that braiders have to take at least 1,220 hours of government-mandated cosmetology training. Cosmetology training can cost more than $16,000, and yet not one hour of training will actually teach students natural hair braiding. Braiders also have to pass two exams which are irrelevant to natural hair braiding.
In 2005, as the result of an IJ lawsuit, the Washington Department of Licensing declared that because 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,” natural hair braiding did not require a license. In 2013, however, the Department of Licensing warned Salamata Sylla, a lifelong braider and business owner, that she needed to obtain a cosmetologist license to continue her braiding business.
If allowed to stand, the Department of Licensing’s unexplained about face—without notice or explanation—means that braiders in Washington will once again have to get a cosmetology license just to braid hair. A Washington cosmetology license requires braiders to complete 1,600 hours of cosmetology training and pass two exams, even though the training and the exams neither teach, nor test, natural braiding.
Salamata is no different than any other natural braider in Washington, and a threat to her is a threat to all braiders. Salamata and IJ have teamed up to protect her right to continue her business and to protect all Washington braiders from the Department of Licensing’s nonsensical change of heart.
These cases seek to vindicate the right to earn an honest living protected by the Due Process, Equal Protection and Privileges or Immunities Clauses of the Fourteenth Amendment to the United States Constitution. 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’ 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 the restrictions in question and public health and safety. But there is no threat to public health or safety presented by braiding hair—and certainly not any threat that can justify hundreds, if not thousands, of hours of irrelevant cosmetology classes that can cost $20,000 or more. 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 Fourteenth Amendment.
IJ is asking the federal courts in Arkansas, Missouri, and Washington to declare that, under the Fourteenth Amendment, the challenged licensing schemes violate braiders’ rights 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 her 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.
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.
These three cases are just the most recent IJ has brought on behalf of braiders nationwide. IJ has also represented braiders in the District of Columbia, Ohio, California, Arizona, Washington, Mississippi, Minnesota, Utah and is currently representing a braider and her school in Texas.
For more information, please contact:
J. Justin Wilson
Director of Communications
Institute for Justice
901 N. Glebe Rd # 900
Arlington, VA 22203-1854
(703) 682-9320 x 206