A federal judge this week admonished Texas for setting up “irrational” licensing rules for teaching Senegalese hair art, meaning that African hair-braider Isis Brantley can now open a small community braiding school in Dallas without first becoming a barber.
In response to a 2013 lawsuit, US District Judge Sam Sparks said the state was wrong to force Ms. Brantley, founder of the Institute of Ancestral Braiding, to take hundreds of hours of irrelevant classes and buy expensive equipment she would never use in order to set up a hair-braiding school. The braid guru had planned on using a few chairs at a community center, since neither sinks nor traditional hair-salon stations are necessary for twisting and braiding hair.
In short, the judge, hearing the first-ever federal hair-braid school case, found that “it’s unconstitutional to require people to do useless things,” as Brantley’s attorney, Arif Panju, put it in a statement.
In a country where former Labor Secretary Robert Reich concluded recently that a college degree has become a prerequisite for joining the middle class, the ruling is part of a nascent pushback to burdensome certifications. Small entrepreneurs and business owners are going to court to protest what they call prohibitive, unfair, and even politically motivated licensing restrictions that they claim squelch entrepreneurialism and hurt upward mobility for the poor.
Flower-arrangers in Louisiana, food truck chefs in Chicago, and pet masseurs in Arizona have sued in recent years over licensing regulations that are in place with an eye on public health and safety. At the same time, most licensing frameworks are built by legislatures after lobbying from industry groups, which sometimes use such licensing as “the fence around their occupation,” as Dick Carpenter of the Institute for Justice, a legal advocacy group, said last year to the National Journal.
Thirty-nine states prohibit braiders from working without a license, and requirements range from a few hours of instruction to as many as 2,100. Critics argue that some such state certifications are unconstitutional based on “the principle that the government must be required to justify its restrictions on liberty, rather than requiring citizens to prove that the liberty they wish to exercise is somehow ‘fundamental’ and therefore not an optional gift from government,” as Washington Post columnist George Will wrote in 2011.
To be sure, the lawsuits – many of which have been filed on behalf of entrepreneurs by the Institute for Justice, which was founded in 1991 with seed money from billionaire Charles Koch – have their own political backdrop in a country arguing more broadly about the proper scope of government.
Brantley has fought for 20 years to open her school. A stylist for stars like songer-songwriter Erykah Badu, she was arrested in 1997 for operating a braid shop without a barber license. She helped change Texas law in 2007 to allow people to do that, but has been blocked in her attempts to establish a hair-braid school.
At trial, lawyers for the Texas Department of Licensing and Regulation cited a 1955 US Supreme Court case – Williamson v. Lee Optical – where the justices ruled that “it is for the legislature, not the courts, to balance the advantages and disadvantages” of new requirements, and where “the law need not be in every respect logically consistent with its aims to be constitutional.”
Arguing for a five-sink minimum requirement in a school where hair isn’t washed, the state maintained that it “relates to the health and safety purpose of the Barber Act by ensuring [students will have access] to a sink necessary for disinfecting protocols” demanded by rules governing “hair braiding instruction and practice.”
Judge Sparks, however, disagreed, saying the state’s argument “does not make sense” since “braiders can satisfy Texas sanitation standards for their hands through use of liquid hand sanitizer alone.”
Several states that have faced complaints about failing to distinguish between cosmetology and hair braiding have loosened regulations for braiders. Mississippi once required braiders to undergo hundreds of hours of cosmetology classes, but it now requires just a $25 fee and a self-guided computer test for a hair-braiding license.