The scales of justice have tilted in favor of the liberty and the little guy. With his ruling from the US District Court of Utah, Judge David Sam has found that the Utah law that prevented Jestina Clayton from braiding hair for a living was unconstitutional under the Privileges and Immunities clause of the Fourteenth Amendment.
Last year, I looked at Big Hair, the “hair-stylist industrial complex,” arguing that they were working to limit competition and prevent African hair braiders from braiding hair, specificallyJestina Clayton, an immigrant with decades of experience with the traditional art.
Big Hair had lobbied for, and obtained, regulations that required an enormous amount of training, just to braid hair. As I wrote then:
Qualifications for that license include submitting an application, a fee, “good moral character” (whatever that means for a hair braider), and evidence of 1,000 hours of instruction, 2,000 hours of practice and graduation from an accredited school.
In that same amount of time that it takes to get your license, the Institute for Justice argues, ” a person also could qualify to be an armed security guard, mortgage loan originator, real estate sales agent, EMT and lawyer—combined.”
The effect is to keep competition out of the market and require hair braiders to attend an expensive, and unnecessary, training program run by Big Hair members.
Looking at the Utah regulation–the Utah Barber Cosmetologist/Barber,Esthetician, Electrologist, and Nail Technician Licensing Act, or “the Act”–Judge Sam recognized that the state has the right to regulate a profession “but any qualification must have a rational connection with the applicant’s fitness or capacity” to engage in the chosen profession. Further, “a state may not “treat persons performing different skills as if their professions were one and the same, i.e., . . . attempt to squeeze two professions into a single, identical mold, because this results in standards of qualification that have no rational connection to a person’s actual profession[.]” Ostensibly, the Act was created to protect the public’s health, but, said Judge Sam, most of the law does not apply to Clayton’s practice of African hair braiding.
- Of the 2000 hours of instruction required by law, 1,400 to 1,600 hours are inapplicable to African hair braiding.
- The course taught by cosmetology schools may not even cover African hair braiding at all, more than minimally.
- Textbooks used are more than 1,700 pages long, but only 38 pages mention braiding, let alone African hair braiding.
- Utah admits that the practical examination to obtain a cosmetology license does not mention African hair braiding, nor does it know if the written exam includes it.
- Last, and this is a kicker: Utah admitted that it had never considered African hair braiding as a danger to public health.
In short: the “ facts demonstrate an insufficient rational relationship between public health and safety and the actual regulatory scheme as applied” to Clayton.
Can you say “bureaucratic overreach” with me?
I must be honest. I feel bad for the attorney who was required to defend the law on behalf of the state. It’s a dumb law as it pertains to African hair braiding, and the attorney must have recognized as much.
While Judge Sam limited his ruling to apply only to Clayton and her African hair braiding, the ruling is an important win for the right for one to pursue a livelihood free from arbitrary, excessive, and irrational government regulation. Are there other areas where government regulation in a “nanny state” guise is preventing the free pursuit of one’s livelihood? Likely, and Judge Sam’s ruling is a refreshing reminder that government regulation can be rolled back.
- Hair braider wins lawsuit challenging Utah rules (thegrio.com)
- Hair Braider Wins Weird Battle Against Utah (huffingtonpost.com)
- Hair braider wins lawsuit challenging Utah rules (abc4.com)
- Another Economic Liberty Victory for the Institute for Justice (volokh.com)