Last month, at a press conference at her shop on West Markham, Christine McLean braided Nivea Earl's hair.
Because McLean is not a licensed cosmetologist, doing this simple act for compensation violates Arkansas law. "One of the more amusing forms of civil disobedience," said J. Justin Wilson, spokesman for the Institute for Justice (IJ), a Virginia-based national libertarian law firm.
McLean and Earl are plaintiffs in a lawsuit — the occasion for the press conference — filed last month in U.S. District Court in Little Rock by IJ, alleging that the licensing requirements for natural hair braiders in the state are unconstitutional. Those rules require that hair braiders get a license in cosmetology, which requires 1,500 hours of training (hair braiding itself is not included in the curriculum).
It's the second federal lawsuit IJ has filed against a state agency in Arkansas this year. In May, the law firm sued the state Board of Dental Examiners on behalf of Dr. Benjamin Burris and Dr. Elizabeth Gohl, orthodontists who want to offer low-cost teeth-cleaning. Though they are licensed dentists, state law does not allow specialists like orthodontists to do basic dental work.
The hair-braiding lawsuit is part of a national initiative by IJ, which filed suit on behalf of hair braiders in Washington and Missouri, along with Arkansas, on June 17. The firm has previously brought hair-braiding lawsuits in eight other states plus the District of Columbia, and it has a track record of success: two victories in court and six wins via legislative fixes in response to the lawsuit, with a ninth case still pending.
IJ has waged legal battles against occupational licensing regimes it believes to be irrational or overly burdensome since the firm was founded in 1991. In addition to hair braiding, it's contested licensing requirements for coffin-making, transportation, tax preparation and interior design, among others. The firm argues that licensing laws and regulations are often more about limiting competition and backing the financial interests of current stakeholders than protecting the public.
"When IJ launched, our very first case was a hair-braiding case, representing a couple in Washington, D.C., running a hair-braiding salon," said Paul Avelar, IJ's lead attorney on the Arkansas hair-braiding case. "One of our pillars here at IJ is defending economic liberty — that is the right to earn an honest living, free from irrational government regulation. And the hair-braiding case was perfect."
IJ's suit against the state Department of Health and the Cosmetology Technical Advisory Committee, which enforce the state laws governing cosmetologists, alleges that the licensing requirement for hair braiders violates the 14th Amendment of the U.S. Constitution. Under current jurisprudence, the government must have a rational basis for a licensing regime (IJ believes this "rational basis test" is actually not stringent enough for these sorts of cases, but has had success arguing to the courts that states have no rational basis for mandating that natural hair braiders complete intensive cosmetology training).
"The only legitimate reason to license an occupation is to protect public health and safety," Avelar said. "That's it. So the question is, in any case where the government imposes these licenses, what is being regulated and how is it being regulated? There are some things, like hair braiding, that are so safe and common that the government really has no business licensing them."
The lawsuit defines "natural" or African-style hair braiding as "braiding, locking, twisting, weaving, cornrowing, or otherwise physically manipulating hair without the use of chemicals that alter the hair's physical characteristics ... typically performed on hair that is physically unique, often described as 'tightly textured' or 'coily' hair." Rooted in traditional African techniques, the practice is increasingly popular in the United States, particularly in African-American communities.
In addition to the 1,500 hours classroom time at a state-sanctioned cosmetology school, to legally operate a hair-braiding business in Arkansas, braiders must pass two exams before they can be licensed as cosmetologists. IJ attorneys point out that this is significantly more training than is required of emergency medical technicians or firefighters. More to the point, none of the training in cosmetology schools includes anything at all about hair braiding (and the two exams don't test it). Completing the necessary year-long training to get a license can cost more than $17,000, according to the lawsuit.
The requirements for cosmetology schools include 80 hours for hygiene and sanitation, 120 hours of related science (including physiology, anatomy, neurology and cosmetricity — related to electricity used in cosmetology); 1,000 hours for hair dressing (including shampooing, haircutting, clipping, singeing, dying, bleaching, permanent waving and chemical relaxing); 100 hours for manicuring, and 100 hours for skin aesthetics. The plaintiffs argue that the training that cosmetologists undertake has no relevance to hair braiding, either in terms of technique or in terms of health and safety concerns. Hair braiders, they note, use only their hands and combs.
"Natural hair braiding is a practice that goes back 5,000 years," Avelar said. "It's time-tested proven safe. It uses no chemicals, straighteners or dyes — nothing that can really harm a person's hair."
According to IJ, Arkansas is one of 24 states that require braiders to get a full-blown cosmetology license with at least 1,000 hours of training. Other states have a less burdensome licensing regime, requiring 100 to 600 hours; some require just 8 to 35 hours; 11 states don't require a license for hair braiding at all.
McLean emigrated to the United States in 1998 from the Ivory Coast, where she learned traditional hair braiding as a child. She has been a professional hair braider for 16 years — first in Florida, where she got a hair-braiding license after 16 hours of training, and then in Missouri. Her Little Rock shop, Labelle Professional African Hair Braiding, has been open for three years and her business is otherwise in good standing with the state (she pays $150 per year for a salon license). Twice, when inspectors from the state Department of Health visited her shop, she was fined for braiding without a cosmetology license. The fines totaled almost $1,850. Other than that, the inspectors found no problems and complimented the cleanliness of her shop. The fines have escalated, and under the law, the Department of Health could shut down her shop, and McLean could face up to 90 days in jail.
Earl, the other plaintiff in the case, just opened up her Jacksonville shop — Twistykinks — in April.
"I've been hair braiding for about 16 years, since I was a girl," Earl said. "I saved up my money to step out on faith and open my own business. Braiding is my life and my passion. ... I think it's just ridiculous that the Cosmetology Board requires us to have a cosmetology license when they don't teach or test hair braiding."
Both McLean and Earl said that in addition to concerns about the time and expense of going to cosmetology school, they were uncomfortable handling the harsh chemicals involved.
Department of Health Cosmetology Section Director Kelli Kersey and the department's legal counsel, Elizabeth Pitman, both declined to comment, citing the pending lawsuit, which is being handled by the attorney general's office. The AG's office also declined to comment.
However, the Cosmetology Technical Advisory Committee — a seven-member board charged with helping the Department of Health regulate cosmetology and made up of licensed cosmetologists, cosmetology school owners and others in the cosmetology industry — has discussed potentially easing the requirements for natural hair braiders at meetings over the past year, and Pitman has noted the potential legal issues.
"What we have now ... is hair braiding falls under cosmetology and I don't think that too many of us sitting on the board think that the way it should stay," Pitman said at a CTAC meeting last March, according to the minutes. "I don't think anybody thinks we should leave [it] to where you have to get 1,600 hours for hair braiding."
At the same meeting, Pitman added, "The courts are finding that ... finding hair braiding to be part of cosmetology is not reasonable. It's not rational. ... So without question I can't sit here today and tell you that we should leave it the way it is. We can't do that. The question is, what can we do?"
Avelar said he was hopeful the state would change the regulations. "I think the Department of Health and the cosmetology board understand that there is a problem here," he said. "But understanding there is a problem and moving quickly enough to alleviate that problem are two different things."
The other IJ case in Arkansas involves the Dental Practice Act. State law disallows dental specialists from practicing outside of their specialty. Dr. Benjamin Burris, a Fort Smith-based orthodontist, ran afoul of this law when he began offering low-cost basic dental care (cleanings, X-rays and exams) at a number of offices he owned in Northeast Arkansas in June of last year. Burris, a licensed dentist who went through additional training to become a licensed orthodontist as well, supervised licensed dental hygienists and charged $69 for kids and $99 for adults, less than half the amount dentists in the state typically charge for those services, according to Burris. He said that he started the program both to increase access to care for lower-income Arkansans and to attract potential new patients.
After dentists complained to the state Dental Board, Burris was called before the board for a hearing in September. After being told that both his licenses would be in jeopardy otherwise, Burris signed a consent order not to offer dental cleanings.
"Even though I'm a licensed dentist who went on for three more years of formal training at dental school, I'm not allowed to do the most basic services, supervising a licensed hygienist," Burris said. "The law says that as a specialist, I'm not allowed to practice out of my specialty. They don't want competition, they don't want downward forces on prices. The Dental Board for years has protected the primary care dentists' business and profit. Instead of looking out for the public good, they look out for the dentist. That's the way it's always been done. And their answer to this is, 'Well, that's the law.' "
Burris is particularly frustrated because while specialists — licensed dentists who had additional training — are disallowed from doing basic dental work, dentists are free to do specialty work, including orthodontics, oral surgery, dental radiology or pediatric dentistry.
Burris contacted IJ late last year and the firm agreed to take the case, filing suit in U.S. District Court in May.
"Ben Burris is a dentist in good standing with the state of Arkansas," said Matt Miller, the lead IJ attorney on his case. "The government has no interest in protecting the health and public safety from preventing a licensed dentist from supervising licensed dental hygienists from cleaning teeth."
The lawsuit has gotten some pushback from dentists in the state. A moveon.org petition started by Arkansas dental professionals defending the Dental Practice Act and the restrictions on specialists has gotten more than 300 online signatures.
Billy Tarpley, the executive director of the Arkansas State Dental Association, said that the association "supports the Dental Practice Act." Tarpley said that the law had evolved over time with input from the various relevant stakeholders, including specialists like orthodontists. He had no comment on the lawsuit or the particular rules regarding specialists.
Officials from the Dental Board, as well as its legal counsel, declined to comment, citing the pending lawsuit. The lawsuit is being handled by the attorney general's office, which filed a motion to dismiss in June; the attorney general's office otherwise declined to comment on the case.
Could other state regulations in Arkansas come up for legal challenge? It's possible. A 2012 report by IJ found that the state ranked second in the nation in what IJ considers overly burdensome licensing requirements.
"Part of the big-picture strategy is to use these lawsuits as examples of what can happen when we let occupational licensing get out of hand," Avelar said. "If people in Arkansas or if legislators and executive branch officials in the state see these cases and take steps to fix the particular situation, that's good. What's better is if they move to address the larger problem — to pay much closer attention to the regulations they're passing so that these sorts of problems don't happen in the future."
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