Litigation Backgrounder

            To say Mississippi state bureaucrats are wigging out over Melony Armstrong’s Tupelo business is an understatement.  Government agents have decided that Melony’s profession is so dangerous and difficult that she needs 3,200 hours of classes—about three academic years of school—to teach others her trade.  Is she trying to teach future paramedics or nurses?  No.  She wants to teach African-style hairbraiding.

            Welcome to the tangled mess of cosmetology licensing in Mississippi.  Hairbraiders—and those that want to teach braiding—must be licensed, but Mississippi offers no licenses specifically for braiding or for braiding instruction.  Instead, to practice hairbraiding Melony had to spend 300 hours in class to earn a license in something called “wigology,” even though wigology programs don’t emphasize braiding.  Now that she wants to teach her craft to others, the State says she’s not allowed—unless she spends 3,200 hours in cosmetology and cosmetology instructor programs.  Those programs don’t teach braiding either.

This makes as much sense as requiring artists to get degrees in, say, home economics and chemistry before they may teach high school art.

In the 3,200 classroom hours it would take for Melony to get a license to teach hairbraiding, [1] she could instead become licensed in all of the following professions:  emergency medical technician (122 hours plus five emergency runs), [2] paramedic (1,700 hours), [3] ambulance driver (8 hours), [4] law enforcement officer (ten weeks), [5] firefighter (six weeks), [6] real estate appraiser (75 hours) [7] and hunting education instructor (20 hours). [8]   And that would all take more than 600 hours less than getting her license to teach braiding.

            Mississippi’s regulatory scheme leaves anyone who wants to teach or to learn the art of African hairbraiding out in the cold.  Perversely, the State licenses cosmetology instructors with no experience braiding to teach braiding, even as it forbids experienced braiders from teaching their craft (unless they sacrifice three years and thousands of dollars to learn unrelated skills).  The result is that students of braiding have no skilled and legal instructors to learn from.  In effect, the State of Mississippi has outlawed both the teaching and learning of African-style braiding as a business.

Only one group benefits from Mississippi’s regulatory regime:  the cosmetology establishment.  Practicing cosmetologists get to set the bar for entry to their profession high (and thereby keep competition to a minimum) and cosmetology schools get captive customers.  Not surprisingly, these are the same people who write and enforce the cosmetology regulations—the State Board of Cosmetology, whose five members must all be practitioners of at least 10 years. [9]   The Board is officially advised by other practicing cosmetologists and cosmetology schools. [10]

All this explains why on August 5, 2004, the Institute for Justice filed a lawsuit in the U.S. District Court for the Southern District of Mississippi, challenging Mississippi’s cosmetology and wigology licensing laws on behalf of Melony Armstrong, along with Christina Griffin and Margaret Burden, two women who wish to learn hairbraiding from Melony and become licensed.  Mississippi’s cosmetology and wigology licensing laws needlessly sti­fle job and entre­preneur­ial opportunities and suppress a vibrant means of cultural expression.  In a state with 5.6 percent unemployment, [11] irrational government regulations such as these unnecessarily block the way towards a brighter future for people like Melony, Christina and Margaret.

            The ramifications of this lawsuit extend far beyond the individuals involved.  Occupational licensing laws in all 50 states restrict entry into hundreds of professions.  Such laws have the effect of cutting off the bottom rungs of the economic ladder, thereby preventing aspiring entrepreneurs from earning their share of the American Dream.  The fact that occupational licensing laws are typically enforced by boards comprised of practitioners within the regulated industry—the very people those seeking licensing hope to compete with—exacerbates the inherent exclusionary effect of occupational licensing laws.  This lawsuit directly addresses the boundaries of government power to regulate entry into businesses and professions.

Christina and Margaret seek to take their first steps toward financial independence; Melony seeks to take her second.  Mississippi’s oppressive laws prevent all of them from exercising their right to pursue their chosen professions.  This lawsuit is the latest in the Institute for Justice’s effort to reinvigorate judicial protection for economic liberty—the basic civil right of every American to pursue a lawful business or profession free from arbitrary or excessive government regulation.  Economic liberty is an essential part of our nation’s promise of opportunity.

The Art and Business of African Hairbraiding

            The art of hairbraiding traces back thousands of years to Africa.  Today, practi­tioners engage in the highly specialized and intricate craft of twisting, braid­ing, weaving and locking natural hair fashions, mostly for African-American clients whose characteristically textured hair is perfect for such styling.  These distinct techniques generally are grouped togeth­er under the rubric of “natural hair care,” because they do not use any chemical or other artificial hairstyling technique.  In fact, the use of chemicals and other such techniques that alter the hair from its natural state is antithetical to adherents of natural hair care. 

            Hairbraiding is more than a means of entrepreneurship—it is an important form of cultural expression.  Until very recently, the dominant standard of beauty was defined in white terms, and African-American women who struggled to comport with this definition turned to chemical straighteners and relaxers, often at great cost to the health of their hair and their self-esteem. [12]   More recently, the traditional African hairstyles that emphasize the natural texture and beauty of African-American hair have come back into vogue and gained in popularity.  American braiders constantly adapt traditional braiding techniques to design new, creative styles.  The hairstyles are artistic and individualized and avoid the serious damage that can occur when hair is treated with chemicals and other artificial products. 

Nationwide, natural hair care has grown into a multi-million dollar industry.  Because the establishment of a natural hair care business requires fairly little capital and skills that are often passed from one generation to the next, a free and open market in the natural hair care industry has unlimited potential to provide entrepreneurial and employment opportu­nities while delivering popular services and products to millions of consumers.  It is a particularly desirable employment for people with children, second jobs, or other demands upon their time, because it gives such person’s the flexibility of scheduling their own appointments, according to their own schedule. 

            But because of cosmetology licensing laws in nearly all 50 states, [13] mainstream cosmetologists enjoy a virtual monopo­ly over all forms of hairstyling.  As a result, most African-style hairbraiders are forced to operate underground; many would-be practitio­ners are dis­cour­aged altogether; and the natural hair care industry is con­signed to the status of an outsider that must fight the prevailing ortho­doxy enforced by the State.

Hairbraiding and Occupational Licensing

            Government at all levels restricts entry into trades and professions.  When those regulations exceed legitimate health and safety objectives, they most impact individuals the government should be working with, rather than against—particularly those with little capital or few skills. [14]   The Institute for Justice has completed studies demonstrating the extensive regulatory barriers to entry-level entrepreneurship in seven U.S. cities including Baltimore, Boston, Charlotte, Detroit, New York, San Antonio and San Diego. [15]   Recently, the Institute for Justice Arizona Chapter detailed regulatory burdens facing two major cities in the Grand Canyon State—Phoenix and Tucson, Ariz. [16]   The newest study by the Institute for Justice Washington Chapter analyzes some of the most pervasive and oppressive barriers to entrepreneurs in Washington state. [17]    

            Some of the most burdensome barriers to entrepreneurship are occupa­tional licensing laws.  Nearly 500 occupations are regulat­ed by states, and about half of those require state licenses. [18]   Occu­pa­tions requiring government licenses include not only the medical, legal and other highly specialized profes­sions, but also profes­sions in which justifica­tion for restric­tions on entry is virtu­ally nonexistent—such as beekeepers, lightning rod salespeople, fence install­ers, flower arrangers and septic tank clean­ers.  Currently, occupa­tional licensing laws govern entry into about ten percent of all jobs in America. [19]   All 50 states require barbers and beauticians to be licensed.

            Typically, licensing boards are comprised of members of the regulated profession, with the coercive power of government at their disposal.  As a result, licensing requirements often exceed valid public health and safety objectives, and instead are used to reduce competition threatened by 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 dispro­portionately are represented. [20]

            Ironically, the licensing laws that now entangle African hairbraiders were put in place during the 1930s by hairdressers (today’s cosmetologists), who at that time, like natural hairstylists today, were renegades fighting an entrenched monopoly.  Prior to the 1920s, barbers and cosmeticians (who performed skin care and some hair cutting) enjoyed an exclusive monopoly over all types of hair treat­ment bestowed on them by the government through occupational licensing laws. [21]   Hairdressers were arrested in several states for violating the licensing laws. [22]   During that time, hairdressers organized their own trade associa­tion and sought to break the barbers’ monopoly through lobbying and litigation.  The following resolution, passed by the National Hair­dressers Association at its 1923 convention, parallels the hairbraiders’ struggle today: