On January 28, 1997, the Institute for Justice filed a lawsuit in federal district court in San Diego challenging California's cosmetology licensing statute and regulations on behalf of practitioners of African hair-braiding and other forms of natural hairstyling. The cosmetology laws needlessly stifle job and entrepreneurial opportunities and suppress a vibrant means of cultural expression.
The ramifications of this lawsuit extend far beyond the individuals involved. Occupational licensing laws in all 50 states restrict entry into hundreds of professions. Particularly at a time when welfare reform emphasizes the transition from dependency to work, it is essential to curb regulatory barriers that impede creation of jobs and enterprises. This lawsuit directly addresses the boundaries of state power to regulate entry into businesses and professions.
The plaintiffs in this lawsuit are Dr. JoAnne Cornwell and the American Hairbraiders and Natural Haircare Association, on behalf of itself and its members, including the Braiderie, a San Diego braiding salon. Their right to pursue their chosen profes-sion is stifled by California's oppressive cosmetology licensing laws. This lawsuit is a cornerstone of the Insti-tute's ongoing efforts to restore economic liberty-the right to work for an honest living-as a fundamental civil right.
The Art and Business of Hairbraiding
The art of hairbraiding, whose foundation traces back thousands of years to Africa, was brought by African slaves to the United States. Today thousands of practitioners engage in the highly specialized and intricate crafts of twisting, braiding, weaving, and locking natural hair fashions, mostly for African-American clients. These distinct techniques generally are grouped together under the rubric of "natural haircare," because they do not use any chemicals or other artificial hairstyling techniques.
Hairbraiding is more than a means of entrepreneurship; it is an important form of cultural expression. Ever since African slaves were brought to the United States, the characteristically textured hair of African-descended people has been an important facet of the badge of racial inferiority stamped upon African-Americans. As historian Noliwe M. Rooks recounts, both African slaves in the South and free blacks in the North were taught to view straight, light-colored hair as the paramount expression of female beauty. Following emancipation, products and advertis-ing directed toward black women built upon this racial ideology. Rooks found that "[a]dvertisements for skin lighteners and hair straight-eners marketed by white companies" during the late 19th and early 20th centuries "suggest to blacks that only through changing physical features will persons of African descent be afforded class mobility within African American communities and social acceptance by the dominant culture." Racial self-hatred promoted by such practices were an important bulwark of the Jim Crow regime.
In the early part of this century, haircare and hairstyling emerged as important fields of entrepreneurship for blacks. Madame C.J. Walker was by far the most successful in the industry. She was credited with widely distributing and popularizing the straightening comb. As her business grew, Walker grew extremely wealthy, and by her death in 1919 she had trained and employed thousands of women in the hairdressing business. From that time until today, haircare and hairstyling have provided extensive business and employment opportunities for black women.
Still, until very recently, the dominant standard of beauty has been defined in white terms, and black women (particularly professionals) have struggled to comport with this definition, often at great damage to their hair and self-esteem. More recently, traditional African hairstyles geared toward the natural texture and beauty of black hair have re-emerged and steadily gained popularity. The hairstyles are remarkably artistic and individualized, and avoid the serious damage that can occur when hair is treated with chemicals and other artificial products. As Dr. JoAnne Cornwell explains,
Our issues are significantly different than those our foremothers faced. Today, no one is making us not accept and celebrate what we really are on any level. We have the ability to set new standards based on our unique and stunning natural attributes, and it is high-time we began seriously asking ourselves what symbols we are wearing on our heads.
Natural haircare has grown into a multi-million dollar industry, with specialized products and training. Because it requires fairly little capital and modest training, in a free and open market the natural haircare industry would have unlimited potential to provide entrepreneurial and employment opportunities, as well as popular services and products to millions of consumers.
But because of cosmetology licensing laws in all 50 states, mainstream cosmetologists have a virtual monopoly over all forms of hairstyling, including braiding. Most hairbraiders are forced to operate underground, and many would-be practitioners are discouraged altogether. As a result, the natural haircare industry is con-signed to the status of a subjugated pariah, still fighting against prevailing orthodoxy enforced by the state, just as it was forced to during the Jim Crow era.
Hairbraiding and Occupational Licensing
Government at all levels restricts entry into trades and professions. 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.
Among the most pervasive and oppressive barriers are occupational licensing laws. Nearly 500 occupations are regulated by states, and about half of those require state licenses. 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 salesmen, fence installers, and septic tank cleaners. In all, occupational licensing laws govern entry into about ten percent of all jobs in America. Barbers and beauticians require licenses in all 50 states.
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 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 disproportionately are represented.
Ironically, the licensing laws that now shackle 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, bestowed by government through occupational licensing laws, over all types of hair treatment. Hairdressers were arrested in several states for violating the licensing laws. 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 National Hairdressers Association at its 1923 convention, parallels the hairbraiders' struggle today:
RESOLVED, while expressing our good will to those engaged in business as barbers and repudiating any thought of encroaching on the domain of their work or of soliciting the patronage of men for work ordinarily done in the barber shop, we condemn the antagonistic legislation which would attempt to classify as barbers and subject to barbers' laws those who are engaged in the practice of our profession, and we assert the right of engaging in all work. . .ordinarily done in the hairdressing and beauty parlor on women and children, free from the domination of barbers' laws.
The cosmetologists ultimately succeeded in freeing themselves from the barbers' monopoly and obtaining a separate licensing process through which they then created a state-enforced cartel of their own that subjects everyone engaged in the care or styling of women's hair, skin, or fingernails to their domination. It is a cartel the National Cosmetology Association today fiercely protects.
The California cosmetology law is typical of licensing laws around the country. Enacted in the 1930s, the statute places regulation of all hairstyling under the control of the State Board of Barbering and Cosmetology, which is comprised of five public members and four members representing the professions. The board in turn issues and enforces extensive regulations, including 1,600 hours of prescribed training in approved cosmetology schools and an examination. Schools, instructors, and salons also must obtain licenses. In 1982, the Attorney General issued an opinion finding that hairbraiding is covered by cosmetology licensing requirements, even though cosmetology schools do not teach it and the licensing examination does not test it. The entire system creates a mismatch between regulatory objectives and realities: In the name of protecting public health and safety, the regulatory process licenses people who have no training in certain services, yet forbids people who are proficient in those same services.
In 1996, the Department of Consumer Affairs (under whose jurisdiction the Board of Barbering and Cosmetology falls) conducted a review of the board's functions pursuant to regulatory sunset legislation. DCA found a board with a $9.2 million annual budget and a staff of 105 that performs few necessary functions. Despite a licensee population of 400,000 and an annual enforcement budget of $4 million, the board takes only 15-20 formal disciplinary actions per year, and responds to fewer than ten cases per year of actual physical harm. DCA recommends abolition of the Board of Barbering and Cosmetology and transfer of regulatory functions to DCA; elimination of licensure for instructors and establishments; elimination of regulatory approval of school curriculums; and retention of an examination for practitioners covering only health, safety, and sanitation. Unless the legislature acts, the Board of Barbering and Cosmetology will cease to exist after July 1997, and its powers will be transferred to DCA-but the statute and regulations will continue unless the state takes action. Not surprisingly, the board is resisting strenuously its demise.
Hairbraiders and other natural hairstylists face special barriers under the licensing regime. Neither the prescribed cosmetology course nor the examination covers hairbraiding, but they do require extensive training and proficiency in hairstyles and techniques (such as the use of chemicals) that are unrelated to hairbraiding. The effect is that in order to lawfully offer hairbraiding services, a person must take a nine-month course costing several thousand dollars and pass an examination, neither of which has anything whatsoever to do with the services that will be offered to the public. Nor can hairbraiders viably operate their own training programs: their curricula would not qualify for licensure under the cosmetology laws, nor would their graduates qualify for the licensing examination, even if they are completely proficient in the services they wish to offer to the public. And without a license, hairbraiders cannot lawfully offer their services to the public regardless of proficiency. No separate or specialized license is available for braiding, even though separate licenses are offered for others who specialize in nails, skin, or electrolysis.
As a result, most braiders are compelled either to give up their profession or to operate outside the law-and, ironically, outside the reach of health and safety regulations. The authorities generally have turned a blind eye to home-based salons. However, when braiders attempt to go "legitimate" by applying for capital or opening salons outside their homes, they find their efforts barred by the absence of a license. Obviously, neither entrepreneurs nor consumers are served well by the current system.
The Current Controversy
This lawsuit challenges the constitutionality of subjecting hairbraiding and natural hairstyling to the cosmetology licensing laws. The plaintiffs do not object to legitimate health and safety regulations-indeed, they have developed their own training and safety standards-but do object to a system that seeks to destroy and delegitimize their livelihoods.
The plaintiffs represent a range of perspectives on the issue. For Dr. JoAnne Cornwell, as for many African-American women, the cosmetology laws represent both a barrier to business opportunities and a constraint on cultural expression. Dr. Cornwell chairs the Africana Studies Department at San Diego State University, where she also teaches in the French Department. She also is a third-generation hairstylist and entrepreneur. Both her mother and grandmother owned hair salons in Detroit. During the 1940s, Cornwell's grandmother, Bernice Hardiman, was one of the tens of thousands of women who were part of the African-American haircare industry pioneered by Madam C.J. Walker. Through that business, she "gained a kind of independence that was unheard of" for most black women during that time, remarks Cornwell.
As a young girl, JoAnne Cornwell learned to braid her own hair, and later learned to braid with extensions. In the early 1990s, she began experimenting with a new hair technique using small, finely manicured locks. The result was "sisterlocks," which Cornwell trade-marked last year. The style has grown rapidly in popularity and has been featured in numerous publications, including both Essence and Black Hair Styles. In addition to locking hair in her San Diego home, Cornwell has developed a nine-video training course and textbook, through which approximately 100 people have learned the sisterlocks technique.
Cornwell describes her experience and determination:
Back in 1992 I was the only person in the world with sisterlocks, but even then I knew I had come upon something that had the potential for radically changing the way women like me related to ourselves as women in the world. That realization brought with it a sense of elation that can scarcely be described. At the same time I knew the regulatory environment within which my business could grow did not allow enough space for my vision. Like thousands of hair renegades like myself, I have not let the threat of legal sanction stop me from acting on my calling.
The suppression of natural hairstyling through cosmetology licensing laws, Cornwell declares, "impacts the entire community." If legalized, Cornwell believes that natural hairstyling can provide to black women not only plentiful job and business opportu-nities, but also "a sense of access on the cultural level," replacing "resentment and frustration about places we aren't allowed to go" with feelings of independence.
In terms of her own business, Cornwell would like to open her own salon and expand her training program for thousands of others-which of course are illegal under current laws. "I think it is a crime and tragedy that what I do has to be underground," says Cornwell, and she is determined to lift the barriers.
These are precisely the sorts of barriers that prompted the creation in 1995 of the American Hairbraiders and Natural Haircare Association (AHNHA) by Taalib-din Uqdah. Uqdah and Pamela Ferrell are the proprietors of Cornrows & Co., a Washington, D.C. salon. Ferrell recently has published a self-help text entitled, Let's Talk Hair: Every Black Woman's Personal Consultation for Healthy Growing Hair. After fighting for more than a decade against District of Columbia bureaucrats who were trying to close their business, Uqdah and Ferrell decided to help others involved in similar predicaments. The association provides assistance to natural hairstylists nationwide on licensing and regulation issues and lobbies for deregulation. It also publishes a newsletter, provides industry standards of practice and codes of conduct, and is working to develop an accreditation and certification program. Its primary mission is to protect natural haircare providers from burdensome legislation that prevents them from earning a living.
One AHNHA member that has encountered severe regulatory problems is the San Diego-based Braiderie, a partnership comprised of Ali and Assiyah Rasheed and Margurite Sylva. Ali Rasheed is an entrepreneur with an extensive business background in the San Diego area. His wife, Assiyah, immigrated from Senegal 18 years ago in search of a new life. She arrived with no skills, but has worked her way up the economic ladder, gained American citizenship, and manages the Braiderie's day-to-day operations. Margurite Sylva also is from Senegal. She is a licensed cosmetologist and a master braider.
In 1994, the trio decided to open a salon, expanding Margurite Sylva's existing small business. They opened a location on El Cajon Boulevard in San Diego, and then added a second in Oceanside. They would like to open a salon in Senegal to facilitate a training exchange program.
The Braiderie provides opportunities for braiders, most of whom are immigrants from Senegal and Guinea. The braiders lack the time or money to take an expensive nine-month cosmetology course and therefore are unlicensed, although they are completely proficient in braiding. Nor has the salon ever received a consumer complaint. Nonetheless, last year the Board of Barber-ing and Cosmetology cited the Braiderie for "aiding and abetting" the unlicensed practice of hairbraiding. The salon is appealing the citation.
Ali Rasheed laments the government's intrusion. "Hair-braiding offers employment opportunities for people who don't have education or skills," he observes. Recently, braiders have begun to surface locally working in mainstream hair salons or operating their own small salons. But they are watching this controversy closely to see what will happen. As AHNHA's Taalib-din Uqdah explains, the effect of oppressive licensing laws is that the natural haircare industry has "all been clandestine. This lawsuit is designed to remove that fear."
The Legal Battle for Economic Liberty
Of all the rights Americans cherish, the right to earn an honest living is the least-protected against government interference. That right was foremost among the "privileges or immunities" protected by the 14th Amendment. But ever since the 5-4 Supreme Court ruling in the 1872 Slaughter-House Cases, economic liberty has received virtually no protection against government regulation, no matter how irrational or excessive.
This lawsuit is the latest salvo in the Institute for Justice's systematic campaign to restore economic liberty as a basic civil right. Our goal is to create a rule of law whereby governments must demonstrate that restraints on entry into businesses or professions are rationally related to legitimate public health and safety objectives.
Two successful cases illustrate this approach. In Brown v. Barry, a federal judge in the District of Columbia in 1989 struck down as a violation of economic liberty a Jim Crow-era ban of streetcorner shoeshine stands. In the 1995 decision in Santos v. City of Houston, a federal judge in Texas invalidated the Houston Anti-Jitney Law, which forbade commuter vans. These cases are the jurisprudential building blocks on which our litigation campaign is based.
Two subsequent cases-lawsuits against the District of Columbia cosmetology licensing law and Denver's taxicab monopoly-were unsuccessful in the opening court rounds, but successful in the court of public opinion: After a torrent of adverse publicity over their oppressive regulations, the District of Columbia became the first jurisdiction to deregulate hair-braiding, and the State of Colorado opened entry into Denver's taxicab market. Our clients in those cases-Cornrows & Co. in Washington and Freedom Cabs in Denver-are today flourishing enterprises employing dozens of people.
This case, Cornwell v. California Board of Barbering and Cosmetology, is filed in federal district court in San Diego. It alleges violations of the 14th Amendment's equal protection, due process, and privileges or immunities guarantees, as well as similar protections under the California Constitution.
This lawsuit opens a new round of economic liberty litigation. Our next lawsuit will challenge New York City's restric-tions on commuter vans. The Institute's efforts will not cease until the right of every American to earn an honest living is secure.
The lead lawyers in this case for the Institute for Justice are Litigation Director Clint Bolick, who successfully litigated Brown v. Barry and Santos v. City of Houston; and Staff Attorney Donna G. Matias, who recently led a successful legal effort to curb barriers to interracial adoptions in Texas. We are joined by able pro bono local counsel David E. Kleinfeld and Richard M. Segal of Pillsbury Madison & Sutro LLP in San Diego.
This document was prepared by Clint Bolick for the Institute for Justice.
For more information contact:
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The Institute for Justice is a Washington, D.C.-based public interest law firm. It advances a rule of law under which individuals control their destinies as free and responsible members of society. Through strategic litigation, training, and outreach, the Institute secures greater protection for individual liberty, challenges the scope and ideology of the Regulatory Welfare State, and illustrates and extends the benefits of freedom to those whose full enjoyment of liberty is denied by government. The Institute was founded in September 1991 by William Mellor and Clint Bolick.