Ohio Hairbraiding - Background

Litigation Backgrounder

Challenging Barriers
To Economic Opportunity:

 

Hosey v. Ohio State Board of Cosmetology

On October 1, 1997, the Institute for Justice filed a lawsuit in federal district court in Columbus, Ohio challenging the state's cosmetology licensing laws on behalf of practitioners of African hairbraiding and other forms of natural hairstyling. The cosmetology laws needlessly stifle job and entrepreneurial opportunities and suppress a vibrant means of cultural expression. At a time when welfare reform urgently requires creation of entry-level jobs, government regulations unnecessarily block the way, and government agencies threaten individuals with criminal sanctions simply for trying to earn an honest living.

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 when welfare reform emphasizes the transition from dependency to work, it is essential to curb regulatory barriers that impede creation of jobs and enterprises. Yet although welfare agencies place workfare recipients in a braiding establishment to learn braiding as a useful job skill, the Ohio Board of Cosmetology refuses to let them use the skill once they acquire it. In fact, the Board has filed a criminal complaint against one braider because she had the audacity to open a braiding establishment. This lawsuit directly addresses the boundaries of state power to regulate entry into businesses and professions.

The plaintiffs in this lawsuit are Cheryll Hosey, Michael Martin, Faith Carey, Cassandra Taylor, and the American Hairbraiders and Natural Haircare Association (AHNHA). Their right to pursue their chosen profession is stifled by Ohio's oppressive cosmetology licensing laws. This lawsuit is a cornerstone of the Institute'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 damage the client's natural hair.

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 advertising directed toward black women built upon this racial ideology. Rooks found that "[a]dvertisements for skin lighteners and hair straighteners 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 was 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 is 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 over-treated with chemicals or over-exposed to heat.

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 forty-eight 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 consigned to the status of an outsider, still fighting against 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 needlessly cut off the bottom rungs of the economic ladder, particularly for people with little capital or few skills. The Institute for Justice recently has completed studies on demonstrating the extensive regulatory barriers to entry-level entrepreneurship in seven U.S. cities: Baltimore, Boston, Charlotte, Detroit, New York, San Antonio, and San Diego.

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. All fifty 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 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 associa-tion 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 Ohio 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 Ohio State Board of Cosmetology, which is comprised of six members representing the professions, one doctor, and the Executive Director. The Board in turn issues and enforces extensive regulations, including 1,500 hours of prescribed training in approved cosmetology schools and an examination. Schools, instructors, and salons also must obtain licenses. The Board repeatedly has stated 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 regulation and reality: In the name of protecting public health and safety, the regulatory process licenses people to braid hair who have no experience in braiding, yet it forbids others who are proficient from plying that trade.

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 or skin.

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.

Cheryll Hosey and Michael Martin own and operate IMB (It's My Business) Hair Braiding Gallery in Youngstown, Ohio. Cheryll learned to braid as a child and has braided for over 18 years. Michael performs consultations and does dreadlocking. Neither Cheryll nor Michael has a cosmetology license or managing cosmetologist license. Since opening, IMB has been constantly busy. It has hired one full-time and several part-time braiders (all unlicensed) to help with the workload.

Cheryll and Michael have a long history of community involvement. They bring that commitment to IMB as well. IMB serves a nearby nursing home, Gateway for Better Living, providing natural hair care for African-American residents, whose hair had been damaged by chemical processing. Cheryll also volunteers through her county's Human Services agency to braid children's hair.

In addition, IMB has contracts with Mahoning and Trumbull counties to accept participants in Ohio's welfare-to-work program. Cheryll and Michael believe that braiding provides a unique opportunity for former welfare recipients. Even with flexible hours, a braider can make a reasonable income. Cheryll and Michael teach workfare participants basic work and customer relations skills as well as braiding. Moreover, Cheryll says, "I see so many young women with the ability to braid, but they don't know how to make a career of it. I want to give them the motivation and incentive to become entrepreneurs themselves."

But Cheryll and Michael's thriving business has been haunted by the specter of a forced closing. The Board of Cosmetology has given IMB several notices that it is violating the law. It prevented IMB from receiving a much-needed small business loan by telling the lender that IMB could not operate without a license. Cheryll and Michael have invested their entire savings in IMB, and they live in constant fear that their business will be destroyed.

Faith Carey has braided for the last 14 years. She learned to braid from her godmother, who operated a hairbraiding salon in North Carolina. Faith has a talent for braiding. She says, "I can just look at a style and do it." For years, Faith has braided out of her home or in the homes of her clients. When her clientele became too large, she and her sister Cassandra Taylor leased space at a beauty supply shop. When, again, their clientele became too unwieldy for such a small space, Faith decided to open Faithfully Yours in Canton. She obtained a business license and proudly hung out her shingle. She applied for a small business loan, began purchasing supplies and equipment, and started remodeling the three-story building.

Faith's plans were summarily derailed when, after two confrontations with inspectors from the Board of Cosmetology, she received a notice from the Canton City Prosecutor's Office that the inspector wants to press criminal charges against Faith for operating a salon without a license. Apparently, the Board of Cosmetology hopes to throw Faith in jail for earning an honest living. Although Faithfully Yours remains open for business, Faith has halted her remodeling and the plans for her annual hairstyle show. She has the capacity to provide employment for six additional people, but she is afraid to expand her business or even to advertise.

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. 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 1873 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.

Several 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. In addition, a preliminary 1997 decision in a San Diego challenge to California's licensing laws stated that the cosmetology laws "place an almost insurmountable barrier in front of anyone who seeks to practice African hair styling." These cases are the jurisprudential building blocks on which our litigation campaign is based.

Two other IJ 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, Hosey v. Ohio State Board of Cosmetology, is filed in federal district court in Columbus. It alleges violations of the 14th Amendment's equal protection, due process, and privileges or immunities guarantees, as well as similar protections under the Ohio Constitution.

This lawsuit forms part of an aggressive new round of economic liberty litigation. Another current lawsuit challenges New York City's restrictions on commuter vans. The Institute's efforts will not cease until the right of every American to earn an honest living is secure.

Entrepreneurship and Welfare Reform

In May, 1997, nearly 500,000 adults in Ohio received welfare. Ohio's new welfare plan, Ohio Works First, begins on October 1, 1997. Under this program, welfare recipients will have to work 30 hours per week in order to receive benefits. In addition, under federal welfare reform, Ohio must move one-quarter of the welfare recipients off the rolls by the year 2000. As of August, 1997, Youngstown's Mahoning County has 5,700 families on welfare, and Youngstown city has a 9.3% unemployment rate. Canton's Stark County has over 6000 families on welfare, and the city has a 6.1% unemployment rate. The success of welfare reform will depend on creating jobs for people who will eventually lose their public assistance. While Ohio focuses on moving people from dependency to work, Cheryll and Faith could provide jobs for over 10 people, if only the state would let them. Instead, Ohio has erected legal barriers to entrepreneurship.

As a career, African hairbraiding provides an important opportunity for former welfare recipients. It allows them to combine hard work with flexible hours. It requires talent, but not necessarily education. And it does not require significant start-up capital. Both Mahoning and Trumbull counties in Ohio recognize the potential of hairbraiding for welfare recipients. These counties have asked IMB to allow welfare recipients to work at IMB in exchange for their benefits. After an interview and inspections, the human services agencies for these counties determined that Cheryll and Michael would provide good skills training and a supportive and inspiring work environment.

But what the counties giveth, the Board of Cosmetology taketh away. Even if IMB provides job training to these welfare recipients, the Board of Cosmetology is determined that they will never practice African-style hairbraiding legally unless they can afford a year of not working on top of the $5,000 cosmetology school fee. These requirements pose an almost insurmountable barrier to prospective braiders trying to move from welfare to work.

Litigation Team

The lead lawyers in this case for the Institute for Justice are Staff Attorney Dana Berliner, who has written studies on regulatory barriers to entrepreneurship in Detroit and Boston, and Litigation Director Clint Bolick, who successfully litigated Brown v. Barry and Santos v. City of Houston. We are joined by able pro bono local counsel Ron Kozar of Porter, Wright, Morris & Arthur in Dayton.

For more information contact:
John Kramer
Vice President of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320

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.


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