Challenging Barriers
To Economic Opportunity:

Untangling African Hairbraiders from Washington's Cosmetology Regime

Introduction

            The State of Washington is demanding that African hairbraider Benta Diaw obtain a cosmetology license to practice the art she learned in Africa from her grandmother—an art the cosmetology schools are not required to teach and one the licensing examination does not test.

            Benta, who was born and raised in Senegal, simply wants to continue earning an honest living by running the successful natural hair salon she founded shortly after immigrating to this country.  However, the State now says Benta is not qualified to practice the art of African hairbraiding—a technique that women in her family have shared for beauty and empowerment for more than 100 years—unless she obtains a government-issued license.  The license the State is now requiring Benta to obtain requires up to 1,600 hours of needless “training” that will teach her how to perform pedicures and trim nose hair, but does not require even one single hour teaching the type of services Benta actually provides—hairbraiding.  This makes as much sense as requiring a construction worker to become a licensed tap dancer in order to practice his trade.

            A group of State bureaucrats is prepared to leave practitioners like Benta with two choices:  get licensed (at a cost of thousands of dollars, plus a year's worth of forgone earnings) or quit braiding hair.

            On August 5, 2004, the Institute for Justice Washington Chapter (IJ-WA) filed a lawsuit in King County Superior Court in Seattle, Wash., on behalf of practitioners of African hairbraiding and other forms of natural hairstyling challenging Washington’s cosmetology licensing laws.  The cosmetology laws needlessly sti­fle job and entre­preneur­ial opportunities and suppress a vibrant means of cultural expression.  At a time when record levels of immigrants are entering the workforce and welfare reform laws encourage individuals to seek work rather than a welfare check, irrational government regulations such as these unnecessarily block the way towards a brighter future for people like Benta.

            The ramifications of this lawsuit extend far beyond Benta Diaw.  Occupational licensing laws in all 50 states restrict entry into hundreds of professions.  A study of barriers to entrepreneurship in Washington, conducted by Institute for Justice Washington Chapter Staff Attorney Jeanette Petersen and published by the Washington Policy Center, concluded that 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. [1]   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.

The plaintiff in this lawsuit is recently naturalized American citizen Benta Diaw, whose right to pursue her chosen profession is stifled by Washington’s oppressive cosmetology laws.  This lawsuit is yet another of IJ-WA’s efforts to reinvigorate judicial protection for “economic liberty”—the basic civil right of every Washingtonian and 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. [2]   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.  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 creation 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.  Indeed, it is a nearly ideal occupation for Benta and the many other American immigrants who are currently practicing the trade.

But because of cosme­tology licensing laws in nearly all 50 states, [3] mainstream cosmetologists enjoy a virtual monopo­ly over all forms of hairstyling.  As a result, most African 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 often impact individuals the government should be working with, rather than against—particularly those with little capital or few skills. [4]   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. [5]   Recently, the Institute for Justice Arizona Chapter detailed regulatory burdens facing two major cities in the Grand Canyon State—Phoenix and Tucson, Ariz. [6]   The newest study by the Institute for Justice Washington Chapter analyzes some of the most pervasive and oppressive barriers to entrepreneurship facing Seattleites and Washingtonians. [7]

            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 government-issued licenses.[8]   Occu­pa­tions requiring government licenses include not only the medical, legal and other highly specialized profes­sions, but also include 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 10 percent of all jobs in America. [9]   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. [10]

            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. [11]   Hairdressers were arrested in several states for violating the licensing laws. [12]   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. [13]

            The cosmetologists ultimately succeeded in freeing them­selves from the barbers’ monopoly and obtained 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 nails to their domina­tion.  It is a cartel the National Cosmetology Association today fiercely protects.

            Revised Code of Washington Chapter 18.16—the Washington Cosmetologists, Barbers, Manicurists and Estheticians Act [14] —is typical of licensing laws around the country.  Enacted in 1984, the current statutory scheme places regula­tion of all hairstyling under the control of the director of the Department of Licensing, who then appoints each member of the Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board. [15]   The Board is comprised of nine members representing each profession, one representative each from a public and a private school licensed under the Act and one consumer who is unaffiliated with the profession. [16]   Together, the director and the Board interpret and enforce extensive regulations, includ­ing 1,600 hours of prescribed training in approved cosmetology courses (1,000 hours in approved barbering courses) and a licensing examination.  Schools, instructors, and salons also must obtain licenses.  The Board has interpreted the Act to cover African hairbraiding, requiring practitioners of this unique skill to obtain either a cosmetology or barbering license—even though not one of the required courses teach African hairbraiding and the state-mandated examinations do not test it. 

            African hairbraiders and other natural hairstylists face special barriers under this licensing regime.  Neither the prescribed cosmetology or barbering courses nor the examina­tions are required to cover hairbraiding, but they do require extensive training and proficiency in hairstyles and techniques such as the use of chemical straighteners that are entirely unrelated—and in fact antithetical—to African hairbraiding and other natural hair care.  The effect is that in order to lawfully offer African hairbraiding services, a braider must spend thousands of dollars to train for 1,000 to 1,600 hours and then pass an examina­tion that does not test the services an African braider will offer to the public.

            The extensive training required for a person to lawfully and safely braid hair is especially incongruous in light of the training required to perform other, far more dangerous, jobs and activities in Washington.  Emergency medical technician certification in King County, for example, requires only 114 hours of classroom training and an examination. [17]   One can graduate from Everett Community College with a firefighting degree after only 14 weeks of evening and weekend courses and a state examination. [18] And as long as you have $60 and picture identification, applying for a concealed weapons permit takes about 30 minutes. [19]

            Absurdly, African hairbraiders cannot lawfully offer their services to the public without a cosmetology or barbering license—regard­less of their proficiency.  No separate or specialized license is available for braiders, even though separate licenses are offered for those who specialize in nails or skin.  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 in braiding from plying their trade. 

 

            As a result, most African hairbraiders are compelled to either abandon their profession or operate outside the law (and, ironically, outside the reach of the State’s health and safety regulations).  The authori­ties generally have turned a blind eye to non-compliant home-based salons.  However, when braiders attempt to go “legitimate” by applying for capital or opening legitimate salons outside their homes, they find their efforts barred by the absence of a license.  Obviously, neither entrepreneurs nor consumers are well-served by Washington’s current system.

 

The Current Controversy

            This lawsuit challenges the constitutionality of requiring a natural hairstylist and hairbraider to obtain a cosmetology or barbering license.  In 1998, just two years after she immigrated to the United States from Senegal, Africa, plaintiff Benta Diaw opened Touba African Hair Braiding in Seattle’s trendy Belltown neighborhood.  Over the next six years, Benta built her successful business the old-fashioned way, by working seven days a week to establish a devoted clientele.  Along the way, Benta became a U.S. citizen and has been able to support herself and her two young children as well as her family in Africa with some of her earnings.

            Touba is a clean, professional salon that specializes strictly in braiding, weaving and natural hair locks—skills Benta learned more than 20 years ago from her mother and her grandmother (now 104-years-old) in Senegal, Africa.  Due to Benta’s adamant belief that these techniques are natural and celebrate the God-given diversity of Africans, Touba does not offer chemicals treatments of any kind.  Benta considers her services to be far more than cosmetic or “skin deep.”  Indeed, part of Benta’s mission is to teach her customers the value of natural hair care as an emotional and spiritual pilgrimage deserving of love and respect as an ancient African art form.

            Benta possesses business licenses from both the City of Seattle and the Washington State Department of Licensing, but does not possess a cosmetology or barbering license.  Benta has not considered becoming a licensed barber or cosmetologist because the lengthy and expensive training required is completely unrelated—and actually counterproductive—to her trade.  Benta is an African hairbraider, trained in the ancient art and skill of natural hair care as women in her family have been trained for generations and simply wants to continue practicing her trade without unwarranted interference from the government.

            Recently, the Board issued a statement requiring African hairbraiders to possess either a cosmetology or a barbering license to legally operate.  As a result of this new interpretation, Benta is in danger of being cited or fined by the State and could ultimately lose the ability to operate her salon.

The Legal Battle for Economic Liberty

Of all the rights Washingtonians and Americans cherish, the right to earn an honest living is one of the least judicially protected from government interference.  That right, however, was foremost among the “privileges or immunities” protected by the 14^th Amendment and Article I, § 12 of the Washington Constitution.

 

This lawsuit is another step in the Institute for Justice Washington Chapter’s campaign to restore economic liberty as a basic civil right under both the Washington State and federal constitutions.  IJ-WA’s goal is to create a rule of law whereby governments must demonstrate that restraints on entry into businesses or professions must be actually related to legitimate public health and safety objectives.

 

The Institute for Justice litigates in support of fundamental individual liberties, including economic liberty—the right to earn a living free from arbitrary or excessive government regulation.  IJ’s headquarters and state chapters have scored significant victories on behalf of entrepreneurs and in the process has opened up long-closed markets.  These important victories include:

 

·<       Uqdah v. D.C. Board of Cosmetology—Although they lost in court, Taalib-Din Uqdah and his wife Pamela Ferrell prevailed in the court of public opinion in 1993 against the District of Columbia, which eliminated a 1938 Jim Crow-era licensing law for African hairbraiders when the District deregulated cosmetology.

·<       Cornwell v. California Board of Barbering and Cosmetology—IJ represented JoAnne Cornwell, creator of the Sisterlocks technique of hair locking, in defeating California’s cosmetology licensing requirement for African braiders in 1999.

·<       Farmer v. Arizona Board of Cosmetology—In 2003, Institute for Justice Arizona Chapter (IJ-AZ) filed a lawsuit on behalf of African braider Essence Farmer seeking to dismantle Arizona’s onerous cosmetology regime, which (like Washington’s) required braiders to attend 1,600 hours of courses that taught nothing about braiding.  Inspired by IJ-AZ’s advocacy, a new law in Arizona now exempts hairbraiders from the State’s outdated cosmetology scheme and Essence will soon be operating Rare Essence Braiding Studio.   

·<       Jones, et. al. v. Temmer, et. al.—Leroy Jones, Ani Ebong and Girma Molalegne opened Freedom Cabs, Inc., in Denver in 1995 after IJ helped them overcome Colorado’s protectionist taxicab monopoly.  Stemming from pressure in the court of public opinion created by their lawsuit, the state legislature enabled Freedom Cabs to become the first new cab company in Denver in nearly 50 years.  Jones’ testimony also contributed to the breakdown of government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.

·<       Ricketts v. City of New York—IJ helped commuter vans fight a public bus monopoly that would not allow the vans to put people to work and take people to work in underserved metropolitan neighborhoods in New York.

·<       Clutter v. Transportation Services Authority—IJ represented independent limousine drivers who defeated Las Vegas’ Transportation Services Authority and entrenched limousine companies that had stifled competition.  Through IJ’s litigation, the once-closed market was opened in 2001.

·<       Craigmiles v. Giles—In 2003, a federal appeals court upheld a lower court ruling that found Tennessee’s government-imposed cartel on casket sales was unconstitutional. This is the highest pro-economic liberty court decision since the New Deal.

·<       Swedenburg v. Kelly—In 2002, a federal judge declared unconstitutional New York State’s laws that barred the interstate direct shipment of wine into New York.  That decision was overturned by the 2^nd U.S. Circuit Court of Appeals.  The case will be heard by the U.S. Supreme Court in the fall of 2004.

Current Litigation

            IJ-WA filed this case, Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board, et al., on August 5, 2004 in King County Superior Court in Seattle.  The case challenges violations of the Washington Constitution’s due process and privileges or immunities clauses, as well as the 14^th Amendment’s due process, privileges or immunities, and equal protection guarantees.

            In its complaint, IJ-WA demonstrates that the State unlawfully deprives Benta of her constitutional rights by enacting regulations unrelated to any public health, safety or welfare concern that prevent her from pursuing her chosen livelihood.  IJ-WA will demonstrate that the application of the cosmetology and barbering regulations to African braiders like Benta subjects braiders to unreasonable and arbitrary barriers not imposed on other professionals.  The complaint also maintains that the State’s failure to provide Benta and other African hairbraiders with the same opportunities provided to others constitutes a violation of the law.  Because Benta and all other braiders will continue to suffer harm to their constitutional rights if the disputed regulations are allowed to stand, IJ-WA seeks a declaration that the regulations are unconstitutional and an injunction preventing the State from enforcing the regulations.   

            The Institute for Justice filed a similar case, Armstrong v. Lunsford, on the same date in the U.S. District Court for the Southern District of Mississippi in Jackson, Miss., challenging Mississippi’s cosmetology regulations, which bar experienced braiders from practicing their craft and aspiring braiders from learning the trade.

            With these two cases, IJ hopes to build on the recent hairbraiding victories in California and Arizona and bring the same results to Washington and Mississippi.  IJ’s efforts will not cease until the right of every American to earn an honest living is secure.

 

Litigation Team

            The lead attorney in Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board, et al., is Institute for Justice Washington Chapter Staff Attorney Jeanette Petersen.  Also on the litigation team is IJ-WA Staff Attorney Charity Osborn and William Maurer, IJ-WA Executive Director, who recently defeated the City of Redmond’s unconstitutional ban on commercial speech in Ballen v. City of Redmond, et al.

 

The Institute for Justice is a nonpartisan, nonprofit public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society.  Through strategic litigation, training, communication and outreach, the Institute secures greater protection for individual liberty and illustrates and extends the benefits of freedom to those whose full enjoyment is denied by the government.  From its offices in Seattle, the Institute for Justice Washington Chapter litigates under the state constitution to reinvigorate economic liberty, to preserve property rights, promote educational choice and defend the right of Washingtonians to freely speak, write and publish on all subjects.  The national organization trains law students, lawyers and others in the tactics of public interest litigation with the goal of limiting governmental power and advancing individual freedom.  The Institute was formed in 1991.

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