Published on August 29th, 20120
Federal Judge Strikes Down Utah’s Hairbraiding Licensing Scheme
Salt Lake City, Utah—In a major victory for economic liberty, a federal court ruled late yesterday that Utah’s requirement that hairbraiders have a government-issued cosmetology license is unconstitutional. Jestina Clayton, a Salt Lake city-based African hairbraider with more than 23 years of experience. Along with the Institute for Justice and local counsel Maxwell Miller and Randy Grimshaw of Parsons Behle & Latimer in Salt Lake City, Jestina filed suit to fight the state’s anti-competitive cosmetology regulations.
Under Utah law, Jestina could not be paid to braid hair unless she first spent thousands of dollars on 2,000 hours—one full year—of government-mandated cosmetology training. But Utah never considered African hair braiding when creating its licensing scheme and has never investigated whether African hair braiding is a threat to public health or safety. Moreover, Utah’s mandatory training is almost entirely irrelevant to African hairbraiding; Jestina would have to spend almost all of her 2,000 hours on irrelevant topics, and Utah did not even know whether African hair braiding was taught in its approved cosmetology schools.
The Honorable David Sam of U.S District Court for the District of Utah held, consistent with decades of U.S. Supreme Court precedent, that “The right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that the Constitution was designed to protect.”
Judge Sam further ruled that “Utah’s cosmetology/barbering licensing scheme is so disconnected from the practice of African hairbraiding, much less from whatever minimal threats to public health and safety are connected to braiding, that to premise Jestina’s right to earn a living by braiding hair on that scheme is wholly irrational and a violation of her constitutionally protected rights.”
Finally, the ruling stated that, “Utah’s regulations do not advance public health and safety when applied to Jestina because Utah has irrationally squeezed ‘two professions into a single, identical mold,’ by treating hair braiders–who perform a very distinct set of services–as if they were cosmetologists. The scope of Jestina’s activities are distinct and limited when compared to cosmetologists. She does not use chemicals, shampoo, cut or color hair, or do facials, shaves, esthetics, or nails. Even if she were defined as a cosmetologist, the licensing regimen would be irrational as applied to her because of her limited range of activities. Most of the cosmetology curriculum is irrelevant to hairbraiding. Even the relevant parts are at best, minimally relevant.”
“This is a great victory for Jestina and all entrepreneurs who simply wish to pursue their chosen occupation free of unreasonable government interference,” said Paul Avelar, attorney with the Institute for Justice. “The judge reached this decision because he was engaged. He looked at the facts and concluded that Utah’s cosmetology regulations simply made no sense when it came to African hairbraiding. Those regulations only hurt people’s ability to work at an occupation that is safe for all.”
“I am so grateful. It has been a long time that I’ve been fighting with Utah just so that I could braid hair. I am relieved that the judge saw the facts of my situation and protected the right to earn a living when the other branches of government did not,” exclaimed Jestina Clayton. “I am looking forward to getting back to work and to my clients who had been so supportive of my fight.”
“When the government imposes unreasonable regulations, as Utah did, courts must protect the right to earn an honest living. No one should have to hire a lawyer or lobbyist just to go to work,” added Institute for Justice Arizona executive director Tim Keller. “The U.S. Constitution protects every individual’s right to earn an honest living in their chosen occupation free from arbitrary and irrational government regulations. But this constitutional right is meaningless unless courts enforce it.”
IJ President and General Counsel Chip Mellor added, “This is just the most recent decision in a string of decisions by federal courts across the country to protect the constitutional right to earn an honest living. If the State of Utah decides to appeal, we will vindicate economic liberty again, and we will keep going all the way to the U.S. Supreme Court. The Constitution does not allow the government to make entrepreneurs jump through pointless hoops. This is an opinion that will not only help Jestina, but will also help other entrepreneurs nationwide who find their right to economic liberty violated by state and local regulators for no legitimate reason.”