Is this Texas barber regulation unconstitutional?

October 3, 2013

Isis Brantley, left, and her lawyer Arif Panju. (Credit: Courtesy photo.)

If Isis Brantley wants to teach the hair-braiding techniques she’s perfected over the past few decades—and do it out of her own Dallas shop—there are a few hoops to jump through.

She just has to fill out a simple permit application. And make sure she has at least 2,000 square feet of floor space. Her school also has to have at least 10 student workstations, each with liquid sterilizer and a sink behind every two. Oh, and she has to complete 2,250 hours of training.

There is an alternative, the state of Texas says: Brantley can teach African braiding — which she’s done for the likes of Erykah Badu — out of an existing barber school instead. But that, she and the lawyers she’s suing the state of Texas with say, is the problem.

“It’s clear that Texas has no problem with Isis teaching people to braid, it just has a problem with her working for herself,” says Arif Panju, a lawyer with the nonprofit Institute for Justice which fights what it considers to be burdensome economic regulations on behalf of clients such as Brantley. “We feel that this is an unreasonable restriction on her economic liberty, which is protected by the 14th amendment.”

The Texas regulations, they say, violate three clauses of that constitutional amendment in particular: the Due Process, Equal Protection and the Privileges or Immunities clauses.

A case in the late 1800s stripped the Privileges or Immunities clause—”No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—of virtually all meaning, Panju says. But he and the Institute believe that precedent should be overturned.

“One of the core things that we try to defend is the right to earn an honest living and ‘privileges or immunities’ meant privileges such as earning an honest living and immunities from government interference preventing people from enjoying that right,” he said.

Brantley has been fighting such regulations for more than a decade. In the mid-1990s, Texas officials cited her for braiding without a license, saying she needed to go to school and meet state requirements to continue her work.

“How can you regulate an ancient legacy?” she told The Dallas Morning News in 1995. “What I do is the tribal art of braiding. I didn’t go to school for this. It’s a natural gift.”

Two years later, she was arrested for failing to pay related fines. The state created a special hair-braiding license in 2007, but to teach she still has to fulfill what she claims are overly burdensome regulations.

In June, the Texas Department of Licensing and Regulation told her that to teach hair-braiding at her own school she’d have to take classes to obtain a barber license, fill out a permit application and meet more than a dozen other requirements. It’s an example, Panju says, of industries using state regulations to protect their own interests.

Licensing regulations like the ones preventing Brantley from teaching her trade often needlessly lock low-income and minorities out of professions, Panju and others say. The Institute has fought many in other states, including regulations governing eyebrow threaders and teeth whiteners.

“The people who tend to pay the price tend to be individuals at the lower part of the [income] distribution,” says Morris Kleiner, a University of Minnesota professor who has written extensively on occupational licensing and has a book due out next week on the subject.

Professionals have used such rules as a way of limiting labor supply, he says. And jobs that require such licenses have been on the rise. In an April study, he and co-author Alan Krueger, the former chief of Obama’s Council of Economic Advisors,  found that nearly two in five jobs required some form of government approval — a license or certification.

The agency being sued — the Texas Department of Licensing and Regulation — has issued more than 440,000 licenses to individuals as of the end of August, a spokeswoman said. She wouldn’t comment on ongoing litigation but did say that there are 309 licensed hair-braiding specialists.

Texas has three weeks to reply to the lawsuit, which was filed on Tuesday.

Niraj Chokshi reports for GovBeat, The Post's state and local policy blog.
SECTION: {section=politics, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Comments
SECTION: {section=politics, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Show Comments
Most Read Politics
Next Story
Reid Wilson · October 3, 2013