Washington Hairbraiding – Background

These articles can be found at this website: http://www.ij.org/diaw-v-washington-state-cosmetology-barbering-esthetics-and-manicuring-advisory-board-untangling-2

 

 

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.

 

For more information contact:

John Kramer, VP for Communications
Lisa Knepper, Director of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320

Jeanette Petersen
Staff Attorney
Institute for Justice Washington Chapter
811 First Avenue, Suite 625
Seattle, WA 98104
(206) 341-9300

 

[1] Jeanette M. Petersen, Entrepreneurship in the Emerald City: Regulations Cloud the Sparkle of Small Businesses (Washington Policy Center, August 5, 2004).

 

[2] See JoAnne Cornwell, That Hair Thing (Sisterlocks Pub., 1997).  One expert estimates that 80 percent of black women suffer damaged hair or hair loss.  See Willie Morrow, “20 Million Women Going Bald,” Beauty Express (4th Quarter 1996), p. 36.

[3] A handful of states, including Washington, D.C., Maryland, Michigan, New York, Tennessee, Florida, California and, most recently, Arizona, have exempted African hairbraiding from the general cosmetology regulatory regime.  See D.C. Code §§ 2-421(17) and (19) and 2-432(a); Md. Bus. Occ. &  Prof. Code § 5-101(k)(2)(iii); Mich. Comp. L. Ann. § 339.1203a(3); N.Y. Gen. Bus. Law § 400(5); Tenn. Code Ann. § 62-4-102(a)(14)-(15); Fla. Stat. Ann. § 477.0132; 2004 Ariz. Sess. Laws 102; Cal.Bus. & Prof. Code § 7316(2)(2).

 

[4] See Walter Williams, The State Against Blacks (New York:  McGraw-Hill, 1982).

 

[5] See Scott G. Bullock, Baltimore: No Harbor for Entrepreneurs (Institute for Justice, 1997); Dana Berliner, Running Boston’s Bureaucratic Marathon (Institute for Justice, 1997); Clint Bolick, Entrepreneurship in Charlotte: Strong Spirit, Serious Barriers (Institute for Justice, 1997); Dana Berliner, How Detroit Drives Out Motor City Entrepreneurs (Institute for Justice, 1997); William H. Mellor, Is New York City Killing Entrepreneurship? (Institute for Justice, 1996); Donna G. Matias, Entrepreneurship in San Antonio: Much to Celebrate, Much to Fight For (Institute for Justice, 1997); Clint Bolick, Brightening the Beacon: Removing Barriers to Entrepreneurship in San Diego (Institute for Justice, 1997).  Copies of all studies may be obtained from the Institute.

 

[6] See Timothy D. Keller, Burdensome Barriers: How Excessive Regulations Impede Entrepreneurship in Arizona (Goldwater Institute, 2003).

 

[7] See Petersen, supra.

[8] See S. David Young, The Rule of Experts: Occupational Licensing in America (Washington: Cato Institute, 1987), pp. 4-5; Clint Bolick Grassroots Tyranny: The Limits of Federal­ism (Washington: Cato Institute, 1993), p. 144.

[9] See S. David Young, The Rule of Experts: Occupational Licensing in America (Washington: Cato Institute, 1987); Simon Rottenberg, ed., Occupational Licensure and Regulation (Washington: American Enterprise Institute, 1980); and Benjamin Shimberg, et al., Occupational Licensing: Practices and Policies (Washington: Public Affairs Press, 1973).

[10] Williams, supra, at p. xvi.

 

[11] NCA’s Diamond Jubilee Years (Korea: National Cosmetology Association, 1995).

[12] Id. at p.7; see also Keith v. State Barber Bd., 212 P. 871 (Kan. 1923); accord, Jeffs v. Bd. of Examiners of Barbers, 30 N.W.2d 445 (Mich. 1948); Johnson v. Ervin, 285 N.W. 77 (Minn. 1939); Lane v. State, 232 N.W. 96 (Neb. 1930); Banghart v. Walsh, 171 N.E. 154 (Ill. 1930); cf. Whitcomb v. Emerson, 46 Cal.App.2d 263, 115 P.2d 892 (Cal. App. 4th Dist. 1941) (striking down appli­ca­tion of Califor­nia cosme­tology licensing to facial massage); New York State Hair­dressers & Cosmetolo­gists Ass’n v. Cuomo, 369 N.Y.S.2d 965 (Sup. Ct. N.Y. Cty. 1975) (invalidating law allowing only barbers and not cosmetologists to cut hair of both sexes).

[13] Id.

[14] RCW § 18.16.900.

[15] RCW §§ 18.16.020, .050

[16] RCW § 18.16.050.

[17] King County Medic One: Questions about Emergency Medical Technicians, available at www.metrokc.gov/health/medicone/medonefaq.htm (last visited July 20, 2004).

[18] Fire Science: General Information, available at www.evcc.ctc.edu/template.cfm?doc_id=551 (last visited July 20, 2004).

[19] Gun Permits and Concealed Weapons, available at www.metrokc.gov/sheriff/services/gun_permits/ (last visited July 20, 2004).

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Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board Untangling African Hairbraiders from Washington’s Cosmetology Regime

 

Institute for Justice Washington Chapter client Benta Diaw

 

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.

 

 

 

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Victory for African Hairbraiders Over Tangle of Cosmetology Laws

Economic Liberty Campaign Prompts Changes In Washington State Cosmetology Licensing Enforcement

 

WEB RELEASE: March 11, 2005
CONTACT:
Jeanette Petersen
(206) 341-9300

Institute for Justice Washington Chapter client Benta Diaw

John Kramer
(703) 682-9320
[Economic Liberty]

Seattle—Benta Diaw, a Seattle area entrepreneur originally from Senegal, Africa, waged a fight against unjust government regulation of African hairbraiders and today she won.  The King County Superior Court today recognized that the Washington Department of Licensing has abandoned its efforts to require African hairbraiders to obtain cosmetology licenses.

 

As a result of her legal challenge filed by the Institute for Justice Washington Chapter (IJ-WA), the State’s Department of Licensing has backed so far away from enforcing laws that once threatened Diaw’s livelihood that today a King County Superior Court judge dismissed Diaw’s lawsuit against the Department of Licensing and the Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board.  The court ruled that African hairbraiders are no longer at risk in Washington.  Before the IJ-WA filed suit on Diaw’s behalf, the cosmetology board demanded that African hairbraiders had to obtain either a cosmetology or barbering license, requiring braiders to attend up to 1,600 hours (more than one year) of approved courses—none of which must actually teach hairbraiding—at an average cost of $7,500.

 

In response to Diaw’s lawsuit, earlier this year the Department of Licensing filed an “Interpretative Statement” that read in part, “The Department of Licensing has carefully considered the practice of natural hair braiding.  Natural hair braiding does not include hair cutting, application of dyes, reactive chemicals or other preparations to alter the color of the hair or to straighten, curl or alter the structure of the hair and therefore does not meet the requirements for licensure as set forth in RCW 18.16.”  Under Washington law, Interpretative Statements are written evidence of an agency’s interpretation of a statute or rule and, as the judge found today, “shall be given great weight” by the courts.

 

The judge found that because the Department of Licensing had recently adopted an Interpretative Statement specifically exempting African hairbraiding from the cosmetology regulations, such action thereby rendered Diaw’s case moot.

“All our clients—and thousands like them nationwide—want to do is earn an honest living practicing a craft handed down through the generations without having to get an irrelevant government license,” said IJ Staff Attorney Jeanette Petersen, the lead attorney in the challenge to Washington’s cosmetology regulations, Diaw v. Stephens, et al.  In August 2004, the Institute for Justice Washington Chapter filed a civil rights lawsuit seeking to overturn state cosmetology licensing laws in Washington on behalf of African hairbraiders who wish to practice without having to seek the government’s permission.  With this change in Washington’s approach to hairbraiding, IJ-WA builds on earlier victories eliminating cosmetology-licensing requirements for African hairbraiders in California, Arizona and Washington, D.C.

 

“We are glad that the Department’s Director ultimately recognized—over objections from the cosmetology industry—that it would be irrational to subject braiding to regulation as part of the cosmetology licensing regime,” said William Maurer, Executive Director of the Institute for Justice Washington Chapter.  “African hairbraiding salons previously operating under the threat of investigation and prosecution by the government now have some reassurance that they can practice their profession without being subject to harassment and enforcement actions.”

 

Earlier this week, the Institute for Justice and its African hairbraiding clients spearheaded a successful legislative effort in Mississippi that changed that state’s cosmetology laws concerning African hairbraiders.  On March 9, the Mississippi Senate reauthorized the Board of Cosmetology, but added an amendment that exempted braiders from the Board’s burdensome regulations.  Previously, Mississippi’s cosmetology licensing regime prevented braiders across the state from earning an honest living practicing and teaching their craft unless they completed up to several thousand hours of training in cosmetology classes that do not teach the art of hairbraiding.

 

Founded in 1991, the Washington, D.C.-based Institute for Justice has a long record of success in representing entrepreneurial Davids against government Goliaths.

 

 

 

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IJ Untangles Cosmetology Laws With Back-to-Back Hairbraiding Victories

 

 

By Valerie Bayham

Top, IJ clients, Christina Griffin, Melony Armstrong and Margaret Burden (from left) stand with IJ staff attorney Valerie Bayham just after Governor Haley Barbour, center, signed legislation releasing Mississippi braiders from the Board of Cosmetology’s control. Institute for Justice Washington Chapter client, Benta Diaw, bottom, also no longer needs a cosmetology license, thanks to the pressure from her IJ-WA lawsuit.

 

The Institute for Justice has dealt protectionism dual knockout blows, defending the economic liberty of African-style hairbraiders from the Gulf of Mexico to the Pacific Northwest. In both Mississippi and Washington state, braiders are celebrating their freedom from the unjust requirements of the states’ cosmetology boards. Braiders—who use no reactive chemicals or dyes—can now practice their cultural art form without having to complete hundreds of hours of onerous and irrelevant training.

 

On April 19, 2005, Mississippi Governor Haley Barbour signed legislation freeing Mississippi braiders from the Board of Cosmetology’s control. Braiders no longer have to earn a cosmetology or wig-specialist license, requiring 1,500 hours or 300 hours, respectively. Instead, they simply pay a $25 registration fee to the Board of Health and complete a short self-test on basic health and sanitation guidelines. This legislative change was initiated in response to an IJ lawsuit filed last August that attacked the State’s outrageous training requirements for braiders and braiding instructors. The legislation will go into effect for a three-year trial period, starting on July 1.

 

This victory is a testament to the hard work and dedication of IJ clients Melony Armstrong and Margaret Burden, who traveled to the Mississippi capitol—along with their IJ attorneys—on a weekly basis in order to inform legislators about the importance of economic liberty to braiders.

 

Armstrong, who owns Naturally Speaking in Tupelo and also offers courses in advanced braiding techniques, noted after a private signing ceremony with the Governor, “This is a dream come true. I am finally able to expand my business and provide jobs to braiders.”

 

Burden, who has been braiding hair since she was a little girl, added, “This bill changes lives. It allows braiders to bring their dreams and ideas into reality. It is about more than economic empowerment—it demonstrates the power of each and every citizen to speak and have its government listen.”

In Washington state, IJ client Benta Diaw is now free to earn an honest living braiding hair as well. Diaw, a Seattle-area entrepreneur from Senegal, opened Touba African Hair Braiding in 1998—just two years after immigrating to the United States. With cosmetology inspectors threatening braiders with citations, Diaw was concerned that her livelihood was in jeopardy.

 

When faced with the might of the Institute for Justice Washington Chapter (IJ-WA), however, the Washington State Department of Licensing quickly retreated from its view that African braiders should be regulated as cosmetologists. This February, the Department filed an Interpretative Statement pursuant to Washington’s Administrative Procedure Act stating that the Department does not consider the practice of natural hair care to fall within the definition of cosmetology; therefore, braiders are not required to have a cosmetology license. Under Washington law, Interpretative Statements are written evidence of an agency’s interpretation of a statute or rule and are given “great weight” by the courts. Finding that African hairbraiders were no longer at risk of citations for operating without a cosmetology license in Washington, the lawsuit was dismissed in March.

 

Commenting on the success of the lawsuit, Diaw recently noted, “I am so very happy to be able to practice my heritage without worrying about the government closing my salon. And I know that other braiders here in Washington are thankful to be free to practice their heritage too.”

 

Thanks to Diaw, Armstrong, and Burden’s courage and their willingness to fight local bureaucrats and government red tape, African hairbraiding salons previously operating under the threat of investigation and prosecution by the government can now be secure in the knowledge that their rights are protected in Mississippi and Washington state.

Valerie Bayham is an IJ staff attorney.