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African hair braider gets federal court win

Published August 10, 2012 11:34 am

Court • Centerville woman says she's ready to get back to work.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A federal judge said Wednesday the state's demand that an African hair braider get a cosmetology license was unconstitutional since most of the training required is "irrelevant" to her home-based service.

In ruling in favor of Jestina Clayton, U.S. District Court Judge David Sam cited a 1915 U.S. Supreme Court ruling that held the right to work for a living in common, community-based occupations is the "very essence of the personal freedom and opportunity" protected by the U.S. Constitution.

"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 judge said in his decision. "Most of the cosmetology curriculum is irrelevant to hair braiding. Even the relevant parts are at best, minimally relevant."

Paul Avelar, an attorney with the Institute for Justice in Virginia, represented Clayton in the case and in a statement called the decision a "major victory for economic liberty.… This is a great victory for Jestina and all entrepreneurs who simply wish to pursue their chosen occupation free of unreasonable government interference."

Clayton, a refugee from Sierra Leone who now lives in Centerville, began braiding hair in 2005 while attending Weber State University. Clayton said she was told by a state regulator she did not need a cosmetology license as long as she did not cut or use chemicals to style hair. But Clayton said that changed in 2009, when she was told to get a license. The state act that covers cosmetologists and barbers requires them to complete 2,000-hours of training, at a cost of as much as $18,000, and pass a test in order to get a license. Clayton protested the license requirement before the state's cosmetology board in 2010, but it ruled against her. When she failed to find a legislator willing to amend the act to except hair braiding, she contacted the Institute for Justice and it filed the civil lawsuit on her behalf.

Attorneys for the state Division of Occupational and Professional Licensing argued that regulations are designed to protect the public safety, health and welfare and also ensure that businesses are up-to-date on laws and best practices. In Clayton's case, classes that address sanitation, sterilization, skin and scalp diseases applied, the state said.

Sam said Clayton was not seeking deregulation of cosmetology, but only challenging whether the state's licensing scheme applies to African hair braiding. He noted it is "undisputed" that the Legislature never considered African hair braiding when it enacted the cosmetology act and there was no good reason to require Clayton to take up to 1,600 hours of classes that are "irrelevant" to hair braiding. The judge said hair braiding of any kind is mentioned only in 38 pages of the 1,700 pages of texts commonly used in Utah's cosmetology schools and prosecutors could not answer which, if any, schools teach the technique.

"The state admits that it cannot guarantee that the subjects it claims are relevant to African hair braiding will be given more than minimal time in any cosmetology/barber school, making even its estimate of 'relevant hours' speculative," the judge wrote in his decision, creating an "insufficient rational relationship" between safety concerns and the regulations as applied to Clayton.

Clayton issued a statement Thursday saying she was "grateful" for the outcome.

"It has been a long time that I've been fighting with Utah just so that I could braid hair," Clayton said. "I am looking forward to getting back to work and to my clients who have been so supportive of my fight."