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Utah Licensing Law Is Unfair to Hair Braider

SALT LAKE CITY (CN) - A Utah woman who wants to charge for African hair braiding overcame the state's attempt to make her get a cosmetic license, with a judge finding that the state had applied its law unconstitutionally.

Jestina Sunkarie Bangura-Clayton started braiding hair in 2005 without a license, but was told in 2009 to halt the services until she completed 2,000 hours of cosmetology training, which would also cost thousands of dollars.

The Virginia-based Institute for Justice took up Bangura-Clayton's case, which alleged violations of due process and equal protection. Clayton also claimed that the privileges or immunities clauses protect her right to pursue the livelihood of her choice, free from arbitrary, excessive and irrational government regulation.

U.S. District Judge David Sam granted Bangura-Clayton partial summary judgment last week, finding that Utah had unconstitutionally applied its Cosmetology Act and licensing regulations against her.

"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 ruling states.

Sam listed seven "facts" that helped him determine that mandatory cosmetology curriculum, textbooks and practical examinations would not help Bangura-Clayton.

"By the state's own admission, 1400 to 1600 of the 2000 hours of the mandatory curriculum are irrelevant to African hairbraiding, yet Jestina is still required to take those classes, and be tested on those topics, in order to braid hair," Sam wrote.

He added: "the state does not know which schools, if any, teach African hair braiding; how many hours, if any, of African hair braiding instruction are available at those unknown schools; or whether the unknown number of hours of instruction at those unknown schools are mandatory or elective."

Just 38 pages, of approximately 1,700, in required cosmetology textbooks mention braids of any kind, according to the court.

Utah "admits that the practical examination it requires to obtain a cosmetology license is irrelevant to African hairbraiding and that it has no idea whether its written examination requires any knowledge of natural or African hairbraiding," Sam added.

Clayton does not use chemicals or shampoo, and she neither cuts nor colors hair. She also does not do facials, shaves, esthetics or nails.

"These facts demonstrate an insufficient rational relationship between public health and safety and the actual regulatory scheme as applied to Jestina," the ruling states.

"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," Sam wrote.

Utah also won partial summary judgment since the privileges or immunities argument is foreclosed by the Slaughter-House Cases, an 1873 decision by the U.S. Supreme Court that interpreted the then relatively new 14th Amendment.

Bangura-Clayton expressed her gratitude for the decision in a statement through the Institute for Justice.

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

Institute for Justice Arizona executive director Tim Keller added: "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."

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