Pritchard v. Board of Cosmetology
Tammy Pritchard, Debra Nutall, Latisha Malone, and Leanna Malone share more than just a bloodline; they share a problem that has become something of a familial burden. They have all had their ability to access a job and earn an honest living hindered by arbitrary state licensing laws. Most recently the family has been affected by a law that forces residents of Tennessee to obtain a license in order to wash hair. Tennessee, along with just five other states, requires government permission to shampoo hair.
Tammy is the plaintiff in our case. She is a police officer who wants nothing more than the ability to wash hair at her friend’s salon in her spare time to earn extra money. Her great niece, Leanna, is in high school and would also like the opportunity to wash hair after school for extra money.
Due to Tennessee’s licensing law, neither Tammy nor Leanna have the ability to undertake this simple task in order to improve their economic state or that of their families.
Washing hair is an activity that practically everyone does on a daily basis from early childhood. You would be hard pressed to find someone who has not at some point in their life washed hair, whether their own or that of a child, an elderly parent, or a friend. Hair washing is an activity that can best be described as mundane, but for many it is also a stepping-stone into a career in hair care or a needed avenue to supplement their income.
Unfortunately for many Tennesseans, the ability to climb the economic ladder is blocked by a state law that requires a license to wash hair. Due to this licensing requirement, residents must spend hundreds of hours in educational programs that cost thousands of dollars before they are able to carry out this simple task in return for money. The state’s licensing law for hair washing is an expensive and arduous process, one that is simply not worth the investment of time and money in exchange for a low-paying job.
Not only is the shampoo license expensive and time consuming, even if a person were able and willing to jump through the hoops to obtain this license, she would still be unable to acquire it. This is due to the fact that no school in the entire state currently offers the course that is a mandated component of the hair washing license. That means that unless you already have a hair washing license from years ago or from another state, you are unable to wash hair in Tennessee without obtaining a cosmetology license, something that requires 1,500 hours of schooling and costs as much as $35,000 in tuition.
As mentioned, Tennessee is one of only five states that require a license to wash hair, and this is just one of the many senseless licensing laws that the Volunteer State currently has on the books. Licensing laws were originally enacted to protect consumers in industries that had a public health or safety component, such as the medical field. However, licensing laws have drastically expanded over the past few decades to the point that one in three workers now needs a license to work. The majority of these licenses are required for jobs that have no health or safety risk at all, such as locksmiths or hair washers.
However silly, these sorts of laws impose a very real burden on the ability of people, often low-income Tennesseans, to earn an honest living. According to the nonprofit Institute for Justice, 53 low- and moderate-income occupations require a license in Tennessee. The average license costs $218 in fees on top of an average of seven months of education. This is a prerequisite to earning a living that many low-income individuals simply cannot meet. This case is about protecting the constitutional right of the aspirational poor to earn an honest living.
Our plaintiff and her family have ties to the natural hair care movement, one that has been rapidly growing in popularity over the past two decades within the African-American community. Natural salons do not utilize many of the traditional methods of hair care and do not use chemicals, heat, or even scissors. Instead these salons focus on traditional braiding, weaving, and arrangement of hair. Our plaintiff is seeking the ability to wash hair in natural hair care salons.
Tammy Pritchard is a former hair braider in the natural hair movement. Her sister, Debra Nutall, invented many of the braiding techniques and styles now widely used in natural hair salons across the South. Tammy trained under her sister and worked in her salon for many years until the state essentially shut that business down by creating new licensing laws and strenuous education requirements in the field of natural, African-style hair braiding. Finding herself without a job or the means to pursue her career, Tammy left hair care behind and began working as a police officer in Arkansas. She currently works in a Memphis school as a resource officer.
Nevertheless, Tammy maintains many close friendships in the natural hair care business and would greatly benefit from the opportunity to work as a hair washer part-time in one of their salons. The ability to do so would mean additional money to help cover her healthcare expenses and save for her retirement. It would also give her the ability to work in a lower stress environment surrounded by friends in a field that she loves, a much-needed departure from her physically and mentally stressful full-time job.
Leanna Malone is Tammy’s great niece. She is a vivacious high school student who is involved in several after school activities and is preparing for college in two years. Leanna would like to braid hair as she puts herself through college, and for now she wants to wash hair to get her foot in the door and start earning extra money while still in high school.
There are many salons in the Memphis area that would like to hire Tammy or Leanna, including Regina Washington of Fabulous Fantasy Styles. Because no school offers the curriculum for the hair-washing license, there is a shortage of licensed shampoo technicians in the state. Thus, Regina would have to hire a fully licensed cosmetologist just to wash hair. Hiring a cosmetologist is much more expensive than hiring someone hourly to wash hair during busy times.
Due to Tennessee’s hair washing licensing law, this is a situation that many salon owners find themselves in, with more business than they can handle on their own, but without the resources to bring on another fully licensed counterpart. Many salon owners just need someone to help them wash hair or fold towels during peak times, a position that could be easily filled by friends, family members, interns in cosmetology school, high school students, or retirees. That is, if the government didn’t stand in their way.
Tennessee’s Licensing Schemes
A 2015 report by the Obama administration recognized that out of control licensing boards are a drag on the economy. They also harm consumers and people looking for a good job. Unnecessary license requirements saddle would-be job seekers with thousands of dollars in unnecessary fees, schooling, and exam requirements that do little to protect public safety. Faced with such obstacles, many able-bodied Americans decide that they cannot meet the demands placed on them to get a good job.
The costs of training and education are often prohibitive, making it nearly impossible for many people who want to work and get their families out of the cycle of poverty. These burdens are implemented and then heightened, year after year, by regulatory boards that are run by industry competitors who operate with little oversight and an obvious conflict of interest.
This is not to say that the government should have no ability to protect the health and safety of the public. In fact, there are numerous ways to protect consumers without onerous and often insurmountable licensing schemes. The state could use certification, insurance and bonding, deceptive trade practice laws, and other means to protect consumers that are less restrictive than licensing laws.
A perfect example of the problem these licensing laws create is the story of Ms. Debra Nutall. Debra, who is the sister of our plaintiff Tammy, invented new braiding and styling techniques for natural African hair many years ago at a time when many natural hairstyles were not accepted by society and considered inappropriate for office cultures. Debra’s techniques revolutionized the natural hair care movement and spread quickly. The natural hair movement gives African-Americans the ability to wear their hair in neat, professional styles that do not, unlike conventional methods, threaten long-term damage to the hair and scalp. For many African-Americans, a natural hairstyle is a cultural expression and point of pride.
Debra’s business soared and spread, and she was able to pull herself out of the welfare system she had previously been dependent upon. She was also able to move her family out of public housing. As demand for her services grew, Debra began training many of the women around her, including her sister Tammy and her daughter Latisha. These women also saw their lives dramatically improved and many were able to pull themselves off welfare and improve their own quality of life. The effects of Debra’s innovation and entrepreneurship were vividly displayed throughout the lives of her community. But then, out of the blue, the state of Tennessee decided to implement a licensing requirement that carried an educational component for Debra’s trade.
Literally overnight, Debra went from a successful business owner and entrepreneur to a criminal in the eyes of the state operating without a license in the field that she had pioneered. To add insult to injury, the state’s new education requirements were barely defined and had very little to do with hair braiding.
Faced with the option to either put her business on hold for several years and pay thousands of dollars to earn a degree in a field she had invented, or to shut down her business, Debra chose to leave the state and head for freer pastures. She relocated across the border of Memphis to the state of Mississippi where no such licensing laws for hair braiding existed. Tennessee lost a successful business, one that was enabling people to pull themselves up by their bootstraps, providing jobs, and injecting money into the economy. And for many, it took away the fundamental civil right to pursue an honest living.
As senseless and silly as this tragedy was, the demand to obtain a license to wash hair is even stranger. Even if Tennessee schools were to actually offer the shampoo technician program, the requirements are absurd. The costs for previously offered courses were around $3,100 for a three-month program, and that program’s curriculum was never specifically defined by the Board of Cosmetology, proving that the education served no particular end.
According to the Board’s website, an applicant must complete instruction of “not less than 300 hours on the theory and practice of shampooing” at a school of cosmetology. Subjects included in the theory and practice of shampooing include items such as how to answer the phone, ordering product, composition of shampoos, and OSHA requirements, subjects that no hair washer needs to know.
Still worse are the consequences for failing to obtain a license. The Board will threaten those who wash hair without a license with up to six months in prison, a $500 criminal fine, and/or a civil penalty of $1,000 per incident.
The real reason for licensing shampoo technicians is to exclude competitors, and for the state to enrich itself on the fees and fines. These requirements hurt those who are looking for nothing more than to make a better life for themselves and their family. It is past the hour to look at these types of licenses with a critical eye.
No one, especially someone supervised by a licensed cosmetologist, needs a license to do what all of us manage to do on virtually a daily basis: wash hair. A person acting under the supervision of a licensed cosmetologist can easily learn how to safely and competently apply shampoo and rinse it out.
These unnecessary occupational licensing laws have been hurting residents of Tennessee for generations—from Debra and her sister Tammy, to her daughter Latisha, and now even her granddaughter Leanna. It’s time we wash our hands of regulations that do nothing but burden those who wish to work.
The Legal Claim
All laws, even those that do not implicate a fundamental right, must rationally further some legitimate purpose. The Fourteenth Amendment to the U.S. Constitution guarantees this basic principle of fairness. Tennessee’s shampoo licensure scheme fails even this forgiving test enunciated in the federal constitution. There is no legitimate purpose like protecting health and safety in this particular licensing law. Nor does the training and licensure accomplish any legitimate goal. There is not a single school that offers that training anywhere in the state, the training is irrelevant, and it places an unwarranted hardship on low-income individuals who wish to earn an honest living.
The Beacon Center Legal Foundation is also challenging this law under the Tennessee constitutional prohibition against monopolies. Because no school offers the shampooer curriculum, no one else may become a shampoo technician who is not already licensed as one, meaning that the state has created a monopoly for existing license holders.
Despite any evidence of public harm or clear statutory authority, Tennessee’s Board of Cosmetology requires a license to wash hair. In doing so, the Board violates our clients’ economic liberty, one of their most precious rights as citizens, and Tennessee’s constitutional prohibition against monopolies.
We are also challenging this law under Article I, Section 8 of the Tennessee Constitution. The right to engage in a chosen profession is a liberty and property interest protected by our state constitution. So important is it that the Tennessee Supreme Court has deemed it a fundamental right. By applying regulations that far exceed whatever legitimate public health and safety requirements are necessary to protect the public in the context of unregulated shampooing, and by prohibiting anyone from shampooing absent expensive training, the Board has violated our clients’ constitutional rights.
Finally, the Fourteenth Amendment protects the privileges and immunities of citizens, the right to due process under law, and the right to equal protection under the law. The Board’s actions have irrationally, arbitrarily, and excessively restricted the ability of our clients to engage in a legitimate vocation.
The plaintiff in this case is Ms. Tammy Pritchard. She is seeking to wash hair for a living. The defendant is the Tennessee Board of Cosmetology and Barber Examiners, and Roxana Gumucio, in her official capacity as executive director of the Board.
This case has been filed in the Chancery Court of Davidson County.
The plaintiff seeks a declaratory judgment that the Board’s actions violate the plaintiff’s state and federal constitutional rights.
The plaintiffs also seek an order permanently enjoining the Board from enforcing a licensure requirement on shampooers.
The Legal Team
Braden Boucek is the Director of Litigation for the Beacon Center. Prior to joining the Beacon Center, he worked as an Assistant United States Attorney, and before that for the State of Tennessee as a trial and appellate prosecutor.
Justin Owen is the president and CEO of the Beacon Center and is licensed to practice law in Tennessee.