Bottleneckers. William Mellor
reactions.”53 Tamu Smith, a salon owner in Provo, Utah, testified that braiding was dangerous due to its potential to “create permanent hair loss if it is not done correctly.”54 And Brandy Pierson, a licensed Utah cosmetologist, drew applause from the hearing’s audience when she cautioned the committee, “When you do hair braiding, if the hair is not properly done right or taken care of, mold can grow in the hair, considering the hair is a keratin and protein-based product.”55 Lost in all the hyperbole was the fact that braiders don’t use chemicals that can burn consumers’ skin or engage in practices that can lead to injury. Moreover, as is often the case, the Utah bottleneckers did not advance their assertions with evidence that licensing could or would protect against such dangers.
Had the state board simply required minimal training on sanitation practices commensurate with the negligible risks associated with hair braiding, Jestina would have willingly complied. But, for Jestina, the fight to unshackle hair braiders from the cosmetology license was no longer just about her. With her degree in hand, she could have easily found a job making significantly more money than braiding could provide and let the status quo prevail. But after witnessing the cosmetology board’s arrogance and watching helplessly as the bottleneckers wielded exaggeration and influence to manipulate the legislature for their own benefit—and ultimately killing Richardson’s bill—she could not walk away.
On April 26, 2011, Jestina filed a lawsuit with the US District Court for the District of Utah to challenge the state’s hair-braiding regulations. In it, she argued that the state’s requirements for obtaining a license had nothing to do with her job and infringed upon her constitutional right to earn a living.56 She hoped that the state would move to change the law under pressure of a lawsuit, but the board held firm. In characteristic bottlenecker fashion, lawyers for the state asserted that the regulations were designed to protect public safety, health, and welfare.57 In this case, the judge was unimpressed.
On August 8, 2012, US district judge David Sam wrote:
Utah’s cosmetology/barbering licensing scheme is so disconnected from the practice of African hair braiding, 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.58
In a similar message to the one Jestina had conveyed in her plea before the cosmetology board, Judge Sam pointed out that there was no good reason to require a person wishing to braid hair to complete hours of classes unrelated to hair braiding. As evidence, the judge noted that hair braiding of any kind was mentioned in only 38 of the 1,700 pages of texts commonly used in Utah’s cosmetology schools. “Most of the cosmetology curriculum is irrelevant to hair braiding. Even the relevant parts are at best, minimally relevant,” he wrote.59 In response to this issue, the state’s attorneys could not answer “which, if any, schools teach hair braiding.”60
Finally, although he did not use the term as such, Sam highlighted the role of license creep in the board’s actions. He noted that it was “undisputed” that the legislature never considered African hair braiding when it enacted the cosmetology act, which meant the board was “irrationally squeeze[ing] ‘two professions into a single, identical mold’ by treating hair braiders—who perform a very distinct set of services—as if they were cosmetologists.”61
It did not take a multiday hearing to discern the irrationality of the board’s position. Just days after news of the judge’s decision broke, a letter to the editor appeared in one of Salt Lake City’s newspapers that illustrated how plain to see the bottleneckers’ motivation was:
Let me see if I have this straight. After a ground school and approximately 50 hours of instruction and flight experience, a person can be licensed to take himself or herself and any other trusting soul into the air in a private plane. And after a short school, a few hours of instruction and a few more of supervised driving, a 16-year-old can be licensed to take his or her friends and hurtle them down a highway at a murderous rate of speed. But to get a license to touch another person’s hair requires 2,000 hours of supervised experience and school tuition approaching $16,000. And the Utah barber/cosmetology licensing board wanted to require that Jestina Clayton of Centerville obtain such a permit before being allowed to braid a friend’s hair! Makes sense to me. I cannot imagine why the court sided with Clayton instead of the licensing board. If public safety is indeed the issue, we have it all backwards.62
Perhaps sensing a lost cause, the state declined to appeal the decision.63
A QUARTER CENTURY OF BOTTLENECKING
From the time of the appearance of that threatening e-mail to the time of the release of Judge Sam’s opinion, Jestina endured three years of occupational uncertainty, lost wages, and emotional turmoil. Had she been the first braider to battle the bottleneckers, resistance by the board and inaction by the legislature might have been explainable on the basis of low levels of awareness and misunderstandings about hair braiding. But in 2009, Jestina’s dustup with Utah’s truculent cosmetology board was just the latest in a series of battles against cosmetology bottleneckers going back at least a quarter century to when Taalib din Uqdah began his fight against the District of Columbia’s cosmetology board.
Taalib’s battle began in 1989 when he received a series of sharp knocks at his salon door.64 It had been a particularly busy day, and the persistent knocking was an unwelcome interruption. When he answered the door, Taalib found himself face to face with an enforcement officer from the DC Board of Cosmetology who demanded to see his cosmetology license. He replied that he had not realized that he needed one and promised to apply promptly. It was a promise he intended to keep—until he learned what the process required.
In order to continue braiding hair in the District of Columbia legally, Taalib would have to complete at least 1,500 hours of prescribed training in one of a handful of licensed cosmetology schools, which, at that time, charged between $3,500 and $5,000. He would be required to master chemical and heat treatments of hair—irrelevant to braiding—and spend 125 hours practicing shampooing techniques. Each of the ten people employed by Taalib would also have to get licensed in this way, and as a manager he would be required to undergo further training.
Seeing the training as nonsensical and unable to afford such time and expense, Taalib and his wife decided to stay open without a license. Soon the cosmetology police returned; this time with a cease-and-desist order and a $1,000 fine. He faced a choice: to close his business for months while he went to school or to continue to operate without a license and confront the prospect of more hefty fines and up to ninety days in jail.
By the time Taalib was informed of the licensure requirement, his business was already quite successful. In 1980, he and his wife, Pamela Farrell, had opened Cornrows & Co. with $500 in cash and three clients.65 It was the first hair-braiding salon in Washington, DC. Through hard work and excellent service, they developed a booming business in an urban area desperately in need of successful businesses. They built a clientele of thousands of customers, employed almost a dozen people, and enjoyed a revenue stream of half a million dollars a year. Some customers came from as far afield as Connecticut, six hours away, to receive hair styling.66 Then came those knocks at the door.
The laws that the cosmetology board used to approach Taalib were first enacted by Congress in 1938. The legislation was proposed by the Washington chapter of the national cosmetology trade association and was backed strongly by “an organization composed of most of the so-called exclusive, higher priced shops, and whose total membership today does not represent one-tenth of the beauty shops in Washington.”67
Among those opposed to the bill was a representative of small beauty salons who charged that those in favor were motivated by protectionist impulses:
This bill . . . is sponsored by the owners of the remaining number of exclusive and once high-priced beauty shops that remember the tremendous prices they once received from their fashionable patrons—and I fear that these same persons hope to get control of the situation in the legislation as proposed, limit or control competition, and perhaps somehow get back into