Waugh et al v. Nevada State Board of Cosmetology

Filing 45

ORDER Granting in Part and Denying in Part Plaintiffs' 27 Motion for Summary Judgment. Summary judgment is granted in Plaintiffs' favor on their claims under the Due Process Clause of the Fourteenth Amendment. Defendant's 29 Motion for Summary Judgment is Granted in Part and Denied in Part. Summary judgment is granted in the Board's favor on Plaintiffs' claims under the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. The Clerk of Court shall enter judgment accordingly. Signed by Judge Andrew P. Gordon on 8/6/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LISSETTE WAUGH and WENDY
ROBIN,
Plaintiffs,

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v.

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NEVADA STATE BOARD OF
COSMETOLOGY,

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Case No. 2:12-cv-01039-APG-VCF
ORDER GRANTING IN PART AND DENYING
IN PART PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
(Dkt. Nos. 27, 29)

Defendant.

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I.

BACKGROUND
Plaintiffs Lissette Waugh and Wendy Robin seek to operate makeup artistry schools in

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Nevada without being licensed as cosmetology or aesthetics instructors, and without their

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facilities being licensed as cosmetology schools. The Nevada State Board of Cosmetology (the

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“Board”) contends that makeup artistry is a branch of cosmetology, and therefore may be taught

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only by licensed instructors at licensed schools of cosmetology. The Plaintiffs are not licensed

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cosmetology or aesthetics instructors and their schools are not licensed schools of cosmetology.

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The undisputed facts are as follows.

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A.

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Waugh, a licensed aesthetician in Nevada, owns the L Makeup Institute (“LMI”) in Las

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Lissette Waugh & L Makeup Institute

Vegas, Nevada. In June 2010, Waugh opened LMI to exclusively teach makeup artistry.
In October 2010, in response to an anonymous complaint, the Board contacted Waugh and

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asked to meet with her at LMI to learn more about her business. Annie Curtis, the Board’s Chief

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Inspector, and Jeffrey Green, a Board inspector (collectively, the “Inspectors”), visited Waugh at

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LMI. The Inspectors told Waugh that the Board’s position was that she was teaching aesthetics

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without an instructor’s license and that LMI was an illegal unlicensed cosmetology school. They

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also told Waugh that she must stop holding her business out as a makeup artistry school. The

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Inspectors “made it clear” that the Board believed that LMI fell under the Board’s jurisdiction and

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that in order to advertise LMI as a makeup artistry school, Waugh would have to apply for a

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cosmetology school license and comply with all regulations governing cosmetology schools.1

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Waugh argued that makeup artistry is distinct from cosmetology; in response, the Inspectors

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suggested she present her case directly to the Board. The Inspectors told Waugh to stop charging

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fees for instruction, and also that she could “essentially continue operating in the same manner,”

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at least until she met with the Board, if she “changed the words on her website,” presumably to

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stop representing that she was teaching makeup artistry for a fee.2

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In February 2011, Waugh presented her case to the Board. The Board informed her that

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the cosmetology licensing scheme applied to her and to her school, and that the only way she

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could get an exemption from the occupational licensing laws was through the state Legislature.

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Waugh continues operating LMI as a makeup artistry school, risking punishment under the

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cosmetology statute including a fine up to $2,000.

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B.

Wendy Robin & Studio W

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Robin’s struggles with the Board parallel Waugh’s. Robin has been a licensed

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cosmetologist in Nevada since 2010. In December 2010, she opened Studio W in Henderson,

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Nevada to exclusively teach makeup artistry.

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In February 2011, Inspector Green informed Robin that the Board had received an

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anonymous tip that she was illegally teaching makeup artistry. Shortly thereafter, Robin met with

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the Inspectors (Green and Curtis) at the Board’s office in Las Vegas. The Inspectors told Robin

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that she would have to either disable the Studio W website or completely change the website’s

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language. The Board objected to the website’s use of the words “classes” and “course” in the full

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context in which they were used.

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(Compl. ¶ 78; Am. Answer ¶ 78.)

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(Compl. ¶ 84; Am. Answer ¶ 84.)

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Robin has since closed Studio W and now teaches makeup artistry on a freelance basis.

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However, she does not have an instructor’s license and faces a fine of up to $2,000 every time she

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teaches.

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C.

Facts Common to Both Plaintiffs

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The parties agree on these common facts related to cosmetology and makeup artistry

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broadly, what the Board has demanded for compliance with the cosmetology statutes and

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regulations, and the Board’s present conduct with respect to Plaintiffs’ activities. Cosmetology

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includes a broad range of specialty occupations focusing on hair care, skincare, and nail care.

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Makeup artistry, on the other hand, is more limited; among other differences with cosmetology,

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makeup artistry does not include hair cutting, hair coloring, hair styling, or hair removal.
To comply with the Board’s interpretation of Nevada’s cosmetology licensing scheme,

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Waugh and Robin would have to obtain either a cosmetologist instructor license or an

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aesthetician instructor license. In addition, Waugh and Robin would have to convert their

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makeup artistry schools into schools of cosmetology. Cosmetology schools train students to work

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as hair stylists, skincare specialists (aestheticians), and manicurists by teaching them how to treat

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the hair, skin, and nails. Cosmetology schools provide some instruction in makeup application.

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But the mandatory curriculum for cosmetology and for aesthetics does not include instruction for

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applying makeup with an airbrush, for special effects makeup, or for applying makeup for high-

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definition film or television. The state examinations to become a licensed cosmetologist and

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licensed aesthetician test only the most basic makeup application techniques. The state

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examination to become a licensed instructor does not test makeup artistry or makeup artistry

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instruction. Finally, compliance would force Plaintiffs’ schools to meet various structural and

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equipment requirements, at significant costs.

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The Board has closed its investigations of both schools because it believes LMI and

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Studio W came into compliance by not operating as schools—i.e., not accepting fees to teach

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makeup artistry. The Board has not taken any disciplinary action against Waugh or Robin.

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In June 2012, Plaintiffs filed suit against the Board under 42 U.S.C. § 1983, claiming violations

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of the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the
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Fourteenth Amendment, the Privileges or Immunities Clause of the Fourteenth Amendment, and

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the Free Speech Clause of the First Amendment.3 Both sides have moved for summary

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judgment.4

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II.

ANALYSIS

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A. Legal Standard — Summary Judgment, Fed. R. Civ. P. 56

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The Federal Rules of Civil Procedure provide for summary adjudication when the

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pleadings, depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law.”5 Material facts are those that may affect the outcome of

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the case.6 A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable

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jury to return a verdict for the nonmoving party.7 “Summary judgment is inappropriate if

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reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict

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in the nonmoving party’s favor.”8 A principal purpose of summary judgment is “to isolate and

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dispose of factually unsupported claims.”9

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In determining summary judgment, courts apply a burden-shifting analysis. “When the

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party moving for summary judgment would bear the burden of proof at trial, it must come

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forward with evidence which would entitle it to a directed verdict if the evidence went

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uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the

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absence of a genuine issue of fact on each issue material to its case.”10 In contrast, when the

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(Compl., Dkt. No. 1.)

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(Dkt. Nos. 27, 29.)

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Fed. R. Civ. P. 56(a).

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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See id.

8

Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).

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Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

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C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)
(citations omitted).

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nonmoving party bears the burden of proving the claim or defense, the moving party can meet its

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burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving

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party’s case; or (2) by demonstrating that the nonmoving party failed to make a showing

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sufficient to establish an element essential to that party’s case on which that party will bear the

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burden of proof at trial.11 If the moving party fails to meet its initial burden, summary judgment

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must be denied and the court need not consider the nonmoving party’s evidence.12

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish either that a genuine issue of material fact exists or that the moving party is not

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entitled to judgment as a matter of law.13 To establish the existence of a factual dispute, the

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opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient

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that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’

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differing versions of the truth at trial.”14 In other words, the nonmoving party cannot avoid

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summary judgment by relying solely on conclusory allegations that are unsupported by factual

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data.15 Instead, the opposition must go beyond the assertions and allegations of the pleadings and

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set forth specific facts supported by competent evidence that shows a genuine issue for trial.16

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth but to determine whether there is a genuine issue for trial.17 The evidence of the nonmovant

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is “to be believed, and all justifiable inferences are to be drawn in his favor.”18 But if the

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evidence of the nonmoving party is merely colorable or is not significantly probative, summary

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judgment may be granted.19

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11

See Celotex, 477 U.S. at 323–24.

12

See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

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13

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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14

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).

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See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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See Celotex, 477 U.S. at 324.

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See Anderson, 477 U.S. at 249.

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Id. at 255.

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See id. at 249–50.

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Finally, “[a] trial court can only consider admissible evidence in ruling on a motion for

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summary judgment.”20 As “authentication is a condition precedent to admissibility, . . .

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unauthenticated documents cannot be considered in a motion for summary judgment.”21
Because there are no genuine disputes of material fact in this case, a conclusion to which

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both sides agree, I can order judgment as a matter of law.

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B.

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42 U.S.C. § 1983 provides:

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Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress. …

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Legal Standard — 42 U.S.C. § 1983

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Section 1983 provides a mechanism for the private enforcement of substantive rights conferred by

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the U.S. Constitution and federal statutes.22 Section 1983 “‘is not itself a source of substantive

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rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’”23 “To

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state a claim under § 1983, a plaintiff must [1] allege the violation of a right secured by the

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Constitution and laws of the United States, and must [2] show that the alleged deprivation was

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committed by a person acting under color of state law.”24

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Neither side raised the issue of Eleventh Amendment immunity in the moving papers. I

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will address it, nonetheless. For claims brought under § 1983, the Eleventh Amendment affords

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immunity to the State of Nevada and to agencies of the State, such as the Nevada State Board of

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Cosmetology.25 However, “Eleventh Amendment immunity is treated as an affirmative defense

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20

Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

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Id. (internal quotation marks and citation omitted).

22

Graham v. Connor, 490 U.S. 386, 393–94 (1989).

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Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3

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West v. Atkins, 487 U.S. 42, 48 (1988).

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(1979)).
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Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66–67 (1989); Krainski v. Nev. ex. rel. Bd. of
Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967–68 (9th Cir. 2010).

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and can be expressly waived or forfeited if the State fails to assert it.”26 “A state waives its

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Eleventh Amendment immunity if it unequivocally evidences its intention to subject itself to the

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jurisdiction of the federal court.”27 In Johnson, the Ninth Circuit held that the defendant

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Community College District, an agency of the State of California, waived its Eleventh

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Amendment immunity by “engaging in extensive proceedings in the district court without seeking

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dismissal on sovereign immunity grounds.”28 The defendant “litigated the suit on the merits,

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participated in discovery, and filed a motion to dismiss and a summary judgment motion without

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pressing a sovereign immunity defense,” even though it “baldly asserted in its Answer” that it

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was immune under the Eleventh Amendment.29

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Similarly, the Board asserted in its Answer that it is immune from suit under the Eleventh

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Amendment,30 yet the Board did not move for dismissal on this basis, participated in discovery,

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moved for summary judgment without raising Eleventh Amendment immunity as a defense, and

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orally argued the motion without raising this defense. In this circumstance, the Board

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unequivocally waived its Eleventh Amendment immunity as to this lawsuit.31 Accordingly, I may

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order judgment against the Board, including enjoining the Board and its agents and employees,

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from enforcing the cosmetology statutes and regulations.32

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Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1082 (D. Haw. 2012) (citing ITSI T.V. Prods.,
Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993)).
27

Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1021 (9th Cir. 2010) (internal
quotation marks and citation omitted).
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Id. at 1022.

29

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Id.

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(Dkt. No. 12 at 12.)

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31

See Johnson, 623 F.3d at 1022.

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32

Cf. 995 Fifth Ave. Assocs., L.P. v. N.Y. State Dep’t of Taxation & Fin., 963 F.2d 503 (2d Cir.
1992) (affirming in part bankruptcy court’s affirmative injunction against the State of New York to refund
certain tax payments).

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C.

Article III Justiciability

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The Board argues that Plaintiffs’ claims are not justiciable under Article III of the U.S.

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Constitution, which “requires that [federal courts] decide only ‘cases’ or ‘controversies.’”33 To

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determine if a case or controversy is of the “justiciable sort referred to in Article III,”34 courts rely

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on the related doctrines of standing, ripeness, and mootness.35 “The party invoking federal

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jurisdiction has the burden of establishing” the justiciability of a matter.36
1.

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Standing

To have standing, a plaintiff must show “(1) a concrete injury; (2) fairly traceable to the
challenged action of the defendant; (3) that is likely to be redressed by a favorable decision.”37
a.

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Injury-in-Fact

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The injury must be actual or imminent, not conjectural or hypothetical.38 When

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challenging a statutory scheme, a plaintiff “must demonstrate a realistic danger of sustaining a

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direct injury as a result of a statute’s operation or enforcement.”’39 However, “a plaintiff does not

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have to await the consummation of threatened injury to obtain preventive relief.”40

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When the plaintiff has alleged an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution thereunder, he should not be required
to await and undergo a . . . prosecution as the sole means of seeking relief.” . . .
But persons having no fears of state prosecution except those that are imaginary or
speculative, are not to be accepted as appropriate plaintiffs.41

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33

Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir. 1999); see also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
34

Lujan, 504 U.S. at 560.

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35

Culinary Workers Union, 200 F.3d at 617.

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36

Lujan, 504 U.S. at 561.

37

Id. at 560.

38

Id.

39

Babbitt v. United Farm Workers, 442 U.S. 289, 298 (1979).

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40

Id.

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41

Id.

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Here, Plaintiffs do not just allege an intent to engage in prohibited conduct. They are presently

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doing so. Waugh continues to operate LMI without a license, and Robin occasionally teaches

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makeup artistry freelance. The Board agrees that they face penalties up to a $2,000 fine for each

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instance of unlicensed instruction. That the Board is not presently investigating Plaintiffs and has

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no present intention to do so are of no moment. An anonymous complaint triggering an

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investigation could arrive at any time. The threat of a complaint is not just hypothetical, as the

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Board received complaints about both Plaintiffs within months of the opening of their respective

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makeup artistry schools. In an analogous case, the Ninth Circuit determined that a purportedly

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regulated party—the operator of a pest removal company—had standing “because he cannot

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engage in his trade unless he first satisfies the current licensing requirement or receives an

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exemption.”42 Similarly, Waugh and Robin have standing.
b.

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Causation

Plaintiffs’ predicament stems directly from the Board’s investigation of their schools, the

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Board’s interpretation of state cosmetology laws and regulations, and the Investigators’

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conclusions that the schools were operating illegally. The alleged injury is certainly traceable to

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the Board’s actions.
c.

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Redressability

“A plaintiff meets the redressability requirement if it is likely, although not certain, that

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his injury can be redressed by a favorable decision.”43 More precisely, “[i]f a plaintiff is ‘an

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object of the [challenged action] . . . there is ordinarily little question that the action or inaction

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has caused him injury, and that a judgment preventing or requiring the action will redress it.’”44

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Here, the Board “ha[s] the power to discipline [Plaintiffs] and, if [the Board is] enjoined from

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enforcing the challenged provisions, [Plaintiffs] will have obtained redress in the form of freedom

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to engage in certain activities without fear of punishment.”45 Those precise activities are teaching

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42

See Merrifield v. Lockyer, 547 F.3d 978, 980 n.1 (9th Cir. 2008).

43

Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir. 2010).

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Id. (quoting Lujan, 504 U.S. at 561–62).

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Id.

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makeup artistry without a cosmetology or aesthetics instructor’s license and operating a makeup

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artistry school that is not licensed as a cosmetology school. Plaintiffs’ claims are likely, if not

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certain, to be redressed by a favorable decision.

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Therefore, Plaintiffs have standing to bring their claims.
2.

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Ripeness

“The ripeness doctrine is drawn both from Article III limitations on judicial power and

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from prudential reasons for refusing to exercise jurisdiction.”46 “The ripeness doctrine ‘is

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peculiarly a question of timing.’”47 It is “designed to separate matters that are premature for

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review because the injury is speculative and may never occur from those cases that are

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appropriate for federal court action.”48 “‘Through avoidance of premature adjudication,’ the

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ripeness doctrine prevents courts from becoming entangled in ‘abstract disagreements.’”49

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“Ripeness has both constitutional and prudential components. . . . The constitutional

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component of ripeness overlaps with the ‘injury in fact’ analysis for Article III standing.”50

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Plaintiffs here have sufficiently demonstrated an injury-in-fact, as explained above. The

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constitutional component of ripeness is thus satisfied.

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Courts weigh two considerations to evaluate the prudential component of ripeness: “the

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fitness of the issues for judicial decision and the hardship to the parties of withholding court

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consideration.”51 “A claim is fit for decision if the issues raised are primarily legal, do not require

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further factual development, and the challenged action is final.”52 “To meet the hardship

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requirement, a litigant must show that withholding review would result in direct and immediate

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46

Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (internal quotation
marks omitted).
47

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Wolfson, 616 F.3d at 1057 (quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102, 140 (1974)).

48

Id. (internal quotation marks and citation omitted).

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Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99 (1977)).
50

Id. at 1058.

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51

Abbot Labs, 387 U.S. at 149.

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52

Wolfson, 616 F.3d at 1060 (internal quotation marks and citation omitted).

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hardship and would entail more than possible financial loss.”53 More broadly, courts “consider

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whether the regulation requires an immediate and significant change in plaintiffs’ conduct of their

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affairs with serious penalties attached to noncompliance.”54

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In this case, the issues are entirely legal, and there is no need for further factual

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development. Indeed, the parties intend the cross-motions for summary judgment to resolve the

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claims as a matter of law. Withholding review would maintain a precarious status quo for

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Plaintiffs. They would continue operating under a pall of likely future enforcement actions. The

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Board is aware of the existence and nature of their ongoing operations. Although there is no

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“final” Board action being challenged, the Board has apparently communicated to Plaintiffs that it

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does not intend to modify its interpretation of the cosmetology statutes and regulations. The

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Board’s position is thus sufficiently “final” for ripeness purposes. Without review, Waugh’s

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school faces the constant threat of shutdown and Robin faces an uncertain professional existence

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as an “illegal” freelance instructor. Plaintiffs are in a bind: either expend considerable time and

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resources to meet the current licensing regime or face serious financial penalties. Plaintiffs’

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claims are ripe.55

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3.

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Mootness

“Article III of the United States Constitution limits federal court jurisdiction to ‘actual,

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ongoing cases or controversies.’”56 Federal courts lack jurisdiction “to decide moot questions or

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abstract propositions,” because “moot questions require no answer.”57 As such, “[a] case or

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controversy must exist at all stages of review, not just at the time the action is filed. . . . A case

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53

Id. (internal quotation marks and citation omitted).

54

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Id. (internal quotation marks and citation omitted).

55

See id.

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56

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28

Wolfson, 616 F.3d at 1053 (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990))
(emphasis added).
57

N.C. v. Rice, 404 U.S. 244, 246 (1971) (per curiam) (internal quotation marks and citations

omitted).

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may become moot after it is filed, when the issues presented are no longer ‘live’ or the parties

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lack a legally cognizable interest in the outcome.”58

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Plaintiffs’ claims are undoubtedly “live.” The conflict between Plaintiffs and the Board is

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ongoing. The Board’s current inaction against Plaintiffs does not preclude review. If it did, then

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the Board could simply halt an investigation whenever sued over its imposition of the

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cosmetology licensing scheme.59 Plaintiffs can reasonably expect to be investigated again and

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face financial penalties.60 Finally, Plaintiffs certainly maintain a strong interest in the outcome of

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the case, as their professional and financial futures seemingly depend in large part on it.

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In summary, Plaintiffs satisfy the justiciability requirements of Article III.

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D.

Burford Abstention

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Relying on the abstention doctrine which the Supreme Court established in Burford v. Sun

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Oil,61 the Board argues that I should abstain from deciding this case because Plaintiffs seek

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equitable relief and because “the State of Nevada has a strong interest in the application and

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enforcement of its domestic policy and the protection of the health, safety, and welfare of its

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citizens.”62 Under the Burford doctrine,

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Where timely and adequate state-court review is available, a federal court sitting in
equity must decline to interfere with the proceedings or orders of state
administrative agencies: (1) when there are difficult questions of state law bearing
on policy problems of substantial public import whose importance transcends the
result in the case then at bar; or (2) where the exercise of federal review of the
question in a case and in similar cases would be disruptive of state efforts to
establish a coherent policy with respect to a matter of substantial public concern.63

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58

Wolfson, 616 F.3d at 1053.

59

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See id. at 1053–54 (actions “capable of repetition, yet evading review” are excepted from the
mootness doctrine).

27
28

See id at 1054.

61

319 U.S. 315 (1943).

62

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60

(Def.’s Mot. Summ. J. 11–12.)

63

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989)
(internal quotation marks and citation omitted).

Page 12 of 44

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Yet, “[w]hile Burford is concerned with protecting complex state administrative processes from

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undue federal interference, it does not require abstention whenever there exists such a process, or

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even in all cases where there is a potential for conflict with state regulatory law or policy.”64

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“[T]he power to dismiss under the Burford doctrine . . . derives from the discretion

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historically enjoyed by courts of equity.”65 And “the exercise of this discretion must reflect

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principles of federalism and comity.”66 Courts must consider “the federal interest in retaining

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jurisdiction over the dispute and the competing concern for the ‘independence of state action’” in

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determining whether “the State’s interests are paramount and that a dispute would be best

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adjudicated in a state forum.”67 Importantly, “[t]his balance only rarely favors abstention, and the

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power to dismiss recognized in Burford represents an extraordinary and narrow exception to the

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duty of the District Court to adjudicate a controversy properly before it.”68

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Here, there exists some possibility of conflict with state regulatory policy, but that conflict

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would arise solely as a result of the regulatory scheme violating the federal constitution.

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Plaintiffs’ claims do not implicate any difficult questions of state law. The State of Nevada has a

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regulatory process to regulate cosmetology, but this case seems very unlikely to unduly interfere

16

with that process. Plaintiffs do not mount a facial challenge to the entire regulatory scheme.

17

Rather, this is a relatively narrow, as-applied challenge. Finally, while the State of Nevada has an

18

interest in regulating the field of cosmetology for the public welfare, this case also seems unlikely

19

to disrupt the State’s efforts to establish a coherent policy for doing so. In light of the Supreme

20

Court’s instruction that Burford abstention is to be rarely invoked, I decline to invoke it.69

21
22
23
24

64

Id. at 362 (internal quotation marks and citation omitted).

65

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727 (1996).

66

Id. (internal quotation marks and citation omitted).

67

Id. (quoting Burford, 319 U.S. at 334).

27

68

Id. (internal quotation marks and citation omitted).

28

69

See id.

25
26

Page 13 of 44

1

E.

2

I analyze the free speech issues first because their resolution determines the applicable

3

standard of review—either rational basis or intermediate scrutiny.
1.

4
5

First Amendment — Free Speech

Speech or Conduct?

The threshold issue is whether the Board purports to regulate conduct or speech, which in

6

turn depends on whether teaching makeup artistry is expressive conduct (a form of speech, also

7

called symbolic speech).70 “[W]ords can in some circumstances violate laws directed not against

8

speech but against conduct. . . .”71 “The Supreme Court has made clear that First Amendment

9

protection does not apply to conduct that is not ‘inherently expressive.’”72

10

Under Texas v. Johnson, “[t]o constitute expressive conduct protected by the First

11

Amendment, an act must be made with an ‘intent to convey a particularized message,’ and that

12

message must be likely to ‘be understood by those who viewed it.’”73 “The expression of an idea

13

through activity” is protected speech.74 “[I]t is the obligation of the person desiring to engage in

14

assertedly expressive conduct to demonstrate that the First Amendment even applies.”75 Here,

15

then, to establish that teaching makeup artistry is “speech,” Plaintiffs must demonstrate that they

16

intend to convey a particularized message through the teaching of makeup artistry that is likely to

17

be understood by their students and by other viewers.

18
19

If Plaintiffs meet that burden, they will be subject to the State’s cosmetology scheme only
if the scheme meets the intermediate scrutiny standard set forth by the Supreme Court in United

20
21
22

70

See Pickup v. Brown, 740 F.3d 1208, 1225 (9th Cir. 2013); Nat’l Ass’n for Advancement of
Psychoanalysis v. Cal. Bd. of Psychology (“NAAP”), 228 F.3d 1043, 1053–54 (9th Cir. 2000).

23

71

24

72

25
26

R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992).

Pickup, 740 F.3d at 1225 (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc.
(“FAIR II”), 547 U.S. 47, 62 (2006)).
73

Edwards v. Dist. of Columbia, 943 F. Supp. 2d 109, 118 (D.D.C. 2013) (quoting Texas v.
Johnson, 491 U.S. 397, 404 (1989)), rev’d on other grounds, Nos. 13-7063, 13-7064, __ F.3d __ (D.C.
Cir. June 27, 2014).

27

74

Spence v. Wash., 418 U.S. 405, 411 (1974).

28

75

Clark, 468 U.S. at 293 n.5 (emphasis added).

Page 14 of 44

1

States v. O’Brien.76 Under O’Brien, a law regulating expressive conduct is valid only “[1] if it

2

furthers an important or substantial governmental interest; [2] if the governmental interest is

3

unrelated to the suppression of free expression [i.e., content-neutral]; and [3] if the incidental

4

restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance

5

of that interest.”77 If a law is content-based, strict scrutiny applies.78

6

Plaintiffs rely on the Supreme Court’s decision in Holder v. Humanitarian Law Project

7

(“HLP”)79 for the broad proposition that all teaching is expressive conduct. As relevant here, the

8

issue in HLP was whether the application of a criminal statute which prohibits “knowingly

9

provid[ing] material support or resources to a foreign terrorist organization [FTO]” against

10

persons intending to support only the humanitarian and law-abiding activities of several FTOs

11

violated those persons’ First Amendment right to free speech.80 Specifically, the plaintiffs

12

desired to (1) train FTO members how to use humanitarian and international law to peacefully

13

resolve disputes; and (2) teach FTO members how to petition various representative bodies such

14

as the United Nations for relief.81

15

The Court rejected the Government’s proposition that the law regulated only conduct, and

16

likewise rejected the plaintiffs’ argument that the teaching and training amounted to “pure

17

political speech.” The Court framed the issue as “whether the Government may prohibit what

18

plaintiffs want to do—provide material support to [FTOs] in the form of speech.”82

19

The Court first addressed whether the plaintiffs’ desired activity was conduct or speech

20

for purposes of First Amendment analysis. The Court held that “material support” can take the

21

form of speech, although it usually does not, and that part of the plaintiffs’ desired support

22
23

76

391 U.S. 367, 377 (1968).

24

77

Id.

78

McCullen v. Coakley, 134 S. Ct. 2518, 2530 (2014).

79

130 S. Ct. 2705, 2723–24 (2010).

80

Id. at 2722–23.

27

81

Id. at 2716.

28

82

Id. at 2724.

25
26

Page 15 of 44

1

activities constituted speech.83 The Court analogized to Cohen v. California, in which it held that

2

a law barring breaches of the peace was subject to heightened scrutiny when applied against a

3

person wearing a jacket bearing an anti-war epithet (“Fuck the Draft”). In Cohen, the Court

4

“recognized that the generally applicable law was directed at Cohen because of what his speech

5

communicated [about the draft]—he violated the breach of the peace statute because of his

6

particular message.”84

7

Referring to the Cohen jacket-with-epithet, the Court in HLP reasoned that “this suit falls

8

into the same category. The law here may be described as directed at conduct, as the law in

9

Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering

10

coverage under the statute consists of communicating a message.”85 The Court applied strict

11

scrutiny and upheld the criminal statute as applied to the plaintiffs’ desired teaching and training

12

activities. The Court declined to apply the O’Brien intermediate scrutiny standard because the

13

“material support” law, as applied to the plaintiffs, was content-based—i.e., related to the

14

plaintiffs’ communication of a particular message.86 However, the Court did not articulate what

15

that message was.87

16

In HLP, the Court implicitly performed a two-step analysis. First, it impliedly determined

17

that the plaintiffs intended to communicate a particularized message through their teaching and

18

training that would likely be understood by the message’s viewers. Thus, the plaintiffs’ desired

19

activities amounted to expressive conduct, implicating at least O’Brien’s intermediate scrutiny

20

standard. Second, the Court determined that the criminal statute targeted the plaintiffs based on

21

the content of their message:

22
23

Plaintiffs want to speak to the [FTOs], and whether they may do so under § 2339B
depends on what they say. If plaintiffs’ speech to those groups imparts a “specific
skill” or communicates advice derived from “specialized knowledge”—for

24
83

Id. at 2723.

84

Humanitarian Law Project, 130 S. Ct. at 2724.

85

Id.

27

86

Id. at 2723–24.

28

87

See id. at 2724.

25
26

Page 16 of 44

1
2
3
4

example training on the use of international law or advice on petitioning the
United Nations—then it is barred. . . . On the other hand, plaintiffs’ speech is not
barred if it imparts only generalized or unspecialized knowledge.88
Therefore, the law was content-based and strict scrutiny applied.89
This analytical process is instructive, but HLP does not supply the answer in this case that

5

Plaintiffs assert it does. HLP did not hold that all teaching and training is expressive conduct.90

6

To do so would seemingly circumvent the Texas v. Johnson analysis of whether a person intends

7

her conduct to communicate a particularized message, and HLP should not be read to overrule

8

Johnson. Indeed, HLP cited Johnson as the appropriate test to determine whether conduct is

9

expressive.91

10

Similarly, I do not read HLP to hold that the mere communication of a message converts

11

conduct into protected speech. In the colloquial sense, all speech communicates a message, just

12

as dictating a grocery list communicates what the person intends to purchase. But not all verbal

13

communication is protected by the First Amendment, and not all conduct, even if verbal in part,

14

communicates a particularized message likely to be understood by its viewers and listeners. “[I]t

15

has never been deemed an abridgment of freedom of speech . . . to make a course of conduct

16

illegal merely because the conduct was in part initiated, evidenced, or carried out by means of

17

language, either spoken, written, or printed.”92 Likewise, “[t]he Supreme Court has noted that

18

‘[w]hile it is possible to find some kernel of expression in almost every activity a person

19

undertakes . . . such a kernel is not sufficient to bring the activity within the protection of the First

20

Amendment.’”93 “If combining speech and conduct were enough to create expressive conduct, a

21

regulated party could always transform conduct into ‘speech’ by simply talking about it.”94

22
88

Id.

89

Id.

90

See id. at 2729.

91

See id. at 2723–24.

23
24
25
26

92

Tenn. Secondary Sch. Athletic Ass’n v. Brentwood Acad., 551 U.S. 291, 297 (2007) (internal
quotation marks and citation omitted).

27

93

NAAP, 228 F.3d at 1054 (quoting City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989)).

28

94

FAIR II, 547 U.S. at 1311.

Page 17 of 44

1

Likewise, “an act that ‘symbolizes nothing,’ even if employing language, is not ‘an act of

2

communication’ that transforms conduct into First Amendment speech.”95
Moreover, the relevance of HLP to the instant case is questionable. In Pickup v. Brown—

3
4

the recent Ninth Circuit decision upholding a California law which prohibits licensed

5

professionals from practicing sexual orientation change efforts (“SOCE”) on minors—the court

6

distinguished HLP as “pertain[ing] to a different issue entirely: the regulation of (1) political

7

speech (2) by ordinary citizens.”96 Plaintiffs do not assert that teaching makeup artistry has any

8

political speech components, and Plaintiffs themselves assert that they are acting in a professional

9

capacity when teaching. Pickup reinforces that the proper question is whether teaching makeup

10

artistry is expressive conduct, in accord with the Supreme Court’s analysis in FAIR II, which in

11

turn relied on Johnson’s expressive conduct standard.97

12

Examples of expressive conduct include (i) overnight camping in connection with a

13

demonstration;98 (ii) burning an American flag as part of a political demonstration;99 (iii) wearing

14

a black armband on a school campus (during the Vietnam War );100 (iv) taping a peace sign to a

15

flag (also during the Vietnam war); and (v) a sit-in by African-American students in a “whites

16

only” library to protest segregation.101 More broadly, expressive conduct includes “the use of

17

funds to support a political candidate, the display of a flag or signs and banners, or a mode of

18

dress or personal grooming such as wearing a beard or a certain hair style; or by mere silent and

19

reproachful presence in a public place.”102

20
21
95

Pickup, 740 F.3d at 1220 (quoting Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2350

23

96

Id. at 1230.

24

97

See id.; FAIR II, 547 U.S. at 65–66.

98

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

99

Johnson, 491 U.S. at 405–06.

22
(2011)).

25
26

100

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

27

101

Brown v. Louisiana, 383 U.S. 131 (1966).

28

102

16A AM. JUR. 2d Constitutional Law § 528 (2d ed. 2014).

Page 18 of 44

1

On the other hand, courts have held that the act of tattooing is non-expressive,103 as is a

2

Ku Klux Klan member’s wearing of a white mask because the purported message was not

3

sufficiently particularized.104 In the commercial context,

4

6

[n]umerous examples could be cited of communications that are regulated without
offending the First Amendment, such as the exchange of information about
securities, . . . corporate proxy statements, . . . the exchange of price and
production information among competitors, . . . and employers’ threats of
retaliation for the labor activities of employees.105

7

In NAAP, a membership association of professional psychoanalysts argued, among other

5

8

things, that the State’s application of psychology licensing laws to psychoanalysts violated its

9

members’ First Amendment right to free speech.106 The court impliedly determined that the

10

licensing scheme did not sufficiently implicate speech to trigger O’Brien’s heightened analysis.107

11

The Ninth Circuit reasoned: “the key component of psychoanalysis is the treatment of emotional

12

suffering and depression, not speech. . . . That psychoanalysts employ speech to treat their clients

13

does not entitle them, or their profession, to special First Amendment protection.”108 The court

14

determined next that the licensing scheme was content- and viewpoint-neutral, as it was not

15

applied to psychoanalysts “because of any disagreement with psychoanalytical theories.”109

16

Accordingly, heightened scrutiny did not apply. The court held that “[a]lthough some speech

17

interest may be implicated, . . . [the] licensing scheme is a valid exercise of [the State’s] police

18

power to protect the health and safety of its citizens and does not offend the First Amendment.”110

19
20

The Ninth Circuit continued this line of reasoning in Pickup, holding that performing
SOCE on minors is conduct “that is not inherently expressive.”111 “The First Amendment does

21
103

Hold Fast Tattoo, LLC v. City of N. Chicago, 580 F. Supp. 2d 656, 660 (N.D. Ill. 2008).

104

Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d. Cir. 2004).

23

105

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978).

24

106

228 F.3d 1043.

107

See id. at 1054–55.

108

Id. (internal quotation marks and citation omitted).

109

Id. at 1056.

27

110

Id.

28

111

Pickup, 740 F.3d at 1230.

22

25
26

Page 19 of 44

1

not prevent a state from regulating treatment even when that treatment is performed through

2

speech alone.”112 “[C]ontent- or viewpoint-based regulation of communication about treatment

3

must be closely scrutinized. But a regulation of only treatment itself—whether physical medicine

4

or mental health treatment—implicates free speech interests only incidentally, if at all.”113

5

“Because [the California statute] regulates only treatment, while leaving mental health providers

6

free to discuss and recommend, or recommend against, SOCE, we conclude that any effect it may

7

have on free speech interests is merely incidental.”114 Accordingly, the court applied rational

8

basis review to the California statute.

9

So, because teaching is not expressive conduct per se, the relevant question in this case is

10

whether Plaintiffs have carried their burden as to whether they intend to communicate a

11

particularized message through the teaching of makeup artistry that is likely to be understood by

12

their students and by other viewers. The answer is no.

13

At oral argument, Plaintiffs confirmed that they are very passionate about teaching

14

makeup artistry. The particularized message about which they are passionate is unclear, however.

15

Plaintiffs’ moving papers focus on the legal arguments that teaching is protected speech under the

16

First Amendment and that the instructor licensing requirement is content-based.115 Passion alone

17

is insufficient. In FAIR II, the Supreme Court held that a law school’s conduct in disallowing

18

equal access to military recruiters was not inherently expressive, yet the law school strongly

19

objected to the recruiters’ presence because of the military’s treatment of homosexuals.116

20

I hold that teaching makeup artistry is non-expressive conduct. Plaintiffs define makeup

21

artistry as “the professional application of stylized makeup for film, television, print photography,

22

and advertising.”117 Teaching makeup artistry involves demonstrating and explaining how to

23
24

112

Id.

113

Id. at 1231 (emphasis in original).

114

Id.

115

(See Pls.’ Mot. Summ. J. 26–30.)

27

116

547 U.S. at 52.

28

117

(Pls’ Mot. Summ. J. 6.)

25
26

Page 20 of 44

1

apply makeup for these settings. As makeup artistry is an artistic, hands-on trade, teaching

2

makeup artistry presumably emphasizes hands-on instruction. The words spoken during this

3

instruction seem non-expressive, especially in the absence of any argument by Plaintiffs as to any

4

particularized messages they intend to communicate while teaching (aside from how to apply

5

stylized makeup). Just as the act of tattooing is non-expressive, the act of applying makeup is

6

non-expressive.118 And there is nothing to indicate that teaching how to perform the act of

7

applying makeup—even if that teaching involves verbal communication as to makeup theory in

8

general or specific methodologies—is intended to communicate a particular message beyond how

9

to perform the task at issue.

10

In addition, teaching makeup artistry is distinguishable from two recent cases which held

11

that giving guided city tours contains speech components. In Edwards v. District of Columbia,

12

the United States District Court for the District of Columbia analyzed whether a licensing scheme

13

for sightseeing tour guides violated the free speech rights of the tour guides.119 The court

14

determined that some tour functions, such as guiding and directing tour participants from place to

15

place, are not expressive.120 However, the court determined that “the act of serving as a paid tour

16

guide involves both nonspeech and speech elements.”121 The conduct of “communicat[ing]

17

information and opinions about places of interest in Washington D.C.” is expressive.122 Although

18

the D.C. Circuit reversed, it did not disagree with the district court’s determination that paid tour

19

guides engage in expressive conduct.123 The Eastern District of Louisiana recently came to

20

essentially the same conclusion in an analogous tour guide case—that tour guides’ conduct is

21

expressive, at least in part.124 The facts of Edwards and Kagan are easily distinguishable from

22
118

See Hold Fast Tattoo, 580 F. Supp. 2d at 660.

119

943 F. Supp. 2d 109.

120

Id. at 118.

121

Id.

122

Id.

123

See Edwards, 2014 WL 2895938 at *3 (applying the O’Brien intermediate scrutiny test).

23
24
25
26
27
28

124

See Kagan v. City of New Orleans, 957 F. Supp. 2d 774 (E.D. La. 2013), aff’d, No. 13-30801,
__ F.3d __ (5th Cir. June 2, 2014).

Page 21 of 44

1

the instant case, however, as providing personal opinions about places of historical and public

2

interest in the capital city and in New Orleans is a far cry from explaining how to apply makeup

3

for film, television, and photography shoots.

4

Plaintiffs also argue that teaching is “pure speech” under the First Amendment, and that

5

academic freedom is of special concern under the First Amendment. Plaintiffs’ academic

6

freedom argument is irrelevant, however, because teaching makeup artistry is non-expressive

7

conduct. In addition, the cases Plaintiffs cite are largely inapposite. Several deal with

8

government interference with academics during the Cold War for political purposes, 125 and two

9

of them are non-binding opinions from other circuits.126 More importantly, Plaintiffs provide no

10

support for the notion that “academic freedom” provides blanket, wholesale protection to private

11

occupational instructors. On the contrary, “[a]s a cultural and legal principle, academic freedom

12

‘was conceived and implemented in the university’ out of concern for ‘teachers who are also

13

researchers or scholars.’”127

14

In short, Plaintiffs have not carried their burden of establishing that teaching makeup

15

artistry is expressive conduct. To the extent the instructor’s licensing requirement infringes on

16

Plaintiffs’ right to free speech, that infringement is “merely incidental” to the generally-applicable

17

regulations that govern the conduct of teaching makeup artistry.128 “‘A statute that governs the

18

practice of an occupation is not unconstitutional as an abridgement of the right to free speech, so

19

long as any inhibition of that right is merely the incidental effect of observing an otherwise

20

legitimate regulation.’”129 Similarly, “[i]f the government enacts generally applicable licensing

21
22
23

125

Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967); Barenblatt v. U.S.,
360 U.S. 109 (1959); Sweezy v. State of N.H. by Wyman, 354 U.S. 234 (1957).
126

24
25
26

Goulart v. Meadows, 345 F.3d 239, 248 (4th Cir. 2003); Universal City Studios, Inc. v. Corley,
273 F.3d 429, 446 (2d Cir. 2001).
127

Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Village Sch. Dist., 624 F.3d 332, 343–44
(6th Cir. 2010) (quoting J. Peter Byrne, Academic Freedom: A “Special Concern of the First
Amendment”, 99 YALE L.J. 251, 288 n.137 (1989)).
128

27
28

Pickup, 740 F.3d at 1231.

129

Locke v. Shore, 634 F.3d 1185, 1191 (11th Cir. 2011) (quoting Accountant’s Soc. of Va. v.
Bowman, 860 F.2d 602, 604 (4th Cir. 1988)).

Page 22 of 44

1

provisions limiting the class of persons who may practice the profession, it cannot be said to have

2

enacted a limitation on the freedom of speech . . . subject to First Amendment scrutiny.”130

3

Rational basis is thus the proper standard of review.131 Because rational basis is also the

4

appropriate standard of review for the Equal Protection and Due Process analyses, I need not

5

separately assess the challenged regulations under the First Amendment. Nonetheless, I briefly

6

address the parties’ other speech-related arguments.
2.

7
8
9

Commercial Speech

Even if teaching makeup artistry constitutes protected speech, it would not be commercial
speech. “Commercial speech enjoys a limited measure of protection, commensurate with its

10

subordinate position in the scale of First Amendment values, and is subject to modes of regulation

11

that might be impermissible in the realm of noncommercial expression.”132 To determine

12

whether Plaintiffs’ teaching constitutes commercial speech, I follow the Supreme Court’s

13

guidance in Bolger v. Youngs Drug Products Corporation.133 “Where the facts present a close

14

question, ‘strong support’ that the speech should be characterized as commercial speech is found

15

where the speech is an advertisement, refers to a particular product, and the speaker has an

16

economic motivation.”134 “[T]he ‘core notion of commercial speech’ is that it ‘does no more than

17

propose a commercial transaction.’” Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1184

18

(9th Cir. 2001) (quoting Bolger, 463 U.S. at 66). In the seminal Central Hudson case, the

19

Supreme Court defined commercial speech as “expression related solely to the economic interests

20

of the speaker and its audience.”135

21
22
23
130

24
25
26

Lowe v. SEC, 472 U.S. 181, 232 (1985) (White, J., concurring).

131

Pickup, 740 F.3d at 1231.

132

Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995) (internal quotation marks and
alterations omitted).
133

463 U.S. 60 (1983); see Charles v. City of Los Angeles, 697 F.3d 1146, 1151 (9th Cir. 2012).

27

134

Hunt v. City of Los Angeles, 638 F.3d 703, 715 (9th Cir. 2011).

28

135

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980).

Page 23 of 44

1

The teaching of makeup artistry itself is not an advertisement, nor does it propose a

2

commercial transaction. The students have already agreed to attend Plaintiffs’ schools by the

3

time the teaching occurs. The teaching certainly does more than propose a commercial

4

transaction, and the students’ interest is arguably greater than their own economic interests.

5

Learning and practicing a new profession can reasonably be expected to improve one’s “sense of

6

dignity, self-worth, and confidence,” values which exist wholly apart from a paycheck.136

7

Teaching makeup artistry, in the context of this case, is not commercial speech.
3.

8
9

Content-Based or Content-Neutral?

Even if teaching makeup artistry constitutes protected speech, the restrictions at issue are

10

not content-based. Content-based restrictions on speech are presumptively invalid and must meet

11

strict scrutiny.137 The Supreme Court has explained:

12
13
14
15
16

The principal inquiry in determining content neutrality . . . is whether the
government has adopted a regulation of speech because of disagreement with the
message it conveys. . . . The government’s purpose is the controlling
consideration. A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some speakers
or messages but not others. . . . Government regulation of expressive activity is
content neutral so long as it is justified without reference to the content of the
regulated speech.138

17

“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on

18

the basis of the ideas or views expressed are content based.”139 An “ordinance is content-based if

19

either the main purpose in enacting it was to suppress or exalt speech of a certain content, or it

20

differentiates based on the content of speech on its face.”140

21
22

Plaintiffs contend that the Board’s instructor licensing requirement is content-based
because “[i]f plaintiffs taught any other subject—math, art, photography, [etc.]—the government

23
24
25

136

N.Y. State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 409 (1973); see Higdon v. U.S. , 627
F.2d 893, 899–900 (9th Cir. 1980).
137

Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009).

138

Ward, 491 U.S. at 791 (internal quotation marks and citations omitted) (emphasis in original).

27

139

Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643 (1994).

28

140

A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006).

26

Page 24 of 44

1

would not require Plaintiffs to first obtain a license.”141 Therefore, Plaintiffs argue, the licensing

2

requirement targets the content of their speech: instruction about makeup artistry. This argument

3

has several flaws.

4

First, Plaintiffs’ argument is overly broad in that it ignores the fact that licenses are

5

properly required for many professions outside of teaching cosmetology, including primary

6

school teaching.142 The Board does not have the burden of demonstrating like regulations across

7

similar professions.143 Moreover, Plaintiffs do not argue that the Board disagrees with the

8

messages conveyed by makeup artistry instructors. The Board’s apparent purpose is only to

9

prevent those messages from being transmitted by an unlicensed person for pay. This of course

10

limits the amount of speech that Plaintiffs can engage in, and the amount of speech that recipients

11

can hear. However, the Board’s actions are not directed toward regulating speech or its

12

content.144 The limitations on speech are incidental to the Board’s avowed primary purpose:

13

protecting the health and safety of consumers, students, and the public. Even if teaching makeup

14

artistry contains speech components, the Board is not motivated by limiting those components.

15

Therefore, the State’s cosmetology scheme, as applied to Plaintiffs, is content-neutral.145

16

F.

1.

17
18
19
20

Fourteenth Amendment — Substantive Due Process
Legal Standard

The substantive component of the Due Process Clause forbids the government
from depriving a person of life, liberty, or property in such a way that . . .
interferes with rights implicit in the concept of ordered liberty. . . . A threshold
requirement to a substantive . . . due process claim is the plaintiff’s showing of a
liberty or property interest protected by the Constitution.146

21
22

141

(Pls.’ Mot. Summ. J. 29.)

23

142

See, e.g., NRS § 391.031 (licenses for teachers and educational personnel).

24

143

See Kagan, 957 F. Supp. 2d at 784.

144

See Edwards, 943 F. Supp. 2d at 120.

25

145

26
27
28

Plaintiffs argue that the Supreme Court recently “clarified the standard for determining whether
a regulation of speech is content based” in McCullen v. Coakley, 134 S. Ct. 2518. (Dkt. No. 44 at 1–2.) I
disagree, as the Court still relied upon the standard enunciated in Ward. 134 S.Ct. at 2531.
146

Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 996–97 (9th Cir. 2007), aff’d, 553 U.S. 591
(2008) (internal quotation marks and citations omitted).

Page 25 of 44

1

Individuals have a “liberty interest in pursuing an occupation of [their] choice.”147 “[A] plaintiff

2

can make out a substantive due process claim if she is unable to pursue an occupation and this

3

inability is caused by government actions that were arbitrary and lacking a rational basis.”148
“Under rational basis review, a statute will pass constitutional muster if it is ‘rationally

4
5

related to a legitimate state interest.’”149 “The burden is on the one attacking the legislative

6

arrangement to negative every conceivable basis which might support it.”150 “Only a handful of

7

provisions have been invalidated for failing rational basis review.”151 In the blunt words of the

8

Sixth Circuit, “the force of a five-week-old, unrefrigerated dead fish” is “a level of pungence

9

almost required to invalidate a statute under rational basis review.”152
I cannot “overturn a statute on the basis that no empirical evidence supports the

10
11

assumptions underlying the legislative choice.”153 Instead, “those challenging the legislative

12

judgment must convince the court that the legislative facts on which the [statutory scheme] is

13

apparently based could not reasonably be conceived to be true by the governmental

14

decisionmaker.”154 As the Supreme Court explained in the landmark Carolene Products case:

15

The existence of facts supporting the legislative judgment is to be presumed,
unless in the light of the facts made known or generally assumed it is of such a
character as to preclude the assumption that it rests upon some rational basis
within the knowledge and experience of the legislators.155

16
17
18
19
20

147

23

Id.

149

22

Id. at 997.

148

21

Merrifield, 547 F.3d at 984 n.9 (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303

(1976)).
150

24

Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2080–81 (2012) (internal quotation
marks and citation omitted).
151

Craigmiles v. Giles, 312 F.3d 220, 225 (6th Cir. 2002).

152

Id. at 225 (internal quotation marks and citation omitted) (emphasis added).

153

Powers v. Harris, 379 F.3d 1208, 1217 (10th Cir. 2004).

27

154

Vance v. Bradley, 440 U.S. 93, 111 (1979).

28

155

U.S. v. Carolene Prods. Co., 304 U.S. 144, 152 (1938).

25
26

Page 26 of 44

1

I am “obliged to consider every plausible legitimate state interest that might support the [statutory

2

scheme for cosmetology, as applied to makeup artistry instruction]—not just the . . . interest[s]

3

forwarded by the parties.”156

4

“‘A State can require high standards of qualification, such as good moral character or

5

proficiency . . . before it admits an applicant . . . , but any qualification must have a rational

6

connection with the applicant’s fitness or capacity to practice [the profession].’”157 Here, the

7

relevant profession is makeup artistry instruction.
2.

8
9

The Cosmetology Licensing Scheme

Plaintiffs challenge the requirements that (a) their schools comply with the statutes and

10

regulations for “schools of cosmetology,” and (b) they be licensed instructors. Although the

11

requirements overlap to some degree, I take each in turn.
a.

12

Schools of Cosmetology

13

Under the cosmetology statute, “[a]ny person desiring to conduct a school of cosmetology

14

in which any one or any combination of the occupations of cosmetology are taught must apply to

15

the Board for a license . . . .”158 The regulations define a “school of cosmetology” as “a licensed

16

establishment accepting compensation for instruction in cosmetology.”159 The occupations of

17

cosmetology are “cosmetologist, aesthetician, electrologist, hair designer, hair braider,

18

demonstrator of cosmetics and nail technologist.”160 Therefore, anyone who operates a school at

19

which at least one of these occupations is taught for a fee must obtain a license from the Board.

20

A school so licensed is a “school of cosmetology” and must comply with myriad statutory and

21

regulatory requirements.

22
23
24
25
26

156

Powers, 379 F.3d at 1218.

157

Merrifield, 547 F.3d at 986 (quoting Schware v. Bd. of Bar Exam. of State of N.M., 353 U.S.
232, 239 (1957) (discussing state requirements to practice law)).
158

NRS § 644.380(1).

27

159

NAC § 644.025.

28

160

NRS § 644.024.

Page 27 of 44

1

The first question here is whether makeup artistry falls within one of the seven

2

enumerated occupations of cosmetology. It does, as both cosmetologists and aestheticians are

3

defined, in part, to include the practice of applying cosmetics.161 More specifically, a

4

cosmetologist is “a person who engages in the practices of . . . [g]iving facials or skin care or

5

applying cosmetics or eyelashes to any person.”162 Similarly, as to cosmetics, an aesthetician is

6

“any person who engages in the practices of . . . [b]eautifying, massaging, cleansing or

7

stimulating the skin of the human body by the use of cosmetic preparations . . . for the care of

8

skin . . . [and] [a]pplying cosmetics or eyelashes to any person, tinting eyelashes and eyebrows,

9

and lightening hair on the body . . . , but does not include the branches of cosmetology of a

10
11

cosmetologist, hair designer, hair braider, electrologist or nail technologist.”163
The cosmetology statute does not define the term “cosmetic,” but the regulations refer to

12

the federal Food and Drug Administration’s (the “FDA”) determinations for cosmetic products

13

that contain hazardous substances.164 I thus turn to the statute which gives authority to the

14

FDA—the Federal Food, Drug, and Cosmetic Act of 1938 (the “FFDCA”)165—for the relevant

15

definition.

16

18

The term “cosmetic” means (1) articles intended to be rubbed, poured, sprinkled,
or sprayed on, introduced into, or otherwise applied to the human body or any part
thereof for cleansing, beautifying, promoting attractiveness, or altering the
appearance; and (2) articles intended for use as a component of any such articles;
except that term shall not include soap.166

19

Makeup artists’ essential task is applying cosmetics, as there can be little doubt that they

17

20

rub, pour, sprinkle, and spray articles (make-up) onto the human body (generally, the face) to

21

beautify, promote attractiveness, and alter the recipient’s appearance. By defining both

22

cosmetologists and aestheticians as persons who “apply[] cosmetics . . . to any person,” the

23
24

161

NRS §§ 644.0205(1)(a), (b), 644.023(1)(a), (f), (g).

162

NRS § 644.023(1)(g) (emphasis added).

163

NRS § 644.0205(1) (emphasis added).

164

NAC § 644.372(1).

27

165

21 U.S.C. §§ 301–399f.

28

166

Id. § 321(i).

25
26

Page 28 of 44

167

1

Nevada Legislature apparently intended to subject makeup artists to the Board’s jurisdiction.

2

Aestheticians also tint eyelashes and eyebrows, and lighten hair on the body (including the face),

3

all of which seem to fit within a makeup artists’ scope of work.168 Moreover, the regulations

4

define “make-up” as “any pigment product with is used to cover, camouflage or decorate facial

5

skin.”169

6

Makeup artistry thus fits within two occupations of cosmetology: cosmetologist and

7

aesthetician. Consequently, a school that teaches makeup artistry must be licensed by the Board

8

and must comply with the requirements that apply to schools of cosmetology.170

9

Plaintiffs contend, however, that “makeup artistry and cosmetology are fundamentally

10

different occupations.”171 In the Complaint, Plaintiffs define makeup artistry as “the professional

11

application of stylized makeup for film, television, print photography and advertising,” and

12

cosmetology as “involv[ing] ordinary beauty services like haircuts, facials, and hair

13

coloring . . . .”172 Plaintiffs, however, mischaracterize cosmetology, which, as noted above,

14

includes a broad range of occupations—two of which specifically include the application of

15

cosmetics.

16

At oral argument, Plaintiffs admitted that their definition of makeup artistry intends to

17

match the statutory exceptions that allow cosmetologists in certain limited circumstances to

18

practice without a license. A license is not required if cosmetological services are “rendered in

19

connection with photographic services provided by a photographer.”173 Similarly,

20

[a] person employed to render cosmetological services in the course of and

21
167

22
23
24

NRS §§ 644.0205(1)(b); 644.023(1)(g). See Cornwell v. Hamilton, 80 F. Supp. 2d 1101, 1103,
n.5 (S.D. Cal. 1999) (holding that California’s Barbering and Cosmetology Act covered African
hairbraiding because hairbraiders, “at minimum, arrange, beautify, or otherwise treat by any means hair.”
(citing CAL. BUS. & PROF. CODE § 7316(b)(1))).
168

NRS § 644.0205(1)(b).

169

NAC § 644.021.

170

See NRS § 644.380(1); NAC § 644.025.

171

(Pls.’ Mot. Summ. J. 6.)

27

172

(Id.)

28

173

NRS § 644.190(3)(d).

25
26

Page 29 of 44

1
2

incidental to the production of a motion picture, television program, commercial or
advertisement is exempt from the licensing requirements of this chapter if he or she
renders cosmetological services only to persons who will appear in that motion
picture, television program, commercial or advertisement.174

3

Also, retail cosmetic demonstrators are exempt if the demonstration is without charge and “the

4

retailer does not advertise or provide a cosmetological service except cosmetics and

5

fragrances.”175 Finally, photographers and their employees who provide cosmetics without

6

charge as part of their “ordinary vocation and profession” are exempt if they do not advertise

7

cosmetological services.176

8
9

Plaintiffs rely on these exceptions and on Plaintiffs’ narrow definition of makeup artistry
to contend that practicing makeup artists are wholly exempt from the State’s cosmetology

10

licensing scheme. However, Plaintiffs’ own explanations of the work they and their students

11

perform indicate that Plaintiffs’ proffered definition of “makeup artist” does not so neatly match

12

the scope of the exceptions. Waugh and Robin both explain that makeup artists may work in

13

retail and in fashion, preparing models for the runway.177 Waugh explains that makeup artists

14

prepare Cirque de Soleil performers for theatrical shows.178 Theatrical performances, retail work

15

outside of cosmetic counter demonstrations, and runway modeling are not covered by the

16

licensing exceptions. Therefore, at least part of what practicing makeup artists do requires a

17

cosmetologist license or an aesthetician license. This is not just an abstract reality; Plaintiffs

18

admit they teach students to perform makeup artistry in contexts outside of the statutory

19

exceptions. Plaintiffs’ assertion that practicing makeup artists are outside of the Board’s

20

jurisdiction is incorrect.

21

Moreover, even if Plaintiffs taught only those skills that matched precisely with the

22

statutory licensing exceptions, makeup artistry would still fall within the occupations of

23

cosmetologist and aesthetician. The exceptions do not alter the scope of work of cosmetologists

24
174

NRS § 644.190(4) (emphasis added).

175

NRS § 644.460(1)(d).

176

NRS § 644.460(1)(e).

27

177

(Dkt. No. 27-1 at 5; Dkt. No. 27-2 at 6.)

28

178

(Dkt. No. 27-1 at 5.)

25
26

Page 30 of 44

1

or aestheticians. For example, the exceptions do not state that applying cosmetics on a stage actor

2

is within the occupation of aesthetician while applying cosmetics to a television actor is without.

3

The exceptions provide scenarios in which a license is not required to provide cosmetological

4

services; the exceptions do not alter the definition of those services or the definition of the

5

occupations that provide the services. Regardless of when a cosmetologist needs a license to

6

practice her services, the occupation of cosmetologist includes the application of cosmetics. The

7

same is true for aestheticians.
In sum, makeup artistry falls within the occupations of cosmetologist and aesthetician, and

8
9

therefore may be taught only at a school of cosmetology. This is not to say that the Legislature

10

was wise in structuring cosmetology and aesthetics to encompass makeup artistry, but the

11

statutory scheme nonetheless imposes certain requirements on makeup artistry schools as they are

12

schools of cosmetology. The relevant question is whether the State has a legitimate interest in

13

regulating makeup artistry, and whether these requirements are rationally related to that interest.
b.

14

Legitimate State Interests

15

Plaintiffs challenge the legitimacy of the State’s purported health and safety interest, as

16

applied to makeup artistry instructors, by pointing out the gaping exceptions that allow practice

17

without a license. If the State believes it is safe to apply makeup on television and film sets, and

18

on advertising and photography shoots, then the State cannot now point to the dangers of teaching

19

people to apply makeup in those same contexts. However, the State need not regulate on an all-

20

or-nothing basis; it can choose which “evils” to regulate.179 Also, as noted above, Plaintiffs admit

21

that makeup artistry is performed in some circumstances that require a cosmetologist or

22

aesthetician license. Plaintiffs’ essential argument—that if practicing makeup artistry is exempt

23

from licensure then teaching makeup artistry should also be exempt—is fundamentally flawed

24

because practicing makeup artistry is not always exempt from licensure.

25
26
27
28

179

See Silver v. Silver, 280 U.S. 117, 123 (1929); Carr v. U.S., 422 F.2d 1007, 1012 (4th Cir.

1970).

Page 31 of 44

Moreover, teaching makeup artistry and practicing makeup artistry—even in exempt

1
2

circumstances—are sufficiently different that the Legislature could have reasonably chosen to

3

regulate one and not the other. Practicing makeup artistry in exempt areas involves applying

4

makeup to professionals who are generally accustomed to being made up. Teaching makeup

5

artistry involves applying (and teaching) makeup to novices and to the general public. More to

6

the point, teaching makeup artistry also involves the act of teaching, which practicing does not.

7

The health and safety concerns of teaching may be different than the health and safety concerns

8

of practicing, and that decision is the Legislature’s to make.
Furthermore, the Legislature indicated its belief that at least some aspects of teaching

9
10

cosmetology present risks of disease transmission. The statute grants the Board power to

11

promulgate “regulations governing sanitary conditions as it deems necessary with particular

12

reference to the precautions to be employed to prevent the creating or spreading of infectious or

13

contagious diseases . . . in schools of cosmetology,” and these regulations cannot be adopted until

14

they are approved by the State Board of Health.180 A copy of these regulations must be provided

15

to each person who obtains a license to operate a school of cosmetology.181

16

That the Board has failed to provide any empirical evidence to support the Legislature’s

17

apparent belief that disease creation and transmission can occur in schools of cosmetology is of

18

no import. The evidentiary burden is not on the Board under rational basis review.182 The Board

19

submitted webpage printouts that explain the health dangers of cosmetics and a report from an

20

unknown source that explains the health concerns supporting the regulation of cosmetology.183

21

These exhibits are not authenticated, however, and thus I must disregard them.184 Nonetheless,

22

Plaintiffs have not “negate[d] every conceivable basis which might support” the cosmetology

23
24

180

28

(Dkt. Nos. 34–35.)

184

27

See Powers, 379 F.3d at 1217.

183

26

NRS § 644.120(3).

182

25

NRS § 644.120(1), (2).

181

See Randazza v. Cox, No. 2:12-cv-02040-JAD-PAL, 2014 WL 1407378 at *1 (D. Nev. Apr. 10,

2014).

Page 32 of 44

1

scheme.185 The Legislature conceivably could have believed that the application of cosmetics to

2

the skin, and teaching people how to apply cosmetics to the skin, poses a health and safety risk to

3

those involved. The Legislature also conceivably could have believed that prospective students

4

should be protected from unconscionable agreements, from schools that provide insufficient

5

instruction, and from schools that exploit students to provide cheap services to the public.

6

Several sections of the statute reflect the Legislature’s attempt to curb these possible abuses:

7

students may only perform services on the public for seven hours per day;186 students must

8

receive specified minimum hours of classroom instruction before they may work on members of

9

the public;187 and the Board will not license a school unless the applicant provides a copy of the

10
11

student enrollment contract.188
Even though the massive exceptions for many (but not all) practicing makeup artists

12

undercut the State’s asserted health and safety interest, the State nonetheless retains legitimate

13

interests in consumer protection and in the health and safety of makeup artistry instructors,

14

students, and the public who receive services at makeup artistry schools.
c.

15
16

Rational Relationship to the State’s Interests

The dispositive question, then, is whether the requirements for schools of cosmetology,

17

and for licensed instructors at schools of cosmetology, are rationally related to the State’s

18

legitimate interests. Plaintiffs contend the entire regulatory scheme, as applied to them, is

19

irrational. On the present record, I disagree. For example, the regulations provide detailed

20

guidelines on how various forms of creams, lotions, cosmetics, and powders must be stored and

21

applied.189 These guidelines directly address health and safety concerns at schools of

22

cosmetology, as do the regulations prohibiting hazardous substances in the cosmetics used at

23
24
185

Armour, 132 S. Ct. at 2080–81.

186

NRS § 644.400(2)(f).

187

NRS § 644.408.

27

188

NRS § 644.380(1)(f).

28

189

NAC § 644.345.

25
26

Page 33 of 44

1

schools of cosmetology.190 Invalidating the entire school of cosmetology regulatory scheme, as

2

applied to makeup artistry schools, would be a step way too far.

3

However, because some of Plaintiffs’ particular grievances have merit, I will address each

4

specifically. Plaintiffs contend that the requirements for schools of cosmetology, as applied to

5

makeup artistry, are irrational because (i) the mandatory cosmetology and aesthetics curricula are

6

overbroad, as they require instruction on tasks that makeup artists do not perform; (ii) the

7

mandatory curricula is underinclusive, as they include makeup instruction only in the most basic

8

sense; (iii) the mandatory curricula expose instructors and students to dangers they would not

9

otherwise face in the course of teaching makeup artistry—namely, sharp instruments and various

10

chemicals; (iv) the mandated equipment is excessive, as hair and nail care equipment is entirely

11

unnecessary to teach makeup artistry; and (v) cosmetologist and aesthetician licensing exams

12

only superficially test basic makeup application.

13

Plaintiffs argue next that the mandatory curriculum to become a licensed cosmetology

14

instructor is irrelevant to teaching makeup artistry because (i) the 500 to 1,000 hours of required

15

training (depending on whether one is a provisional instructor) do not include any instruction in

16

makeup artistry; and (ii) the instructor licensing exam does not contain any questions about

17

makeup artistry.
i.

18

Requirements for Schools of Cosmetology

19

In pertinent part, the statute requires that a school of cosmetology must:

20

(1) “[c]ontain[] at least 5,000 square feet of floor space and adequate
equipment”;191

21
22
23

(2) “[m]eet[] all requirements established by regulations of the Board”;192
(3) “maintain a staff of at least two licensed instructors and one additional
instructor for each 25 enrolled students, or major portion thereof, over 50

24
25
26

190

NAC § 644.372.

27

191

NRS § 644.380(2)(b).

28

192

NRS § 644.380(2)(e).

Page 34 of 44

students. . . . Persons instructing pursuant to provisional licenses [under] NRS
§ 644.193 are considered instructors for the purposes of this section.”;193

1
2
3
4
5
6

(4) “at all times be under the immediate supervision of a licensed instructor who
has had practical experience of at least 1 year in the majority of the branches of
cosmetology in an established place of business”;194
(5) “maintain a course of practical training and technical instruction equal to the
requirements for examination for a license as a cosmetologist”;195
(6) “[m]aintain apparatus and equipment sufficient to teach all the subjects of its
curriculum”;196

7

Of these requirements, only the fourth, fifth and a portion of the first may possibly not be

8

rationally related to the State’s legitimate interests in health and safety and consumer protection.

9

There is no reason to believe that 5,000 square feet is an irrational minimum size for a makeup

10

artistry school; requiring two instructors (and one more for each 25 students) is a rational,

11

minimal step to promote adequate contact between teachers and students and student oversight;

12

and the remainder of the first, second, third, and sixth requirements give sufficient discretion to

13

school operators to run their facilities as they see fit.

14

I begin with the analysis of the fifth requirement—that makeup artistry schools must

15

“maintain . . . training and . . . instruction equal to the requirements for examination for a license

16

as a cosmetologist.”197 That requirement is unconstitutional as applied to makeup artistry schools.

17

This requirement effectively mandates that makeup artistry schools provide curricula designed to

18

enable students to pass the cosmetology licensing exam. Yet Plaintiffs’ students do not desire to

19

become licensed cosmetologists, and the cosmetology curriculum is both overbroad and

20

underinclusive in relation to what makeup artists need to learn, at a practical level and for health

21

and safety concerns.

22

The statute provides permissive guidelines for the cosmetologist exam:

23

Examinations for licensure as a cosmetologist may include:

24
193

NRS § 644.395 (emphasis added).

194

NRS § 644.400(1) (emphasis added).

195

NRS § 644.400(2)(a) (emphasis added).

27

196

NRS § 644.400(2)(b).

28

197

NRS § 644.200(2)(a) (emphasis added).

25
26

Page 35 of 44

2

1. Practical demonstrations in shampooing the hair, hairdressing, styling of
hair, finger waving, coloring of hair, nail technology, cosmetics, thermal
curling, marcelling, facial massage, massage of the scalp with the hands,
and cutting, trimming or shaping hair;

3

2. Written or oral tests on:

1

4

(a) Antisepsis, sterilization and sanitation;

5

(b) The use of mechanical apparatus and electricity as applicable to
the practice of a cosmetologist; and

6

(c) The laws of Nevada and the regulations of the Board relating to
the practice of cosmetology; and

7

3. Such other demonstrations and tests as the Board may require.198

8
9
10
11
12
13
14

Only paragraph 2.(a)—testing on “[a]ntisepsis, sterilization and sanitation”—bears any direct
relationship to practicing makeup artistry.
The regulations that flesh out the statute include more detailed examination and curricular
requirements for cosmetology:
An examination for licensure as a cosmetologist will include, but is not limited to,
a test on:

18

1. Infection control and safety;
2. The provisions of this chapter and chapter 644 of NRS;
3. Chemical treatments;
4. Haircutting;
5. Arching of the eyebrow;
6. Hot work;
7. Shampoo; and
8. Manicure, pedicure, and wrapping and extending fingernails.199

19

Similar to the statutory guidelines, these requirements include only one element that is directly

20

relevant to makeup artistry: infection control and safety. To prepare for this exam, makeup

21

artistry students would need to learn many tasks that they would not perform in practice. And

22

only one out of eight exam topics—infection control and safety—is rationally related to the

23

State’s health and safety interest.200 More importantly, the State need not require the other seven

24

topics to fulfill its interest in educating makeup artists how to practice safely.

15
16
17

25

27
28

198

NRS § 644.240 (emphasis added).

199

26

NAC § 644.051 (emphasis added).

200

See Cornwell, 80 F. Supp. 2d at 1115 (noting that only about 10% of the cosmetology exam
subjects were applicable to natural hair care).

Page 36 of 44

1

The detailed curriculum for cosmetologists demonstrates the same points:

2

Each school of cosmetology must offer the following subjects for training barbers
and students to be cosmetologists:

3

(a) Blow-drying.
(b) Dispensary.
(c) Extensions and wrapping of nails.
(d) Facials, arching, skin and make-up.
(e) Finger waving.
(f) Hair coloring.
(g) Haircutting.
(h) Manicuring.
(i) Miscellaneous practical and technical instruction, including, without
limitation, field trips relating to the practice of cosmetology.
(j) Modeling.
(k) The provisions of this chapter and chapter 644 of NRS.
(l) Pedicuring.
(m) Permanent waving and chemical straightening.
(n) Reception desk training.
(o) Salon management.
(p) Scalp treatments.
(q) Shampooing and rinses.
(r) Skipwaving.
(s) Theory, with a minimum of 50 hours mandatory for students who are
barbers and 250 hours mandatory for all other students.
(t) Thermal straightening, curling and marcelling.
(u) Wet hairdressing.
(v) Wigs and hairpieces.201

4
5
6
7
8
9
10
11
12
13
14
15
16

Of these subjects, only one may be rationally related to the health and safety concerns of makeup

17

artists: learning the provisions of the cosmetology statute and regulations. Yet this is a fairly

18

indirect relationship which teaches sanitation by requiring students to become generally familiar

19

with the statute and regulations. There is no reason why makeup artistry instructors should be

20

compelled to teach—and makeup artistry students should be compelled to learn—this laundry list

21

of subjects that are, save one, wholly unrelated to makeup artistry.202 The State’s legitimate

22

health and safety interest is not furthered by this overbroad curriculum.203 Accordingly, NRS

23

§ 644.400(2)(a)’s requirement that schools must prepare students for the cosmetologist license

24
25

201

NAC § 644.115(1) (emphasis added).

202

26
27
28

See Cornwell, 80 F. Supp. 2d at 1110–11; Clayton v. Steinagel, 885 F. supp. 2d 1212, 1215 (D.
Utah 2012).
203

Plaintiffs submitted purported copies of the textbooks used to teach cosmetology. (Dkt. Nos.
27-19 to 27-22.) I must disregard those exhibits, however, because they are not authenticated. See FED. R.
EVID. 901.

Page 37 of 44

1

examination is unconstitutional as applied to makeup artistry schools. The State has a legitimate

2

interest in ensuring that makeup artistry is taught and practiced in a safe manner, but it is

3

irrational to further that interest by imposing a significantly overbroad curriculum on makeup

4

artistry students and by requiring makeup artistry instructors to undergo testing in areas that are

5

irrelevant to the instruction of makeup artistry.204

6

As to equipment, the statute’s language is acceptable, as it requires only “adequate

7

equipment.”205 The related regulations, however, require a plethora of equipment that is wholly

8

unnecessary to effectuate the State’s legitimate interest in ensuring that makeup artistry is safely

9

taught. The regulations mandate the following “[m]inimum requirements for equipment”:

10

Each school must have the following working equipment:

11

1. Ten shampoo bowls that are located so that all 10 bowls may be in use at the
same time.

12
13

2. Ten hair dryers, each of which must be equipped with a chair and a device that
releases air on the client's hair. . . .

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3. Two facial chairs.

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4. Ten manicure tables or bars, and stools.

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5. Adequate wet and dry disinfectants that are registered with the Environmental
Protection Agency.

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6. Hot work equipment consisting of:
(a) Five electric heaters.

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(b) Combs, as follows:

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(1) Fine-teeth combs;
(2) Coarse-teeth combs;
(3) Five electric pressing combs;
(4) One shampoo comb per student;
(5) Hard rubber combs; and
(6) Styling combs.

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204

Plaintiffs’ expressed concerns about makeup artistry instructors and students facing
unnecessary danger with sharp instruments and non-makeup related chemicals is alleviated by not
requiring the cosmetology curriculum in makeup artistry schools.
205

NRS § 644.380(2)(b).

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(c) Curling irons, as follows:

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(1) Twenty marcelling irons with revolving handles; and
(2) One electric curling iron per student.

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(d) Oils and conditioners consisting of:

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(1) Pressing oils;
(2) Scalp conditioners;
(3) Hair conditioners for pressed hair made without a soap base,
such as petroleum jelly;
(4) Curling creams made with wax or other acceptable oils; and
(5) Products for cleaning curling irons.

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7. Ten dozen cold-wave rods of assorted sizes.
8. One covered container for hairpins, clips, nets and similar items for each
student.

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9. Five brushes, furnished by the school, for each student.

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10. Closed waste containers of sufficient size and in sufficient quantity to permit
the disposal of all refuse and waste matter by the school and its students.

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11. One block, weft or mannequin on a firm stand for each beginning student.
12. One time clock which punches the date and time on time cards, or a computer
or any other device approved by the Board, for use by the students to record their
hours of training at the school.
13. Two shampoo capes for each student.
14. One chair for each student, or a sufficient number of tables and chairs for all
of the students, in classes on theory.
15. Mirrors, worktables and styling chairs of sufficient number to accommodate
the students enrolled.

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16. At least one textbook per student and adequate reference material, charts,
teaching aids and other materials to support the instruction in the school.

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17. Adequate and safe electrical outlets.206

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Far less than half of these items are rationally related to makeup artistry instruction: item numbers

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five, ten, eleven, twelve, fourteen, fifteen, sixteen and seventeen (in italics above). The remaining

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items appear to relate only to hair care, nail care, and giving facials. The health and safety of

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those involved in makeup artistry instruction is not dependent on providing physical equipment

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whose only purpose is to provide instruction for non-makeup branches of cosmetology.

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206

NAC § 644.085 (emphasis added).

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Therefore, NAC § 644.085(1)–(4), (6)–(9), and (13) are unconstitutional as applied to makeup

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artistry schools.

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The regulations also mandate “[m]inimum requirements for space and accommodations,”

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all of which survive a rational basis analysis: 5,000 square feet of floor space, “properly equipped

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lecture rooms of sufficient size to accommodate all students,” and separate lockers for each

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student.207
ii.

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Requirements for Licensed Instructors

The fourth requirement under NRS Chapter 644 listed above for makeup artistry schools
mandates that such schools “be under the immediate supervision of a licensed instructor who has

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had practical experience of at least 1 year in the practice of a majority of the branches of

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cosmetology in an established place of business.”208 The second part of this requirement is

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problematic because only a licensed cosmetologist could practice four of the six branches:

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cosmetology, aesthetics, hair design, and hair braiding.209 The precise issue is whether requiring

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at least one instructor in a makeup artistry school to be a licensed cosmetologist is rationally

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related to the State’s health and safety interests.

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A cosmetologist engages in the practices of:

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(a) Cleansing, stimulating or massaging the scalp or cleansing or beautifying the
hair by the use of cosmetic preparations, antiseptics, tonics, lotions or creams.

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(b) Cutting, trimming or shaping the hair.
(c) Arranging, dressing, curling, waving, cleansing, singeing, bleaching, tinting,
coloring or straightening the hair of any person with the hands, mechanical or
electrical apparatus or appliances, or by other means, or similar work incident to or
necessary for the proper carrying on of the practice or occupation provided by the
terms of this chapter.
(d) Removing superfluous hair from the surface of the body of any person by the
use of electrolysis where the growth is a blemish, or by the use of depilatories,
waxing, tweezers or sugaring, except for the permanent removal of hair with
needles.

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207

NAC § 644.080.

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208

NRS § 644.400(1) (emphasis added).

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209

See NRS § 644.023.

Page 40 of 44

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(e) Manicuring the nails of any person.
(f) Beautifying, massaging, stimulating or cleansing the skin of the human body by
the use of cosmetic preparations, antiseptics, tonics, lotions, creams or any device,
electrical or otherwise, for the care of the skin.
(g) Giving facials or skin care or applying cosmetics or eyelashes to any person.210

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As can be readily seen, the vast majority of cosmetologists’ competencies have nothing to do with

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makeup artistry, let alone makeup application of any sort. Only “applying cosmetics or eyelashes

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to any person” relates to the practice of makeup artistry.211 There is no rational relationship

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between the State’s health and safety goals and the requirement that at least one instructor at a

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makeup artistry school be a licensed cosmetologist. While licensed cosmetologists would have

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learned how to perform their non-makeup related tasks in a sanitary manner, it is entirely unclear

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how that knowledge is relevant to teaching makeup artistry. Moreover, it is unclear how a

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supervisor/instructor would be better-suited to supervise a makeup artistry school because that

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person is a licensed cosmetologist.212

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This is not to say that instructors at makeup artistry schools may be unlicensed, or that

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they need not have any occupational license at all to become an instructor, or even that the State

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may not require any practical experience to become an instructor.213 I hold merely that NRS

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§ 644.400(1) is unconstitutional as applied to makeup artistry schools in one limited respect: its

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requirement that the supervisor/instructor be a cosmetologist (that is, have “practical experience

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of at least 1 year in the practice of a majority of the branches of cosmetology in an established

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place of business”). That requirement is not rationally related to the State’s interests.

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However, as discussed above, there is sufficient overlap between the practices of

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aesthetics and makeup artistry such that requiring the mandatory supervisor/instructor under NRS

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§ 644.400(1) to be a licensed instructor of aestheticians could pass constitutional muster. Such a

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NRS § 644.023(1) (emphasis added).

211

NRS § 644.023(1)(g).

212

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210

See Cornwell, 80 F. Supp. 2d at 1117–18.

213

See Merrifield, 547 F.3d at 987 (upholding training requirements that include work with
pesticides for exterminators who do not use pesticides).

Page 41 of 44

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requirement would further the State’s legitimate interests in promoting health and safety and in

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assuring that makeup artistry instructors obtain some minimal level of competency as teachers.214

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That second interest is rationally achieved through the statutory requirements for aesthetics

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instructors under NRS § 644.1955, the required instructors’ curriculum under NAC § 644.123(1),

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and the mandatory instructor’s exam under NAC § 644.052. The exam’s relevance to teaching is

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evident, as 53% of it is dedicated to effective teaching methods and methods of assessment for

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student learning, and 47% of it is dedicated to classroom management.215
G.

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Fourteenth Amendment — Equal Protection
1.

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Treating Like Groups Differently

Plaintiffs contend that treating practicing makeup artists differently than makeup artistry

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instructors—by requiring instructors to obtain licenses and allowing practitioners to proceed

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without—violates the Equal Protection Clause. Because Plaintiffs are not in a protected class,

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rational basis applies. 216 As explained above, the State could have reasonably concluded that

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licensing was required for teachers because teachers can inflict more potential harm upon the

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public. Also, not all makeup artists may practice without a license. The excepted categories for

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film, television, advertising, and photography do not cover all the areas in which makeup artists

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practice, as Plaintiffs admit. Thus, Plaintiffs’ argument on this point fails.
2.

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Treating Different Groups Alike

Merrifield indicates that treating different groups alike, as Plaintiffs argue the Board did,

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is not appropriately framed as an equal protection claim but rather a due process claim.217 As

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Plaintiffs’ due process claim is addressed above, there is no need for repetition here.
Based on the foregoing, Plaintiffs’ Fourteenth Amendment Equal Protection claims lack

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merit.

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214

See NRS § 644.1955.

215

(Dkt. No. 27-3.) This document is self-authenticating under Fed. R. Evid. 902(5).

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216

U.S. v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012).

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217

Merrifield, 547 F.3d at 985–86.

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Page 42 of 44

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H.

Fourteenth Amendment — Privileges or Immunities Clause

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As Plaintiffs concede, I am constrained by the Supreme Court’s interpretation of the

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Privileges or Immunities Clause in the Slaughter-House Cases.218 Relief cannot be had under this

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clause “unless the claim depends on the right to travel.”219 I thus grant summary judgment on this

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claim in the Board’s favor, but preserve the claim for possible Supreme Court review.220

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III.

CONCLUSION

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In accord with the above, I hereby ORDER:

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1. Plaintiffs’ motion for summary judgment (Dkt. No. 27) is GRANTED IN PART and
DENIED IN PART. Summary judgment is granted in Plaintiffs’ favor on their claims
under the Due Process Clause of the Fourteenth Amendment.

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NRS § 644.400(2)(a)’s requirement that schools of cosmetology must
prepare students for the cosmetologist license examination is
unconstitutional as applied to makeup artistry schools; makeup artistry
schools are not required to prepare students for the cosmetologist license
examination.

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14

NAC § 644.085(1)–(4), (6)–(9), and (13) are unconstitutional as applied to
makeup artistry schools; makeup artistry schools are not required to
provide the equipment mandated by these subsections.

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NRS § 644.400(1) is unconstitutional as applied to makeup artistry schools
in one limited respect—the mandatory supervisor/instructor need not have
“practical experience of at least 1 year in the practice of a majority of the
branches of cosmetology in an established place of business” (that is, be a
licensed cosmetologist).

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All other aspects of the cosmetology statutes and regulations remain
enforceable against Plaintiffs.

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2. The Board, its agents, and its employees are enjoined from enforcing against Plaintiffs
the aforementioned unconstitutional portions of NRS §§ 644.400(2)(a) and
644.400(1), and NAC § 644.085(1)–(4), (6)–(9), and (13).

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218

Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872).

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219

Merrifield, 547 F.3d at 984 (citing Slaughter-House Cases, 83 U.S. (16 Wall.) at 77).

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220

See Clayton v. Steinagel, 885 F. Supp. 2d 1212, 1213 (D. Utah 2012).

Page 43 of 44

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3. The Board’s motion for summary judgment (Dkt. No. 29) is GRANTED IN PART and
DENIED IN PART. Summary judgment is granted in the Board’s favor on Plaintiffs’
claims under the First Amendment, the Equal Protection Clause of the Fourteenth
Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.
4. The Clerk of Court shall enter judgment accordingly.

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Dated this 6th day of August, 2014.

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7

ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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