Brantley et al v. Kuntz et al
Filing
10
MEMORANDUM OPINION AND ORDER, GRANTING 7 MOTION for Leave to File Surreply filed by Isis Brantley, Isis Ornamentations and Natural Care Consultant, GRANTING 3 MOTION to Dismiss -Partial filed by William H. Kuntz, Jr., LuAnn Roberts Morgan, Catherine Rodewald, Thomas F. Butler, Mike Arismendez, Deborah Yurco, Ravi Shah, Fred N. Moses.. Signed by Judge Sam Sparks. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ZCf3QECf5
PH14:i6
ISIS BRANTLEY and ISIS ORNAMENTATIONS
AND NATURAL HAIR CARE CONSULTANT
d/b/a The Institute of Ancestral Braiding,
Plaintiffs,
Case No. A-13-CA-872-SS
-vs-
WILLIAM H. KUNTZ, JR. in his official capacity
as Executive Director of the Texas Department of
Licensing and Regulation; MIKE ARISMENDEZ
in his official capacity as Chair of the Texas
Department of Licensing and Regulation; LUANN
ROBERTS MORGAN in her official capacity as
Vice-Chair of the Texas Department of Licensing
and Regulation; and FRED N. MOSES,
CATHERINE RODE WALD, DEBORAH
YURCO, RAVI SHAH, and THOMAS F.
BUTLER in their official capacities as members of
the Texas Department of Licensing and
Regulation,
Defendants.
ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendants' Partial Motion to Dismiss [#3], Plaintiffs' Response [#5], and Defendants'
Reply [#6]; and Plaintiffs' Motion for Leave to File Sur-reply [#7], and Defendants' Response [#8].
Having reviewed the documents, the governing law, and the file as a whole, the Court now enters
the following opinion and orders.
/
Background
In this case, Plaintiffs Isis Brantley and her business, Isis Ornamentations and Natural Hair
Care Consultant d/b/a The Institute for Ancestral Braiding, raise constitutional challenges to the State
of Texas's regulation of hair braiders. Specifically, Brantley alleges Texas's barber instructor
licensing scheme, spread across various statutory provisions and regulations,' is unconstitutional as
applied and violative of (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal
Protection Clause of the Fourteenth Amendment; and (3) the Privileges or Immunities Clause of the
Fourteenth Amendment. Defendants are individuals within the Texas Department of Licensing and
Regulation, the state agency charged with overseeing businesses offering barbering services.
Defendants now move to dismiss Brantley's privileges or immunities and equal protection claims.
A.
Texas's Regulatory Scheme
Brantley's "African hair braiding" business is regulated by Texas statutes governing the
barbering profession generally. The definition of "barbering" covers a variety of services, including
hair cutting, shaving, nail treatments, and facial care. TEx. 0cc. CoDE
§
160 1.002. Brantley's hair
braiding services fall within the portion of the definition directed at "braiding a person's hair,
trimming hair extensions only as applicable to the braiding process, and attaching commercial hair
only by braiding and without the use of chemicals or adhesives." Id.
§
1601.002(1 )(K). Thus,
although Brantley's Complaint operates from the premise "[b]raiders are not barbers," Texas law
currently defines them as such. Compl. [#1] ¶ 2.
Brantley's challenge encompasses the following provisions: TEx. 0cc. CoDE § 1601.253.254 and
1601.351-353; 16 TEX. ADMIN. CODE § 82.20(a), (c), (d), (m), 82.21, 82.23, 82.51, 82.72, and 82.1202(a)(d).
-2-
In Texas, barbers cannot practice their trade without a certificate, license, or permit.
0cc. CODE §
TEX.
1601.251(a) ("A person may not perform or offer or attempt to perform any act of
barbering unless the person holds an appropriate certificate, license, or permit."). Individuals seeking
to braid hair for pay may obtain a "Hair Braiding Speciality Certificate of Registration,"2 a credential
which allows an individual to "perform only barbering as defined by Section 160 1.002(1)(K)." Id.
§
1601.259(a). In order to obtain such a certificate, a person must be at least seventeen years old and
complete an approved training program. Id.
§
160 1.259(b). The training program consists of thirty-
five hours of instruction across a range of topics, including technical skills, health and safety law and
rules, and hair analysis and scalp care, with no final examination. 16 TEX. ADMIN. CODE § 82.20(h),
.120(k).3
Individuals who have obtained hair braiding certificates may continue their training and serve
as hair braiding instructors, enabling them to teach courses satisfying the regulatory standards. The
first teaching option is the Barber Instructor License. TEx. 0cc. CODE
requires an individual to be a "Class A
barber"4
§
1601.254. This license
and either complete a 750-hour course in a barber
school or have one year of work experience as a licensed Class A barber and have completed
alternative training focused on pedagogical methods (e.g., fifteen hours of collegiate education
courses in education). Id. The second option is the Hair Braiding Specialty Instructor License. This
2
The parties refer to this credential as a "license," but the statute and regulations use the word "certificate."
There is also a distinct "hair braiding specialty certificate" available under the cosmetology regulations, rather
than the barbering regulations. 16 TEX. ADMIN. CODE § 83.20(e). This certificate requires completion of a similar thirtyfive hour curriculum.Jd. § 83.120(b).
'
To become a Class A barber, an individual must be at least sixteen years old and pass both written and
practical examinations after completing at least 900 curriculum hours of course work. TEX. 0cc. CODE § 1601.253; 16
TEX. ADMIN. CODE § 82.2 1(b).
-3-
license requires a valid specialty certificate and similar course work (or a combination of course
work and work experience).5
B.
16 TEX. ADMIN.
CODE
§
82.20(m), 82.120(c).
Brantley's Hair Braiding Activities
Brantley owns and operates a sole proprietorship in Dallas, Texas. She holds a Hair Braiding
Specialty Certificate, and is therefore authorized to braid hair for compensation. She does not hold
either instructor license, and is not licensed as a Class A barber. Brantley has, in the past, provided
hair braiding instruction at her business, and charged her students for the classes. However, because
Brantley is not licensed as an instructor and because she does not operate a registered barber school,6
her students cannot use her classes to satisfy their thirty-five hour course work requirement. Brantley
has also taught as a "guest
instructor"7
at the Texas Barber Institute, a registered barber school.
There, she has taught courses satisfying the thirty-five hour hair braiding curriculum.
Analysis
I.
Motion to DismissRule 12(b)(6)Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain
statement of the claim showing that the pleader is entitled to relief"
FED. R.
Civ. P. 8(a)(2). A
The options include: (1) completing a 750-hour course ii barber school, or (2) combining one year of work
experience in the specialty with either (a) a 500-hour course in barber school, (b) fifteen semester hours of collegiate
education courses within the last ten years, or (c) a college degree in education. 16 TEx. ADMIN. CODE § 82.20(m)(5).
6
Texas also regulates what may qualify as a barber school. Requirements include, for example, a building with
"at least 2,000 square feet of floor space, including classroom and practical areas, covered in a hard-surface floorcovering oftile or other suitable material," ifthe school is located in a municipality with a population exceeding 50,000.
TEx.
0cc. CODE
§
160 1.353.
The "guest instructor" role is a mysterious creature. To the Court's knowledge, neither the Texas Occupation
Code nor the relevant regulations provide any definition or description of it. Defendants claim guest instructors "are not
defined by rule or statute, but are instead the product of a policy decision that allows those with expertise in the area of
hair braiding to avoid obtaining a full barber instructor license and still teach the limited topic of hair braiding in a
licensed barber school." Def.'s Reply [#6], at 4.
motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be granted."
FED.
R. Civ. P. 1 2(b)(6). The plaintiff
must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft
U.s. 662, 678 (2009); Bell Atl. Corp.
v.
v.
Iqbal, 556
Twombly, 550 U.S. 544, 570 (2007). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at 678. Although
a plaintiff's factual allegations need not establish that the defendant is probably liable, they must
establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining
plausibility is a "context-specific task," and must be performed in light of a court's 'judicial
experience and common sense." Id. at 679.
In deciding a motion to dismiss under Rule 12(b)(6), a court generally accepts as true all
factual allegations contained within the complaint. Leatherman
v.
Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, a court is not bound to accept
legal conclusions couched as factual allegations. Papasan
v.
Allain, 478 U.S. 265, 286 (1986).
Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead
"specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061,
1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the complaint, as well
as other sources such as documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice. Tellabs, Inc.
322 (2007).
-5-
v.
Makor Issues & Rights, Ltd., 551 U.S. 308,
II.
Application
A.
Privileges or Immunities Clause
Brantley concedes her challenge based on the Privileges or Immunities Clause is foreclosed
by the United States Supreme Court's holding in the Slaughter-House Cases, 83 U.S. 36 (1872).
Pl.'s Resp. [#5], at
13
("There can be little dispute that for the time being the Supreme Court's
decision in the Slaughter-House Cases forecloses this claim
.
.
.
."). Brantley merely seeks to
preserve the issue for appellate review. Accordingly, the Court will GRANT Defendants' motion and
dismiss the privileges or immunities claim.
B.
Equal Protection Clause
To avoid running afoul of the Equal Protection Clause, "all persons similarly situated must
be treated alike." Rolfv. City ofSan Antonio, 77 F.3d 823, 828 (5th Cir. 1996). For equal protection
analysis to be triggered, therefore, the challenged government action must classify or distinguish
between two groups. Id. "Unless a statute provokes 'strictjudicial scrutiny' because it interferes with
a 'fundamental right' or discriminates against a 'suspect class,' it will ordinarily survive an equal
protection attack so long as the challenged classification is rationally related to a legitimate
governmental purpose." Kadrmas
v.
Dickinson Pub. Schs., 487 U.S. 450, 457-58 (1988).
Brantley presents two different theories under the equal protection umbrella. First, Brantley
contends Texas is arbitrarily treating hair braiders differently from "guest instructors" by allowing
guest instructors to teach the qualifying 35-hour licensing curriculum at an approved barber school,
but requiring hair braiders to obtain a barber license and register a barber school to teach the identical
curriculum at their own place of business.8 Second, Brantley argues Texas's regulatory scheme treats
hair braiders the same as barbers, despite significant differences in those professions. In other words,
Texas treats two dissimilar groups identically. Defendants argue both theories fail to state an equal
protection claim.
Brantley's first theory is ill-suited as an equal protection claim. Though Brantley phrases it
as a distinction between "hair braiding instructors" and "guest instructors," her allegations reveal
those two classifications, as she uses the terms, are one and the same. Brantley views herself as a
"hair braiding instructor" when teaching in her own business. However, because Brantley holds no
instructor license of any kind, under Texas law she is not an instructor. Similarly, Brantley admits
guest instructors are not required to hold instructor licenses. Thus, the only difference between
Brantley's alleged groups is the barber school requirement. If Brantley teaches her class in a barber
school, she qualifies as a guest instructor and her course satisfies the 35-hour curriculum. If she
teaches the same class in her business, which is not a barber school, the course does not satisfy the
curriculum. Texas's requirement all barbering courses be taught in a registered barber school is
universally applied to all instructors, regardless of their form. Brantley is thus being treated exactly
the same as every other hair braiding instructor in the state: she must teach at a registered
schoolwhether as a Class A barber instructor, a specialty license instructor, or a guest
instructorfor her course to satisfy the regulatory requirements.
In making this claim, Brantley ignores the alternative instructor licensing option, the Specialty Hair Braiding
Instructor License.
8
-7-
Note this is not a "similarly situated" problem, which the parties' motions focus on. The
Court can assume (for purposes of this argument) guest instructors and "Brantley-style"
instructors9
are similarly situated. Brantley, who has served in both roles, demonstrates the two groups are
essentially identical. The only difference between a guest instructor and a Brantley-style instructor
is where they teach: guest instructors teach in registered barber schools, Brantley-style instructors
teach elsewhere. Thus, Brantley's claim is merely an attempt to challenge the rationality of a
uniformly applied Texas rule which does not distinguish between any groups, and therefore is not
an equal protection claim, See Brennan
v.
Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988) ("[hf the
challenged government action does not appear to classify or distinguish between two or more
relevant persons or groups, then the actioneven if irrationaldoes not deny them equal protection
of the laws.").
Brantley's second equal protection theory fares no better. In what is essentially a reverse
equal protection claim, Brantley faults Texas for not treating two
groupshair
braiders and
barbersdifferently. Brantley thus admits this claim is not a situation in which similarly situated
groups are being treated differently. Instead, Brantley claims two dissimilar groups are being treated
similarly withoutjustification. Such allegations do not state an equal protection claim. Rolf 77 F.3d
at 828; see also Powers
v.
Harris, 379 F.3d 1208, 1215 (10th Cir. 2004) ("[E]qual protection only
applies when the state treats two groups, or individuals, differently.")
In support of her second theory, Brantley relies on a single line of dicta from Jenness
v.
Fortson, 403 U.S. 431,442 (1971): "Sometimes the grossest discrimination can lie in treating things
A Brantley-style instructor is someone, like Brantley, who does not hold any sort of instructor license but
nevertheless teaches hair braiding.
-8-
that are different as though they were exactly alike, a truism well illustrated in [Williams v. Rhodes,
393 U.S. 23 (1968)]." However, as the Ninth Circuit observed when confronted with the same
argument Brantley now advances, "in both Jenness and in Williams, the challenged laws imposed
different requirements on two different groups, traditional and new political parties." MerrJleld v.
Lockyer, 547 F.3d 978,985 (9th Cir. 2008). This view is consistent with longstanding views of equal
protection doctrine, and conforms to the Fifth Circuit's restatement as well. See Rolf 77 F.3d at 828
(reciting the basic requirement imposed by the doctrine: "all persons similarly situated must be
treated alike"). To the extent a Sixth Circuit case cited by Brantley holds otherwise, this Court
respectfully declines to follow the Sixth Circuit and hews instead to the well trodden path carved by
binding Fifth Circuit precedent. See Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) (affirming
district court's injunction of statute on equal protection and dueprocess grounds); but see MerrUleld,
547 F.3d at 985 (reading Craigmiles as a due process case despite inclusion of equal protection
language).
Conclusion
Brantley's privileges or immunities claim is foreclosed by Supreme Court precedent, and
must be dismissed. Brantley's equal protection claims are not equal protection claims at all, but are
merely strained attempts to reframe her due process arguments. Those claims must be dismissed as
well. Defendants have not challenged Brantley's due process claim, and this suit therefore moves
forward on those grounds alone.
Accordingly,
IT IS ORDERED that Defendants' Partial Motion to Dismiss [#3] is GRANTED;
12
IT IS FINALLY ORDERED that Plaintiffs' Motion for Leave to File Sur-reply [#7]
is GRANTED.
SIGNED this the
/day of December 2013.
SA7D2
UNITED STATES DISTRICT JUDGE
872 mtd ord kkt.frm
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?