Clayton v. Steinagel et al

Filing 41

MEMORANDUM DECISION- granting in part and denying in part 27 Motion for Summary Judgment ; granting in part and denying in part 29 Motion for Summary Judgment. See order for details. Signed by Judge David Sam on 8/8/12. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
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JESTINA CLAYTON,
Plaintiff,
vs.

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Case No. 2:11CV379 DS

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)

MARK STEINAGEL,

MEMORANDUM
DECISION

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Defendant.

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I. INTRODUCTION
Plaintiff Jestina Sunkarie Bangura-Clayton does African hair braiding. She does not use
heat or chemicals or cut hair. She has been braiding hair for years, and she wants to be able to
charge for her services. The State of Utah, however, says that Justina is a cosmetologist, and as
such, cannot legally braid hair for money unless she spends thousands of dollars for hundreds of
hours of classes that have nothing to do with her occupation of natural braiding. Plaintiff filed
this suit, arguing that Utah’s cosmetology/barber licensing scheme should be found
unconstitutional as applied to her because that scheme is not rationally related to any legitimate
state interest. She has brought claims under the Fourteenth Amendment’s Due Process, Equal
Protection, and Privileges or Immunities clauses to protect her economic liberty: her right to
pursue her chosen livelihood free from arbitrary, excessive, and irrational government regulation.
Both parties have filed Motions for Summary Judgment. Jestina concedes that her Privileges or
Immunities Clause argument is foreclosed by the U.S. Supreme Court’s decision in the

Slaughter-House Cases,1 and that only the Supreme Court can overturn the Slaughter-House
Cases. Therefore, this Court grants summary judgment to the Defendant as to Jestina’s
privileges or immunities claim, but preserves it for possible Supreme Court review. As to
Plaintiff’s remaining claims, the Court finds in favor of the Plaintiff.

II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there are no disputed issues of material fact and “the
moving party is entitled to judgment as a matter of law.”2 On summary judgment the court
views the evidence and draws inferences in a light most favorable to the non-moving party.
However the party must set forth specific facts showing that there is a genuine issue for trial.3
Summary judgment is still appropriate when the parties do not dispute the events that occurred,
but rather dispute the interpretation that should be given to those facts.

III. ANALYSIS
Review of both Plaintiff’s Due Process and Equal Protection claims must be based on the
rational relation test. The Court must decide whether there is any rational connection between
Utah’s regulatory scheme and public health and safety when applied to Jestina. In order to prove
a substantive due process claim, a plaintiff must plead and prove that the government’s action
was clearly arbitrary and unreasonable, having no substantial relation to public health, safety,

1

83 U.S. 36 (1873).

2

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

3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
2

morals, or general welfare.4 While the fit between this interest and the means employed need not
be perfect, it must be reasonable. “There must be some congruity between the means employed
and the stated end or the test would be a nullity.”5 The Supreme Court has long recognized that
“a state can require high standards of qualification” to pursue an occupation, “but any
qualification must have a rational connection with the applicant’s fitness or capacity” to engage
in the chosen profession.6 Courts have also made it clear that a state may not “treat[] persons
performing different skills as if their professions were one and the same, i.e., . . . attempt[] to
squeeze two professions into a single, identical mold,” because this results in standards of
qualification that have no rational connection to a person’s actual profession.7
The State notes that public safety, health, and welfare are significant reasons for the
regulation of the cosmetology/barber industry. The Utah Barber Cosmetologist/Barber,
Esthetician, Electrologist, and Nail Technician Licensing Act (“Act”) defines the practice of
cosmetology/barbering to include styling, arranging, dressing, curling, waving, permanent
waving, cleansing, singeing, bleaching, dyeing, tinting, coloring, or similarly treating the hair of
the head of a person. The State has determined that under this definition, African hair braiding
falls within the scope of practice of cosmetology/barbering as a styling technique. The State
asserts that the styling of hair, including hair braiding, requires knowledge of sanitation,

4

Village of Euclid v. Amber Reality Co., 272 U.S. 365, 396 (1926).

5

Cornwell v. Hamilton, 80 F.Supp.2d 1101, 1118 (S.D. Cal. 2001)(cosmetology regulations
not rationally related to public health or safety when applied to natural hairbraiding).
6

Schware v. Bd. of Bar Examiners of New Mexico, 353 U.S. 232, 239 (1957).

7

Cornwell, 80 F. Supp. 2d at 1103.
3

sterilization, diseases of the skin and scalp as well as an understanding of business and business
laws including local and state health requirements. Sanitation and sterilization requirements are
necessary to protect the public and the licensed professionals from harm caused by the
transmission of lice and diseases like HIV AIDS.
However, the facts of this particular case must be considered. Under the rational basis
test, “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.”8 It is undisputed in this case that the legislature never considered African hair
braiding when creating its licensing scheme and that the State has never investigated whether
African hair braiding is a threat to public health or safety. And Jestina is challenging the
licensing scheme only to the extent that it applies to African hair braiding; she is not seeking the
deregulation of cosmetology.
A number of facts are helpful in determining whether there is a rational relationship
between the State’s interest in public health and safety and the State’s licensing regulations as
applied to Jestina:
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By the State’s own admission, 1400 to 1600 of the 2000 hours of the mandatory
curriculum are irrelevant to African hairbraiding, yet Jestina is still required to
take those classes, and be tested on those topics, in order to braid hair. Mem. In
Supp of Pl.’s Mot for Summ. J. (Doc 28) SUF ¶¶ 63-78.
The State admits that it cannot guarantee that the subjects it claims are relevant to
African hair braiding will be given more than minimal time in any
cosmetology/barber school, making even its estimate of “relevant hours”
speculative. Id. SUF ¶ 64.

United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938) (emphasis added).
4

•

•

•

•

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The State does not know which schools, if any, teach African hair braiding; how
many hours, if any, of African hair braiding instruction are available at those
unknown schools; or whether the unknown number of hours of instruction at
those unknown schools are mandatory or elective. Id. SUF ¶ 83.
The textbooks that Utah admits set the standard of its cosmetology/barber
curriculum total approximately 1700 pages, but only 38 pages mention braids of
any kind, much less African braids. Id. SUF ¶¶ 79-80.
Utah admits that the practical examination it requires to obtain a cosmetology
license is irrelevant to African hairbraiding and that it has no idea whether its
written examination requires any knowledge of natural or African hairbraiding.
Id. SUF ¶¶ 68-69, Statement of Additional Uncontested Facts ¶¶ 1-3.
Utah admits that under its cosmentology regime, one versed in the skills of
African hair braiding may not practice them for pay without a cosmetology
license; at the same time, one with a cosmetology/barber license is not required to
have any experience or skill in African hair braiding. Mem.in Supp. Of Pl.’s Mot.
For Summ. J. (DOC 28) SUF ¶ 84.l
Utah admits that it never considered African hair braiding when creating its
licensing scheme and has never investigated whether African hair braiding is a
threat to public health or safety. Id. SUF ¶¶ 48-52.

These facts demonstrate an insufficient rational relationship between public health and safety and
the actual regulatory scheme as applied to Jestina.
Utah’s regulations do not advance public health and safety when applied to Jestina
because Utah has irrationally squeezed “two professions into a single, identical mold,” by
treating hair braiders–who perform a very distinct set of services–as if they were cosmetologists.9
The scope of Jestina’s activities are distinct and limited when compared to cosmetologists. She
does not use chemicals, shampoo, cut or color hair, or do facials, shaves, esthetics, or nails. Even
if she were defined as a cosmetologist, the licensing regimen would be irrational as applied to her
because of her limited range of activities. Most of the cosmetology curriculum is irrelevant to
hairbraiding. Even the relevant parts are at best, minimally relevant.

9

Cornwell v. Hamilton, 80 F.Supp.2d 1101, 1103 (S.D.Cal. 2001).
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Utah’s cosmetology/barbering licensing scheme is so disconnected from the practice of
African hairbraiding, much less from whatever minimal threats to public health and safety are
connected to braiding, that to premise Jestina’s right to earn a living by braiding hair on that
scheme is wholly irrational and a violation of her constitutionally protected rights. “[T]he right
to work for a living in the common occupations of the community is of the very essence of the
personal freedom and opportunity” that the Constitution was designed to protect.10

IV. CONCLUSION
For the foregoing reasons, this Court grants summary judgment to the Defendant as to
Plaintiff’s privileges or immunities claim, while preserving it for possible Supreme Court review.
As to the remainder of Plaintiff’s claims, the Court finds Utah’s Cosmetology Act and licensing
regulations unconstitutional and invalid as applied to Plaintiff Jestina Sunkarie Bangura-Clayton
and grants her motion for summary judgment.
SO ORDERED.
DATED this 8th day of August, 2012.

BY THE COURT:

DAVID SAM
SENIOR JUDGE
U.S. DISTRICT COURT

10

Truax v. Raich, 239 U.S. 33, 41 (1915).
6