Petition for Writ of Certiorari — Ndioba Niang, et al., Petitioners v. Brittany Tomblinson, et al.

App. 1

United States Court of Appeals

for the Eighth Circuit

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No. 16-3968

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Ndioba Niang; Tameka Stigers

Plaintiffs-Appellants

v.

Emily Carroll, in her official capacity as

Executive Director of the Missouri Board of

Cosmetology and Barber Examiners; Wayne Kindle,

In his official capacity as a member of the Missouri

Board of Cosmetology and Barber Examiners

Defendants-Appellees

Betty Leake

Defendant

Jackie Crow, In her official capacity as a member

of the Missouri Board of Cosmetology and

Barber Examiners; Joseph Nicholson, In his official

capacity as a member of the Missouri Board of

Cosmetology and Barber Examiners; Leata

Price-Land, In her official capacity as a member

of the Missouri Board of Cosmetology and Barber

Examiners; Lori Bossert, In her official capacity

as a member of the Missouri Board of Cosmetology

and Barber Examiners; Linda M. Bramblett, In

her official capacity as a member of the Missouri

Board of Cosmetology and Barber Examiners; Leo

D. Price, Sr., In his official capacity as a member

App. 2

of the Missouri Board of Cosmetology and Barber

Examiners; Christie L. Rodriguez, In her official

capacity as a member of the Missouri Board

of Cosmetology and Barber Examiners

Defendants-Appellees

-----------------------------Missouri African Hairbraiders and Their

Customers; Pacific Legal Foundation;

Public Choice Scholars; Cato Institute;

Reason Foundation; Individual Rights Foundation;

Senator Rand Paul; Goldwater Institute;

Beacon Center of Tennessee; The Show-Me Institute

Amici on Behalf of Appellant(s)

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Appeal from United States District Court

for the Eastern District of Missouri – St. Louis

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Submitted: September 20, 2017

Filed: January 11, 2018

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Before COLLOTON, BENTON, and KELLY, Circuit

Judges.

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BENTON, Circuit Judge.

Missouri statutes require African-style hair braiders to be licensed as barbers or cosmetologists. Ndioba

“Joba” Niang and Tameka Stigers challenge this

App. 3

requirement under the Fourteenth Amendment. The

district court1 granted summary judgment for the

State. Having jurisdiction under 28 U.S.C. § 1291, this

court affirms.

African-style hair braiders are required to have a

license to work for pay in Missouri. §§ 328.020, 329.030

RSMo 2016. License candidates must (1) complete

a costly and time-intensive training course – 1,000hours for barbering and 1,500-hours for hairdressing,

(2) disclose criminal, citizenship, and limited character

background, and (3) pass a licensing exam. These requirements apply to those who “cut and dress the hair

for the general public” or perform “arranging, dressing, curling, singeing, waving, permanent waving,

cleansing, cutting, bleaching, tinting, coloring or similar work upon the hair of any person by any means.”

§§ 328.010(1) (barbers), 329.010(5)(a) (cosmetologists)

RSMo 2016. Niang and Stigers – two unlicensed, compensated, African-style braiders – believe African-style

braiding is different from barbering and cosmetology

with distinctive techniques not covered in either training course or the exam.

This court reviews de novo a grant of summary

judgment. Torgerson v. City of Rochester, 643 F.3d

1031, 1042 (8th Cir. 2011) (en banc). “Where a law neither implicates a fundamental right nor involves a suspect or quasi-suspect classification, the law must only

1

The Honorable John M. Bodenhausen, United States Magistrate Judge for the Eastern District of Missouri, to whom the

case was referred for final disposition by consent of the parties

pursuant to 28 U.S.C. § 636(c).

App. 4

be rationally related to a legitimate government interest.” Gallagher v. City of Clayton, 699 F.3d 1013,

1019 (8th Cir. 2012). This review is “a paradigm of judicial restraint” where “a statutory classification . . .

must be upheld against equal protection challenge if

there is any reasonably conceivable state of facts that

could provide a rational basis for the classification.”

FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14

(1993) (citations omitted). Courts must give “a strong

presumption of validity” to state laws. Heller v. Doe,

509 U.S. 312, 319 (1993) (citations omitted). Courts

must be “very reluctant” to “closely scrutinize legislative choices as to whether, how, and to what extent

those interests should be pursued.” United States v.

Windsor, 133 S. Ct. 2675, 2717 (2013), quoting City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,

441-42 (1985). When a “rational basis” passes equal

protection review, it “also satisfies substantive due process analysis.” Executive Air Taxi Corp. v. City of

Bismarck, 518 F.3d 562, 569 (8th Cir. 2008).

The braiders argue that the license requirement is

not rationally related to any legitimate government interest. According to the State, its interests are protecting consumers and ensuring public health and safety.

The State offered evidence of health risks associated

with braiding such as “hair loss, inflammation, and

scalp infection.” The State also presented evidence of

scalp conditions that braiders must recognize as unsuitable for braiding.

The district court added two purposes: stimulating more education on African-style braiding and

App. 5

incentivizing braiders to offer more comprehensive

hair care. The braiders object that the district court

cannot offer justifications. To the contrary, courts are

“not bound to consider only the stated purpose of a legislature.” Kansas City Taxi Cab Drivers Ass’n, LLC

v. City of Kansas City, 742 F.3d 807, 809 (8th Cir.

2013). The braiders have the burden to negate not only

the State’s justification, but also “every conceivable basis which might support it.” FCC, 508 U.S. at 315 (internal quotations and citations omitted).

As the braiders acknowledge, the license requirement furthers legitimate government interests in

health and safety. See Barsky v. Bd. of Regents of U.,

347 U.S. 442, 449 (1954) (as “a vital part of a state’s

police power,” it may “establish and enforce standards

of conduct within its borders relative to the health of

everyone there,” including “the regulation of all professions concerned with health.”). In the cases the braiders cite, the government did not have a legitimate

interest. See Craigmiles v. Giles, 312 F.3d 220, 224

(6th Cir. 2002) (restricting casket sales to funeral directors – “protecting a discrete interest group from economic competition” – “is not a legitimate governmental

purpose”); St. Joseph Abbey v. Castille, 712 F.3d 215,

222 (5th Cir. 2013) (same); Ranschburg v. Toan, 709

F.2d 1207, 1211 (8th Cir. 1983) (finding “intent to discriminate is not a legitimate state interest”); Fowler

v. United States, 633 F.2d 1258, 1263 (8th Cir. 1980)

(“no rational interest” “to summarily discharge without cause a mentally retarded worker, but not a nonretarded worker who performs the same job”).

App. 6

The braiders argue that the State’s means do not

fit its purposes. They emphasize an exception allowing

unlicensed braiding “without the use of potentially

harmful chemicals . . . while working in conjunction

with any licensee for any public amusement or entertainment venue.” See § 316.265 RSMo 2016. The

braiders also cite a legislative proposal by the licensing

Board for a special barber/cosmetology license for

braiders.

The licensing requirement is rationally related to

the State’s interest in public health and safety notwithstanding the licensing exception and the legislative proposal. The State is not required to “choose

between attacking every aspect of a problem or not

attacking the problem at all.” United Hosp. v. Thompson, 383 F.3d 728, 733 (8th Cir. 2004), quoting Dandridge v. Williams, 397 U.S. 471, 487 (1970). “[E]ven

when there is an imperfect fit between means and

ends” courts are still compelled under rational basis

review “to accept a legislature’s generalizations.” Heller, 509 U.S. at 321. The fit need only be arguable and

rational, with “some footing in the realities of the subject addressed by the legislation.” Id. “The assumptions underlying these rationales may be erroneous,

but the very fact that they are arguable is sufficient.”

FCC, 508 U.S. at 320 (internal quotations and citation

omitted). “It is enough that the State’s action be rationally based and free from invidious discrimination.”

Dandridge, 397 U.S. at 487. See also Schware v.

Bd. of Bar Exam. of N.M., 353 U.S. 232, 239 (1957)

(a state violates the Fourteenth Amendment when its

App. 7

“action is invidiously discriminatory”). Here, the fit between the licensing requirement and the State’s interest is imperfect, but not unconstitutionally so.

The braiders assert that the Missouri licensing regime is too overbroad and under-inclusive to be rationally related to the State’s interest. They cite the State’s

concession that only about 10 percent of the required

training courses is relevant to African-style braiders,

and that almost all the exams do not test on braiding.

To the contrary, the State “may exact a needless, wasteful requirement in many cases,” which may “not be in

every respect logically consistent with its aims” but

still be “constitutional.” Williamson v. Lee Optical

of Okla., Inc., 348 U.S. 483, 487-88 (1955). “It is

enough” that the State identify “an evil at hand for correction” and believe regulation “was a rational way to

correct it.” Id. at 488. “A State can require high standards of qualification” if it has “a rational connection

with the applicant’s fitness or capacity to practice.”

Schware, 353 U.S. at 239. There may be advantages

and disadvantages to a license requirement, “[b]ut it is

for the legislature, not the courts, to balance” them.

Williamson, 348 U.S. at 487.2

2

The braiders’ citations to Peeper v. Callaway Cty. Ambulance Dist., 122 F.3d 619 (8th Cir. 1997) are not persuasive because it is a non-economic case about restraints on First

Amendment rights. See Kansas City Taxi, 742 F.3d at 810 (acknowledging non-economic cases are not persuasive in the local

economic sphere); Lee v. Driscoll, 871 F.3d 581, 585 (8th Cir.

2017) (interpreting Peeper as addressing restrictions on the First

Amendment right to associate).

App. 8

Finally, the braiders argue that the statutes violate equal protection by treating different professionals – braiders and barbers/cosmetologists – similarly.

The premise of this argument is wrong. The braiders

define their profession as “braiding, locking, twisting,

weaving, cornrowing, or otherwise physically manipulating hair without the use of chemicals that alter the

hair’s physical characteristics.” The braiders’ definition is rational, but it is not the only rational way to

define professions that involve hair dressing and other

similar services. And their definition falls squarely

within the scope of the definitions of barbering and cosmetology that the Missouri legislature has chosen.

Barbering is to “dress the hair for the general public.”

§ 328.010(1) RSMo 2016. Cosmetology is “arranging,

dressing . . . or similar work upon the hair of any person.” § 329.010(5)(a) RSMo 2016. A legislature rationally could conclude that African-style braiding is

not a different profession than barbering or cosmetology. “We see no constitutional reason why a State may

not treat all who deal with [dressing hair] as members

of a profession.” See Williamson, 348 U.S. at 490.3

3

The braiders rely on rulings by three district courts. Because

these decisions do not appropriately defer to legislative choices,

they are not persuasive. See Brantley v. Kuntz, 98 F. Supp. 3d

884, 893 (W.D. Tex. 2015) (To “shoehorn two unlike professions

‘into a single, identical mold’ ” violates substantive due process);

Clayton v. Steinagel, 885 F. Supp. 2d 1212, 1215 (D. Utah 2012)

(finding a violation of equal protection where State “irrationally

squeezed ‘two professions into a single, identical mold’ ”); Cornwell v. Hamilton, 80 F. Supp. 2d 1101, 1103 (S.D. Cal. 1999)

(same), questioned in part by Merrifield v. Lockyer, 547 F.3d

App. 9

The Missouri statutes do not violate the Fourteenth Amendment rights of the African-style hair

braiders.

*******

The judgment is affirmed.

978, 985 (9th Cir. 2008) (district court’s reasoning in Cornwell

“cannot survive equal protection analysis”).

App. 10

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

NDIOBA NIANG and

TAMEKA STIGERS,

)

)

)

Plaintiffs,

)

v.

) No. 4:14 CV 1100

EMILY CARROLL, in her official ) JMB

capacity as Executive Director of )

the Missouri Board of Cosmetol- )

ogy and Barber Examiners, and )

)

WAYNE KINDLE, JACKIE

CROW, JOSEPH NICHOLSON, )

)

LEATA PRICE-LAND, LORI

)

BOSSERT, LINDA M. BRAM)

BLETT, LEO D. PRICE, SR.,

and CHRISTIE L. RODRIGUEZ, )

)

in their official capacities as

members of the Missouri Board )

)

of Cosmetology and Barber

)

Examiners,

)

Defendants.

)

App. 11

MEMORANDUM AND ORDER1

(Filed Sep. 20, 2016)

Introduction

In this case, the Court must evaluate the constitutionality of a Missouri law requiring practitioners of a

unique form of hair care called African Style Hair

Braiding (“ASHB”) to be licensed as cosmetologists or

barbers. ASHB is a distinctive form of natural hair

care that involves braiding, locking, twisting, weaving,

or otherwise physically manipulating a person’s hair

without the use of artificial chemicals.2

Despite its differences from mainstream cosmetology or barbering, the State of Missouri nevertheless requires ASHB practitioners to become licensed in the

same manner as traditional cosmetologists or barbers

before they can practice their craft on the general public, for money. This means meeting the same educational, training, and testing requirements as

traditional cosmetologists or barbers. The State argues

that requiring licensure for these professionals serves

the State’s interests in promoting the public health

and protecting consumers from incompetence or fraud

by setting educational and testing requirements, and

1

This case is before the Court with the parties’ consent under 28 U.S.C. § 636(c). The Court has jurisdiction over this matter

pursuant to 28 U.S.C. § 1331.

2

ASHB has cultural, historical, and racial roots in Africa,

where its techniques originated many centuries ago, and were

brought by Africans to this country.

App. 12

through inspections, as well as the prospect of licensee

discipline.

Ndioba Niang and Tameka Stigers (“Plaintiffs”)

argue, however, that the practice of ASHB is not like

traditional cosmetology or barbering; that it has a different historical and cultural genesis; and that it uses

distinctive techniques. Plaintiffs contend, therefore,

that it is irrational for the State of Missouri to require

them to obtain a license they consider irrelevant and

do not want. Plaintiffs also argue that the educational

and testing requirements do nothing to promote competence in hair braiders, and that the State can protect

consumers through general business licensing and

general consumer protection laws, instead of licensing.

Plaintiffs allege that application of the licensing regime to them violates their rights to substantive due

process and equal protection, as well as their privileges

or immunities under the Fourteenth Amendment.

To vindicate their rights, Plaintiffs filed this lawsuit. Plaintiffs seek declaratory relief that their constitutional rights have been violated, and injunctive relief

prohibiting the State of Missouri from enforcing its licensing regimes against them. Plaintiffs also seek attorneys’ fees.

After discovery in this matter was complete, the

parties filed cross-motions for summary judgment.

(ECF Nos. 47 and 49) Oral argument on both motions

was held on January 19, 2016. Thereafter, the Court

stayed this matter until the end of the 2016 Missouri

Legislative session because two bills were pending

App. 13

before the Missouri Legislature that might have

mooted this matter. (ECF No. 57) Those bills never

passed, so the Court lifted the stay. (ECF No. 62) The

matter is now ripe for decision. Based on the undisputed facts of this case, and the applicable law, Defendants are entitled to summary judgment. Therefore, the

Court will GRANT Defendants’ motion for summary

judgment, and DENY Plaintiffs’ motion for summary

judgment.

I.

Background

A. Factual Background

1) Plaintiffs

Plaintiffs are two individuals employed in the

traditional practice of ASHB. (Plaintiffs’ Statement of

Uncontroverted Material Facts) (“PSOMF”) (ECF No.

49-2 at ¶¶ 5, 30)3 Plaintiffs both own and operate

3

In its discussion of the factual background of this case, the

Court will refer to either uncontroverted facts, or will construe

any facts that are in genuine dispute in Plaintiffs’ favor. See Ricci

v. DeStefano, 557 U.S. 557, 586 (2009).

The Court notes at the outset that there is a dispute between

the parties over whether Defendants have admitted items in

Plaintiffs’ Statement of Uncontroverted Material Facts

(“PSOMF”). Plaintiffs argue that, in disputing many of their uncontroverted facts, Defendants “fail to provide any citations to

record evidence indicating that those facts are controverted,” and

that “[t]herefore, all statements in Plaintiffs’ Statement of Uncontroverted Material Facts shall be deemed admitted under Local

Rule 7-4.01E.” (ECF No. 54 at 2-3) This local rule requires that

“[e]very memorandum in opposition [to a motion for summary

judgment] include a statement of material facts as to which the

party contends a genuine issue exists. Those matters in dispute

App. 14

establishments, open to the public, for the provision of

their services, for compensation. (Id. at ¶¶ 6, 31) Neither Plaintiff is licensed as a cosmetologist or a barber

in the State of Missouri. (Id. at ¶¶ 4, 29)

The undisputed facts in this case demonstrate

that ASHB is a unique form of natural hair care which

involves braiding, locking, twisting, weaving, cornrowing, or otherwise physically manipulating a person’s

hair. (Id. at ¶ 50) ASHB is usually practiced by individuals of African or African-American descent, upon hair

that is often described as “tightly textured” or “coily”

hair. (Id.) ASHB has geographic, cultural, historical,

and racial roots in Africa, where its techniques originated many centuries ago. (Id. at ¶ 51) Practitioners of

ASHB typically do not use chemicals to artificially alter hair. (Id. at ¶ 52)

Although the parties disagree about the extent to

which ASHB is taught or learned in professional cosmetology or barbering schools, the parties agree that

practitioners usually learn to perform their craft when

they are children or teens, and most are “self-taught.”

shall be set forth with specific references to portions of the record,

where available, upon which the opposing party relies.” It further

provides that “[a]ll matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.”

The Court need not resolve this issue. For one thing, many of

Plaintiffs’ statements of fact are actually legal argument, especially where they relate to issues such as the relevancy and sufficiency of the licensing regime. Furthermore, as noted above, the

Court will construe any material facts that are genuinely disputed in Plaintiffs’ favor.

App. 15

(Id. at ¶¶ 54, 55; ECF No. 52-1 at 20) The parties also

appear to agree that many practitioners of ASHB offer

only hair-braiding services, as opposed to a wider array

of services traditionally provided by full-service cosmetologists or barbers. (PSOMF at ¶ 62; ECF No. 52-1

at 23-24) Almost exclusively, the services offered by

Plaintiffs are the intricate hair braiding that is representative of ASHB, as opposed to more traditional cosmetology or barbering services. (PSOMF at ¶ 74, 75,

93, 94)

A typical customer interaction with Plaintiff Ndioba Niang begins by Niang asking customers about

their past hair braiding experience; whether they have

any scalp sensitivities or scalp conditions; and whether

they have had any chemical hair treatments such as

coloring, hair relaxing, or perm. (Id. at ¶ 78) Niang

then examines the customer’s scalp and hair prior to

performing any braiding. (Id. at ¶ 79) Niang does not

cut or color hair, or use chemicals, heat, or chemical relaxers to style hair. (Id. at ¶ 80) Niang does not wash

hair. (Id. at ¶81)

In braiding her customers’ hair, Niang uses combs,

brushes, hair clips, hair extensions, scissors, lighters or

candles (to seal the end of artificial hair extensions). In

the past, Niang used flat irons, blow dryers, or hood

dryers for certain braided hair styles, but she claims

she does not use those items anymore, because they

are “not necessary” for ASHB services. (Id. at ¶¶ 83-86)

Niang cleans and sanitizes the combs, brushes, and

hair clips that she uses with soap and water and/or

Barbicide prior to use on each customer. (Id. at ¶ 87)

App. 16

Plaintiff Tameka Stigers provides ASHB services

at an establishment in St. Louis called “Locs of Glory”.

(Id. at ¶¶ 92, 93) Specifically, she uses a locking style

known as Sisterlocks.4 (Id. at ¶ 93) Locs of Glory offers

a range of services, including cosmetology, barbering,

and esthetics, and employs licensed practitioners, but

Stigers herself does not provide those services. Rather,

Stigers confines her practice to providing Sisterlocks

services. (Id. at ¶98-100)

In providing braiding services, Stigers uses a

“hook tool,” similar to a crochet hook, that is specifically designed for Sisterlocks. (Id. at ¶ 103) Stigers

sanitizes the hook tool multiple times throughout the

day with hand sanitizer, which is the same cleaning

process used by the licensed practitioners at Locs of

Glory. (Id. at ¶ 104) In addition, Stigers periodically

uses a hair dryer to dry customers’ hair. Stigers also

uses thread snips to help untangle customers’ hair if

the hair is tangled, so that she can properly section the

hair on customers’ scalps for braiding. (Id. at ¶¶ 105,

107) Stigers also provides instructions to clients on

how to maintain their Sisterlocks at home, including

instructions on how to re-tighten Sisterlocks. (Id. at

¶ 37) Stigers does not use other equipment such as flat

irons, curling irons, or hood dryers. (Id. at ¶ 106)

4

“Sisterlocks” is a proprietary ASHB technique developed by

Dr. JoAnne Cornwell, the lead plaintiff in an important ASHB

case discussed later in this opinion. See Cornwell v. Hamilton, 80

F. Supp.2d 1101 (S.D. Cal. 1999). Stigers underwent additional

training in this technique in order to become a certified Sisterlocks consultant. (PSOMF at ¶ 35, 36)

App. 17

Stigers admits that the services she provides are

more complex than the basic plaits and simple braids

that may be taught to students during the course of a

traditional cosmetology or barbering education. (Id. at

¶ 94) Stigers does, however, sometimes provide the

basic plaits and simple braid services. When she does

do these simpler services, she usually performs them

on children. (Id. at ¶ 95)

Plaintiff Niang avers that if she was sued for the

unlicensed practice of cosmetology, she would be unable to keep her business open, and that if this lawsuit

is unsuccessful, she will be forced to close her business.

(ECF No. 49-58 at ¶ 35) Niang further avers that she

is unable to afford to attend a licensed cosmetology or

barbering school, and that even if she could afford it,

she would be forced to be around what she considers to

be “potentially hazardous chemicals,” that she would

not otherwise handle. (Id. at ¶¶ 36-38)

Plaintiff Stigers avers that if this lawsuit fails, she

will be forced to spend thousands of hours and tens of

thousands of dollars to attend cosmetology or barber

school, or complete a 3,000 hour cosmetology or 2,000

hour barber apprenticeship in order to stay in business. Stigers states that she cannot afford this tuition,

and that she might have to close her business if the

licensing requirement remains. Stigers also argues

that, if Missouri’s licensing regime is not struck down,

she will have to handle hazardous chemicals that she

does not want to handle, and would not otherwise handle. (ECF No. 49-61 at ¶¶ 32-37)

App. 18

2) Missouri Licensing and Educational

Regimes

The State of Missouri licenses hair care professionals under two statutes – one relating to cosmetology, and the second relating to barbering. Section

329.010(5)(a) of the Missouri Revised Statutes defines

cosmetology as performing, or offering to engage in,

any of the following acts:

arranging, dressing, curling, singeing, waving,

permanent waving, cleansing, cutting, bleaching, tinting, coloring or similar work upon the

hair of any person by any means; or removing

superfluous hair from the body of any person

by means other than electricity, or any other

means of arching or tinting eyebrows or tinting eyelashes. . . . [A]ny person who either

with the person’s hands or with mechanical or

electrical apparatuses or appliances, or by the

use of cosmetic preparations, antiseptics, tonics, lotions or creams engages for compensation in any one or any combination of the

following: massaging, cleaning, stimulating,

manipulating, exercising, beautifying or similar work upon the scalp, face, neck, arms or

bust [is engaged in cosmetology].

The State of Missouri, through its Board of Cosmetology and Barber Examiners (“Board”) construes

this definition of cosmetology to include the practice of

ASHB. (Doc No. 41 at ¶ 31) The Board argues that,

“[b]y its nature, African-style hair braiding falls within

the definition of ‘cosmetology,’ as it involves ‘arranging,

dressing, . . . cutting, . . . or similar work upon the hair

App. 19

of any person.’ ” (ECF No. 48 at 3-4) Furthermore, the

Board argues that “[h]air braiding is, by its very nature, a form of hair care and styling” because it “involves the manipulation of hair for aesthetic effect.”

(Id. at 4)

Because the Board considers the practice of ASHB

to be cosmetology, state law requires ASHB practitioners to be licensed by the State. In particular, § 329.030

provides that it is “unlawful for any person in this state

to engage in the occupation of cosmetology or to operate an establishment . . . of cosmetology, unless such

person has first obtained a license.” Furthermore, Missouri law provides that the practice of cosmetology

without a license is a class C misdemeanor, punishable

by criminal penalties and fines of $300. See § 329.250

RSMo.5

In order to become a licensed cosmetologist, an applicant must meet the requirements of § 329.050

RSMo., including passing a background check, satisfying an educational requirement, and sitting for an

exam. In order to sit for the cosmetology exam, an applicant must satisfy the educational requirement in

one of three ways: (1) graduate from a licensed school

with no less than 1,500 hours of training or the equivalent credit hours, with the exception of public vocational technical schools in which a student shall

5

There are a few exceptions to this prohibition. First,

§ 329.010(4), (5) permits the unlicensed practice of cosmetology

where it is done without compensation. Second, as will be discussed later, there is an exemption for braiders at public amusement and entertainment venues. See RSMo. § 316.265.

App. 20

complete no less than 1,220 hours; (2) complete a cosmetology apprenticeship under the supervision of a licensed cosmetologist of no less than 3,000 hours; or (3)

graduate from a cosmetology school or apprenticeship

program in another State which has substantially the

same requirements as Missouri law. See § 329.050

RSMo.

The mandatory curriculum for licensed cosmetology schools, and the apprenticeship program includes:

shampooing of all kinds, hair coloring, bleaches, rinses,

hair cutting and shaping, permanent waving and relaxing, hair setting, pin curls, fingerwaves, thermal

curling, combouts and hair styling techniques, scalp

treatments and scalp diseases, facials, eyebrows and

arches, manicuring, hand and arm massage and treatment of nails, cosmetic chemistry, salesmanship and

shop management, sanitation and sterilization, anatomy, state law, and additional optional topics selected

by the schools. See § 329.040.4 RSMo.

The cosmetology exam (like the barbering exam,

discussed below) is developed by an independent third

party contractor, called Professional Credential Services, Inc. (“PCS”), which administers the National Interstate Council’s cosmetology and barber licensing

exams. (PSOMF Id. at ¶ 143-44) The Board does not

select or control the content of the cosmetology (or barbering) exam, other than by contracting with PCS to

administer the exam. (Id. at ¶ 148) The exam consists

of 110 questions, only 100 of which are scored. The content of the written exam is drawn from material contained in two of the main textbooks used in

App. 21

cosmetology schools – the Milady textbook, and the

Pivot Point textbook.6 (Id. at ¶¶ 149, 154, 156)

The facts demonstrate that these two textbooks focus on traditional, mainstream cosmetology, and do not

contain specific instruction on ASHB. (Id. at ¶¶ 25254) In fact, less than 50 pages of the nearly 3,000 pages

of the Milady and Pivot Point cosmetology (and barber)

textbooks contain information about any kind of braiding. (Id. at 254) Even when the textbooks do discuss

braiding, it is not focused on ASHB, but instead, on traditional braiding which is outside of the scope of services normally provided by Plaintiffs and other ASHB

practitioners. (Id. at 256) Because the content of these

textbooks form the basis of the licensing exams, the

facts show that only a small percentage of the licensing

exam focuses upon hair braiding.

As to the barbering statute, according to Missouri

law, a barber is anyone who “is engaged in the capacity

so as to shave the beard or cut and dress the hair for

the general public.” § 328.010(1) RSMo. Section

328.020, meanwhile, provides that it is “unlawful for

any person to practice the occupation of a barber in

this state, unless he or she shall have first obtained a

license.” The unlicensed practice of barbering is a class

C misdemeanor. See § 328.160 RSMo.

In order to become a licensed Missouri barber, an

applicant must complete a written and practical exam

6

The majority of Missouri cosmetology and barber schools

use the Milady or Pivot Point textbooks. (ECF No. 49-13 at 452)

App. 22

pursuant to §§ 328.070-328.080 and 20 CSR7 20855.010(10). In order to sit for the barbering exam, an

applicant must: (1) study for no less than 1,000 hours

in a period of not less than six months in a licensed

barber school under the direct supervision of a licensed

instructor; or (2) complete no less than 2,000 hours under the direct supervision of a licensed barber apprentice supervisor. See § 328.080 RSMo.

The mandatory curriculum for licensed barbers

schools, and the apprenticeship program include: history, professional image, bacteriology, sterilization,

sanitation, and safe work practices; implements, tools

and equipment; properties and disorders of the skin,

scalp, and hair; treatment of hair and scalp, along with

facial massage and treatments, shaving, haircutting,

hairstyling, mustache and beard designs, permanent

waving, chemical hair relaxing and soft curl permanents, hair coloring, hairpieces, chemistry, anatomy,

physiology, salesmanship, establishment management, and state law. See 20 CSR § 2085-12.030. The

mandatory barbering curriculum does not appear to

include any specific ASHB instruction, and the barbering exam has very few questions directly relevant to

hair braiding.

Missouri currently licenses 97 schools of barbering

and cosmetology. (Defendants’ Statement of Uncontroverted Material Facts at ¶ 17) (“DSOMF”) Total tuition

(for all 1500 hours) at a licensed Missouri cosmetology/

barber school costs between $3,800 and $21,450, with

7

“CSR” stands for Missouri Code of State Regulations.

App. 23

an average of $11,570. (ECF No. 49-47 at 1; PSOMF at

¶ 157)

3) Application of State Licensing Laws

to African Style Hair Braiders

As discussed above, and as agreed by the parties

in this lawsuit, the Board has determined that the

practice of ASHB falls within the statutory definition

of either cosmetology or barbering, and therefore, all

those practicing ASHB must be licensed as cosmetologists or barbers. (PSOMF at ¶¶ 120, 133; ECF No. 35

at ¶ 31)

As a result of this determination, the Board has

undertaken several enforcement actions against practitioners of ASHB in Missouri operating without a license. (ECF No. 49-4 at 12-13) See, e.g., State Board of

Cosmetology and Barber Examiners v. Salimato Kouyate, d/b/a African Sisters Hair Braiding, Case No. 091544 CB; and State Board of Cosmetology and Barber

Examiners v. Anani Kodjo Adzoh and Ayawa Fiadonou,

d/b/a/ Pauline African Hair Braiding, Case No. 101753 CB.8 In its response to interrogatories,

8

The hearing decisions for these cases, and several others

like it, can be found online at the Missouri Board of Cosmetology

and Barber Examiner’s website, in the discipline section:

http://pr.mo.gov/cosbar-discipline.asp (last visited on September

15, 2016). Although these hearing decisions were not entered into

the record, the Court takes judicial notice of the fact that these

enforcement actions occurred. See American Prairie Const. Co. v.

Hoich, 560 F.3d 780, 798 (8th Cir. 2009) (permitting district

courts to take judicial notice of facts outside the record where “the

App. 24

Defendants acknowledged at least 18 enforcement actions in the ASHB context. (ECF No. 49-4 at 12-13) The

punishment in these cases has usually been in the

form of discipline against the license of the businesses,

due to the presence of unlicensed individuals providing

ASHB services. There appear to have been no criminal

prosecutions brought against unlicensed practitioners.

Defendants – pursuant to their inspection regime

– have presented evidence from two Board inspectors

who have inspected ASHB establishments. (ECF No.

48-13 at 10-18; and ECF No. 48-14 at 7-17) In at least

some instances, inspectors have found sanitation violations at ASHB establishments, including unpackaged hair left out, unclean work areas, trash and hair

on the floor and general uncleanliness in the salons.

(Id.) It appears that these enforcement actions were

undertaken in response to complaints filed against

these establishments.9 (ECF No. 49-13 at 310-313)

B. Procedural History

On June 16, 2014, Plaintiffs filed a three-count

complaint against Emily Carroll (“Carroll”), Executive

Director of the Missouri Board of Cosmetology and

Barber Examiners (“Board”), in her official capacity.

facts are matters of common knowledge or are capable of certain

verification”).

9

Some of these complaints have apparently been filed by licensed competitors of the unlicensed practitioners. (ECF No. 4913 at 317-19) It is not clear what percentage of the complaints is

filed by competitors, and what percentage is filed by customers.

App. 25

(ECF No. 1) Plaintiffs also sued six Board members in

their official capacities (collectively, “Defendants”).10

On April 15, 2015, Plaintiffs filed an Amended Complaint, in which they added references to the State’s

barbering license, because Defendants determined

during the course of discovery that Plaintiffs could be

regulated under the barbering regime in addition to

the cosmetology licensing regime. (ECF Nos. 30, 36)

In Count I of the Amended Complaint, Plaintiffs

allege that enforcement of either the cosmetology or

barber licensing regime against them violates their

right to substantive due process by violating their

“right to earn a living.” (ECF No. 36 at 28-29) Plaintiffs

claim that forcing them to undergo “at least 1,500

hours of irrelevant cosmetology training or at least

1,000 hours of irrelevant barbering training” is not rationally related to any legitimate government interest.

(Id. at 29) In Count II, Plaintiffs claim that the licensing regime deprives them equal protection of the law,

in violation of the Fourteenth Amendment, arguing

that “the right to equal protection protects not just

similarly situated people from being treated differently, but also differently situated people from being

10

These six individuals were Wayne Kindle, Betty Leake,

Jackie Crow, Joseph Nicholson, Leata Price-Land, and Lori

Glasscock. (See ECF No. 1 at 1) On November 25, 2014, Defendants gave notice to the Court that Betty Leake was no longer a

member of the Board, due to the expiration of her term in office.

(See ECF No. 25 at 1) Under Fed. R. Civ. P. 25(d), Linda M. Bramblett, Leo D. Price, Sr., and Christie L. Rodriguez are substituted

as parties, because they have been named to terms on the Board.

(Id.)

App. 26

treated similarly.” (ECF No. 36 at 30) Plaintiffs claim

that they “cannot be subject to the same regulations

and licensing requirements as cosmetologists or barbers.” (Id.) In Count III, Plaintiffs allege that the licensing regime violates the Privileges or Immunities

Clause of the Fourteenth Amendment, which they

claim “protects the right to earn a living in the occupation of a person’s choice subject only to reasonable government regulation.” (ECF No. 36 at 31)

Plaintiffs seek declaratory and injunctive relief.

They want: (1) a declaratory judgment that application

of the Missouri licensing regime to Plaintiffs and

ASHB practitioners generally is unconstitutional;11 (2)

a permanent injunction prohibiting Defendants from

enforcing the licensing regime against Plaintiffs and

ASHB practitioners generally; and (3) attorneys’ fees,

costs, and expenses in the action, pursuant to 42 U.S.C.

§ 1988. (ECF No. 36 at 32-33)

On September 30, 2015, after completion of discovery, the parties filed cross-motions for summary judgment. (ECF Nos. 47, 49) Concurrent with their motions

for summary judgment, the parties also filed proposed

11

Plaintiffs appear to intend their lawsuit as a facial challenge. (See ECF No. 36 at 32-33) (asking for relief vindicating the

rights of African Style Hair Braiders generally). Plaintiffs did not

bring this case as a class action under Fed. R. Civ. P. 23, however,

and lack standing to assert claims or to seek relief on behalf of

other ASHB businesses who are not before the Court. See generally United States v. Raines, 362 U.S. 17, 21-23 (1960). Therefore,

the Court considers Plaintiffs’ suit to be an as-applied challenge

and only rules on the factual circumstances presented in this

case.

App. 27

statements of uncontested material facts. (ECF Nos.

48-1 and 49-2) On October 30, 2015, both parties filed

briefs in opposition to the other party’s motion. (ECF

Nos. 51, 52) On November 11, 2015, both parties filed

replies in support of their respective motions for summary judgment. (ECF Nos. 53, 54)

As discussed above, after briefing was complete,

the Court ordered oral argument from the parties concerning their respective motions for summary judgment. (ECF No. 55) The Court heard oral argument on

January 19, 2016.

At oral argument, the Court discussed with the

parties the fact that multiple bills had been proposed

in the Missouri Legislature which would have altered

the licensing requirements for hair braiders in Missouri, and potentially mooted the case. The Court

therefore entered an order staying the case until the

end of the 2016 legislative session, or passage of one of

the licensing bills. (ECF No. 57) At the end of the 2016

legislative session, however, no bill had been passed by

the legislature mooting this controversy. Therefore, on

May 27, 2016, the Court lifted the temporary stay in

this matter, and took the matter under submission.

(ECF No. 62) The matter is now fully briefed and ready

for disposition.

II.

Summary Judgment Standard

Summary judgment is appropriate where “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

App. 28

Civ. P. 56(a). Under Rule 56, a party moving for summary judgment bears the burden of demonstrating

that no genuine issue exists as to any material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party,” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v.

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

Once the moving party discharges this burden, the

non-moving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of

material fact, not the “mere existence of some alleged

factual dispute.” Anderson, 477 U.S. at 247. The nonmoving party may not rest upon mere allegations or

denials in the pleadings. Id. at 256. “Factual disputes

that are irrelevant or unnecessary” will not preclude

summary judgment. Id. at 248.

The Court must construe all facts and evidence in

the light most favorable to the non-movant, and must

refrain from making credibility determinations and

weighing the evidence. Id. at 255. “Where parties file

cross-motions for summary judgment, each summary

judgment motion must be evaluated independently to

determine whether a genuine issue of material fact exists and whether the movant is entitled to judgment as

a matter of law.” Progressive Cas. Ins. Co. v. Morton, 140

F. Supp.3d 856, 860 (E.D.Mo. 2015) (citations omitted).

App. 29

III. Discussion

As noted above, Plaintiffs claim that application of

the Missouri cosmetology and barbering statutes to

them violates their Fourteenth Amendment rights to

substantive due process, equal protection of the law,

and their privileges or immunities. The Court will address these claims in reverse order for the sake of clarity and narrowing the issues. As an initial matter,

however, the Court addresses the preliminary issue of

standing, which the parties have not discussed. This

inquiry is important because Plaintiffs have not yet

been harmed, but instead are alleging hypothetical

threats that they will be harmed in the future.

A. Standing

Although the parties do not contest that this Court

has subject matter jurisdiction, the Court is under an

independent obligation to assure itself that it has subject matter jurisdiction. Arbaugh v. Y&H Corp., 546

U.S. 500, 514 (2006). That means the Court must inquire as to Plaintiffs’ standing, and the suitability of

this controversy for judicial review. See also Bernbeck

v. Gale, ___ F.3d ___, 2016 WL 3769481 at *2 (8th Cir.

July 14, 2016) (noting that even where it is not raised

by the parties, standing is “ ‘a threshold issue that [the

Court is] obligated to scrutinize,’ sua sponte if need

be”) (internal citations omitted).

This independent obligation to ensure justiciability arises because the federal courts are tribunals of

limited jurisdiction. See Kokkonen v. Guardian Life Ins.

App. 30

Co. of America, 511 U.S. 375, 377 (1994). For instance,

Article III of the Constitution limits the jurisdiction of

federal courts to “Cases” and “Controversies.” See U.S.

Const., Art. III, § 2. The standing doctrine gives meaning to this limitation by identifying those disputes

which are appropriately resolved through the judicial

process. Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992). To establish Article III standing, a plaintiff

must show: (1) an injury in fact; (2) a sufficient causal

connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be

redressed by a favorable decision. Id. at 560-61.

There is no doubt that Plaintiffs have alleged a

sufficient injury in theory: deprivation of their livelihood, fines, or even criminal conviction for the unlicensed practice of cosmetology or barbering counts as

injury. Cf. Susan B. Anthony List v. Driehaus, 134 S. Ct.

2334, 2343 (2014) (holding that the threat of criminal

and civil enforcement of a prohibition against false

statements in an election campaign is a cognizable injury in fact). But the Court must determine not merely

whether the type of injury that Plaintiffs allege is sufficient, but whether – because this is a threatened future injury – the threatened injury is “certainly

impending,” or there is a “substantial risk” that the

harm will occur. See Clapper v. Amnesty International,

133 S. Ct. 1138, 1147, 1150, n. 5 (2013). This inquiry is

necessary because federal courts do not adjudicate issues of hypothetical harm that may or may not occur

in the future. See id. at 1143 (holding that a future

App. 31

injury must be “certainly impending” in order to establish Article III standing).

In this regard, “it is not necessary that the plaintiff first expose h[er]self to actual arrest or prosecution

to be entitled to challenge the statute that [s]he claims

deters the exercise of h[er] constitutional rights.” Babbitt v. United Farm Workers Na. Union, 442 U.S. 289,

298 (1979) (quoting Steffel v. Thompson, 415 U.S. 452,

459 (1974)) (alterations in original omitted). Instead,

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, [s]he

‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’ ”

Babbitt, 442 U.S. at 298. (quoting Doe v. Bolton, 410

U.S. 719, 188 (1973)). Only “persons having no fears of

state prosecution except those that are imaginary or

speculative,” lack standing. Id. In analyzing the probability of future prosecution, courts look to evidence of

enforcement in the past. Susan B. Anthony List, 134

S. Ct. at 2345 (“We have observed that past enforcement against the same conduct is good evidence that

the threat of enforcement is not ‘chimerical.’ ”) (quoting

Steffel, 415 U.S. at 459).

Here, Plaintiffs have sufficiently proved standing.

It is uncontested that the prohibition on the unlicensed

practice of cosmetology or barbering carries the risk of

App. 32

criminal and civil penalties.12 Although no criminal

prosecutions appear to have been brought, Defendants

have regularly engaged in civil enforcement proceedings, stripping establishments of their licenses due to

the presence of unlicensed practitioners on their premises, and Plaintiffs have either an ownership interest

in, or are employed by similar establishments. As discussed above, Defendants have admitted to at least

eighteen enforcement actions over the last several

years against hair braiders and establishments where

ASHB is provided. (ECF No. 49-4 at 12-13) The past

record of enforcement of Missouri’s licensing requirements is sufficient to indicate that Plaintiffs face a sufficiently likely enforcement action in the future to

satisfy Article III standing requirements. Susan B. Anthony List, 134 S. Ct. at 2345.13

12

It is also uncontested that the practice of ASHB falls

within the statutory definition of cosmetology. Plaintiffs do not

argue that the State incorrectly applied the statutory definition

of cosmetology or barbering to ASHB; they argue instead that it

is constitutionally impermissible to subject ASHB to the licensing

requirements of the cosmetology and barbering statutes.

13

Also, there is no question that the “causation” and “redressability” elements of standing are met as well: the purported

injury is caused by enforcement of the licensing regimes, and

there is sufficient redressability if this Court finds that the licensing regime is unconstitutional – the Court can enjoin enforcement

of the regime against Plaintiffs. And finally, there is no ripeness

issue in this case. Although cases of future injury usually require

a ripeness inquiry, in cases like this “Article III standing and ripeness issues . . . ‘boil down to the same question:’ ” whether the

controversy is ready for judicial review. Susan B. Anthony List,

134 S. Ct. at 2341, n. 5. This is because the “doctrines of standing

and ripeness ‘originate’ from the same Article III limitations.” Id.

App. 33

Therefore, because Plaintiffs have established

standing, and this case is ripe for judicial disposition,

the Court will now turn to the merits of the parties’

motions. The Court will first dispose of Plaintiffs’ Privileges or Immunities Clause claim, and then review

Plaintiffs’ Equal Protection Clause and Substantive

Due Process Clause claims.

B. Privileges or Immunities Clause (Count

III)

Plaintiffs allege that application of the licensing

regime to them violates the Privileges or Immunities

Clause of the Fourteenth Amendment, because it “unreasonably” restricts their “right to earn a living in the

occupation of [their] choice subject only to reasonable

government regulation.” (ECF No. 36 at 31) Plaintiffs

acknowledge, however, that this claim is foreclosed by

the Slaughter-House Cases, 83 U.S. 36 (1872) (holding

that the Privileges or Immunities Clause only protects

those rights which owe their existence to the federal

government, and that the right to practice a profession

of one’s choice is not a federal right, but is left to the

state government for protection and security). (ECF

No. 49-1 at 7) Plaintiffs simply wish to preserve their

Privileges or Immunities Clause claims for potential

Supreme Court review. (ECF No. 49-1 at 7) The Court

(quoting DiamlerChrysler Corp. v. Cuno, 547 U.S. 332, 335

(2006)). In cases such as this, there is no ripeness inquiry separate from the standing inquiry.

App. 34

therefore grants summary judgment to Defendants on

Count III.

C. Equal Protection Clause (Count II)

Next, the Court must decide whether Plaintiff ’s

Equal Protection Clause argument is properly before

the Court. Plaintiffs have pleaded an equal protection

count, but Defendants argue that Plaintiffs are asking

for an unwarranted extension of equal protection doctrine, and that Plaintiffs have – in substance – articulated only a substantive due process theory. (ECF No.

52 at 7-9) Plaintiffs respond by arguing that their

equal protection claim is distinct from the due process

claim. (ECF No. 54 at 8-12) Plaintiffs argue that ASHB

is not the same occupation as cosmetology or barbering, and that it violates the Equal Protection Clause to

regulate them as if they were traditional cosmetologists or barbers. (Id.) Plaintiffs claim that the “guarantees of Equal Protection under the Fourteenth

Amendment protect not only similarly situated individuals from disparate treatment, but also differently

situated individuals from similar treatment.” (ECF No.

49-1 at 9) Plaintiffs conclude that, because the State of

Missouri did not differentiate in licensing between traditional cosmetologists, and African Style Hair Braiders, the State has violated the Equal Protection

Clause.

In support of their equal protection argument,

Plaintiffs rely mainly on Jenness v. Fortson, 430 U.S.

431, 442 (1971), as well as decisions from two federal

App. 35

district courts in other states which have agreed with

Plaintiffs that the Equal Protection Clause is implicated in ASHB licensing. See Cornwell v. Hamilton, 80

F. Supp. 2d 1101, 1103 (S.D. Cal. 1999) (holding that

Plaintiff ’s equal protection argument was properly before that court); and Clayton v. Steinagel, 885 F. Supp.

2d 1212, 1214 (D. Utah 2012) (same).14 Defendants, on

the other hand, deny that Plaintiffs have adequately

alleged an Equal Protection Clause claim. (ECF No. 52

at 5-9) Defendants argue that the idea that equal protection is violated by treating people similarly is a

unique interpretation of the Equal Protection Clause,

not supported by case law, and a “distraction” from the

main issue in the case, which is the substantive due

process claim. (Id. at 9)

14

Plaintiffs also cite Brantley v. Kuntz, 98 F. Supp. 3d 884,

893 (W.D. Tex. 2015), for the proposition that it is impermissible

to “shoehorn” two unlike professions into one licensing scheme.

See id. (quoting Clayton and Cornwell). Brantley does not help

Plaintiffs’ equal protection argument. In Brantley, the district

court held that certain requirements for barbering schools could

not be applied to an African Style Hair Braider who taught ASHB

in her establishment and wanted to be considered a barbering

“school.” The court said that the minimum requirements [to be

considered a licensed barbering school] could not be applied to the

plaintiff in that case because they were not “logically connecting

means and ends,” and instead were “shoehorn[ing] two unlike

professions into a single, identical mold.” This was a substantive

due process holding, however. Earlier in the opinion, the court

noted that it had expressly dismissed the equal protection claim

in an earlier decision. Id. at 888. In that earlier decision, the same

court explained that the plaintiff’s “equal protection claims are

not equal protection claims at all, but are merely strained attempts to reframe her due process arguments.” See Brantley v.

Kuntz, 2013 WL 6667709 at *5 (W.D. Tex. Dec. 16, 2013).

App. 36

The Court agrees with Defendants. Plaintiffs are

asking for an extension of equal protection doctrine

that has no support in controlling case law, inverts the

traditional understanding of equal protection jurisprudence, and is largely irrelevant because the rational

basis inquiry under the substantive due process framework is identical to that which Plaintiffs propose under

equal protection guise.

First, the Court agrees with Defendants that there

is no controlling case law supporting Plaintiffs’ position. Plaintiffs rely almost exclusively on one sentence

of dicta at the end of Jenness where the Supreme Court

said that “[s]ometimes the grossest discrimination can

lie in treating things that are different as though they

were exactly alike.” Jenness, 403 U.S. at 442. This

statement, however, is taken out of context, and is unrepresentative of the actual holding of the case.

At issue in Jenness was a Georgia election law that

required a nominee of a “political body” (i.e., a third

party) to secure the signatures of 5% of the eligible voters for that office at the last election before their name

would be printed on the official ballot. Id. at 433. This

signature requirement did not apply to nominees of the

Democratic or Republican parties, and had the effect of

limiting ballot access to nominees of the major parties.

Various third party candidates attacked that law,

claiming that the law illegally discriminated against

them by requiring them to secure the signatures of 5%

of the voters before printing their names on the ballot,

yet automatically printing the names of the Republican or Democratic nominees. The third parties argued

App. 37

that it violated the Equal Protection Clause to treat

them differently.

The Supreme Court rejected that challenge,

noting that Georgia had good reason to treat third

party nominees differently than the nominees of the

Republican and Democratic parties, due to “obvious

differences in kind between the needs and potentials”

of the two established parties as opposed to newer

third parties. Id. at 441. The Court went on to state

that “Georgia has not been guilty of invidious discrimination in recognizing these differences and providing

different routes to the printed ballot. Sometimes the

grossest discrimination can lie in treating things that

are different as though they were exactly alike.” Id. at

441-42. Thus, it is apparent that the holding of the Supreme Court was that Georgia did not violate equal

protection principles by treating groups differently.

The Court then speculated that it was a good thing

that Georgia treated the two groups differently because it would have been unfair to treat them the

same. This speculation, appearing in the second-to-last

paragraph of the opinion, is dicta. Jenness does not

support Plaintiffs’ argument that equal protection

principles require people to be treated unequally if

they are differently situated.

Plaintiffs dispute this reasoning by arguing that

the Court in Jenness “found no equal protection violation precisely because differently situated individuals were not treated as if they were the same.” (ECF

No. 54 at 9) (emphasis in original) That is not accurate

– the Supreme Court held that there were good

App. 38

reasons for treating the two types of parties differently.

In other words, the Supreme Court did not hold that

Georgia was constitutionally mandated to treat the

two types of parties differently – merely that it was

constitutionally permissible to do so.

The only additional case law that Plaintiffs cite in

support of their equal protection arguments comes

from the other ASHB cases in two other district courts:

Clayton and Cornwell. The problem, however, is that

Clayton (the Utah case), from 2012, simply cites to

Cornwell (the California case), from 1999, with no independent analysis as to how the Equal Protection

Clause applies. See Clayton, 885 F. Supp. 2d at 1214

(“Review of both Plaintiff ’s Due Process and Equal

Protection claims must be based on the rational relation test. . . . 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.”) (citing

Cornwell).

The Cornwell court, in turn, simply cites to the

Jenness case, for the proposition that treating two entities equally can violate equal protection principles.

See Cornwell, 80 F. Supp. 2d at 1103 (“Plaintiff ’s Equal

Protection claim is grounded on the reasoning that

‘sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.’ ”). Cornwell does not critically analyze

Jenness. As discussed above, this language from Jenness is dicta, and does not stand for the proposition for

which Plaintiffs cite it. This Court declines to follow

the Cornwell court’s truncated reasoning.

App. 39

More importantly, perhaps, the Ninth Circuit overturned the Cornwell court’s equal protection analysis

in Merrifield v. Lockyer, 547 F.3d 978, 985 (9th Cir.

2008). In Merrifield, a pest-controller who engaged in

a specific type of pest control challenged the application of California’s pest control license requirements.

The plaintiff there engaged in “non-pesticide animal

damage prevention and bird control,” as opposed to

most pest-controllers, who used pesticide-based practices. Id. at 980. The plaintiff claimed that he should be

exempt from such license requirements because he did

not use pesticides. The plaintiff argued that treating

him the same as pesticide-based pest controllers violated his rights to equal protection, citing Cornwell. Id.

at 984.

The Ninth Circuit responded by criticizing Cornwell’s equal protection analysis in precisely the same

way discussed above. It noted that in Jenness, “the

challenged laws imposed different requirements on

two different groups, traditional and new political parties. However, in Cornwell, the challenge was by an African hair stylist who challenged a uniform licensing

scheme.” Id. at 985 (emphasis in original). The Ninth

Circuit concluded that “the reasoning of the district

court in Cornwell . . . cannot survive equal protection

analysis.” Id.

In sum, Plaintiffs’ reliance upon Jenness, Cornwell, and Clayton for the proposition that equal protection principles require unequal treatment in certain

App. 40

situations is unsupported by any controlling or persuasive case law.15

Finally, even if the Court were inclined to hold that

Plaintiffs had alleged a viable equal protection argument, it is unclear what such an analysis would add,

because both parties agree that this Court should undertake a rational basis review. This review is the

same level of scrutiny under the Due Process and

Equal Protection Clauses. See, e.g., Independent Charities of America, Inc. v. State of Minn., 82 F.3d 791, 798

(8th Cir. 1996) (noting that “a statute which satisfies

the rational basis test in an equal protection analysis

also satisfies the rational basis test under substantive

due process analysis”); see also Kansas City Taxi Cab

Drivers Ass’n, LLC v. City of Kansas City, Mo., 742 F.3d

807, 809 (8th Cir. 2013) (hereinafter “Kansas City

Taxi”) (“A rational basis that survives equal protection

scrutiny also satisfies substantive due process analysis.”) (quoting Executive Air Taxi Corp. v. City of Bismark, N.D., 518 F.3d 562, 569 (8th Cir. 2008)).

15

The Brantley court, which is cited by Plaintiffs, characterized Plaintiffs arguments as “essentially a reverse equal protection claim.” See Brantley, 2013 WL 6667709 at *4. This type of

claim is impermissible under Fifth Circuit precedent. See Rolf v.

City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996) (“We may

conduct an equal protection inquiry only ‘if the challenged government action classifies or distinguishes between two or more

relevant groups.’ ”) (emphasis added). This inversion of equal protection principles is also impermissible in the Tenth Circuit. See

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.”).

App. 41

At bottom, Plaintiffs’ main concern is not that they

are being treated differently, in violation of equal protection principles, but that they are suffering an unconstitutional barrier to practice their profession – this

is a substantive due process claim. See Merrifield, 547

F.3d at 985. For the foregoing reasons, the Court holds

that Plaintiffs have not proved a viable equal protection claim. The Court grants summary judgment to Defendants on Count II.

D. Substantive Due Process (Count I)

1) Rational Basis Standard of Review

The heart of Plaintiffs’ lawsuit is their substantive

due process claim in Count I. Plaintiffs allege that the

State of Missouri has imposed unreasonable restrictions on their right to practice the profession of

their choice. This is a substantive due process claim.

See Merrifield, 547 F.3d at 985.

Substantive due process claims are evaluated under the “rational basis” test when they do not involve

“suspect” classifications, such as racial or gender classifications, and where the restrictions at issue do not

implicate fundamental rights. See Romer v. Evans, 517

U.S. 620, 631 (1996) (holding that “if a law neither burdens a fundamental right nor targets a suspect class,”

rational basis review applies); see also Kansas City

Taxi, 742 F.3d at 809 (applying rational basis review to

an ordinance regulating permits to drive taxi cabs).

Both parties agree that this case does not involve suspect classifications, or fundamental rights, and both

App. 42

parties agree that the rational basis test applies. (ECF

Nos. 49-1 at 3 and 48 at 5-6) Under rational basis review, government laws must be rationally related to a

legitimate government interest. Romer, 517 U.S. at

631.

Rational basis review has been called a “paradigm

of judicial restraint.” F.C.C. v. Beach Communications,

508 U.S. 307, 314 (1993) (“Beach”). A regulation survives rational basis review “if there is any reasonably

conceivable state of facts that could provide a rational

basis for the classification.” Id. at 313 (emphasis

added). Rational basis review “is not a license for

courts to judge the wisdom, fairness or logic of legislative choices.” Id. Where there are plausible reasons for

the legislature’s action, a court’s inquiry “is at an end.”

Id. at 313-14. This restraint flows naturally from the

structure and history of the Constitution, which “presumes that, absent some reason to infer antipathy,

even improvident decisions will eventually be rectified

by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely

we think a political branch has acted.” Id. at 314 (emphasis added).

Furthermore, courts may not strike down a law

under rational basis review simply because that law

may not succeed in bringing about the result it seeks

to accomplish, Seagram & Sons, Inc. v. Hostetter, 384

U.S. 35, 50 (1966) (abrogated on other grounds by

Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 584 n. 6 (1986)), or because

the problem could have been addressed in some other

App. 43

way. See Mourning v. Family Publications Service, Inc.,

411 U.S. 356, 378 (1973). Indeed, courts may not strike

down a statute even when no empirical evidence supports the assumptions underlying the legislative

choice. See Vance v. Bradley, 440 U.S. 93, 110-11 (1979).

These limitations exist because such regulations

are not “subject to courtroom fact-finding.” Beach, 508

U.S. at 315. In other words, Plaintiffs bear the burden

of discrediting “every conceivable basis which might

support [the regulation] whether or not the basis has a

foundation in the record.” Heller v. Doe, 509 U.S. 312,

320-21 (1993) (emphasis added). So long as the law

does not burden fundamental rights or single out suspect classes, the State of Missouri is free to engage in

“rational speculation unsupported by evidence.” Beach,

508 U.S. at 315.16 Whether the regulation is wise or not

is a judgment reserved to the Missouri legislature, because our Constitution allocates policy making authority in the economic realm to elected officials, not

federal judges. Cf. National Federation of Independent

Business v. Sebelius, 132 S. Ct. 2566, 2577 (2012)

(“NFIB”).

2) Analysis

Given the judicial deference mandated by rational

basis review, the Court must uphold the licensing regime because the State has advanced at least two

16

It is important to reiterate that the parties do not contend

that the law singles out a suspect class, and both parties agree

that rational basis review applies.

App. 44

legitimate state interests, and the means chosen by the

State to advance those interests (the licensing regime)

are at least rationally related to those interests. The

Court will take both of those points in turn.

The State argues that it is regulating in furtherance of its interests in promoting the public health and

protecting consumers. (ECF No. 48 at 8-10) Both parties stipulate that these are legitimate state interests,

and the Court agrees. See Hughes v. Oklahoma, 441

U.S. 322, 337 (1979) (recognizing health and safety to

be a legitimate governmental interest); see also Turner

Broadcasting System v. FCC, 520 U.S. 180, 189-90

(1997) (finding consumer protection to be a legitimate

governmental interest). Therefore, the issue is whether

Plaintiffs can meet their burden to prove that there is

no conceivable set of facts which would support the

means chosen by the State to achieve these purposes.

See Beach 508 U.S. at 313.

Plaintiffs make several arguments in an attempt

to meet this burden. These boil down into two categories of argument. First, Plaintiffs argue that the practice of ASHB is safe, and does not significantly impact

the State’s interest in public health. Second, Plaintiffs

argue that – even if there is some “minimal” connection

between ASHB and the public health, or some small

issue with consumer protection – the licensing regime

is constitutionally infirm because it fails to promote

those interests. (ECF No. 49-1 at 15) This in turn is

because the licensing regime was “not designed for African-style hair braiding,” and it has “no requirements

specific to African-style hair braiding,” along with the

App. 45

fact that Missouri barber and cosmetology schools do

not offer instruction in ASHB. (Id. at 14) Finally, Plaintiffs argue that – given how unrelated the training is

to the practice of ASHB – the cost of obtaining a license

is “particularly onerous,” and the State could accomplish their legitimate interests in other ways, such as

normal business inspection regimes, and general state

consumer fraud statutes. (Id. at 26-27)

Defendants respond by conceding that the licensing regime at issue in this case was developed without

consideration of ASHB, and that it does not specifically

prepare trainees to engage in the practice of ASHB.

But Defendants argue that the practice of ASHB implicates broader, traditional public health, sanitary,

safety, and business practice issues, and that cosmetology and barber training teaches these broader skills.

Therefore, Defendants argue that – given the deference that the Missouri legislature is due under the rational basis test – the means chosen by the State to

achieve its legitimate interests are permissible.

The Court agrees with Defendants, and holds that

Plaintiffs have not met their burden to demonstrate

that there is no reasonably conceivable state of facts

that could provide a rational basis for the regulation.

Beach, 508 U.S. at 313. The record demonstrates that

issues of public health and consumer protection are

present, and that the licensing regime at least minimally promotes those interests. Also, the regulation

could conceivably promote other legitimate state interests. Therefore, the Court must uphold the license requirement. Id. at 313-14.

App. 46

First, it is clear that the practice of ASHB implicates traditional public health concerns. The evidence

in the record shows that – even if chemicals are not

used in hair arranging and dressing – ASHB presents

general concerns of sanitation, the effects of prior or

parallel use of chemicals, instrument sterilization, disease recognition and control, long-term scalp damage,

and other health and safety concerns which are just as

much involved in African-style hair braiding as in any

other hair arranging and dressing technique. (See, e.g.,

ECF No. 48-11 at 2) (Dr. Dakara Rucker Wright, M.D.,

discussing the fact that “hair braiding can also potentially damage hair follicles deep in the scalp and hair

shaft,” and noting that she “disagree[s] that because

chemicals are not used in African-style braiding, there

are no significant health concerns relating to such

practice”); (see also ECF No. 48-10 at 10) (Dr. Raechele

Gathers, M.D., noting that improper braiding techniques, especially when used on children, “could permanently impact the child’s ability to grow future hair,

and could also lead to devastating infections that can

cause both physical and psychological harm”); (see also

ECF No. 49-4 at 4) (listing scientific and legal publications discussing public health and regulatory issues

surrounding hair braiding and issues of scalp health,

especially in African-American clientele).

Plaintiffs respond by contesting the accuracy

of these assertions that ASHB implicates serious

health risks. (See ECF No. 49-1 at 1) (describing ASHB

as “all-natural” hair care that does “not use harmful

chemicals”). But it is not the proper role of this Court

App. 47

to second-guess the wisdom of the State’s decision to

favor one form of disputed evidence over another, especially where the State does not even have an affirmative duty to submit evidence supporting its decision.

See Beach, 508 U.S. at 315 (holding that a legislative

choice may be based on rational speculation unsupported by evidence or empirical data).

A recent decision from the Court of Appeals for the

Second Circuit is illustrative of this point. At issue in

Sensational Smiles, LLC v. Mullen, 793 F.3d 281,

285 (2nd Cir. 2015) cert. denied, 136 S. Ct. 1160 (2016),

was a rule requiring that a process involved in teeth

whitening – shining an LED light into a patient’s

mouth – be performed by a licensed dentist. Plaintiffs,

who were non-dentist teeth whiteners challenging this

rule, proffered expert testimony from medical doctors

that there were absolutely no health risks associated

with non-dentists shining LED lights into patients’

mouths. Defendants, on the other hand, did not introduce any admissible evidence to show that there was a

bona fide medical risk in allowing non-dentists to

shine LED lights into a patient’s mouth. But the record

contained a few equivocal mentions of (non-admissible) evidence that there might be some health risks associated with shining LED lights into patients’

mouths. Id. at 284-85. This was enough for the Second

Circuit to uphold the Connecticut rule limiting teeth

whitening to licensed dentists, because that court held

that it is not the job of a federal court to weigh Connecticut’s evaluation of disputed evidence. Id. at 285.

App. 48

In this case, Defendants have made a much

stronger showing of potential public health issues than

did the State of Connecticut in Sensational Smiles,

with the testimony of Dr. Rucker Wright and Dr.

Gaethers, mentioned above. (See ECF Nos. 48-11 and

48-10) This evidentiary showing regarding the potential public health implications of ASHB is more than

sufficient to withstand rational basis review. Again, it

is not this Court’s job to adjudicate the weighing of evidence. It is enough that the State has a “conceivable”

basis for regulating, and indeed, the State does not

even have a duty to affirmatively proffer facts in support of its legislative choice. See Beach, 508 U.S. at 315

(holding that “a legislative choice is not subject to

courtroom fact-finding and may be based on rational

speculation unsupported by evidence or empirical

data”).

Furthermore, Plaintiffs and their own experts admit that hair braiders often discuss traditional cosmetology services when serving their own clients. For

instance, Plaintiff ’s expert witness, Pam Ferrell, who

is an African Style Hair Braider, admits that in her

practice, she helps “clients address the damaging effects of chemical hairdressing services performed by licensed cosmetologists and/or consumers who use

hydroxide relaxer home-kits to chemically straighten

the naturally curly state of their hair.” (ECF No. 49-53

at ¶ 15) If hair braiders are assessing their customers’

past experience with traditional cosmetology services,

and advising those customers on future courses of action, the State can at least “conceivably” want these

App. 49

braiders educated regarding the cosmetology methods

and techniques that they are discussing with customers. See Beach 508 U.S. at 313.

Plaintiffs here make an additional argument as

well. They argue that even if ASHB does in fact implicate health and safety concerns, the licensing regime

is not a rational way to deal with those issues because

the licensing regime was not designed with hair braiders in mind, the cosmetology and barbering curriculum

does not prepare graduates for the practice of ASHB,

and the licensing exam does not insure that practitioners of ASHB are competent in that craft. This argument is unavailing.

For one thing, even if the cosmetology and barbering education and testing regime is inadequate in its

stated goals of educating practitioners and protecting

the public, that is not a sufficient reason for declaring

that the law violates substantive due process. See Gallagher v. City of Clayton, 699 F.3d 1013, 1020 (8th Cir.

2012) (“Even ‘if the rationale for the law seems tenuous,’ the law survives rational basis review so long as

‘the legislative facts on which the law is apparently

based could . . . reasonably be conceived to be true by

the governmental decision maker.’ ”) (internal citations

and brackets omitted); see also Seagram & Sons, Inc.,

384 U.S. at 50 (holding that federal courts may not

strike down a law under rational basis review simply

because it may not succeed in bringing about the result

it seeks to accomplish).

App. 50

The plaintiffs in Sensational Smiles made an analogous argument. They argued that even if shining an

LED light into a patient’s mouth could conceivably implicate health concerns, the rule requiring that that

process be done by a licensed dentist violated rational

basis review because dentists are not taught about

LED lights in dental school, and therefore, their educational background is not relevant at all to the purported rule. Sensational Smiles, 793 F.3d at 285.

The Second Circuit held that this failure to connect the educational regime of dentists to the justification for the state rule did not violate due process. That

court held that the state:

might have reasoned that if a teeth-whitening

customer experienced sensitivity or burning

from the light, then a dentist would be better

equipped than a non-dentist to decide

whether to modify or cease the use of the light,

and/or to treat any oral health issues that

might arise during the procedure. The [state]

might also have rationally concluded that, in

view of the health risks posed by LED lights,

customers seeking to use them in a teethwhitening procedure should first receive an

individualized assessment of their oral health

by a dentist.

Id. The court concluded that these were “rational

grounds for the [state] to restrict the use of these lights

to trained dentists.” Id. This reasoning is applicable to

the present case. As discussed above, Plaintiffs conduct

an initial examination of customers’ scalp and hair

App. 51

before beginning the braiding process; the State could

quite sensibly require that such braiders be trained in

broader hair care topics such as disease recognition,

biology, bacteriology, etc., before treating their customers.

Indeed, the case of Plaintiff Niang is instructive. A

typical customer interaction with Niang involves

Niang asking customers about any prior hair braiding

experience, whether they have any scalp sensitivities

or scalp conditions, and whether they have had any

chemical hair treatments such as coloring, hair relaxing, or perm. (PSOMF at ¶ 78) Niang then conducts an

examination of the customer’s scalp and hair prior to

performing any braiding. (Id. at ¶ 79) In doing these

evaluations, and receiving this health information

from customers, the State of Missouri could very reasonably conclude that cosmetology education is relevant.

Moreover, while the Court agrees (and Defendants

concede) that much of the education and training that

traditional cosmetologists and barbers undergo is not

directly relevant to the narrow practice of ASHB, the

educational regime includes scalp treatments and disease recognition, bacteriology, sanitation, disorders of

the skin, scalp and hair, and sterilization. (PSOMF at

¶ 129, 139) This broader education is at least a rational

connection between the State’s interest and its chosen

means of accomplishing that interest.

Moving from the educational aspect of the licensing regime to the testing portion, the fact that the

App. 52

testing regime includes few questions specifically relating to hair braiding is also not dispositive. Cf. Merrifield, 547 F.3d at 988 (holding that a pest control

license examination was not irrationally narrow where

it focused on pesticide issues, but petitioner practiced

pesticide-free pest control). This is because a “licensing

statute does not fail because it is not tailored to each

precise specialization within a field. ‘It is enough that

there is an evil at hand for correction, and that it might

be thought that the particular legislature measure was

a rational way to correct it.’ ” Id. (quoting Williamson

v. Lee Optical, 348 U.S. 483, 488 (1955)).

In sum, the various features of the Missouri cosmetology and barbering licensing regimes are at least

minimally related to the State’s legitimate interest in

the public health, and if the State’s regime is at least

minimally related to the relevant interest, that satisfies the rational basis burden. Cf. Heller, 509 U.S. at

320-21 (holding that a statute survives rational basis

review unless a plaintiff can discredit “every conceivable basis which might support [the regulation]

whether or not the basis has a foundation in the record”).

The licensing requirement is also rationally related to the State’s legitimate interest in consumer

protection. To give just a few examples, the licensure

process helps the State to screen for a variety of issues

such as criminal history, or whether an applicant has

been disciplined in another state. The licensing system

also provides for a system of inspections of ASHB establishments. (ECF No. 48 at 11-14; ECF No. 53 at

App. 53

9-11) These are rational means of carrying out the

State’s interest in consumer protection because by requiring hair braiders to obtain a license, the State “creates a framework to monitor them and keep them

accountable.” Merrifield, 547 F.3d at 988.

Plaintiffs respond by arguing that this interest is

not sufficient to sustain the licensing system because

a relatively small percentage of the educational curriculum is dedicated to consumer protection issues, and

because there are general “consumer fraud laws, and a

civil court system, to address these issues.” (ECF No.

51 at 20-21) Plaintiffs’ arguments are unavailing. A

federal court may not strike down a law under rational

basis review simply because it may not succeed in

bringing about the desired result, Seagram & Sons,

Inc., 384 U.S. at 50, or because the problem might have

been addressed in some other even more efficient way.

Mourning, 411 U.S. at 378. The State does not need to

show that its chosen means will be ultimately successful, or that it has chosen the best way to accomplish its

goal.17

17

Plaintiffs make a final argument that the Court would like

to address: that the Missouri legislature has fatally undercut its

own asserted interests in protecting the public health and consumers through a statutory exemption that exempts hair braiders

at public amusement and entertainment venues from normal licensing requirements. (ECF No. 49-1 at 28-30) The Court agrees

that this exemption somewhat undercuts the State’s asserted interests, because the State is permitting unlicensed braiders to

practice their craft on the public at entertainment and amusement venues. But this is not enough to invalidate the licensing

requirement generally, because “[l]egislatures may implement

App. 54

Based on the undisputed facts before the Court,

the State has articulated plausible rationales for the

State’s rule requiring licensure for African Style Hair

Braiders, as discussed above. In addition, the Court

can conceive of other plausible reasons for the licensing regime, other than the ones propounded by the

State. For instance, both parties agree that the cosmetology and barbering schools in Missouri do not concentrate on ASHB. But it is certainly conceivable that

the very act of requiring hair braiders to become licensed could act as an incentive to the creation of more

schools and coursework specifically focused upon

ASHB. Indeed, the State could have attempted to stimulate the market for ASHB education by requiring hair

braiders to become licensed. Likewise, it is uncontested

in the record that Plaintiffs (and many other hair

braiders) mostly provide only ASHB services as opposed to broader services. If these braiders were licensed, they would be able to provide more

comprehensive hair care. It is conceivable that the

State could attempt to incentivize hair braiders to offer

more comprehensive services by requiring them to be

licensed, thereby offering additional options for their

customers.

In the end, whether it relates to the interests articulated by the State, or the conceivable interests

their program step by step, in . . . economic areas,” City of New

Orleans v. Dukes, 427 U.S. 297, 303 (1976), and “States are accorded wide latitude [to make] rational distinctions [] with substantially less than mathematical exactitude.” Id. (emphasis

added).

App. 55

discussed above, “[t]he assumptions underlying these

rationales may be erroneous, but the very fact that

they are arguable is sufficient, on rational-basis review, to immunize the [State’s] choice from constitutional challenge.” Beach, 508 U.S.at 320 (internal

quotations and alterations omitted). For all of the reasons discussed above, Defendants are entitled to summary judgment on Count I.

As a final matter, this Court recognizes that at

least two other federal district courts have ruled in favor of hair braiders who are similarly situated to Plaintiffs in this matter. See Cornwell v. Hamilton, 80

F. Supp.2d 1101 (S.D. Cal. 1999) (holding that application of California’s cosmetology licensing regime to African hair braiders violates substantive due process

and equal protection); see also Clayton v. Steinagel, 885

F. Supp.2d 1212 (D. Utah 2012) (holding that application of Utah’s cosmetology licensing regime to African

hair braiders violates substantive due process and

equal protection).18

The Court does not find the reasoning of those decisions persuasive because those courts engaged in a

hard look at the actual connection between the State’s

asserted interests and how each aspect of the licensing

regime advanced the State’s interests in concrete ways.

See, e.g., Cornwell, 80 F. Supp.2d at 1108, 1110, and

1115 (holding that California’s licensing regime was

18

Indeed, the Court notes that Plaintiffs in this matter cited

Cornwell and Clayton repeatedly throughout their briefing, relying on those cases for most of their substantive arguments.

App. 56

irrational as applied to plaintiff hair braider because

of her “limited range of activities,” which over-lapped

only minimally with the types of activities covered in

the state’s principle training curriculum and examination; holding that less than ten percent of the curriculum and eleven percent of the licensing exam were

relevant to plaintiff ’s actual activities); see also Clayton, 885 F. Supp.2d at 1214 (following the reasoning of

the Cornwell court, and holding that Utah’s regime licensing hair braiders failed rational basis review

where the state’s educational curriculum and entrance

exam overlapped only minimally with the plaintiff hair

braider’s actual activities). The Cornwell and Clayton

courts viewed this marginal overlap between the actual practice of hair braiders and the training/testing

requirements as constitutionally infirm due to overbreadth (by including within its reach persons – i.e.

hair braiders – to whom the license was not relevant)

and under inclusiveness (by failing to ensure the competency of hair braiders).

This type of stringent review of a state’s asserted

interests and how each aspect of the State’s licensing

regime promotes those interests is not consistent with

Supreme Court case law which holds that those connections are “not subject to courtroom fact-finding.”

See Gallagher, 699 F.3d at 1020 (quoting Beach, 508

U.S. at 315). Furthermore, the Cornwell and Clayton

courts did not consider whether there was “any conceivable set of facts” which could support the licensing

requirements, as required under Beach, 508 U.S. at

313.

App. 57

All of this leads the undersigned to conclude that

it is not clear what standard of review the courts applied, in fact, in Cornwell and Clayton, but it appears

to be more stringent than rational basis review in the

Eighth Circuit. The undersigned is bound by the standard of review articulated by the Supreme Court and

the Eighth Circuit in cases such as Beach and Kansas

City Taxi. Thus, although there is no doubt a commonsense persuasive force to aspects of the Cornwell

and Clayton decisions, the undersigned is convinced,

and therefore concludes, that those decisions would not

pass muster in the Eighth Circuit if subjected to the

deferential standard of review mandated by Beach and

Kansas City Taxi. The Court declines to follow the reasoning of the Cornwell and Clayton courts.

IV. Conclusion

In conclusion, this case illustrates the great deference that federal courts must show to government economic regulations under the rational basis standard.

The Court agrees that Plaintiffs do not fit comfortably

within the traditional definition of cosmetologists and

barbers set out under state law. The Court need not

consider whether this is a wise law, or whether it embodies sound policy. That is a judgment reserved to the

elected representatives of the people of Missouri. Cf.

NFIB, 132 S. Ct. at 2577; see also Young v. Ricketts, 825

F.3d 487, 495 (8th Cir. 2016) (dismissing due process

and equal protection challenges to a licensing requirement, and noting that arguments that the licensing requirement is “too costly, too parochial, or fails to

App. 58

effectively” advance the state’s interests “are legislative issues,” not judicial ones).

This Court holds only that Plaintiffs have failed

“to negative every conceivable basis which might support [the cosmetology and barbering regulations.]”

Beach, 508 U.S. at 315 (internal quotation marks and

citations omitted). Because they have failed to do so,

Plaintiffs cannot prove that Defendants violated their

constitutional rights by requiring that they obtain a

cosmetology or barber license in order to practice their

craft professionally for the public.

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs’ Motion for Summary Judgment (ECF No. 49) is DENIED.

IT IS FURTHER ORDERED that Defendants’

Motion for Summary Judgment (ECF No. 47) is

GRANTED.

A separate judgment shall be entered this day.

/s/ John M. Bodenhausen

UNITED STATES MAGISTRATE JUDGE

Dated this 20th day of September, 2016

App. 59

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

Mo. Rev. Stat. § 316.265. Hairstyling, employees

engaged in at public venues not subject to Chapter 329, when. – No employee or employer primarily

engaged in the practice of combing, braiding, or curling

hair without the use of potentially harmful chemicals

shall be subject to the provisions of chapter 329 while

working in conjunction with any licensee for any public

amusement or entertainment venue as defined in this

chapter.

Mo. Rev. Stat. § 328.010. Definitions. – As used in

this chapter, unless the context clearly indicates otherwise, the following terms mean:

(1) “Barber”, any person who is engaged in the

capacity so as to shave the beard or cut and dress the

hair for the general public shall be construed as practicing the occupation of “barber”, and the said barber

App. 60

or barbers shall be required to fulfill all requirements

within the meaning of this chapter;

....

Mo. Rev. Stat. § 328.020. License required. – It

shall be unlawful for any person to practice the occupation of a barber in this state, unless he or she shall

have first obtained a license, as provided in this chapter.

Mo. Rev. Stat. § 328.080. Application for licensure, fee, examination, qualifications – approval

of schools. –

1. Any person desiring to practice barbering in

this state shall make application for a license to the

board and shall pay the required barber examination

fee.

2. The board shall examine each qualified applicant and, upon successful completion of the examination and payment of the required license fee, shall

issue the applicant a license authorizing him or her to

practice the occupation of barber in this state. The

board shall admit an applicant to the examination, if

it finds that he or she:

(1) Is seventeen years of age or older and of

good moral character;

(2)

Is free of contagious or infectious dis-

eases;

(3) Has studied for at least one thousand

hours in a period of not less than six months in a

App. 61

properly appointed and conducted barber school under

the direct supervision of a licensed instructor; or, if the

applicant is an apprentice, the applicant shall have

served and completed no less than two thousand hours

under the direct supervision of a licensed barber apprentice supervisor;

(4) Is possessed of requisite skill in the trade

of barbering to properly perform the duties thereof, including the preparation of tools, shaving, haircutting

and all the duties and services incident thereto; and

(5) Has sufficient knowledge of the common

diseases of the face and skin to avoid the aggravation

and spread thereof in the practice of barbering.

....

Mo. Rev. Stat. § 328.115. Barber establishments,

licensure requirements – sanitary regulations,

noncompliance, effect – renewal of license, fee –

delinquent fee. –

1. The owner of every establishment in which the

occupation of barbering is practiced shall obtain a license for such establishment issued by the board before barbering is practiced therein. A new license shall

be obtained for a barber establishment within fortyfive days when the establishment changes ownership

or location. The state inspector shall inspect the sanitary conditions required for licensure, established under subsection 2 of this section, for an establishment

that has changed ownership or location without

App. 62

requiring the owner to close business or deviate in any

way from the establishment’s regular hours of operation.

2. The board shall issue a license for a establishment upon receipt of the license fee from the applicant

if the board finds that the establishment complies with

the sanitary regulations adopted pursuant to section

329.025. All barber establishments shall continue to

comply with the sanitary regulations. Failure of a barber establishment to comply with the sanitary regulations shall be grounds for the board to file a complaint

with the administrative hearing commission to revoke,

suspend, or censure the establishment’s license or

place the establishment’s license on probation.

....

Mo. Rev. Stat. § 328.160. Penalty for violation of

provisions of chapter. – Any person practicing the

occupation of barbering without having obtained a license as provided in this chapter, or willfully employing a barber who does not hold a valid license issued

by the board, managing or conducting a barber school

or college without first securing a license from the

board, or falsely pretending to be qualified to practice

as a barber or instructor or teacher of such occupation

under this chapter, or failing to keep any license required by this chapter properly displayed or for any extortion or overcharge practiced, and any barber college,

firm, corporation or person operating or conducting a

barber college without first having secured the license

required by this chapter, or failing to comply with such

App. 63

sanitary rules as the board prescribes, or for the violation of any of the provisions of this chapter, shall be

deemed guilty of a class C misdemeanor. Prosecutions

under this chapter shall be initiated and carried on in

the same manner as other prosecutions for misdemeanors in this state.

Mo. Rev. Stat. § 329.010. Definitions. – As used in

this chapter, unless the context clearly indicates otherwise, the following words and terms mean:

....

(5) “Cosmetology” includes performing or offering to engage in any acts of the classified occupations

of cosmetology for compensation, which shall include:

(a) “Class CH – hairdresser” includes arranging, dressing, curling, singeing, waving, permanent waving, cleansing, cutting, bleaching, tinting,

coloring or similar work upon the hair of any person by

any means; or removing superfluous hair from the

body of any person by means other than electricity, or

any other means of arching or tinting eyebrows or tinting eyelashes. Class CH – hairdresser also includes

any person who either with the person’s hands or with

mechanical or electrical apparatuses or appliances, or

by the use of cosmetic preparations, antiseptics, tonics,

lotions or creams engages for compensation in any one

or any combination of the following: massaging, cleaning, stimulating, manipulating, exercising, beautifying

or similar work upon the scalp, face, neck, arms or

bust;

....

App. 64

Mo. Rev. Stat. § 329.030. License required. – It is

unlawful for any person in this state to engage in the

occupation of cosmetology or to operate an establishment or school of cosmetology, unless such person has

first obtained a license as provided by this chapter.

Mo. Rev. Stat. § 329.040. Schools of cosmetology –

license requirements, application, form – hours

required for student cosmetologists, nail technicians and estheticians. –

....

4. The subjects to be taught for the classified occupation of cosmetology shall be as follows and the

hours required for each subject shall be not less than

those contained in this subsection or the credit hours

determined by the formula in Subpart A of Part 668 of

Section 668.8 of Title 34 of the Code of Federal Regulations, as amended:

(1) Shampooing of all kinds, forty hours;

(2) Hair coloring, bleaches and rinses, one

hundred thirty hours;

(3) Hair cutting and shaping, one hundred

thirty hours;

(4) Permanent waving and relaxing, one

hundred twenty-five hours;

(5) Hairsetting, pin curls, fingerwaves, thermal curling, two hundred twenty-five hours;

App. 65

(6) Combouts and hair styling techniques,

one hundred five hours;

(7) Scalp treatments and scalp diseases,

thirty hours;

(8)

Facials, eyebrows and arches, forty

hours;

(9) Manicuring, hand and arm massage and

treatment of nails, one hundred ten hours;

(10)

Cosmetic chemistry, twenty-five hours;

(11)

ten hours;

Salesmanship and shop management,

(12)

Sanitation

and

sterilization, thirty

hours;

(13) Anatomy, twenty hours;

(14) State law, ten hours;

(15) Curriculum to be defined by school, not

less than four hundred seventy hours.

....

Mo. Rev. Stat. § 329.045. License of cosmetology

shop required, establishment fee – display of license – change of ownership, effect of. –

1. Every establishment in which the occupation

of cosmetology is practiced shall be required to obtain

a license from the board. Every establishment required

to be licensed shall pay to the board an establishment

App. 66

fee for the first three licensed cosmetologists esthetician and/or manicurists, and/or apprentices and an additional fee for each additional licensee. The fee shall

be due and payable on the renewal date and, if the fee

remains unpaid thereafter, there shall be a late fee in

addition to the regular establishment fee or, if a new

establishment opens any time during the licensing period and does not register before opening, there shall

be a delinquent fee in addition to the regular establishment fee. The license shall be kept posted in plain view

within the establishment at all times.

2. A new license shall be obtained for a cosmetology establishment within forty-five days when the establishment changes ownership or location. The state

inspector shall inspect the sanitary conditions required for licensure for an establishment that has

changed ownership or location without requiring the

owner to close business or deviate in any way from the

establishment’s regular hours of operation.

Mo. Rev. Stat. § 329.050. Applicants for examination or licensure – qualifications. –

1. Applicants for examination or licensure pursuant

to this chapter shall possess the following qualifications:

(1) They must be persons of good moral character, have an education equivalent to the successful

completion of the tenth grade and be at least seventeen

years of age;

App. 67

(2) If the applicants are apprentices, they shall

have served and completed, as an apprentice under the

supervision of a licensed cosmetologist, the time and

studies required by the board which shall be no less

than three thousand hours for cosmetologists . . . ;

(3) If the applicants are students, they shall have

had the required time in a licensed school of no less

than one thousand five hundred hours training or the

credit hours determined by the formula in Subpart A

of Part 668 of Section 668.8 of Title 34 of the Code of

Federal Regulations, as amended, for the classification

of cosmetologist, with the exception of public vocational technical schools in which a student shall complete no less than one thousand two hundred twenty

hours training.. . . . and

(4) They shall have passed an examination to the

satisfaction of the board.

Mo. Rev. Stat. § 329.250. Violation of law – penalty. – Any person who shall act in any capacity other

than by demonstration to or before licensed cosmetologists, or maintain any business wherein a license is

required pursuant to this chapter, without having such

license, or any person who violates any provision of

this chapter is guilty of a class C misdemeanor.

Mo. Code Regs. Ann. tit. 20, § 2085-12.030 Curriculum Prescribed for Barber Schools/Colleges

PURPOSE: This rule establishes general requirements

for barber school curriculum and teaching (instructor)

requirements.

App. 68

(1) Missouri barber schools shall provide a minimum

of one thousand (1,000) hours of training over a period

of not less than six (6) months. Apprenticeship training

in Missouri shall provide a minimum of two thousand

(2,000) hours of training for a period not to exceed five

(5) years. The subjects and the minimum hours in each

are listed in Columns A and B in this section.

Subject

Column A Column B

Minimum Minimum

Hours

Hours

Student Apprentice

(A) History

5

(B) Professional Image

5

(C) Bacteriology

5

(D) Sterilization, Sanitation, 20

and Safe Work Practices

(E) Implements, Tools,

15

and Equipment

(F) Properties and

15

Disorders of the Skin,

Scalp, and Hair

(G) Treatment of Hair

20

and Scalp

(H) Facial Massage

5

and Treatments

(I) Shaving

35

425

(J) Haircutting

(K) Hairstyling

325

(L) Mustache and

5

Beard Design

10

10

10

40

30

30

40

10

70

850

650

10

App. 69

30

(M) Permanent Waving

(N) Chemical Hair Relaxing 30

and Soft Curl

Permanents

(O) Hair Coloring

30

(P) Hairpieces

5

(Q) Chemistry

5

60

60

60

10

10

App. 70

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

NDOBIA NIANG, et al.

)

)

)

)

)

)

Plaintiffs,

v.

EMILY CARROLL, et al.,

Defendants.

Civil Case No.

4:14-cv-01100 JMB

Magistrate

Judge Bodenhausen

Defendants’ Response to Plaintiffs’

Statement of Undisputed Material Fact

(Filed Oct. 30, 2015)

*

*

*

General objection

Plaintiffs claim in their Statement of Undisputed

Material Fact that “the Board admits” numerous propositions based on questions posed to the Executive Director during depositions, which she did not argue with

or deny.

The Executive Director does not have authorization, either in her personal capacity or as organizational representative, to admit or deny propositions on

which the Board has not acted. Rule 30(b)(6) states

that the organizational representative shall testify

“about information known or reasonably available to

the organization.”

App. 71

In fact the Board is not a party to the litigation, so

each allegation that “the Board admits” is not binding

on any of the Board defendants.

As organizational representative the Executive

Director is authorized to testify about actions the

Board has taken and information known or reasonably

available to the organization. She is not authorized to

bind the Board or the Board defendants to agree or disagree with abstract propositions in questions posed by

counsel for Plaintiffs in depositions. Thus, the Board

defendants reserve the right to dispute such propositions, and will note below propositions claimed by

Plaintiffs as undisputed material facts when they are

not supported by binding admissions of the Board.

*

*

*

3. Plaintiff Joba Niang is a United States citizen

and resident of the city of Florissant in St. Louis

County, Missouri. Niang Decl. ¶ 3.

Not disputed.

4. Joba is not a licensed Missouri cosmetologist

or barber, and she does not want to become a licensed

Missouri cosmetologist or barber. Niang Decl. ¶ 12.

Not disputed.

5. Joba is an African-style hair braider and advertises her services as such. Niang Decl. ¶ 14.

Not disputed.

*

*

*

App. 72

9. Joba has braided hair professionally for more

than 15 years. Niang Decl. ¶ 4.

Not disputed.

*

*

*

16. In 2001, Joba opened her own hair braiding

business, Joba Hair Braiding, located in Florissant,

Missouri, and she has continually operated Joba Hair

Braiding since 2001. Niang Decl. ¶ 11.

Not disputed.

*

*

*

21. If this lawsuit it unsuccessful and Joba is

forced to become a licensed cosmetologist (or barber)

simply to perform African-style hair braiding she will

be forced to close her business. Niang Decl. ¶ 35.

Not disputed.

22. Joba cannot afford to spend thousands of

hours learning cosmetology or barbering skills that she

does not need or use in the practice of African-style

hair braiding instead of supporting her family. Niang

Decl. ¶ 36.

Disputed as not factual, because ASHB services are cosmetology services.

23. Joba also cannot afford to attend a licensed

cosmetology or barbering school, which can cost more

than $21,000, in order to receive training in cosmetology and barbering skills. Niang Decl. ¶ 37; Defs.’ Doc.

App. 73

Produc. No. 47 (produced August 10, 2015) (Alban Decl.

Ex. 44).

Not disputed, although many programs cost

far less than the amount stated. Aspire Beauty

Academy, a school in the St. Louis metropolitan

area, offers a cosmetology program for tuition of

$9,000. Defs.’ Doc. Produc. No. 47 (produced August 10, 2015) (Alban Decl. Ex. 44).

24. If Joba undertook cosmetology/barber training, she would be forced to handle potentially hazardous chemicals during cosmetology or barbering training

that she does not want to handle and would not otherwise handle as an African-style hair braider. Niang

Decl. ¶ 38.

Disputed that chemicals used in cosmetology

are hazardous. No scientific evidence indicating

such chemicals are harmful is on the record.

Plaintiff Niang has no scientific or medical training, so her unscientific and uneducated beliefs

about the safety of chemicals are not evidence of

record.

25. But for Missouri’s cosmetology/barbering licensing requirements, Joba would not have taken unnecessary measures – such as attempting to complete

the 3,000-hour cosmetology apprenticeship program or

accommodating a licensed cosmetologist (and the hazardous chemicals used in cosmetology) at her braiding

salon – to avoid Board enforcement against her and

her business. Niang Decl. ¶ 34.

App. 74

Disputed that chemicals used in cosmetology are hazardous. No scientific evidence indicating such chemicals are harmful is on the

record. Plaintiff Niang has no scientific or medical training, so her unscientific and uneducated

beliefs about the safety of chemicals are not evidence of record.

26. Joba is a member of a West African hairbraiding community in the St. Louis area and personally knows that several hair braiders, including personal friends of hers, were recently investigated and

sued by the Board in administrative proceedings for

the unlicensed practice of African-style hair braiding.

Niang Decl. ¶ 26.

Not disputed.

27. Joba reasonably fears that it is only a matter

of time before she is investigated and sued by the

Board; if she is sued by the Board, Joba does not believe she will be able to keep her business open. Niang

Decl. ¶ 27.

Not disputed. No enforcement action has

been taken against Plaintiff Niang.

*

*

*

28. Tameka Stigers is a United States citizen

and resident of the City of St. Louis, in St. Louis

County, Missouri. Stigers Decl. ¶ 3.

Not disputed.

App. 75

29. Tameka is not a licensed Missouri cosmetologist or barber, and she does not want to become a licensed Missouri cosmetologist or barber. Stigers Decl.

¶ 16.

Not disputed.

30. Tameka is an African-style hair braider and

advertises her services as such. Stigers Decl. ¶ 16.

Not disputed.

*

*

*

34. In 2008 Tameka became a practitioner of Sisterlocks, a form of natural hair care and a proprietary

African-style hair-braiding technique created by Dr.

JoAnne Cornwell. Stigers Decl.¶ 7.

Not disputed.

*

*

*

39. In June 2014, Tameka opened her own storefront location, Locs of Glory, at 5860 Delmar Blvd.,

Suite 100, St. Louis, Missouri, 63112. Stigers Decl.

¶ 11.

Not disputed.

*

*

*

44. If this lawsuit is unsuccessful, Tameka will

be forced to either spend thousands of hours and tens

of thousands of dollars to attend cosmetology/barber

school (or complete a 3,000 hour or 2,000 hour cosmetology or barber apprenticeship) to learn cosmetology/

barber skills not relevant to African-style hair braiding

App. 76

or cease providing African-style hair braiding for compensation at her business. Stigers Decl. ¶ 32.

Disputed and averred to the contrary that

cosmetology training is relevant to AHSB, as

AHSB is a style of hair dressing and therefore is

a cosmetology service.

45. Locs of Glory has a strong focus on Africanstyle hair braiding, and Tameka believes that if she

stops offering African-style hair braiding services it

will hurt the success of her business. Stigers Decl. ¶ 14.

Not disputed.

46. Moreover, Tameka cannot afford to spend

thousands of hours learning cosmetology or barbering

skills that she does not need or use in the practice of

African-style hair braiding instead of advancing her

business. Stigers Decl. ¶ 35.

Disputed that cosmetology services are not

needed to perform ASHB, as ASHB is a style of

hair dressing and therefore constitutes cosmetology under Missouri law.

47. Tameka also cannot afford to attend a licensed cosmetology or barbering school, which can cost

more than $21,000, in order to receive training in cosmetology and barbering skills. Stigers Decl. ¶ 36; Defs.’

Doc. Produc. No. 47 (produced August 10, 2015) (Alban

Decl. Ex. 44).

Disputed that a cosmetology education costs

$21,000; tuition in many programs is far less.

App. 77

Aspire Beauty Academy, a school in the St. Louis

metropolitan area, offers a cosmetology program

for tuition of $9,000. Defs.’ Doc. Produc. No. 47

(produced August 10, 2015) (Alban Decl. Ex. 44).

48. Additionally, if Tameka is forced to attend

cosmetology or barbering school (or enter the cosmetology or barbering apprenticeship program) she would

be forced to handle potentially hazardous chemicals

during cosmetology/barbering training that she does

not want to handle, would not otherwise handle as an

African-style hair braider, and that are contrary to her

commitment to natural hair care. Stigers Decl. ¶ 37.

Disputed that chemicals used in cosmetology are hazardous. No scientific evidence indicating such chemicals are harmful is on the

record. Plaintiff Stigers has no scientific or medical training, so her unscientific and uneducated

beliefs about the safety of chemicals are not evidence of record.

49. Tameka knows that other unlicensed Africanstyle hair braiders in the St. Louis area have been investigated and sued by the Board in administrative

proceedings and worries that it is only a matter of time

before she is also targeted by the Board’s enforcement

efforts. Stigers Decl. ¶ 38.

Not disputed.

*

*

*

50. “African-style hair braiding” refers to braiding, locking, twisting, weaving, cornrowing, or otherwise

App. 78

physically manipulating hair without the use of chemicals that alter the hair’s physical characteristics. It

incorporates both traditional and modern styling techniques. African-style hair braiding is a method of natural hair care. It is typically performed on hair that is

physically unique, often described as “tightly textured”

or “coily” hair. Ferrell Decl. ¶ 17; see also Gathers Dep.

52:21-53:2 (Alban Decl. Ex. 30) (offering a similar definition).

Not disputed.

51. African-style hair braiding is so called because

it has distinct geographic, cultural, historical, and racial roots. The basis for African-style hair-braiding

techniques originated many centuries ago in Africa

and were brought by Africans to this country, where

they have endured (and have been expanded upon) as

a distinct and popular form of hair styling primarily

done by and for persons of African descent. Answer Am.

Compl. ¶ 20; see also Carroll Dep. 401:1-16 (Alban

Decl. Ex. 10); Kindle Dep. 83:9-15 (Alban Decl. Ex. 21);

Morris Dep. 97:14-23 (Alban Decl. Ex. 35); Ferrell Decl.

¶¶ 17, 18, 22, 29.

Not disputed.

52. As a form of natural hair care, African-style

hair braiding eschews the use of chemicals to chemically alter the hair’s state. Carroll Dep. 131:16-21 (Alban Decl. Ex. 10); Carroll Dep. Ex. 4 (Alban Decl. Ex.

11); Morris Dep. 298:17-22 (Alban Decl. Ex. 35); Wright

Dep. 165:10-16, 165:20-166:1 (Alban Decl. Ex. 32); Ferrell Decl. ¶ 24; Stigers Decl. ¶ 17; see also Morris Dep.

App. 79

123:22-124:7, 127:17-128:1 (Alban Decl. Ex. 35) (Defendants’ expert on hair braiding testifying about the

meaning of “natural hair care”); see also Answer Am.

Compl. ¶ 25 (admission by failure to deny that “the use

of chemicals is anathema to natural hair care”); Answer Am. Compl. ¶ 26 (admission by failure to deny

that “African-style hair braiding uses no chemicals to

physically change textured hair”).

Not disputed.

53. The popularity of African-style hair braiding

grew out of a rejection of cosmetology’s emphasis on

straight, European hair and health concerns about the

chemicals used to relax or straighten naturally textured hair. Ferrell Decl. ¶ 25; Morris Dep. 303:12-15

(Alban Decl. Ex. 35); see also Answer Am. Compl. ¶ 24

(admissions by failure to deny that: “The concept of

natural hair care is particularly meaningful for many

African Americans because for decades Western culture pressured African Americans to use chemicals or

heat to straighten their hair. These Western methods

are still prevalent in American cosmetology schools.

African-style hair braiding provides an alternative to

current “corrective” measures by working with a person’s natural hair texture.”).

Not disputed.

54. Often, persons of African descent learn to

braid textured hair as children or teens, usually by

first learning to do their own hair or that of friends and

relatives. Answer Am. Compl. ¶ 22.

App. 80

Not disputed.

55. The Board, a Board member Defendant, and

the Board’s expert on hair braiding admit that Africanstyle hair braiding techniques and skills are generally

not learned in formal schooling, but are usually “selftaught” – learned from family members or friends, and

passed down from generation to generation. Carroll

Dep. 75:24-76:18 (Alban Decl. Ex. 10); Crow Dep. 42:15, 53:12-16, 54:7-55:2 (Alban Decl. Ex. 26); Morris Dep.

100:19-23, 101:12-102:4 (Alban Decl. Ex. 35); Morris

Expert Report 1, ¶ 3 (Alban Decl. Ex. 37) (“ . . . one does

not learn [African-style hair braiding] in school, but

generally learn[s] it by experience and by continuing

education from various teachers, specialized classes,

and self-study.”).

Denied that the testimony of any of the individuals constitutes admissions by the Board as a

whole (see General Objection), but the substance

of the proposed finding is not disputed. Moreover, the report of the Board’s expert is misinterpreted to mean almost the opposite of the

expert’s point. The Board’s expert wrote and

testified that ASHB is a specialty to build upon

the foundation of an education in cosmetology,

not that an education is [sic] cosmetology is irrelevant.

*

*

*

56. The Board admits that hair braiding is a different occupation from both cosmetology and barbering. Carroll Dep. 420:6-9, 421:6-10 (Alban Decl. Ex. 10).

App. 81

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection.

57. The Board and the Board’s expert witness on

hair braiding admit that the vast majority of people

who know how to do African-style hair braiding – including those African-style braiders who perform the

sort of high-end techniques that one gets paid to do –

are not cosmetologists or barbers. Carroll Dep. 76:1922 (Alban Decl. Ex. 10); Morris Dep. 91:24-92:4, 100:24101:11, 103:21-25 (Alban Decl. Ex. 35).

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection. Disputed in that

the section of the Board’s expert quoted is misinterpreted and misquoted to support a conclusion the witness was not stating. In fact, the

witness testified that the basic technique people

learn at home is not the kind of high-level braiding people get paid to do.

58. The Board admits that a majority of Africanstyle hair braiders in Missouri who offer braiding services for compensation are not licensed cosmetologists

or barbers. Carroll Dep. 77:3-10 (Alban Decl. Ex. 10).

Not disputed.

59. The Board admits that neither cosmetologists nor barbers generally provide hair braiding services, nor African-style hair braiding services. Carroll

Dep. 446:25-447:18 (Alban Decl. Ex. 10); see also Orr

App. 82

Dep. 25:11-23, 44:15-24 (Alban Decl. Ex. 28) (testifying

that only one or two of the 1,200 cosmetology salons in

her inspection area, which covers a third of St. Louis,

also offer braiding services); Conner Dep. 21:10-12,

50:6-14 (Alban Decl. Ex. 29) (testifying that she has

never seen braiding taking place in barber shops or

barber schools in her four and a half years as an inspector for the Board).

Denied and disputed as stated. The Board as

a body has not reached or endorsed this legal

conclusion. See the General Objection.

60. The Board’s expert witness on hair braiding,

a licensed cosmetologist, admits that she doesn’t know

any other licensed cosmetologists currently in practice

who offer African-style hair braiding. Morris Dep.

328:16-329:3 (Alban Decl. Ex. 35).

Not disputed.

61. The Board’s expert witness on hair braiding,

a cosmetologist, admits that she rarely braids hair

other than performing simple sew-ins for extensions

and typically refers customers who want intricate

braided styles to unlicensed African-style hair braiders

who specialize in the type of braiding that customers

want. Morris Dep. 332:1-335:4 (Alban Decl. Ex. 35).

Not disputed.

62. Many African-style hair braiders exclusively

offer hair-braiding services and many hair braiding shops

exclusively offer hair-braiding services. Carroll Dep.

77:11-17 (Alban Decl. Ex. 10); Morris Dep. 103:21-104:4

App. 83

(Alban Decl. Ex. 35) (“That’s all they do.”); Orr Dep.

10:1-7, 23:15-24:8, 56:22-25 (Alban Decl. Ex. 28) (estimating that she has inspected 20 shops that exclusively offered braiding in her inspection area, which

covers about a third of St. Louis, but admitting that

there may be up to a dozen more unlicensed braiding

shops that she has not inspected); see also Conner Dep.

20:2-5, 49:4-22, 53:22-54:5 (Alban Decl. Ex. 29) (noting

that she has inspected shops dedicated exclusively to

braiding, and estimating that there were probably up

to a dozen additional unlicensed shops that exclusively

offered African-style hair braiding).

Not disputed.

63. The practice of African-style hair braiding is

quite distinct from other types of styling more common

in the United States that are traditionally part of modern cosmetology and barbering practices. Ferrell Decl.

¶ 28; see also Answer Am. Compl. ¶ 21 (admitting that

“there are some unique aspects of African-style hair

braiding to other hairdressing techniques,” and admitting by failure to deny that: “[t]he practice of Africanstyle hair braiding is quite distinct from other types of

styling more common in the United States”).

Not disputed.

64. African-style hair braiders use different techniques, methods, and simple tools to provide very

different services for the customer than they would

typically receive in a cosmetology salon or barber shop.

Ferrell Decl. ¶¶ 26, 28; see, e.g., Niang Decl. ¶¶ 15-18,

21-24; Stigers Decl. ¶¶ 15-27; see also Answer Am.

App. 84

Compl. ¶ 27 (admission by failure to deny that “ . . .

African-style hair braiders rely on their experience,

skills, and common or simple tools used by women to

do their own hair – such as combs, picks, and hair

ties”).

Not disputed that techniques are different,

but the stated conclusion does not follow from

the alleged admission quoted.

65. Unlike barbering or cosmetology, Africanstyle hair braiding is predominately popular in certain

communities with African ancestry, including AfricanAmericans and African immigrants. Carroll Dep. 75:39 (Alban Decl. Ex. 10); Crow Dep. 34:17-35:3 (Alban

Decl. Ex. 26); Price-Land Dep. 39:13-15 (Alban Decl.

Ex. 23); Morris Dep. 86:15-21, 87:9-14 (Alban Decl. Ex.

35); Gathers Dep. 55:6-11, 55:21-56:21 (Alban Decl. Ex.

30); Wright Dep. 194:7-16, 196:15-197:5 (Alban Decl.

Ex. 32).

Not disputed that African-style braiding is

predominately popular in the stated community,

but disputed that this is “unlike barbering or

cosmetology,” as barbering and cosmetology services other than ASHB are also quite common in

the same community.

*

*

*

74. Joba exclusively provides African-style hair

braiding. Some of the braiding styles she provides include Senegalese twists, micro braids, box braids, and

App. 85

advanced cornrows such as the knotless cornrow.

Niang Decl. ¶ 13.

Not disputed.

75. Joba does not typically provide the basic

plaits and simple braids that may be taught to students in cosmetology/barber school because those are

simple braiding techniques that are normally done at

home by relatives or friends, not skilled African-style

hair braiders. Niang Decl. ¶ 17.

Not disputed. This contention supports the

testimony of Tendai Morris, Defendants’ cosmetology expert, that the kind of braiding learned

at home is not the high-level braiding people like

the Plaintiffs perform for compensation. [See

Plaintiffs’ Proposed UMF no. 57].

76. Joba’s African-style hair braiding services

are not typically available at cosmetology salons and

barber shops. Niang Decl. ¶ 16.

Not disputed.

77. Because the African-style hair braiding services she offers are intricate and highly detailed, often

with a large number of small braids or locs, her braiding services can take several hours, even an entire day,

to perform. Niang Decl. ¶ 18.

Not disputed.

*

*

*

App. 86

80. Joba does not provide any of the services typically provided by cosmetologists or barbers; she does

not cut hair, color hair, use chemicals or heat to style

hair, or use chemical relaxers or heat to straighten

hair. Niang Decl. ¶ 13.

Not disputed.

81. Joba does not wash customers’ hair. Previously, Joba would wash a customer’s hair prior to

braiding if it was necessary. Hair washing has always

been incidental to Joba’s business because most customers arrive with recently washed hair and because

it is not necessary for Joba to wash already clean hair

in order to provide African-style hair braiding. Niang

Decl. ¶ 21.

Not disputed. The fact that the named plaintiffs claim to follow these practices is unverified,

and cannot be assumed true of all persons marketing services providing ASHB.

*

*

*

83. In order to braid a customer’s hair, Joba primarily uses combs, brushes, and hair clips. Niang Decl.

¶ 22.

Not disputed.

*

*

*

88. Joba exclusively provides African-style hair

braiding services because of their cultural significance

to her heritage and her experience with African-style

hair braiding growing up. Niang Decl. ¶ 15.

App. 87

Not disputed.

89. Joba has no interest in providing cosmetology or barber services. Niang Decl. ¶¶ 12-13, 32.

Disputed. The braiding services Plaintiff

Niang performs constitute “dressing” or “arranging” hair, which meets the definitions of cosmetology and/or barbering under Missouri law.

90. Joba also exclusively provides African-style

hair braiding services because she does not want to use

the harmful chemicals typically associated with cosmetology and barbering services, such as chemicals

used to color and bleach hair and chemical relaxers

used to relax or straighten naturally curly or textured

hair. Niang Decl. ¶ 13.

Disputed that chemicals used in cosmetology are harmful. No scientific evidence indicating such chemicals are harmful is on the record.

Plaintiff Niang has no scientific or medical

training, so her unscientific and uneducated beliefs about the safety of chemicals are not evidence of record.

91. Joba believes that these chemicals can be harmful to both her and her customers. Niang Decl. ¶ [13.]

Not disputed that Plaintiff Niang holds this

belief, but it is disputed that her belief has any

scientific validity.

*

*

*

App. 88

93. Tameka exclusively provides African-style

hair braiding services, specifically a locking style known

as Sisterlocks. Stigers Decl. ¶ 15.

Not disputed.

94. Tameka does not typically provide the basic

plaits and simple braids that may be taught to students in cosmetology/barber school because those are

simple braiding techniques that are normally done at

home by relatives or friends, not skilled African-style

hair braiders. Stigers Decl. ¶ 19.

Not disputed. This allegation confirms the

testimony of Plaintiff ’s expert Morris that the

kind of hair dressing work performed by the

Plaintiffs and other African-Style braiders is not

the same as what most people learn at home.

95. When Tameka does perform such simple

braiding services, it is usually for children, and she

only charges $25. This is not a time-consuming or significant portion of her business. Stigers Decl. ¶ 20.

Not disputed.

96. The African-style hair braiding and Sisterlocks services provided at Tameka’s shop are not typically available at cosmetology salons or barber shops.

Stigers Decl. ¶ 21.

Disputed. While most barber shops and cosmetology salons do not offer such specialized

services, the record does not contain information demonstrating the degree to which the

App. 89

market for ASHB, a minute sector of the hair

care profession, is served by licensed as opposed

to unlicensed providers.

97. Because the Sisterlocks style she offers is intricate and highly detailed, often with many small locs,

Tameka’s braiding services can take hours, even an entire day, to perform. Stigers Decl.

Not disputed. ¶

*

*

*

100. Tameka does not provide any of the services

typically provided by cosmetologists or barbers; she

does not provide haircuts, color hair, use chemicals or

heat to style hair, or use chemical relaxers or heat to

straighten hair. Stigers Decl. ¶ 18.

Not disputed that Plaintiff Stigers does not

provide these traditional services, but she does

provide hair dressing services which under Missouri law do constitute barbering or cosmetology services.

101. Tameka does not wash customers’ hair. If a

customer arrives for his/her appointment with recently

washed hair, there is no need for the hair to be washed

immediately prior to braiding. Stigers Decl. ¶ 23.

Not disputed.

102. If a customer arrives for an appointment

and needs his/her hair washed, one of the licensed cosmetologists or barbers at Locs of Glory will wash the

customer’s hair or the customer can go home to wash

App. 90

their hair and return at a later time for his/her appointment. Stigers Decl. ¶ 23.

Not disputed.

*

*

*

103. Tameka uses a hook tool, somewhat similar

to a crochet hook, designed especially for Sisterlocks in

order to braid hair. Stigers Decl. ¶ 24.

Not disputed.

*

*

*

108. Tameka provides African-style hair braiding because it is a form of natural hair care that does

not use hazardous chemicals typically used in cosmetology and barbering. Stigers Decl. ¶ 17.

Disputed that chemicals used in cosmetology are harmful. No scientific evidence indicating such chemicals are harmful is on the record.

Plaintiff Stigers has no scientific or medical

training, so her unscientific and uneducated beliefs about the safety of chemicals are not evidence of record.

109. Tameka has no interest in providing cosmetology or barber services. Stigers Decl. ¶ 16.

Disputed. The braiding services Plaintiff

Stigers performs constitute “dressing” or “arranging” hair, which meets the definitions of cosmetology and/or barbering under Missouri law.

App. 91

110. She has no interest in using the hazardous

chemicals typically used by cosmetologists and barbers

because she believes they are harmful to both her and

her customers. Stigers Decl. ¶ 18.

Disputed that chemicals used in cosmetology are hazardous or harmful. No scientific evidence indicating such chemicals are harmful is

on the record. Plaintiff Stigers has no scientific

or medical training, so her unscientific and uneducated beliefs about the safety of chemicals

are not evidence of record.

*

*

*

111. In order to lawfully provide African-style

hair braiding in the state of Missouri, a person is required to comply with Missouri’s cosmetology or barbering licensing regimes. Answer Am. Compl. ¶¶ 18,

31, 35, 65-67, 107, 110, 115.

Not disputed.

112. This is because the Board interprets Missouri’s cosmetology and barber statutes as applying to

African-style hair braiding. Answer Am. Compl. ¶¶ 31,

35, 65-67.

Not disputed.

113. The Board has brought and continues to

bring enforcement actions against individuals who

braid hair for compensation without obtaining a cosmetology license. Answer Am. Compl. ¶¶35, 105; Defs.’

Resp. to Pls.’ First Interrogs. No. 11 (Alban Decl. Ex. 1);

App. 92

see also Defs.’ Resp. to Pls.’ Second RFA No. 13 (Alban

Decl. Ex. 5); Carroll Dep. 138:12-24 (Alban Decl. Ex.

10).

Not disputed.

114. Neither Joba nor Tameka can lawfully braid

hair in Missouri unless they obtain either a cosmetology or barbering license because the Board enforces

the cosmetology and barbering licensing requirements

against African-style hair braiders. Answer Am. Compl.

¶¶ 18, 31, 32, 35, 36, 39, 105, 107, 110, 115; Carroll Dep.

138:12-24 (Alban Decl. Ex. 10).

Not disputed.

115. Thus, every day that Joba and Tameka remain in business as unlicensed hair braiders, they

risk being targeted by the Board’s enforcement of

the cosmetology/barbering licensing requirements on

African-style hair braiders, particularly if a complaint

is filed against them with the Board. Answer Am. Compl.

¶¶ 18, 105, 107, 110, 115; Carroll Dep. 138:20-24, 315:24316:9, 330:18-22 (Alban Decl. Ex. 10).

Not disputed.

116. Complaints about unlicensed hair braiders

can be filed with the Board anonymously by anyone,

including a disgruntled customer, a competitor, or anyone else with bias or improper motives. Carroll Dep.

317:15-319:16, 330:18-332:13, 373:14-374:10, 375:4-12,

381:9-16 (Alban Decl. Ex. 10).

Not disputed.

App. 93

117. In fact, complaints about unlicensed hair

braiders have been filed with the Board by competitors

or those who believe they are losing business to an

unlicensed braider, such as licensed cosmetologists/

barbers. Carroll Dep. 318:4-20, 334:9-335:4, 484:3485:23 (Alban Decl. Ex. 10); Carroll Dep. Ex. 24 (Alban

Decl. Ex. 19).

Not disputed that complaints have been filed

by licensees. Their motives are matters of speculation.

*

*

*

120. Although the statute does not mention

braiding, the Board interprets the definition of cosmetology in Mo. Rev. Stat. § 329.010(5)(a), as including

African-style hair braiding. Answer Am. Compl. ¶ 31.

Not disputed.

*

*

*

124. Mo. Rev. Stat. § 329.250 provides that the

unlicensed practice of cosmetology is a class C misdemeanor punishable by criminal penalties and fines of

$300 pursuant to Mo. Rev. Stat. §560.016. Answer Am.

Compl. ¶ 34.

Not disputed.

*

*

*

125. In order to become a licensed Missouri cosmetologist, an applicant must complete a written and

practical exam pursuant to Mo. Rev. Stat. § 329.100.

Answer Am. Compl. ¶ 41.

App. 94

Not disputed.

126. In order to sit for the exam, an applicant

must: graduate from a licensed Missouri cosmetology

school with no less than 1,500 hours of training or from

a vocational technical school with no less than 1,220

hours of training; complete a cosmetology apprenticeship under the supervision of a licensed cosmetologist

of no less than 3,000 hours; or graduate from a cosmetology school or apprenticeship program in another

state which has substantially the same requirements

as Missouri. Answer Am. Compl. ¶ 40.

Not disputed.

*

*

*

127. Mo. Rev. Stat. § 329.040(4) establishes the

1,500 hour mandatory cosmetology curriculum for licensed cosmetology schools, and Mo. Code Regs. Ann.

tit. 20, § 2085-12.050 establishes the 1,220 hour mandatory cosmetology curriculum for vocational technical

schools. Answer Am. Compl. ¶¶ 44, 45, 49, 50.

Not disputed.

*

*

*

133. Although Mo. Rev. Stat. § 328.010 does not

mention braiding, and although the Board has historically interpreted braiding as “hairdressing” requiring

a Class CH or CA cosmetology license, the Board

now interprets the definition of barber in Mo. Rev.

Stat. § 328.010(1) as including someone who performs

App. 95

African-style hair braiding. Answer Am. Compl. ¶¶ 6467.

Not disputed.

*

*

*

135. Mo. Rev. Stat. § 328.160 provides that the

unlicensed practice of cosmetology is a class C misdemeanor punishable by criminal penalties and fines of

$300 pursuant to Mo. Rev. Stat. § 560.016. Answer Am.

Compl. ¶ 61.

Not disputed.

*

*

*

137. In order to sit for the exam, an [applicant]

must: study for no less than 1,000 hours in a period of

not less than six months in a licensed barber school

under the direct supervision of a licensed instructor or

complete no less than 2,000 hours under the direct supervision of a licensed barber apprentice supervisor.

Answer Am. Compl. ¶ 69.

Not disputed.

*

*

*

157. The Board admits that tuition at a licensed

Missouri cosmetology/barber school can cost up to

$21,450 and averages $11,750 at the 24 cosmetology/

barber schools for which the Board had received tuition information from 2013-2015. Defs.’ Doc. Produc.

No. 47 (produced on August 10, 2015) (Alban Decl. Ex.

44); see also Crow Dep. 60:6-8 (Alban Decl. Ex. 26) (Estimating tuition costs in Missouri: “It’s anywhere from

App. 96

10 to 17,000 [dollars], I think, some of the ones that

I’ve seen the tuition numbers on.”).

Not disputed. Tuition in the programs documented in Defs.’ Doc. Produc. No. 47 ranges from

$5,405 to $21,250.

*

*

*

170. The President of the Board, a Defendant,

admits that there is nothing about public amusement

or entertainment venues that makes them a safer

place to perform hair braiding than anywhere else.

Kindle Dep. 206:23-207:1 (Alban Decl. Ex. 21).

Not disputed.

171. The President of the Board, a Defendant,

admits that there is no reason why an unlicensed hair

braider who is braiding at a public amusement or entertainment venue would be less likely to injure the

public than an unlicensed braider who is braiding

somewhere else. Kindle Dep. 207:2-6 (Alban Decl. Ex.

21).

Not disputed.

172. A Board member Defendant admits that if

braiding is potentially dangerous at a braiding salon,

it’s also potentially dangerous at an amusement park

or other entertainment venue. Price-Land Dep. 195:1825 (Alban Decl. Ex. 23).

Not disputed.

*

*

*

App. 97

181. The Board admits that Missouri’s cosmetology and barber licensing requirements and curricula

are designed to train and prepare cosmetologists and

barbers to practice cosmetology and barbering, respectively. Carroll Dep. 59:3-60:1 (Alban Decl. Ex. 10); but

see Kindle Dep. 52:7-53:24 (Alban Decl. Ex. 21) (Board

President, a Defendant, offers circular explanation for

the basis of the curriculum and admits that he does not

know why the Board has standards for the number of

hours in specific categories for the cosmetology/barber

curriculum).

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection.

182. The Board admits that “[p]art of the problem is that these [cosmetology/barber] curricula are

not designed to be specific to hair braiding, and they

require many hours of instruction that does not particularly relate to that practice.” Carroll Dep. 212:3-12

(Alban Decl. Ex. 10); Carroll Dep. Ex. 12 (Alban Decl.

Ex. 14); see also Defs.’ Resp. to Pls.’ RFA No. 17 (“It is

true that the curricula are not designed to be specific

to hair braiding.”).

Not disputed.

183. The Board admits that “one specializing in

the braiding of hair would not learn all he or she needs

from the standard [cosmetology/barber] curricula.”

Defs.’ Resp. to Pls.’ Third RFA No. 26 (Alban Decl. Ex.

6).

App. 98

Not disputed.

*

*

*

185. The Board does not know whether Africanstyle hair braiding was even considered when the cosmetology or barber statues were passed, but admits

that the barbering statutes were passed in approximately 1909 and that the cosmetology statutes were

passed in approximately 1939. Carroll Dep. 467:20468:6 (Alban Decl. Ex. 10).

Not disputed.

*

*

*

188. Defendants admit that instruction on hair

braiding, much less on African-style hair braiding, is

not required by Missouri’s mandatory cosmetology/

barber curricula. Answer Am. Compl. ¶¶82, 83; Defs.’

Resp. to Pls.’ First RFA No. 7 (Alban Decl. Ex. 4); Carroll Dep. 224:11-23 (Alban Decl. Ex. 10).

Not disputed.

*

*

*

193. Thus, someone may graduate from

cosmetology/barber school in Missouri and obtain a

cosmetology/barber license without receiving “any

experience or any training in braiding,” much less

practical training on a real person. Crow Dep. 101:1522, 104:7-23 (Alban Decl. Ex. 26).

Not disputed.

*

*

*

App. 99

194. It is the Board’s position that, in order for

something to constitute a distinct profession, there

must either be a significant number of people who exclusively provide a specific service for compensation or

there must be a separate professional license. Carroll

Dep. 83:9-22 (Alban Decl. Ex. 10); see also Carroll Dep.

59:3-10 (Alban Decl. Ex. 10).

Disputed. The Board as a body has not

reached or endorsed this legal conclusion. See

the General Objection. This is not an undisputed

material fact, but a legal argument by Plaintiffs’

counsel.

195. The Board admits that the vast majority of

people who know how to do African-style hair braiding

are not cosmetologists or barbers, that a majority of

hair braiders in Missouri who provide braiding services for compensation are not licensed cosmetologists

or barbers, that many braiders exclusively provide

braiding services, and that braiders operate out of salons that exclusively provide braiding services. Carroll

Dep. 76:19-77:16 (Alban Decl. Ex. 10).

Disputed. The Board has not voted on or endorsed this conclusion, so it is not admitted by

the Board. See the General Objection. To the extent that the Organizational Representative can

testify about information available to the Board,

the averment seems consistent with information

known to the Board although not known as an

established fact.

App. 100

196. The Board also admits that if hair braiding

had a separate license in Missouri, hair braiding would

be a distinct profession. Carroll Dep. 94:20-95:3 (Alban

Decl. Ex. 10).

Disputed. The Board as a body has not

reached or endorsed this legal conclusion. See

the General Objection.

197. On several occasions, the Board itself has

proposed and endorsed creating a separate license for

hair braiders with significantly different (and lower)

requirements from Missouri’s current cosmetology/

barber licensing regime. Defs.’ Resp. to Pls.’ Third RFA

No. 19 (Alban Decl. Ex. 6); Carroll Dep. 86:24-87:3,

90:4-91:3 (Alban Decl. Ex. 10); Carroll Dep. Ex. 5 (Alban Decl. Ex. 12) (including legislative proposals from

2007, 2008, 2010, 2011, 2012 submitted by the Board

to the Missouri legislature to create a separate braiding license).

Not disputed.

*

*

*

205. The Board has repeatedly proposed and endorsed a separate hair braiding license as part of its

mission to protect the public. Carroll Dep. 92:17-93:16,

147:22-149:15 (Alban Decl. Ex. 10); see also Crow Dep.

75:23-76:3 (Alban Decl. Ex. 26); Kindle Dep. 174:20-25,

175:4-11, 175:17-20 (Alban Decl. Ex. 21).

Not disputed.

App. 101

206. The Board admits that its proposals to create a separate “Class HB – hairbraiding” license with

either a 300-hour or 600-hour mandatory curriculum

would fulfill all of the government interests identified

by the Board. Carroll Dep. 93:11-16 (Alban Decl. Ex.

10); see Defs.’ Resp. to Pls.’ First Interrogs. Nos. 1-2

(Alban Decl. Ex. 1); see also Kindle Dep. 209:11-14,

210:2-7 (Alban Decl. Ex. 21).

Not disputed.

207. The Board admits that the purpose of these

proposals is “to create a special category of licensure

for braiders with more of what they do need and less of

what they don’t.” Carroll Dep. 221:18-222:13; Carroll

Dep. Ex. 11 (Alban Decl. Ex. 13); see also Carroll Dep.

206:17-22 (Alban Decl. Ex. 10).

Not disputed.

*

*

*

209. The Board admits that “much of the qualifying curriculum does not relate to” the practice of hair

braiding and “includes a great deal of information [hair

braiders] will never use.” Carroll Dep. 212:23-213:17,

219:8-220:8, 221:7-17 (Alban Decl. Ex. 10); Carroll Dep.

Ex. 12 (Alban Decl. Ex. 14).

Disputed. The Board has not voted on or endorsed this conclusion, so it is not admitted by

the Board. See the General Objection. To the extent that the Organizational Representative can

testify about information available to the Board,

the averment seems consistent with information

App. 102

known to the Board although not known as an

established fact.

210. The Board admits that: “To be licensed in

the State of Missouri, hair braiders are currently required to obtain a general cosmetology license and

complete a 1500-hour cosmetology curriculum that is

not specifically germane to African Hair Braiding and

does not include various aspects of African Hair Braiding. As a result, African Hairbraiders are currently required under Missouri law to complete and pay tuition

for months of training that does not relate to their occupation – African Hair braiding.” Carroll Dep. 146:16147:12 (Alban Decl. Ex. 10); Carroll Dep. Ex. 5 (Alban

Decl. Ex. 12).

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection. The Board has

consistently denied that ASHB is a separate occupation, but has insisted that it is a style within

the larger profession of hair care.

211. In fact, the Board admits that it can identify

only 100 hours of subjects in the 1,500-hour mandatory

cosmetology curriculum that it claims are necessarily

relevant to African-style hair braiding. Carroll Dep.

103:14-24, 104:23-105:13, 461:24-463:7; 464:4-14 (Alban Decl. Ex. 10).

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection. The Board has

consistently stated that much of the curriculum

App. 103

is relevant and useful to persons performing

braiding.

212. The Board also admits that it can identify

only 105 hours of the 1,000-hour mandatory barbering

curriculum that it claims are necessarily relevant to

African-style hair braiding. Carroll Dep. 106:12-108:1,

108:19-25, 111:3-9, 460:12-461:23, 464:4-14 (Alban

Decl. Ex. 10).

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection.

213. The Board thus admits that only about 10%

or less of the mandatory cosmetology/barber curriculum is relevant to African-style hair braiding. Carroll

Dep. 461:10-14, 461:20-23;462:24-463:7, 464:4-14 (Alban Decl. Ex. 10).

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection.

214. The 100 hours of subjects in the mandatory

cosmetology curriculum that the Board claims are relevant to African-style hair braiding are general health

and safety or business practices subjects, which include twenty hours of instruction on “Anatomy,” ten

hours of instruction on “Salesmanship and shop management,” and ten hours of instruction on “State law.”

Carroll Dep. 105:7-13 (Alban Decl. Ex. 10).

App. 104

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection.

215. The 105 hours of subjects in the mandatory

cosmetology curriculum that the Board claims are relevant to African-style hair braiding are general health

and safety or business practices subjects, which include 5 hours of instruction on “Professional Image,”

15 hours of instruction on the “Implements, Tools, and

Equipment” used by barbers, 5 hours of instruction on

“Salesmanship and Establishment Management,” and

10 hours of instruction on “State Law.” Carroll

Dep.106:12-16, 111:3-9 (Alban Decl. Ex. 10).

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection.

216. Even among the 100 or 105 hours of

subjects in the curriculum on general health and

safety or business practices subjects that the Board

claims are relevant to African-style hair braiding, the

Board cannot ensure that all of the hours in each subject are spent on topics that are actually relevant to

African-style hair braiding. See, e.g., Price Sr. Dep.

132:8-133:15, 145:8-146:13; 148:10-149:2 (Board member Defendant testifying that braiders need instruction in barber tools they do not use, admits that only

some of the hours of the permanent waving and hair

coloring subjects are about learning how to identify

those treatments, while other hours are about how to

App. 105

actually provide those treatments, which is something

African-style hair braiders don’t do).

Denied and disputed. The Board as a body

has not reached or endorsed this legal conclusion. See the General Objection.

*

*

*

236. Defendants claim that “there are distinct

health and safety issues presented by African-style

braiding” and that there are “additional issues particular to braiding.” Answer Am. Compl. ¶¶23-24; but see

Carroll Dep. 309:13-310:8 (Alban Decl. Ex. 10) (e.g., “Q:

So there really aren’t any distinct or additional issues

that are particular to braiding? A: I cannot think of

any.”).

Not disputed. The Board’s pleadings and not

the Executive Director’s testimony state the

Board’s position.

*

*

*

238. Of particular concern to Defendants’ dermatologist experts are the conditions of traction alopecia and CCCA. Gathers Expert Report, Resp. Nos. 7-10

(Alban Decl. Ex. 31); Wright Expert Report ¶¶ 10-12

(Alban Decl. Ex. 34).

Not disputed.

239. Defendants’ dermatologist experts also assert that there are special considerations when braiding children’s hair. Gathers Expert Report, Resp. Nos.

App. 106

10-11 (Alban Decl. Ex. 31); Wright Expert Report ¶ 8

(Alban Decl. Ex. 34).

Not disputed.

*

*

*

241. However, Defendants admit that information about traction alopecia, CCCA, or special concerns related to braiding children’s hair is not required

to be taught as part of the mandatory cosmetology/barber curricula. Defs.’ Resp. to Pls.’ Third RFA Nos. 24,

25, 28 (Alban Decl. Ex.6).

Not disputed.

242. Defendants admit that cosmetology/barber

schools have discretion to determine the particulars of

their content within the hourly requirements for the

mandatory curricula and thus if subjects are not specifically listed in the mandatory cosmetology/barber

curricula, the Board cannot ensure that barbers or cosmetologists receive any training in these subjects.

Defs.’ Resp. to Pls.’ First Interrogs. No. 9 (Alban Decl.

Ex. 1); Carroll Dep. 225:9-17; 288:18-289:20 (Alban

Decl. Ex. 10); see also, e.g., Carroll Dep. 445:3-9 (Alban

Decl. Ex. 10).

Not disputed.

243. For example, a Board member Defendant

who operates and teaches at a cosmetology school admitted that her instruction on hair braiding includes

no instruction on CCCA and only limited instruction

App. 107

traction alopecia. Crow Dep. 125:21-126:12 (Alban

Decl. Ex. 26).

Not disputed.

244. In addition, a Board member Defendant, a

licensed barber who owns and teaches at a barber

school, repeatedly admitted that he was unfamiliar

with CCCA and had “never heard of it before.” Price Sr.

Dep. 104:9-25, 108:16-17, 143:22-24.

Not disputed.

245. Similarly, a Board inspector and licensed

cosmetologist testified that she was taught about alopecia generally in cosmetology school, but not about

traction alopecia or CCCA, and that she had never

heard about CCCA prior to her deposition. Conner

Dep. 7:20-22, 158:15-16, 159:25-160:4 (Alban Decl. Ex.

29).

Not disputed.

*

*

*

250. The Board further admits that it is not

aware of any instruction in any cosmetology or barbering school that is provided on any special concerns related to braiding children’s hair. Carroll Dep. 446:5-13

(Alban Decl. Ex. 10).

Not disputed.

*

*

*

254. The Board admits that less than 50 pages of

the nearly 3,000 pages of the Milady and Pivot Point

App. 108

cosmetology/barber textbooks contain information

about any kind of braiding technique. Carroll 466:7-15

(Alban Decl. Ex. 10); see also Ferrell Decl. ¶ 68-69 (“Between the two [cosmetology] books, totaling 1700

pages, only 38 pages mention braids.”) (further noting

that just two or three pages of the 675-page Milady’s

Standard Textbook of Professional Barbering discuss

braiding and that none of the 684 pages in Milady’s

Standard Textbook of Professional Barber-Styling discuss braiding); see also Kindle Dep. 108:3-10 (Alban

Decl. Ex. 21) (admitting that the instruction in the Milady barbering text is “very vague” and “very short”).

Not disputed.

*

*

*

261. Defendants’ expert dermatologists identified a number of general hair and scalp conditions

that they say can be caused or exacerbated by improper braiding, sanitation, and hygiene. Those conditions include folliculitis, cellulitis, hair breakage/

trichorrehexis nodosa, allergic reactions to over-thecounter consumer products/contact dermatitis, tinea

capitis, staphylococcus aureus, scarring and keloid

formation, seborrheic dermatitis, chemical alopecia,

dissecting cellulitis, psoriasis, discoid lupus erthematosus, trichotillomania, acne keloidalis, and alopecia

areata. Ferrell Decl. ¶¶ 89-90; Ferrell Expert Rebuttal

Report to Dr. Gather’s Report 3, 6, 9 (Ferrell Decl. Ex.

2); Ferrell Expert Rebuttal Report to Dr. Wright’s Report 4, 6 (Ferrell Decl. Ex. 3).

App. 109

Not disputed. Ferrell, who is not a physician,

is not competent to rebut any aspect of the medical opinions of Gathers or Wright..

262. Many of these conditions are not taught in

cosmetology/barber schools, nor tested on the exams,

as indicated by their absence from the standard textbooks, as detailed below. Others are only briefly defined

and insufficient information is provided, such that

cosmetologists/barbers are not any better equipped

to address these conditions than anyone else. Ferrell

Decl. ¶ 91; Ferrell Expert Rebuttal Report to Dr.

Gather’s Report 3-4, 6, 9 (Ferrell Decl. Ex. 2); Ferrell

Expert Rebuttal Report to Dr. Wright’s Report 4, 6-8

(Ferrell Decl. Ex. 3).

Not disputed. Ferrell, who is not a physician,

is not competent to rebut any aspect of the medical opinions of Gathers or Wright.

263. With the exception of traction/traumatic alopecia, information about any connection between

these medical conditions and hair braiding is not part

of cosmetology or barbering training, as evidenced by

their absence from the cosmetology and barber textbooks (which means they also cannot be tested on the

exams). Ferrell Decl. ¶ 92; Ferrell Expert Rebuttal Report to Dr. Gather’s Report 3, 6 (Ferrell Decl. Ex. 2);

Ferrell Expert Rebuttal Report to Dr. Wright’s Report

4, 7 (Ferrell Decl. Ex. 3).

Not disputed.

App. 110

264. The following conditions are completely

absent from the cosmetology/barber textbooks: folliculitis, chemical alopecia, dissecting cellulitis, discoid

lupus erythematosus, tricholtillomania, and acne keloidalis nuchae. Ferrell Decl. ¶ 94; Ferrell Expert Rebuttal Report to Dr. Gather’s Report 9 (Ferrell Decl. Ex.

2).

Not disputed.

265. Topics such as tinea capitis, staphylococcus

aureus, cellulitis, contact dermatitis, scarring/keloid

formation, seborrheic dermatitis, and psoriasis are

only briefly defined. Ferrell Decl. ¶ 95; Ferrell Expert

Rebuttal Report to Dr. Gather’s Report 2, 6, 9 (Ferrell

Decl. Ex. 2); Ferrell Expert Rebuttal Report to Dr.

Wright’s Report 4 (Ferrell Decl. Ex. 3).

Not disputed.

266. The cosmetology and barbering textbooks

provide no information or instruction about the vulnerability of children to braiding or any of these medical

conditions. Ferrell Decl. ¶¶ 87-88; Ferrell Expert Rebuttal Report to Dr. Wright’s Report 4, 9 (Ferrell Decl.

Ex. 3); Ferrell Expert Rebuttal Report to Dr. Gather’s

Report 8 (Ferrell Decl. Ex. 2).

Not disputed.

267. A total of 9 pages between the Milady and

Pivot Point textbooks are dedicated to bacteria and

bacterial infection. This instruction consists of basic information about preventing infections such as cleaning

tools between customers, washing your hands, and

App. 111

declining to perform service if a customer’s skin shows

visible signs of abrasions or infections. Ferrell Decl.

¶ 99; Ferrell Expert Rebuttal Report to Dr. Gather’s

Report 2-3 (Ferrell Decl. Ex. 2).

Not disputed.

268. The current cosmetology/barber curricula

and textbooks fail to comport with Dr. Gathers’ and Dr.

Wright’s recommendations for mandatory basic training for hair braiders. Ferrell Decl. ¶100; Ferrell Expert

Rebuttal Report to Dr. Wright’s Report 6-9 (Ferrell

Decl. Ex. 3); Ferrell Expert Rebuttal Report to Dr.

Gather’s Report 8, 9-12 (Ferrell Decl. Ex. 2).

Disputed as an argumentative generalization. The curricula do not cover all the points

suggested by Dr. Gathers and Wright but include

some.

*

*

*

272. Defendants stipulate that CCCA is not

mentioned in the standard Milady or Pivot Point cosmetology or barbering textbooks. Wright Dep. 255:1-13

(Alban Decl. Ex. 32) (Defendants’ stipulation that

CCCA does not appear in either the Milady or Pivot

Point cosmetology textbooks); Price Dep. 114:9-13 (Alban Decl. Ex. 27) (Defendants’ stipulation that CCCA

does not appear in either of the two Milady barbering

textbooks); Defs.’ Resp. to Pls.’ Third RFA No.24 (Alban

Decl. Ex. 6).

Not disputed.

App. 112

273. Defendants admit that none of the Milady

or Pivot Point cosmetology or barbering textbooks contains any information on special concerns for braiding

children’s hair. Defs.’ Resp. to Pls.’ Third RFA No. 28

(Alban Decl. Ex. 6); Carroll Dep. 445:19-24 (Alban Decl.

Ex. 10).

Not disputed.

274. Defendants stipulate that traction alopecia

is not mentioned in either of the standard Milady barbering textbooks. Price Dep. 114:9-13 (Alban Decl. Ex.

27) (Defendants’ stipulation that traction alopecia does

not appear in either of the two Milady barbering textbooks); Defs.’ Resp. to Pls.’ Third RFA No. 25 (Alban

Decl. Ex. 6).

Not disputed.

275. The 2010 Pivot Point and 2012 Milady cosmetology textbooks contain only a brief, one-paragraph

discussion of traction alopecia. Wright Dep. 250:8-19,

251:4-20, 252:1-16 (Alban Decl. Ex. 32); Gathers Dep.

160:21-163:3 (Alban Decl. Ex. 30) (2012 Milady cosmetology textbook), 164:6-165:3 (Pivot Point Salon

Fundamentals cosmetology textbook).

Not disputed.

276. The new 2016 edition of the Milady cosmetology textbook does not even mention traction

alopecia by name and contains a single sentence describing the condition. Wright Dep. 251:4-16, 253:20254:8 (Alban Decl. Ex. 32); Ferrell Dep. 143:6-145:21

(Alban Decl. Ex. 38).

App. 113

Not disputed.

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280. Defendants’ dermatologist experts concluded

that the 2010 Pivot Point and 2012 Milady cosmetology

textbooks contain insufficient instruction on traction

alopecia and CCCA to teach hair braiders what they

needed to know about these conditions in order to

safely braid hair. Wright Dep. 253:7-254:25, 225:1-13

(Alban Decl. Ex. 32); Gathers Dep. 163:4-14, 165:8-13

(Alban Decl. Ex. 30).

Not disputed.

*

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286. The Board admits that “the Board has no

oversight over the braiding instruction, if any, provided

by any of the barbering or cosmetology schools.” Carroll Dep. 238:17-21 (Alban Decl. Ex. 10).

Not disputed. Schools are not required to

provide braiding instruction, and there are no

specific criteria for such instruction as braiding

is a part of the larger hair care professions.

287. Defendants admit that the Board does not

keep track of whether any cosmetology/barber school

provides any instruction on African-style hair braiding. Defs.’ Suppl. Resp. to Pls.’ First Interrogs. No. 6

(Alban Decl. Ex. 2) (“The question of whether and to

what extent the schools teach African-style braiding is

within the control of each school, and is not information provided to or collected by the Board.”); Carroll

App. 114

Dep. 235:13-18 (Alban Decl. Ex. 10); Conner Dep.146:816, 147:2-7 (Alban Decl. Ex. 29); Defs.’ Resp. to Pls.’

Second RFA No. 12 (stating that the Board lacks

knowledge to admit or deny whether any barber

schools offer any instruction, or have any curriculum,

specific to African-style braiding); Defs.’ Resp. to Pls.’

First RFPD No.6 (Alban Decl. Ex. 7) (providing no documents responsive to the request for documents supporting the contention that African-style hair braiding

is taught as part of the required curriculum).

Not disputed.

288. The Board admits that “the Board doesn’t

have information about how many hours of instruction

are offered at these schools specifically on braiding.”

Carroll Dep. 235:19-25 (Alban Decl. Ex. 10); see also

Conner Dep. 147:2-7 (Alban Decl. Ex. 29) (stating that

the Board has no way to verify any number of hours of

instruction in hair braiding that may be claimed by

any school).

Not disputed.

289. The Board admits that it has never inquired into any specific braiding techniques taught at

cosmetology/barber schools nor the level of depth of instruction offered. Carroll Dep. 236:6-15 (Alban Decl.

Ex. 10).

Not disputed.

290. The Board admits that it has never reviewed the quality, nor even confirmed the existence

of, any braiding curriculum used by cosmetology or

App. 115

barbering schools. Carroll Dep. 235:4-12 (Alban Decl.

Ex. 10); Defs.’ Suppl. Resp. to Pls.’ First Interrogs. No.

6 (Alban Decl. Ex. 2); Defs.’ Resp. Pls.’ First RFPD No.

6 (Alban Decl. Ex. 7) (providing no documents responsive to the request for documents supporting the contention that African-style hair braiding is taught as

part of the required curriculum).

Not disputed.

291. Moreover, the Board admits that “the Board

can’t identify a single example of a lesson plan . . . provided by a cosmetology or barbering school that lists

braiding as a topic that’s being taught in a course.”

Carroll Dep. 228:9-14 (Alban Decl. Ex. 10); see also

Defs.’ Resp. to Pls.’ Third RFPD No. 1 (Alban Decl. Ex.

9) (providing no documents responsive to the request

for sample lesson plans or course descriptions specific

to African-style braiding); Defs.’ Resp. to Pls.’ First

RFPD No. 6 (Alban Decl. Ex. 7).

Not disputed.

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292. The Board’s expert on hair braiding, a

Missouri-licensed cosmetologist who attended cosmetology school in Missouri, admits that “one does not

learn [African-style hair braiding] in school, but generally learn[s] it by experience and by continuing education from various teachers, specialized classes, and

self-study.” Morris Expert Report 1, ¶ 3 (Alban Decl.

Ex. 37).

Not disputed.

*

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*

App. 116

300. Defendants admit that, prior to discovery

in this case, the Board had no knowledge of whether

the cosmetology/barber licensing exams contained any

questions specific to hair braiding or to the specific

health and safety issues the Board contends are of special concern for hair braiding. Defs.’ Resp. to Pls.’ First

& Second RFA Nos. 1-2, 10 (Alban Decl. Exs. 4, 5); Carroll Dep. 467:7-15 (Alban Decl. Ex. 10).

Not disputed.

301. The Board admits that, as a result of discovery in this case, the Board now knows that in the past

10 years, there were only 14 or 15 questions that are

even relevant to hair braiding out of over 13,000 questions asked on 124 different versions of the exams. Carroll Dep. 252:15-254:7, 467:16-19 (Alban Decl. Ex. 10);

Carroll Dep. Ex. 14 (Alban Decl. Ex. 15) (NIC Resp. to

Dep. by Written Questions) (Alban Decl. Ex. 40).

The Board has made no admissions of these

allegations, but the results of the NIC inquiry

are part of the record.

302. The Board admits that, prior to discovery in

this case, the Board was not aware that questions relevant to African-style hair braiding “were lacking” on

the cosmetology/barber licensing exams. Carroll Dep.

588:18-23 (Alban Decl. Ex. 10).

Not disputed.

303. The Board admits that hair braiding is not

tested on the practical portions of either o

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