Ndioba Niang v. Emily Carroll ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3968
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Ndioba Niang; Tameka Stigers
lllllllllllllllllllll 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
lllllllllllllllllllll Defendants - Appellees
Betty Leake
lllllllllllllllllllll 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 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
lllllllllllllllllllll Defendants - Appellees
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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
lllllllllllllllllllllAmici 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
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
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).
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a costly and time-intensive training course—1,000-hours 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 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
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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 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 non-retarded worker who performs the same job”).
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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 “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
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“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
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
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).
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State may not treat all who deal with [dressing hair] as members of a profession.” See
Williamson, 348 U.S. at 490.3
The Missouri statutes do not violate the Fourteenth Amendment rights of the
African-style hair braiders.
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The judgment is affirmed.
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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 978, 985 (9th Cir.
2008) (district court’s reasoning in Cornwell “cannot survive equal protection
analysis”).
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