The state of Texas told Isis Brantley that she needed to spend thousands of hours taking useless classes and thousands of dollars on useless equipment before she would be permitted to teach hairbraiding at her own school. On Wednesday Judge Sam Sparks told Texas that that was unconstitutional, in a momentous decision that shows what judicial engagement can do for entrepreneurs everywhere.
Isis is an expert African hairbraider with decades of experience teaching everyone from out-of-work women seeking a new skill to state-licensed cosmetologists interested in learning the art of African hairbraiding. On June 25, 2013, the Texas Department of Licensing and Regulation notified Isis that, in order to teach hairbraiding at her own school, she must first become a state-licensed barber instructor, a process that takes months and costs thousands of dollars. The requirements include completing a 1,500-hour curriculum that is wholly irrelevant to African hairbraiding. Would-be barber schools also must comply with a number of facility and equipment requirements that would cost over $20,000. The Institute for Justice joined with Isis to file suit in the Western District of Texas, contending that the Texas scheme violated the Fourteenth Amendment, which guarantees every American the right to earn an honest living, free of arbitrary interference.
The government apparently hoped that Judge Sparks would do what judges all too often do when they apply the so-called "rational-basis test," the default rule in constitutional cases that do not involve rights that the Supreme Court has labeled "fundamental," like speech, religion, voting and privacy. Judges in rational-basis cases routinely abandon their constitutional duty to seek truth and instead work to rationalize the government's actions. In seeking to defend the challenged provisions, the government admitted that the provisions "may not be sensible or particularly well crafted" but argued that those who drafted them "could have believed that they furthered legitimate interests in public health and safety," even if they actually did not. The government invoked Williamson v. Lee Optical (1955), a case in which the Supreme Court upheld a law barring people who were not licensed optometrists or opthalmologists from replacing broken lenses and preventing out-of-state eyeglass retailers from advertising -- in the name of public health and safety, of course.
Fortunately for Isis (and unlike the Supreme Court in Lee Optical), Judge Sparks engaged in a genuine search for the truth, focusing on real evidence rather than hypotheticals to justify the government's actions. Judge Sparks followed the lead of the Fifth Circuit in St. Joseph Abbey v. Castile, another case litigated by IJ. In St. Joseph Abbey, the Fifth Circuit struck down a Louisiana regulatory scheme targeting casket sales, rejecting Louisiana's "nonsensical explanations" for the scheme after finding them to be factually baseless.
After carefully considering Texas' hairbraiding scheme, Judge Sparks determined that it did not plausibly further any of the state's alleged interests. He determined, for instance, that it made no sense for a braiding salon to be forced to install a minimum of five sinks when washing hair is not involved in the braiding process and may not legally be performed by a braider. He further noted that although Texas' scheme explicitly contemplates the existence of braiding schools that teach solely the 35-hour curriculum that the state requires of all braiders, the state could not find a single braiding school that was able to meet its onerous requirements. What sense does it make to apply a regulatory scheme to hairbraiding schools that makes it impossible for them to even enter the market -- unless, of course, you are trying to protect barber schools from competition from hairbraiding schools? Tellingly, Texas was perfectly willing to allow Isis to work for an existing barber school and teach hairbraiding for them.
If our constitutional rights are to be secure from arbitrary interference, judges cannot reflexively defer to the government. They must engage in a genuine search for the truth, scrutinizing the record carefully to determine whether the government's actions plausibly serve truly public-oriented ends. Unfortunately, the Supreme Court has given the government a free pass in rational-basis cases like Lee Optical, and lower courts have followed its lead. But nothing less will suffice to protect the liberty of ordinary Americans like Isis who are striving to realize their entrepreneurial dreams. We need truth-seeking judicial engagement in every case to set them free.