Dear Sisterlocks Supporter: After two and a half years (early 1997 to Fall of 1999) of anticipation and stress, filings, pleadings and delays, we can finally say, WE WON! We have had to deal with depositions, and not-so-subtle charges from the opposition that we are dishonest, dirty, ignorant lawbreakers. We've had to tolerate lawyers prying into our files, and cross-examining us in every way on how we represent the business. They went through our records with a fine-toothed comb, from our receipts to our publicity brochures to the language we use to train people. We had to fight to keep the names of our trainees away from the opposition, for fear they would start harassing folks (and they probably would have). We've had to fight to keep the opposition from exposing our training materials in a way that would undermine our trademark protection. But, we won!
Essentially, what this means is that anyone legitimately practicing Sisterlocks according to the standards our company has set forth, is EXEMPT from the current cosmetology law in California! We can now train and perform Sisterlocks free from the threat of attack from the State. Best of all, The State decided not to appeal the decision. This means, among other things, that this ruling also applies apply by precedent to those doing other natural hair care techniques.
Meantime, I thought you might enjoy reading excerpts from the 26-page ruling, issued by Judge Rudy Brewster of the US (Federal) District Court of Southern California. The judge really got it! He really understood the absurdity of the power the Cosmetology Board has held over folks like us.
Thank you so much for your support. Moral support has been just as helpful as that from those of you who were actually able to appear in courtrooms, legislative assembly rooms, or write letters.
This victory is for ALL of us!
Sincerely, Dr. JoAnne Cornwell, Owner, Sisterlocks
EXCERPTS FROM THE "ORDER GRANTING PLAINTIFF CORNWELL'S MOTION FOR SUMMARY JUDGMENT" Issued August 18, 1999 United States District Court Southern District of California
I. Introduction This case involves the question of whether, as applied, the State of California's Barbering and Cosmetology Act and implementing regulations violate Plaintiff's Due Process and Equal Protection rights.
II. Background A. ...
B. Statutory and Regulatory Environment The statute expressly dictates that "a course of instruction in any branch of cosmetology shall be taught in a school of cosmetology." The regulation setting forth the specific curriculum required in cosmetology courses lists seventeen mandatory subject categories in the cosmetology curriculum, as well as the minimum hours of technical instruction and/or practical operations that shall be devoted to each subject category. (Note: The Court has previously noted the relatively small percentage of the curriculum applicable to natural hair care.).
C. Role of the Court First, the Court starts with the presumption of the constitutional validity of a state law. Second, he Court does not address the issues whether California can require licenses for hairbraiders, or whether they can require schooling and a licensing examination prior to allowing African hair stylists to perform their craft. The Court's only role is to decide whether the means used to regulate the activities in question are constitutionally permissible. III. Analysis A. ...
B. Standard of Review Defendants (i.e. cosmetology board) dispute Plaintiff's characterization of the origins of natural hair care, the racial distinctiveness of coily hair, and the racial uniqueness of natural hair care as to both provider and consumer. Despite these protestations, the Court accepts the high correlation between coily or textured hair and African-American descent as compared to other racial groups, which accounts for the further high correlation between African-Americans and the particular art of African hair braiding and the use of hairbraiding services.
C. Application of Rational Basis Test The State's professed interest in the health and safety of its citizens is a legitimate one. Defendants, however, cite a veritable host of additional possible interests, most of which are subject to criticism. Forcing African hair braiders to attend cosmetology school logically impedes their ability to offer competent hairbraiding services to their customers, i.e., it leaves them untrained to perform their own craft. (Note: More important, requiring natural hair care practitioners to spend 1600 ours of their time at significant expense and/or opportunity cost learning irrelevant skills can hardly enhance their economic viability and potential for success. )
The court finds that the profession of natural hair care is a significant and legitimate branch of cosmetology, and that at least one individual meets the definition of natural hair care provided by Plaintiffs: Dr. Cornwell. Because her activities are of such a distinguishable nature, she cannot reasonable be classified as a cosmetologist as it is defined and regulated presently (my emphasis). Even if Cornwell were defined to be a cosmetologist, the licensing regimen would be irrational as applied to her because of her limited range of activities. In sum, the Court finds that the Act as implemented through regulations is irrational when applied to Dr. Cornwell. The Court cannot say the same with regard to the unnamed members of AHNHA. The problem with respect to these individuals is that the Court does not know who they are and what they do.
Plaintiffs acknowledge the need for education to perform their activities and admit to the potential need for regulation. What they dispute is the application of the current regulatory structure. Defendants' item-by-item review of the (cosmetology) curriculum to support its argument that each and every part of the curriculum is relevant is unconvincing. Based on its review of two curricula, the Court concludes that requiring a would-be African hair braider to attend a school of cosmetology is irrational and certainly unreasonable.The Court notes other factors that point to the irrationality of the curriculum. First, even were it the case that a would-be braider might learn to braid in cosmetology school there is no assurance that this would happen, with every possibility of the reverse being true. Second, the current licensing regimen may work against the state's professed interest in health and safety. Thus, it aggravates the very harms the State seeks to avoid. Third, the Court notes several salient points in the Joint Legislative Sunset Review Committee (JLSC) Findings and Recommendations. Public health and safety standards are secondary, since only 20 hours of the 1600-hour required cosmetology curriculum must relate to disinfection and sanitation. Most of the precautions and procedures required or suggested by the board are for the safety and health of the professional not the client/customer. These findings are in line with Plaintiff's arguments that forcing hairbraiders to take the 1600-hour course is to expose them to hazardous chemicals they do not use and otherwise would be able to avoid. The Court finds that such mandatory exposure is irrational. Moreover, the JLSC notes the rarity of occurrence of harm in actual practice on witch the safety and sanitation provisions of the curriculum are focused. Requiring individuals to take a 1600-hour course in order to study a very few hours of sanitation and potential scalp disorder material when the threats which this information is meant to ward off are almost nonexistent is irrational.
Plaintiffs state that the approved textbooks exhibit a gaping paucity of consideration of natural hairstyling or the unique characteristics of coily hair, except in the content of chemical straightening and relaxing. The Court agrees. In sum, the state-sponsored textbooks used in California's cosmetology schools demonstrated the irrationality of requiring Plaintiffs to participate in this curriculum in order to be able to practice their profession. The Licensing examination which all applicants must pass is equally irrelevant to Plaintiff's craft. The written part is worth 100 points out of the total 400 examination points. The irrelevant portions of the exam comprise eighty-nine percent of the written test. In sum, upon close inspection, the validity of the written portion of the examination when applied to Plaintiff's activities appears to be minuscule.
The Court now turns to the practical portion of the examination. The practical part is worth 300 of the total 400 available points, or seventy-five percent. Not only does the licensing examination not test braiding skills, it does not test specifically on characteristics of non-relaxed textured hair. Indeed, the licensing examination is so oriented to straight hair that a would-be licensee could not even pass the exam if he or she brought an African-American model without straightened hair to the practical portion of the examination to demonstrate his or her skills. Based on the above, the Court finds that the licensing examination as structured is not rationally related to the State's professed interests.
Plaintiffs argue that the regulatory regimen effectuates through law the suppression of an emerging industry by the dominant cosmetology industry. This allegation is supported in the JLSC:The coursework requirements translate into an extraordinary amount of money for the schools which offer them the captive audience would-be licensees. The Court notes that another section of the Act/regulations is irrational, i.e., the sections dealing with instructors' licensure and the actual teaching or hairbraiding. These hundreds of additional hours of training are not in braiding, but instruction in how to teach the required cosmetology curriculum. Thus, Defendants' regulatory scheme makes it impossible for Dr. Cornwell to teach that which she would be technically licensed to do. Were the Court to support Defendants' position, and find hairbraiding to be cosmetology, but ignore the fact that hairbraiding is not taught in schools and the barriers to its teaching are unreasonably high, the natural result of this situation would be that the craft must die a slow death.
Defendants have misinterpreted Plaintiff's case Plaintiffs do not seek a special 'out' or preferential treatment; they seek rationality when trying to pursue a livelihood. Simply put, it is irrational to require Cornwell to comply with the regulatory framework. The Act and regulations as applied to cornwell fail to pass constitutional muster. As set forth, the basis of this Order is the finding that the State's mandated curriculum, on its face and upon review of its actual implementation and associated texts and exam, does not teach braiding while at the same time it requires hair braiders to learn too many irrelevant, and even potentially harmful, tasks.If an individual does more than braid - if he or she routinely shampoos or cuts or dyes hair, or uses chemicals at all - they are not a hairbraider. If they do such activities, they are subject to the Act and regulations.
After review of the pleadings and supporting documents, and for the reasons stated in this Order, Plaintiff's Motion for Summary Judgment with respect to Plaintiff Cornwell is GRANTED.