COLUMN -- Minnesota license requirements often don't line up with reality

Wednesday, April 27, 2005


Nothing stirs the soul like a ringing defense of the rights of man. The more high-minded the principle, the more moving; the more grand the cause, the more noble.

And yet, it is on the ebb and flow of everyday affairs that the tides of individual freedom rise and fall. Take the case of Lillian Anderson, a hair braider with no grander cause than to practice her craft and earn a living.

This is America, right? Where we prize the entrepreneurial spirit? Yet in order to earn a living with a skill she learned and practiced for years in her native Cameroon, Anderson must first meet the demands of the Minnesota Board of Barber and Cosmetologist Examiners.

She must attend 1,550 hours of government-mandated training over 10 months at a tuition cost of $15,000. She must pass a government-mandated test. Not a single minute of those 1,550 hours nor a single area of the test relates to natural braiding, twisting and locking of hair, which is all Anderson does.

Should she elect to practice without a license, she is subject to up to $1,000 in fines and 90 days in jail plus bearing the stigma of having broken the law.

On April 20, the Institute for Justice Minnesota Chapter, a public interest law firm that is representing Anderson and two other Minnesota braiders, filed suit in Hennepin County District Court challenging the constitutionality of Minnesota's hair braiding license requirements.

"Hard-working and industrious individuals like Lillian should be able to work without having to look over their shoulders or listen for that dreaded knock on the door from a government regulator," said Nick Dranias, an attorney with the Minnesota chapter.

Dranias' "fear factor" comment ought not be construed as mere hyperbole from an attorney making a case in the press. I've heard the same trepidation in the voices of bar owners afraid to criticize smoking bans for fear of spot health and safety inspections. That should tell us something about how we the people view our government.

On a national basis, nearly 500 occupations are regulated by states and about half of those require government-issued licenses. Occupations requiring licenses include not only highly specialized professions in fields like medicine and law, but also beekeepers, lightning rod salesmen, fence installers, flower arrangers and septic tank cleaners.

A report by Minnesota's Legislative Auditor found the number of regulated occupations in the state is growing rapidly and the state's policy on occupational regulation is not applied consistently. Occupational regulations are used to "fence out" competitors and maintain high prices. The burden of regulation falls disproportionately on disadvantaged groups.

The regulatory process is often captured by the occupation being regulated. The cosmetology requirements fall right in line with that analysis.

"Minnesota's cosmetology laws are a tangled mess," noted Lee McGrath, the executive director of the Institute for Justice Minnesota Chapter. "We have asked the court to declare unconstitutional the Minnesota cosmetology laws as pertains to our three clients."

The Institute for Justice has successfully litigated similar hair-braiding cases in Arizona, California, Mississippi, the District of Columbia and Washington state.

Traditionally, the justification for state licensing requirements has been to ensure health and safety and the quality of service being offered to the public. The relationship is often taken for granted. Few people consider the costs to the public of such licensing. Others uncritically believe that the benefits are worth any cost, assuming that such regulations actually do protect the public.

But as the mismatch between regulation and reality in Anderson's situation illustrates, that is not necessarily the case. Ironically, in the name of protecting public health and safety, Minnesota licenses people to braid hair who have no experience in braiding, yet it forbids others who are proficient in braiding from plying their trade.

Given the high praise we utter and the value we as Americans place on individual independence and entrepreneurial spirit, shouldn't our public policy match our high-minded rhetoric? Is a seven-member board better at regulating the market than consumers purchasing a service?

Eliminating harmful regulation is a mission of the new Minnesota Chapter of the Institute for Justice. It litigates to reinvigorate economic liberty, to preserve property rights, promote educational choice and defend the free flow of information essential to informed political and economic choices.

Full disclosure: My daughter will serve as an unpaid clerk in the institute's Minneapolis office this summer. Forgive a dad — I couldn't be prouder.