Libertarian public interest law firm The Institute for Justice recently announced three new lawsuits challenging occupational licensing laws that require hair braiders to obtain cosmetology licenses to practice their trade. Although these state laws potentially apply to anyone who braids hair professionally, certain elaborate and traditional styles of braiding are particularly popular among African-Americans, and so the burden of these laws fall disproportionately on them.

It is also far from clear how much including hair braiders in these licensing regimes does to protect consumers.  Traditional African hair braiders do not use hair dye, scissors, or other dangerous chemicals that some cosmetologists use. So they are unlikely to benefit from much of the instruction in typical cosmetology courses focusing on such topics. But aspiring braiders would nonetheless have to pay the costs of taking these courses and subsequent licensing exams, which can run as high as $20,000.

Unfortunately, occupational licensing restrictions often have a disproportionate negative affect on racial and ethnic minorities. The hair braiders’ situation here is the exception and not the norm. Licensing restrictions tend to benefit people who have the political connections and clout necessary to pass licensing laws. Racial and ethnic minorities tend to lack such clout and connections, in part due to past racial discrimination against them that has left these groups disadvantaged in the political process. Pacific Legal Foundation (“PLF”) attorney Timothy Sandefur discussed this disproportionate effect at some length, giving examples beyond the hairbraiding context, in his testimony for a briefing of the U.S. Commission on Civil Rights.

Some have argued that conservatives’ and libertarians’ concerns about the disproportionate racial impact of occupational licensing laws (or other public policies) clash with their concerns about disparate impact anti-discrimination laws, which forbid employment practices that have an adverse effect on a racial group even when there is no evidence that racial discrimination caused the disparity. For an excellent rebuttal to this position, I recommend a blog post by Sandefur’s colleague Joshua Thompson  at PLF’s blog: “But this does not mean that PLF is unaware that the consequences of government policies are sometimes felt harder by individuals of certain races.  For example, it is sad and unfortunate truth that occupational licensing laws are felt hardest by the poorest Americans.  As my collegue wrote in testimony submitted to the U.S. Commission on Civil Rights: “[E]vidence shows [that occupational licensing laws] do little to protect consumers.  Rather, they are frequently used by established businesses to prevent competition from newcomers who lack the political influence or personal connections necessary to get licenses…. Further, while PLF opposes disparate impact theory as vehicle to force employers to adopt race-conscious business practices, that does not mean that race-neutral laws which burden minorities are unremarkable.  For example, legislators should take note of laws that make it more difficult for minorities to find work, or laws that burden  minorities’ property rights, or laws that force minority children to attend failing government schools.  Legislative solutions to these harms should be sought out.  Being cognizant of the racial impact of laws, however,  does not mean that government can – or should – force racial balancing into all facets of American life.”