Submitted: September 20, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON, BENTON, and KELLY, Circuit Judges.
BENTON, Circuit Judge.
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 court granted summary
judgment for the State. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
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 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.
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).
braiders argue that the license requirement is not rationally
related to any legitimate government interest. According to
the State, its interests are protecting 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.
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
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").
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.
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.
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
"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
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