By: Dana Palombo

In Brantley v. Kuntz,[1] a Federal Judge in the Western District of Texas held that a set of Texas laws, which precluded a small school specializing in the art of African hair braiding from teaching students to braid for a living, were unconstitutional as a violation of the Due Process Clause of the Fourteenth Amendment.

Isis Brantley, owner of her sole proprietorship, The Institute of Ancestral Braiding (“Institute”), has been making her living braiding African hair for thirty-two years. She possesses a braiding license that allows her to braid for compensation and she teaches students how to braid for a living. However, because Brantley’s Institute does not meet the Texas requirements of a “barber school,” students who learn to braid from her cannot satisfy the requirements for their individual licensures to practice for compensation. Texas’s statute regulates the practice of “barbering” and African hair braiding falls under this category. For a facility to qualify as a barber school, it must meet three qualifications: (1) the school must have “at least 10 student workstations that include a chair that reclines, a back bar, and a wall mirror;” (2) the school must install “a sink behind every two workstations;” and (3) the school must have “at least 2,000 feet of floor space.[2]” These requirements would create an undue burden on Brantley’s business and it is estimated that complying with them would cost about $25,000 when the Institute’s current location has been satisfactory for the past twenty years.[3]

Brantley contends that the current law violates her right to substantive due process. This claim requires the Plaintiffs to show the law is “arbitrary, unreasonable, or has no relationship to a legitimate government interest.[4]” Brantley argues that her due process has been offended because she has the right to practice the profession of her choice and while the government has the right to create standards of qualifications, the standards here are arbitrary and capricious when applied to the specialization of African hair braiding. The Defendants’ argued that judicial deference to legislative decision-making should be made under rational basis review, but the court rejects this argument because while the requirements are appropriate for full-blown barber schools, they are disproportionate, and thus unconstitutional[5], when applied to the case at hand.

Further, the court found that none of the three requirements satisfied any legitimate government interests. The ten-chair requirement is excessive because the statute is meant to give students adequate space to learn, but the small operation that Brantley runs would not require that amount of chairs.[6] The five-sink minimum is irrational because while it is meant to ensure health, safety, and the ability to disinfect, hair braiding does not require hair to be washed nor the use of any chemicals, and the use of a sink for washing hands is unnecessary because hand sanitizer is sufficient.[7] Finally, the square footage requirement is unwarranted because while the Defendant’s argue that the government has an interest in not having to inspect many small barber schools for legal compliance, and rather just a few big schools, administrative convenience is not a valid rational basis to enforce this provision. Additionally, the Institute is specialized to one specific practice that does not require such vast space and Brantley has no interest in expanding the assortment of services she offers.[8]

Therefore, the court found that this statute shoehorns two unlike entities that provide distinct sets of services into being governed by the same regulations. The law is unconstitutional as applied to Brantley’s business and it will not be held to these requirements. This case has significant impact on the small businesses of Texas that are encompassed under the larger umbrella of regulation when their business activities are more specialized. This may encourage more businesses like Brantley’s Institute to come forward and demand the narrowing of laws to allow for a more fair operation of business. Specialized business are a necessity, and it is not in the government’s interest to limit how specialized a business can be just because of broad and overarching regulations imposed on the larger subset.

A representative of the SEC explains that “concerns of small businesses are not being heard like they should,” and they small businesses are “underrepresented in both the legislative and regulatory process.”[9] The representative contended that federal regulatory schemes should be tailored to benefit small businesses and should not be considered threatening.[10] The SEC is even considering creating an office for small business advocacy to make sure that regulations are better tailored to small businesses to prevent them from being “treated as afterthoughts.”[11] Without advocates backing small businesses, small business owners like Brantley will have to continue fighting this battle alone. The Small Business Association has acted as an advocate on behalf of small businesses and has highlighted the governmental intentions to improve regulatory rule reviews with the goal of “reducing excessive and unjustified regulatory burdens on small businesses.”[12] Hopefully the holding in Brantley v. Kuntz will inspire other small businesses to evaluate the laws that govern their specialties so that laws can continue to be narrowed to create more tailored regulations in the best interest of businesses and consumers.

[1] Brantley v. Kuntz, No.A13-CA-872-SS, 2015 WL 75244 (W.D. Tex. Jan. 5, 2015).

[2] Tex. Occ. Code §§ 1601.353 (1)(A), (2)(A)-(B); see also Brantley, 2015 WL 75244 at *4.

[3] See Brantley, 2015 WL 75244 at *5.

[4] See Simi Inv. Co. v. Harris Cnty., Tex., 236 F.3d 240, 249 (5th Cir. 2000).

[5] See Brantley, 2015 WL 75244 at *10-11.

[6] See Brantley, 2015 WL 75244 at *11.

[7] See Brantley, 2015 WL 75244 at *11-12.

[8] See Brantley, 2015 WL 75244 at *13.

[9] Kent Hoover, SEC Commissioner Says Agency Needs To Do More To Help Small Businesses, The Business Journals (Sep. 17, 2014, 1:24 PM),

[10] Id.

[11] Id.

[12] See Rebecca Krafft, President Obama Issues Executive Order To Improve Rule Review, 30 The Small Business Advocate 1 (2011).

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