Texas imposes many cost-prohibitive and onerous restrictions on African Hair Braiding schools that seek licensure.
Those facility and equipment requirements include the three Plaintiffs have placed in issue: (1) a requirement the school have “at least 10 student workstations that include a chair that reclines, a back bar, and a wall mirror” (the 10-ChairMinimum (2) a requirement the school install” a sink behind every two workstations” (the 5-Sink Minimum); and (3) a requirement the school have at least 2,000 square feet of floor space.
The Institute for Justice challenged each of these three requirements, which justify the regulations, as violations of the 14th Amendment.
In a thoughtful opinion, Judge Sparks (WDTX) invalidated the rule. In doing so, he applied the type of methodological application of the rational basis test that I champion in my article, The Burden of Judging. In short, he required the government to supply actual evidence that its motivations are reasonable, rather than accepting fabricated rationales. This small burden ensures that all but the most absurd regulations–such as the regulation at issue here–remain on the books. But the most sense violations of the right to pursue an honest living are excised from the statute books.
The District Court’s opinion grounds its rational-basis test analysis in the Fifth Circuit’s recent decision, St. Joseph Abbey v. Castille–another rational basis test victory by IJ invalidating a regulation on selling caskets. Most significant is St. Joseph Abbey’s characterization of Lee Optical.
In considering the agency’s argument, the Fifth Circuit discussed Lee Optical at length, noting Lee Optical” is generally seen as a zenith of [] judicial deference to state economic regulation” and embodied a “willingness to accept post hoc hypotheses” to shield such regulation against constitutional challenge. But, the Fifth Circuit explained, despite its healthy measure of deference to the legislature, Lee Optical “placed emphasis on the ‘evil at hand for correction’ to which the law was aimed” and “insist[ed] upon a rational basis, which it found.”
In other words, there needs to be an *actual* rational basis to address an *actual* evil at hand. But what about Carolene Products, you ask? That case only allowed the deferential assumption to apply generally, unless the law is “of such a character as to preclude the assumption that it rests upon some rational basis.” The district court agreed with St. Joesph Abbey’s “nuanced articulation and application of the rational basis test.”
The District Court here accepted that articulation of the rational basis test. The Court walked through each rationale, one at a time, and concluded that Plaintiffs “have successfully refuted every purported rational basis” for the regulations, and the “Court can discern no other rational bases for the” regulations “in light of the facts at hand.” Rather than conceiving of the most outlandish justifications under the rational basis test, the court remained grounded in reality, and only thought of other possible bases in light of the “facts at hand.”
First, with respect to the 10-Chair minimum, the Court acknowledged it “at first blush . . . seems reasonable,” however the law also states that schools that only offer hair braiding curriculum need an “adequate number” of chairs. The court founds this regulation is not “rationally related to any legislative purpose.”
Second, with respect to the 5-sink minimum, the court found the state’s “disinfecting protocols” unpersuasive because students were allowed to use liquid hand sanitizer, rather than water and soap, prior to braiding hair. Further, hair braiders are not required under state law to have sinks–so why should schools. This rational too was not “rationally related to any legislative purpose.”
Third, with respect to the 2,000 square foot minimum, the Court did not accept the government’s rationale that it promotes “effective and efficient inspection of facilities” by “ensuring the state will not be required to inspect many small barber schools for compliance with state law.” The Court’s analysis on this point was very important–there was nothing in the record suggesting that this rationale, in the least, motivated the law. Citing St. Joseph Abbey, the Court found that this concern was not “an evil at hand for correction’ to which the” square-footage requirement was aimed. The Court rejected an approach that “proceeds with abstraction for hypothesized ends” or one premised on “post hoc hypothesized facts.” The linking of the rationale to the “evil at hands” is an important nexus that gives the rational basis test some meaningful teeth.
Finally, the court asked Defendant whether there was a single school that teaches solely African Hair Braiding that complies with the regulations. The government could not identify one, even after being afforded an additional ten days for doing so. The Court explained that the “absence of any such schools is troubling, as the Texas regulatory scheme explicitly contemplates the existence of barber schools which teach solely the thirty-five hour hair braiding curriculum.” In other words, the regulations render impossible the very vocation that the Texas law envisions being able to exist. The Court viewed this fact as a “logical disconnect.” To make this point more clear, the Court notes that “Texas has issued zero individual hair braiding instructors’ licenses. The bureaucracy nullified this vocation. Only through a federal law suit could the hair braiders pursue their right to earn an honest living.
This is another important application of meaningful rational basis review. I hope it spreads.