JohnsonKimberley.Political Hair

7/31/2019 JohnsonKimberley.Political Hair

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STATE OF THE ART

POLITICAL HAIROccupational Licensing and the Regulation ofRace and Gender Identity

Kimberley S. JohnsonDepartment of Political Science, Barnard College, Columbia University

Abstract

This article argues that African American hair is a political matter by examining the little-known role of state occupational licensing of African American hair care. By focusing onrecent legal challenges and legislative battles over state regulation of hair-care provisionfor African Americans, the article traces state authorities responses to struggles over mar-ket share between licensed, and often native-born, African American beauticians, and typ-ically unlicensed, and often recent African immigrant, hair braiders. Hair braiders challengedstate regulatory oversight by invoking racial deference claims, in which they argued thatbraiding was a cultural practice that should be exempt from state regulation. A statistical

analysis of state regulatory decision making revealed that states varied widely in address-ing the issue of African American hair care. While racial deference claims, in the form oflegal cases, put pressure on states to exempt hair braiders from regulatory oversight, byand large, most states did not choose this path. For states that did choose to address thedemands for market protection or market relief, the choices were mostly in the direction ofenacting new regulations or actively incorporating hair braiders under existing regulations.Despite the invocation of racial deference claims, African American hair care was not freedfrom state oversightstate regulators became more flexible in their oversight of Black haircare rooted in their concerns over public safety as well as the demands from a variety ofinterest groups. The analysis reveals that when race0gender and state regulation intersect,traditional economic theories of occupational licensing are not sufficient; an intersectional

approach can better explain policy outcomes.

Keywords: Licensing, Regulation, States, Race, Gender, Interest Groups, Immigra-tion, Intersectionality

INTRODUCTION

In 2007, Ashley Baker, a Glamour magazine editor, gave a lecture on corporatefashion to a group of women at a top New York law firm. During her presentation,

the editor showed a photo of an African American woman with an afro. To the shock

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of her racially diverse audience, she stated that afro hair styles as well as dreadlockstyles were a real no-no. She said it was shocking that some people still think itappropriate to wear those hairstyles at the office, and finished this judgment withthe statement, no offense . . . but those political hairstyles really have to go ~Chen2007!. The editor echoed what many scholars have long argued: African American

hair is political. How African Americans style their hair, and who they pay to style itfor them, has long been subject to government attention ~Caldwell 1991; Cornell1995; Crenshaw 1989!. This article explores why African American hair is a politicalmatter by examining the little-known role of state occupational licensing of AfricanAmerican hair care, and by focusing on recent legal challenges and legislative battlesover state regulation of hair-care provision for African Americans ~Bell 2007; Turner2001!.1

For most of the twentieth century, requirements for obtaining a state license tostyle hair ~i.e., to become a cosmetologist or beautician! involved satisfying a mix oftraining and education requirements. In many states, the specialized training required

for the styling and caring of African American hair was a regulatory afterthought.That specialized training primarily focused on techniques that straightened AfricanAmerican hair, rather than on styling and care of unstraightened or natural hair. Bythe late 1980s, a renewed popularity for natural and braided hairstyles was buttressedby the appearance of low cost hairstyling services provided by unlicensed hair braid-ers, many of them African immigrants from Senegal and Togo ~Babou 2009; Bond1993; Jones 1998; Shellnutt 2006!. What had been a regulatory afterthought had by2010 become the subject of intense debate, lobbying, litigation, and policy making.Licensed Black beauticians fearing cheaper competition pressed for greater stateenforcement of state occupational laws against unlicensed hairstylists, while advo-

cates for hair braiders and other natural hairstylists pushed for changes in stateregulations. As a result, a regulatory patchwork governing African American haircare has emerged across the fifty states and the District of Columbia. In twenty-seven states and the District of Columbia, policy makers have altered state regula-tions governing African American hair provision. Of these, thirteen states and theDistrict of Columbia have developed special licenses for hair braiders and othernatural hair-care stylists ~Fig. 1!.

By contrast, nine states decided to exempt hair braiders and certain other kindsof Black hair providers from regulatory oversight. Meanwhile, seven states, whereexisting law was vague on whether certain kinds of Black hairstyling provision fellunder state regulatory control, amended those laws to explicitly cover these newtypes of services. Despite changes in these states, twenty-three other states did notchange, and kept their existing regulations. The focus of this article is to explain thechallenges and choices made by these states. I test whether the struggle over theregulation of Black hairstyling resembles the interest-group politics that many schol-ars argue drives occupational licensing laws ~Becker 1983; Stigler 1971! or whetherthis struggle reflects the influence of racial deference claims, and is thus an exampleof a broader politics of intersectionality that influences American policy making~Crenshaw 1989; Hancock 2007!.

Through an analysis of the politics surrounding what Bell ~2007! has called thebraiding cases ~p. 125; Cornell 1995!, this article will show that occupational licens-ing laws have also been an important element in the construction and maintenance ofclass, gender, and racial identities. As market-regulatory structures, occupationallicensing laws have been used to create or maintain economic enclaves structured byrace, gender, and class identities ~Dorsey 1983; Wingfield 2008!. However, licensinglaw not only determines who gains entry into a field, it can also determine how that

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field is practiced. The content of licensing regulation in terms of education, training,and other types of criteria required for licensure involves the sanctioning of sometypes of approaches, procedures, or methodologies over others ~Freidson 1986!.While these forms of field-specific knowledge may have been adopted to regulatemarket competition by imposing increasingly higher barriers to entry, the content ofthe regulations can also acquire a life of its own ~Howard 1998!. The adoption orincorporation of other alternative forms of practice becomes less likely to occur, asthe content of these regulations may become the common knowledge or norms onwhich other public authorities may base their decisions ~White 1987!.

The article argues that the content of Black hair care regulations has become aform of common knowledge that has been used to codify appearance norms that havebecome the basis for several legal cases ~Caldwell 1991; Turner 2001!, Racial defer-ence claims have been invoked to limit not only the legality of appearance norms butalso state regulations that institutionalize these norms through professional practice~Bell 2007; White 1987!. In contrast to much of the literature on occupationallicensing which focuses on the politics of enactment or the income0market entryeffects of licensure, the intersectional approach of this article also focuses on the

Source: Colorado (2008, pp. 1314); Institute of Justice (2010a).

New License States: Florida, Louisiana, New York, Ohio, Oklahoma, Pennsylvania, South Caro-lina, Tennessee, Texas; plus District of Columbia

Qualified Exemption States: Kansas, Minnesota, Mississippi

Fold-in States: Colorado, Illinois*, Iowa, Missouri, Oregon, South Dakota, WyomingExemption States: Arizona, California, Connecticut, Georgia, Maryland, Michigan, North Carolina

Status Quo States: Alabama, Alaska, Arkansas, Delaware, Hawaii, Idaho, Indiana, Kentucky,

Maine, Massachusetts, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico,North Dakota, Rhode Island, Utah, Vermont, Washington, West Virginia, Wisconsin

*Illinois changed its law as of January 1, 2011. Hair braiders no longer have to obtain a full

cosmetologist license; instead, a 300-hour sanitation-methods course satisfies licensing require-ments. This action moves Illinois into the Qualified Exemption category. The analysis in this article

was run with categories as of December 2010.

Fig. 1. State Regulation Choices Governing Hair Braiding, 19902010

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content of state regulation and the support for, as well as challenges to, that contentbased on racial deference claims.

Nevertheless, in keeping with the literature on the politics of occupational licens-ing, I assume that state regulation of African American hair care, as is the case in otherareas, serves an important market regulatory function: restricting competitionand pro-

viding limited information about quality of services. This article however tests thatassumption with the hypothesis that less advantaged groups ~the hair braiders! usingarguments based on claims of racial deference, and gaining the support of a well-resourced and ideologically focused ally, were able to influence state regulatory policyoverthe objections of long-standing and politically more advantaged interests: licensedAfrican American beauticians and the Black elected officials who supported them.

The next section traces how state regulation of African American hairstyling canbe understood within the context of earlier research on the political economy ofoccupational licensing. The following section presents a brief case study of Cornwellv. California Board of Barbers and Cosmetology ~1997!, a braiding case that critically

influenced the political and regulatory struggle over hair braiding. The third sectiondevelops and presents a statistical analysis of this political struggle. The findings ofthis analysisthat interest-group demands as well as racial-deference argumentsinfluence state regulatory choiceare discussed in more detail. A brief conclusionfollows.

THE MULTIPLE ROLES OF OCCUPATIONAL LICENSING

Occupational licensing law is defined as the granting by some competent authority

of a right or permission to carry on a business or do an act which otherwise would beillegal ~Council of State Governments 1952, p. 5!. This granting of public authorityover private economic activity gives licensing laws conflicting roles in Americangovernance, especially at the intersection of gender, race, and economic interest.

Establishing Market Niches

Occupational licensing laws serve to limit competition; as such, they are derided asVictorian era anachronisms that encourage guild-like, rent-seeking behavior on thepart of interest groups, andthe captureof politicians charged with enacting andenforc-ing these laws ~Graddy 1991; Grant 1942; Stigler 1971; Teske 2003!. Scholars havelongarguedthatinterestgroupshaveplayedapowerfulroleinpressingforentryrestric-tions on, and regulatory oversight of, selected occupations ~Grant 1942; Law and Kim,2005!. The desire of interest groups to restrict entry into and competition within acertain service area may increase the income potential for holders of licenses.2

This pressure for the enactment of state regulations as a means to preservemarket share, or to gain new, protected markets can be seen in the struggle betweenmale barbers and female beauticians at the turn of the twentieth century against thebackdrop of a growing diffusion of occupational licensing laws across the states ~Lawand Kim, 2005; Walker 1969!. The emergence of beauticians as a distinct occupa-tional group was facilitated by new norms about womens appearance, the spreadingof a new mass market beauty culture, and the development of new technologicaladvances in hair care and cosmetology~Grant 1942; Peiss 1998; Willett 2000, pp. 2931!. Barbers, who had benefited from long-standing state regulatory protection,initially resisted the entrance of women hairstylists, as barbers feared that a lucrativenew source of business would be threatened ~Buetzner 1940; Thornton and Wein-




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traub, 1979!. To gain a competitive edge, women beauticians invoked claims ofgendered expertise and public health to buttress their claims for market autonomywhile also utilizing the tactics of interest-group politics. Willett ~2000! argues thatbeauticians, like barbers, used occupational licensing as a means to establish hairstyl-ing as a semi-respected profession and as a way to drive irregular practitioners

out of the market in the name of profit and public health ~pp. 56!. By 1940,beauticians were successful in creating a market niche; almost all states regulatedwomens hair care. In some states hair care would be covered under broad cosmetol-ogy laws, while other states referred to hair care more directly~Buetzner 1940; Grant1942; Law and Kim, 2005!.

At first glance, the struggle over state regulation of Black hairstyling is similar tothe struggle between barbers and beauticians: it is a struggle over which group getsto practice its trade under government sanction. The struggle over the regulation ofBlack hairstyling is between two groups: licensed African American hairstylists andunlicensed hair braiders ~many of whom are recent immigrants!. Standard theories of

economic regulation and interest-group politics suggest that less privileged or orga-nized groups that are harmed by the market-restricting aspects of state occupationallicensing laws ~such as unlicensed hair braiders! will be unable to alter state regula-tions in their favor. This article tests this claim, with an analysis of the impact ofinterest-group strength on state regulatory choice.

Indirect Effects of Licensing Law: Market Entry and Income Effects

Analyses of occupational licensing laws have found that the presence of these lawscan in some cases make it difficult for women and members of minority groups to

enter certain occupations ~Dorsey 1983; Freeman 1980; Law and Marks, 2009!.These effects may be deliberate, as occupational laws have been used to createeconomic niches in response to racial, ethnic, and gender competition ~Bernstein2001; Foner 1964; Law and Marks, 2009; Wingfield 2008!. For example, in theSouth, occupational licensing laws were used to prevent African American malebarbers from serving White customers, an occupational niche that they had longdominated ~Bernstein 2001; Foner 1964; Freeman 1980!.

Other research has found more indirect though still significant effects of occu-pational licensing on less privileged groups. Dorsey ~1983! argues that licensingnegatively affects minorities and the poor by systematically excluding them from, orchanneling them into, some occupations due to education, training, and0or testingrequirements, which may not be relevant for the actual practice of the profession~Federman et al., 2006!. For example, through moral character clauses, many statescurrently exclude certain kinds of ex-convicts from entry into a wide variety ofoccupations including relatively low-skilled occupations such as barbering ~May1995!. The result of these exclusionary effects is that those affected are forced to findemployment in a lower-paying, less skilled field, or practice without a license. Ininner city, minority communities, the latter choice leads to the creation of a seg-mented market where unlicensed practice in nonprofessional trades @such as barbersand beauticians# is common ~Dorsey 1983, p. 177!. In this segmented market,unlicensed practitioners work in lower paying neighborhood shops, or provideservices from their homes ~Dorsey 1983, pp. 177178!.

The beauty industry reflects many characteristics of a segmented market. Com-pared to other occupations, entry requirements are fairly low, although research hasfound that beautician licensing does affect pricing and quantity of services ~Adamset al., 2002!. A prerequisite to entering the field is the completion of specific train-

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ing, either via an apprenticeship or provided by a beauty school. A high schooldegree or any other kind of higher education is not required. Start-up costs can beminimized as women can work out of their homes, rent chairs in an alreadyestablished salon, or, if they are able to acquire the capital, start their own businesses~Walker 2008; Wingfield 2008!.

The ease of entry into the field, however, raises the stakes for protecting theprivileges of occupational licensing. From the fields beginning, middle-class women~both White and Black! attempted to raise incomes and create an aura of profession-alism and respectability by restricting entry, usually through pressing for stricteroccupational licensing standards and increased enforcement. According to Walker~2008!, these efforts have been periodically challenged by working-class women whodesire easier requirements for entry into as well as on-going participation in the field~Erickson 1935; Willett 2000!. For example, during the Depression of 1930s, incomesfor established licensed Black beauticians fell while the number of unlicensed andoften cheaper hairstylists increased ~Erickson 1935!. During the late 1960s and early

1970s, the popularity of the afro style led to increased competition from barbers aswell as unlicensed hair cutters ~Willett 2000!. Foreseeing a potential loss in clients,in both instances Black beauticians raised the alarm that unwary consumers faced ahost of quality control as well as health and safety issues by going to unlicensedpractitioners or other types of service providers ~Willett 2000!. Beauticians alsoturned to local officials, especially minority politicians with whom they had oftendeveloped a close relationship, in getting state regulators to crack down on compe-tition from other groups such as barbers, or from unlicensed providers ~Blackwelder2003; Gill 2004; Willett 2000!.

The emergence of the hair braiding industry in the 1990s reflected many of the

conflicts seen earlier. Many hair braiders, lacking the education, language, andfinancial resources needed to become licensed, were employed in the informal part ofthe segmented labor market described by Dorsey~1983!: working out of their homes,or in unlicensed stores in inner city neighborhoods ~Babou 2009!. Indeed, thedemand for hair braiding and the growth of the informal shops encouraged humantraffickers in New Jerseys urban areas to bring in African women to staff these shops~Donohue 2007; Ryan 2009!.

Unsurprisingly, this rise in new competition sparked a negative reaction fromAfrican American beauticians. Like many other organized and protected groups,licensed Black cosmetologists sought state enforcement of licensing laws in order torestrict competition and to protect consumers from what these cosmetologists arguedwere potential health issues caused by unsanitary conditions ~Paghdiwala 2006;Shellnutt 2006; Williams 2000!. As in earlier instances, Black politicians and otherlocal leaders responded to the demands of the beauticians, an important politicalconstituency in many African American communities ~Blackwelder 2003; Gill 2004!.

The hair braiders denounced these calls for regulatory enforcement. Manyindividual hair braiders made economic arguments: that those most in need of helpentering the formal labor marketrecent immigrants, the less-skilled, or theunemployedwere blocked from doing so due to costly~in money and time! licens-ing requirements that had little to do with the simple act of hair braiding ~Jones1998; Paghdiwala 2006!.

Not surprisingly given the politics and guild-like behavior of occupational licens-ing beneficiaries, the natural hairstylists0braiders would be represented by a newtrade group, the American Hairbraiders and Natural Haircare Association ~AHNHA!~2011a! established in 1995 by natural hair salon owners and hair braiders fromWashington DC. The AHNHA made slightly different arguments reasoning that




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since most, if not all, state education and licensing requirements did not cover hairbraiding techniques for African Americans ~at least in the early 1990s!, then hairbraiders should be exempt from state regulation as current regulations were irrele-vant to them. Requiring hair braiders to have a credential that had nothing to do withthe actual practice was pointless and punitive, if not deliberately designed to restrict

competition ~AHNHA 2011b; Cornwell 2010b; Institute for Justice 2010b; Sandefur2004!.

The stance that licensed beauticians were engaging in anticompetitive practiceswas one that was fully embraced by the Institute for Justice, the primary legaladvocate in many of the hair-braiding cases. The Institutes mission is to engage inongoing efforts to restore economic libertythe right to work for an honest livingasa fundamental civil right of the free market ~2010a!. The Institute has supported arange of causes, from legal challenges to affirmative action, to battling restrictions onurban van services in order to free minorities from the burdens of state regulation,which restricts entry into trades and professions ~2010a!. The Institute argues that

@w#hen those regulations exceed legitimate health and safety objectives, they need-lessly cut off the bottom rungs of the economic ladder, particularly for people withlittle capital or few skills ~2010a!.

This paper tests whether the demands of licensed Black beauticians for moregovernment regulation and enforcement prevailed over the interests of the unli-censed hair braiders and their conservative legal allies for less state regulation ofBlack hair care.

Asymmetrical Information, Public Health, and Claims to Knowledge

The politics of occupational licensing may also be driven by the desire to addressinformation asymmetries between consumers and producers, as well as the desire bystate authorities to address issues of public safety and health. Both partiesinterestgroups and governments alikefavor these laws because they can reduce informa-tion asymmetries between producers of services and consumers ~Akerlof 1970; Kleiner2000; Law 2003; Leland 1979; Teske 2003!. For consumers, occupational licensessignal that producers are trustworthy, while producers can use licensing as a means ofdistinguishing their service from similar ones in the marketplace ~Akerlof 1970!. Forstate authorities, occupational licensing laws offer another means to protect publichealth and safety~Graddy 1991; Law and Kim, 2005; White 1987; Zhou 1993!.

Like other occupational groups, beauticians would make the case for imposingstate licensing requirements as a way to ensure quality control for consumers as wellas a means to uphold public-health and safety standards ~Buetzner 1940!. Althoughstate authorities can impose regulations in order to uphold public health and safety,those groups covered by regulation are not averse to in turn embracing those regu-lations as a way to buttress their claims to a knowledge base that warrants contin-ued public recognition and protection ~Freidson 1986; Zhou 1993, p. 441!. In thecurrent struggle for Black hair-care regulation, two types of claims to knowledgehave been invoked: ~1! a technical claim to knowledge based on specific hair-carepractices and styling techniques, and ~2! a nontechnical or rather cultural claim toknowledge based on gender and0or racial identity.

Technical Claims to Knowledge

In establishing their goal of state regulatory protection, as well as greater profes-sional and economic autonomy, beauticians established a specialized technical claim

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to knowledge based upon new advances in chemical and heat-based processes forstyling hair such as permanent waves for White consumers and heat and laterchemical straightening processes for Black consumers ~Banner 1983; Blackwelder2003; Fuchs and Wilburn, 1967; Peiss 1998; Willett 2000!. Like the hair braiders ofthe 1990s, early women beauticians would argue that then current state licensing

requirements were irrelevant; that it was unreasonable to require persons desiringto become beauty culturists practicing on women to learn to shave men ~Grant1942, p. 468!.

The content of state licensing requirements on paper and in practice reflecteddifferences between African Americans and Whites. In general, Blackwelder ~2003!argues that racial prejudice and discrimination shaped state beauty codes . . . racialseparation reflected differing consumer demands by race ~p. 31!. African Americaninvolvement in defining the content of state regulatory oversight reflected the demandfrom many African American consumers for hairstyles that satisfied Black womensown style preferences as well as their needs for respectability, uplift, and status

~Cleage 1993; Craig 2002; Rooks 1996; Weitz 2001!. The second and more indirectdemand from African American consumers was for hairstyles which would satisfyWhite societys need for Black women to display hairstyling that at least attempted toapproximate the White female norm. As legal cases including Rogers v. American

Airlines ~1981! set precedents in the 1980s, straightened Black hair that approxi-mated the appearance of Caucasian hair became the norm for self-presentation towhich corporations could hold African American women employees ~Caldwell 1991;Turner 2001!.

The result of these consumer demands coupled with professional practice led toa gradual codification of a certain practice of Black hairstyling. The specialized

claim to knowledge used by Black hairstylists rested on the application of certainkinds of hair manipulation involving heat, or later in the twentieth century, chemicalprocesses, in order to straighten the naturally curly hair of many African Americans.As Blackwelder ~2003! describes, requirements for Black hairstylists emphasized theuse of heated comb, irons and curlers, as well as knowledge of a number ofcompounds applied to the hair and the scalp ~pp. 2931!.

State licensing requirements for African Americans varied in their accommoda-tion of this specialized claim to knowledge. In some states, like Illinois, AfricanAmerican hairstylists created a separate curriculum requirement for White and Blackapplicants. Many states were like Texas, where separate curriculums were not devel-oped for African American hairstylists; instead, separate examinations with presum-ably different standards were conducted for Whites and Blacks ~Blackwelder 2003,p. 32!. For hair braiders, these myriad state regulations posed an exceptional, and intheir view, unfair challenge. Many state licensing standards were like Californias: theeducation and styling training required by the state only covered the care of Cauca-sian hair; thus making that groups hair the regulatory norm ~Cornwell 2010b!. Notuntil the struggle over hair braiding emerged did states change their education andtraining criteria to address the care and styling of African American hair that wasprocessed with neither heat nor chemicals.

Nontechnical Claims to KnowledgeWomen beauticians invoked a claim of gender deference as a way to establishthemselves in the eyes of regulators as a distinct occupational niche separate frombarbers Early female beauticians asserted that they should be free from the domi-nation of barbers law in order to take their rightful place over the care and styling




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of women and childrens hair ~Institute for Justice 2010b!. Female hair stylists claimedthat only women in a separate space could attend to the physical as well as thepsychological needs of women, and protect them from the unwholesome atmosphereof the male barber shop, the latter possibly staffed by immigrant or African Americanmen ~Grant 1942; Willett 2000, pp. 4143!. Black women would make a claim for a

special space for their female customers as well, although segregation, whether bylaw or by custom, also mandated that they carve out a separate sphere ~Blackwelder2003; Willett 2000!. Occupational licensing thus served two functions: it provided agendered and racialized economic enclave based on claims of technical expertise andgender0racial deference, and it regulated competition within that enclave based ondifferent kinds of claims to knowledge ~Walker 2008; Wingfield 2008!.

Hair braiders and their supporters countered the technical and nontechnicalclaims to knowledge made by licensed beauticians with claims of their own. First,hair braiders argued that since natural hair care does not involve the use of chemicalsor machines, any regulatory oversight should be minimal. State regulatory efforts

should largely be concerned with issues of health and hygiene, since, as Bayham~2008! writes, This is hairbraiding, not brain surgery. Training is utterly unneces-sary to protect the public; safety concerns can easily be addressed by reading a simplepamphlet ~p. 1!.

Instead of invoking gender deference, hair braiders invoked racial deferencearguments that in court would prove to be just as powerful as economic argumentsagainst regulations ~Bell 2007; Institute for Justice 2010a!. Hair braiders claimed thathair braiding was a natural practice, according to Bayham ~2008!, a form ofcultural expression and an artistic art formbraiding styles differ from braider tobraider and region by region. The skills are passed from generation to generation,

not through formal education that simply wastes time and money ~p. 1!.3

As a result of these cultural issues and the lack of relevance of state regulationsfor the actual practice of hair braiding, hair braiders argued that they did not requireany state oversight; indeed state regulatory oversight could be seen as culturallyinsensitive ~Bell 2007!. This racial deference claim was used in a number of courtcasesmany of them successfulbrought by individual hair braiders with the assis-tance of the Institute for Justice. According to the Institute for Justice ~2010b!, thenatural haircare industry is consigned to the status of a subjugated pariah, stillfighting against prevailing orthodoxy enforced by the state, just as it was forced toduring the Jim Crow era.

The current struggle over state regulation of Black hairstyling is also a struggleover the content of state regulation and over both technical and nontechnical claimsto knowledge. Challengers in the early 1990s would argue that the content of stateregulations privileged only one kind of Black hair care0styling, and thus privilegedone set of appearance0identity norms over others. Not only was that kind of state-sanctioned hairstyling culturally insensitive and noninclusive, alternative hairstylingpractices such as hair braiding were not even included in many state education ortraining requirements. One set of practitioners and one set of racial0gender normswere privileged over others. Second, challengers based their critique of state regula-tion on racial0cultural deference claims, which Bell ~2007! describes as a heuristicwhereby decision-makers permit actions that would otherwise be impermissiblebecause they are customary for a recognized group ~p. 145!. Challengers arguedthat hair braiding and other natural hair care were African and African Americancultural practices, and thus should be exempt from state regulatory oversight, lest thestate engage in cultural insensitivity, if not inadvertent racism ~Institute for Justice2010b!.

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The response of some state authorities to the struggle between beauticians andhair braiders over these conflicting claims to knowledge as well as state authoritiesown assessment of public health issues was mixed. For example, in three statesKansas, Minnesota, and Mississippistate authorities partially gave in to racialdeference claims by exempting hair braiders from the states cosmetology licensing

laws; at the same time, these states required hair braiders to complete a health andsanitation course in order to be registered with the state ~Colorado 2008!.

Stiglers ~1971! model of regulatory capture assumes that political authorities arecaptured by well-organized groups, and enact occupational laws as a result of thisgroup pressure ~Becker 1983!. The struggle analyzed in this articlebetween licensedBlack beauticians on the one hand, and hair braiders and their ally, the Institute forJustice, on the othersuggests that while politicians may appear to be captured byone group, the tactics and strategies of competing groups as well as the self-interestof public authorities responding to concerns about public health, may also play a rolein explaining the adoption of occupational licensing laws.

The next two sections of the article trace the judicial as well as state legislativebattles between beauticians and braiders and other so-called natural hairstylistsover the boundaries of the Black hair care practice. At stake was the influencing ofstate authorities decisions in setting parameters for market entry, and how stateregulations would affect their professional practice.

SISTERLOCKS: CULTURAL PRACTICE AND/OR PROTECTED CLAIMOF KNOWLEDGE?

The first shot in the battle against state regulation of braiding, and the first of thebraiding cases, would come from an African American woman entrepreneur, Dr.JoAnne Cornwell ~Bell 2007!. A professor at San Diego State University, Cornwell~2010a! created and trademarked a hair braiding technique she called Sisterlocks;and, like earlier Black hair-care entrepreneurs such as Madame C. J. Walker, devel-oped a training course and certification system, which offered individual women apath toward economic empowerment.4 Cornwell faced two legal challenges. Thefirst legal challenge was with the state of California in the case of Cornwell v.California Board of Barbering and Cosmetology 962 F. Supp. 1260 ~1997!. The secondlegal challenge was Cornwells attempt to protect her hairstyling process from com-petitors based on her argument that certain aspects of cultural practice could betrademarked, and thus protected by the state ~Cornwell v. Belton No. 04-CV-658HU.S. District~S.D. Cal., 2005!!.

Cornwell argued in her case against Californias State Board of Barbering andCosmetology ~CBBC!, that hair braiding was a cultural practice that should not becovered by state regulation. She further argued that the state regulation that did existwas irrelevant for braiders since all of the techniques consisted of techniques appro-priate for Caucasian hair, or for chemically0heat-treated hair ~Cornwell 2010b!.

The CBBC argued that hair braiding, cultural practice or not, was subject toregulation by the state, even if those regulatory requirements did not include specificprovisions that covered African American hair. Cornwell and the Institute for Justicemade what they thought was a compelling counterclaim: how could a skill learned aschildren and practiced throughout a large part of Africa be subject to licensing? Howcould licensing regulations which emphasized the training of techniques used toapproximate Caucasian hair be applied to natural hair styling? In her testimony,Cornwell argued that the court had no jurisdiction as




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the bases for these @locking# techniques originate@d# many centuries ago inAfrica and were brought by Africans into this country where the methods haveendured ~and have been expanded upon! as a distinct and popular form ofhairstyling, primarily done by and for persons of African descent ~Testimonycited in Cornwell v. Belton 2005, p. 14!.

The court decided for Cornwell in a victory that would change state regulation ofBlack hair care, finding that Californias regulations were not applicable to thepractice of natural Black hair care; the court held that there @is# no rational connec-tion between the CBBCs required curriculum and the practice of of African hairstyling ~Cornwell v. California 1997, p. 1273!.

This victory, however, undermined Cornwells second legal case, which attemptedto protect her Sisterlocks technique as a trademarked process ~Cornwell v. Belton2005!. Cornwell brought the case against Debra Belton, who had been trained byCornwells Sisterlocks company, when Belton founded her own hairstyling salon

using a procedure she called nappylocs. The court ruled against most of Cornwellsclaim of trademark violation. Cornwell had claimed in her earlier case against Cali-fornia that hair braiding employed techniques that were centuries old. Thus thecourt in Cornwell v. Belton ~2005! ruled that it was difficult to see how a techniquewith a historical backdrop . . . for thousands of years and @which# spans at least twocontinents, could be protected by law ~p. 14!. The court ruled that as she hadlearned from African and African American culture about hairstyling, and had builtupon the innovations of others, Cornwell could not prevent others from buildingcreatively on the skill and training she @taught# as part of her Sisterlocks course~p. 24!.

Despite the setback of the Belton case, the Cornwell case set an importantprecedent. Over the next fifteen years, hair braiders, with the support of the AHNHA,or with the assistance of the Institute for Justice, or on their own, would try tofollow Cornwells lead to overturn or modify state regulation of hair braiding.The Institute for Justice would provide litigation support in cases filed in Wash-ington DC, Arizona, Georgia, Minnesota, Mississippi, Ohio, and Washington.Other court cases were filed without the Institutes assistance in states includingSouth Carolina and Pennsylvania. In almost all of the successful cases broughtby the Institute, state regulators or state courts bowed to the cultural prac-tice deference argument and largely exempted hair braiders as well as other

natural hairstylists from state regulation ~Bayham 2008; Bell 2007; Colorado2008!. By 2010, seven states exempted natural hair care or braiding from stateregulation.

DETERMINANTS OF A NEW BLACK HAIR-CARE REGULATORY REGIME

The previous discussion provides a rich backdrop for understanding the politics ofoccupational licensing. In this section, I test whether the struggle over the regulationof Black hairstyling resembles the interest-group politics described by economistssuch as Stigler ~1971!, or whether the struggle to determine state regulatory controlof Black hair care reflects the influence of racial deference claims, and is thus anexample of a broader politics of intersectionality that influences American policy-making ~Hancock 2007!. The following section describes the hypotheses to be testedand the data used in the analysis.

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Dependent Variable: State Regulatory Choice

The study examines the regulatory choices made by various states and the District ofColumbia from 1990 to 2010. The most common choice made by twenty-threestates was to do nothing and remain silent on the issue of Black hair care. While

some states such as North Dakota may have done nothing because of a lack ofdemand for change due to low Black population, other states such as New Jersey,which has a Black population of 14%, chose not to change existing hair-care regula-tion despite the demand for regulatory change. As noted earlier, seven states exemptedhair braiding from state regulatory overview. Information on how a state regulatedhair braiding was collected and cross-checked from a number of sources includingthe Institute for Justice, the AHNA Web site, state regulatory review reports ~Col-orado 2008!, and state government Web sites. Some states shifted from one regula-tory choice to another over this two-decade period. For all states, the regulatorychoice considered in the analysis is the initial choice made by the state after 1990 andbefore January 2011.

States chose among three other regulatory options during this time period. Onetype of regulation, chosen by seven states, was to fold in hair braiders to theexisting regulatory requirements by specifically requiring hair braiders to obtain astandard cosmetology license. Another regulatory choice taken by eleven states wasto create a separate, specialized hair-braiding license. For Bell ~2007! and otherscholars, this regulatory choice was optimal since it recognized hair braiding as adistinctive occupation while also taking concerns about consumer health into account.Finally, three statesKansas, Minnesota, and Mississippiattempted to satisfy bothracial deference claims and public health concerns; these states granted hair braidersa qualified exemption. Hair braiders would be required to complete some form ofcosmetological education that included health and sanitation training.

The dependent variable in the following analysis represents the four choicesmade by states: ~1! to not change existing state regulatory structure; ~2! to exempthair braiders from state regulatory oversight; ~3! to explicitly fold in hair braiders tothe preexisting regulatory structure; or ~4! to create a new specialized license for hairbraiders. The qualified exemption choice is added into this last category as thenumber of states choosing qualified exemption is too small for analysis. Since eachstate regulatory choice is independent and unranked, a multinomial logistic regres-sion model is used to test the following two broad hypotheses.

Hypothesis One

According to traditional interest-group models of occupational licensing laws, stateauthorities should respond favorably to well-organized, established interests such asthose of licensed Black cosmetologists. As Gill ~2004! notes in her research, cosmetolo-gists are a particularly influential constituency group of Black politicians. Con-versely, state authorities should be relatively uninfluenced by the interests of hairbraiders, since the latter group is smaller and has many members who are socioeco-nomically disadvantaged due to immigration status and literacy0language barriers.

Given this balance of forces:

Hypothesis 1A: Black beauticians should prefer the existing regulatory structure,and be opposed to any changes to that structure. The impact of their preferenceshould reflect the size of the group.




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Hypothesis 1B: Black politicians should follow the preferences of licensed beauti-cians, and thus should be opposed to any change from the current regulatorysystem. The impact of their preference should reflect the size of the group.

The preferences of these two groupsAfrican American beauticians and Black

elected officialsmay be visualized in this way:

STATUS QUO . INCORPORATION . FOLD IN . EXEMPTION.

Licensed beauticians would prefer not to have new competition; thus their regula-tory preference, and that of Black elected officials, would be for the status quo toprevail over any proposed regulatory structure that would support new marketcompetitors. Of the remaining three regulatory preferences, folding in would be thenext preferred alternative, as hair braiders would have to satisfy the same entrybarriers as cosmetologists. New licenses would be the next preferred alternative, as itwould still limit unlicensed competition. The least preferred choice of beauticians

and elected officials would be exemption, as it would allow free market entry andthus increase overall competition and lower compensation for licensed beauticiansservices.

Hypothesis Two

Hair braiders ~especially African immigrant braiders! and the Institute for Justicepressed for changes in state regulation using racial deference claims. These groupswill show a strong preference for changes in state regulations that lower or eliminatebarriers to market entry. The presence of these groups or the presence of a racial

deference claim will prod state regulators into taking action that reflects a racialdeference claim. More specifically,

Hypothesis 2A: The more members of a group demand racial deference, the moreresponsive state regulatory officials will be to that demand. The greater thepopulation of African immigrants in a state, the more likely a racial deferenceclaim will succeed and change state regulatory policy.

Hypothesis 2B: States in which a racial deference legal challenge has been filed aremore likely to change the regulatory status quo to an outcome more favorable toracial deference claimants.

The impact of racial deference claims on preferences for state regulations maybe visualized in this way:

EXEMPTION . NEW LICENSE . FOLD IN. STATUS QUO

For hair braiders, a successful racial deference claim would result in a states decisionto alter the regulatory status quo to lower or remove the formal market barriers ofentry. The most preferred option for those making racial deference claims would bea states decision to exempt hair braiders from occupational licensing standards. Lesspreferable but still acceptable would be the enactment of new regulations whichincorporated hair braiding into a new state regulatory law. New regulations wouldnot only distinguish hair braiders from cosmetologists, but would also provide alower barrier of entry for existing practitioners. In addition, such regulation wouldconstitute a new entry barrier, thus affording hair braiders a market-regulatorymechanism that was previously available only to cosmetologists. Less preferred

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would be the folding in option, which would force hair braiders to comply withexisting state law. The least preferred option would be for the state to do nothing, asthe status quo renders hair braiders vulnerable to an uncertain level of bureaucraticenforcement, which makes leaving the informal economy difficult. The attraction ofthis option may vary among different groups; some undocumented immigrants espe-

cially in urban areas may prefer a semilegal gray area in which to operate.

Demographic and Institutional Sources of Regulatory Change

The politics of occupational licensing occurs in a complex demographic and institu-tional context. A states Black population may play a significant role in signalingdemand for regulatory change. States with a higher Black population may receivemore demands for regulatory change in this area than states where the Black popu-lation is small. The urbanization of a state may also affect state regulatory politics.States that are more urbanized may also be states where regulatory politics are more

likely to occur as there is more market competition overall. The ability of an interestgroup to mobilize to protect its interests may also be related to the urbanization of astate. In a struggle over regulation, it is easier for each competitor to mobilize his orher respective supporters in a highly urbanized state. The greater the Black urbanpopulation in a state, the greater the demand should be for some type of stateregulatory change.

Hypothesis Three

State regulatory changes are more likely to occur in states with higher levels of Black

urban population. The location of a state may also play a role in shaping stateregulatory choice. Southern states have fewer occupations covered by licensing thanother states ~Summers 2007; Walker 1969!; thus Southern states may have an overallless favorable environment for embracing any kind of regulatory change. There mayalso be an issue of regional taste, as hair braiding may reflect the style of northern,more urban residents rather than the southern and more rural African Americans.For example, an examination of Cornwells Sisterlocks online directory of consul-tants ~Sisterlocks 2011! shows a predominance of hair-braiding salons and0or hair-braiding consultants in the Northeast and Midwest; thus being located in the Southmay indicate a weaker propensity to regulate, as well as a weaker embrace of hair-

braiding stylists.

Hypothesis Four

Southern states will be less likely to enact regulatory change that restricts marketentry. The regulatory environment of a state may also play a role in state regulatorypolicy making. For example, one institutional factor that may influence state licens-ing decisions is the presence of barriers blocking entry to occupations. Barriers toentry vary, but many researchers agree that higher barriers reflect an interest groupsability to limit competition. Thus states with higher entry barriers ~e.g., greaterbarriers to new competition! may be states that are less likely to enact regulatorychanges that satisfy new market entrants. Across all fifty states, the most commonrequirement for hairstylists was training in a cosmetology school; the average num-ber of hours required was approximately 1500 ~Beauty Schools Directory 2011!.States requiring the most training hours for licensure have the highest barriers to




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entry and a political environment which is heavily influenced by pro-regulatoryinterest groups.

Hypothesis Five

States with high entry barriers will be less likely to enact regulations that makemarket entry easier.

Independent Variables: Measures of Interest Group Influenceand Racial Deference

The size of each group is used as a proxy measure of its political influence. For Blackbeauticians, I use the number of beauticians per 1000 Blacks in each state ~McKin-non 2001!. The number for Black elected officials is figured as the percentage of

Black officials among all state and local elected officials in a state ~Bositis 2001!. Inany given state, the percentage of Black beauticians is highly correlated with thepercentage of Black elected officials as well as correlated with the size of the generalBlack population. Due to problems of multicollinearity and the resultant presence oflarge standard errors, these two measures were transformed into a single indexvariable: Black interest group strength ~see Table 1 for a summary of the variables usedin the analysis!. This variable was in turn standardized to ease interpretation of itsimpact~Table 1!.

Racial deference claims are measured in two ways. The first measure is indirect.The strength of a racial deference claim is calculated as the percentage of a states

population which African immigrants represent~U.S. Census 2000a!. Due to prob-lems of multicollinearity as well as the non-normal distribution of the population,this measure was transformed into a dichotomous variable. States with little to noAfrican immigrant population ~less than 5%! are coded 0, while states with apopulation greater than 5% are coded 1.

The filing of a braiding case in a state court is used as direct evidence that a racialdeference claim has been made. Although the Institute for Justice brought many ofthese lawsuits, some were initiated without the Institutes assistance. States wherebraiding cases were filed are coded 1; states where no cases were filed are coded0.

Table 1. Descriptive Statistics of Data

Variable MeanStandardDeviation Min Max

Regulatory choice 1.25 1.31 0 3Black interest group strength 0 1 0.634 4.93African immigrants 0.274 0.451 0 1

Braiding case 0.216 0.415 0 1Black urban population 0 1 1.14 1.73South 0.255 0.440 0 1State hours 1596 280 800 2100

N 51

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Demographic and Institutional Measures

A single index measure, Black urban population, was created for each state based on the2000 Census data on Black and urban population ~McKinnon 2001; U.S. Census2000b!. Again, this variable was standardized to ease assessment of its impact. Thepresence of regional influence is accounted for with the inclusion of South, a dichot-

omous variable, indicating whether or not a state is located in the traditional eleven-state South. The variable state hours gives the number of training hours each staterequires.

FINDINGS

The standardized coefficient estimates from a multinomial logistic regression analy-sis are presented in Table 2. The six equations in the table are labeled by a regulatorychoice group versus a reference group. For the first three equations ~A, B, and C!, the

reference group is the Status Quo category, while the contrasts are Exemption, FoldIn, and New License ~Table 2!. For the second two equations ~D and E!, thereference group is Exemption, with the contrasts being Fold In, and New License;the reference group for the sixth equation ~F! is Fold In and the contrast group isNew License. Overall the fit of the model is good; the x2 of the model shows thatthere is a significant relationship between the dependent variable ~regulatory choice!and the set of independent variables. In order to understand the substantive effects ofthe variables, the coefficients are exponentiated and converted into odds ratios. Theresults are presented in Table 3.

Overall, the impact of interest-group demand on state regulatory choice sup-

ported the first two hypotheses. Black interest-group strength ~the index of Blackbeauticians and Black elected officials! had a positive effect on a states choice toeither exempt hair braiders from existing cosmetological regulations or to establishnew licenses, rather than stick with the regulatory status quo. A one-unit change inBlack interest-group strength leads to an increase by a factor of 3.51 that a state willchoose to exempt hair braiders. There was higher probability ~251%! that a statewould exempt hair braiders from existing regulations than maintain the status quo.By contrast, interest-group strength had a negative effect on the choice of foldinghair braiders into existing state regulation. States were less likely to prefer this optioncompared to either maintaining the regulatory status quo or exempting hair braiders.These log odds ratios suggest that the distinctiveness of hair braidingwhether dueto cultural deference claims or technical claims to knowledgeis recognized bybeauticians and elected officials. The choice to fold in hair braiders is the leastpreferred of all options. There is a positive relationship between interest-group sizeand the probability that a state will enact legislation requiring new licenses for hairbraiders rather than exempt them from regulation. In general, these vested-interestgroups prefer some enacting new regulations over maintaining the status quo. Sur-prisingly, this does not carry over to the choice of exemption, which may be due tothe impact of Black urban population.

The impact of Black urban population on state regulatory choice is similar to theimpact of the preferences of the beauticians and Black elected official group. Ashypothesized, states with a higher Black urban population were more likely to enactsome form of regulatory change ~exemption or new licensing! than to maintain thestatus quo, but less likely to fold in hair braiders than to maintain the status quo.States with high Black urban populations were less likely by a factor of 0.485 tochoose new licensing regulations than exemption. A one-unit increase in Black urban




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Table2.

The

ImpactofInterestGroupDem

and,DemographicandRegula

toryContextonStateHair-CareRegulationChoices

Variable

~A!

Exemption0

StatusQ

uo

~B!

FoldIn0

StatusQuo

~C!

NewLicense0

StatusQuo

~D!

FoldIn

0

Exemption

~E!

NewLicense0

Exemption

~F!

NewLicense0

FoldIn

Blackinterestgroupstrength

1.2

5

3.51

1.48

4.7

7*

0.223

4.99*

~1.16!

~2.66!

~1.1

5!

~2.73!

~0.315!

~2.71!

Africanimmigrants

1.06

0.865

0.287

1.93

0.7

79

1.1

5

~1.19!

~1.03!

~1.09!

~1.3

5!

~1.04!

~1.28!

Braidingcase

3.54*

*

1.29

3.02**

2.24

0.523

1.72

~1.54!

~1.4

7!

~1.40!

~1.53!

~1.01!

~1.46!

Blackurbanpo

pulation

1.52*

**

0.0

77

0.797

1.59*

0.722

0.8

75

~0.591

!

~0.792!

~0.6

50!

~0.947

!

~0.5

74!

~1.00!

South

0.298

2.4

5

0.226

2.74

0.524

2.22

~1.139

!

~2.54!

~1.36!

~2.82!

~1.0

7!

~2.79!

Statehours

1.9

5

0.818

2.26*

1.13

4.21**

3.0

7

~1.80!

~2.38!

~1.39!

~2.7

7!

~1.7

7!

~2.44!

Constant

4.73

5.11

2.3

5

0.3

78

7.09**

7.4

7*

~3.28!

~4.43!

~2.1

7!

~5.21!

~2.94!

~4.4

7!

X2

48.71

PseudoR2

0.297

N

51

Thetopentriesaremultinomiallogitcoefficients.S

tandarderrorsinparentheses.

***p,

.01;**p,

.05;*p,

.10~two-tailedtests!



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Table3.

Stat

eHairCareRegulationChoice

s:LogOddsRatios

Variable

Exempti

on0

StatusQ

uo

FoldIn0

StatusQuo

NewLicense0

StatusQuo

FoldIn

0

Exemption

NewLicense0

Exemption

NewLicense0

FoldIn

Blackinterest-groupstrength

3.51

0.029

4.39

0.008

1.2

5

147.53

Africanimmigrants

0.344

2.3

7

0.7

51

6.91

2.18

0.316

Braidingcase

34.47

3.6

7

20.43

0.106

0.593

5.5

7

Blackurbanpo

pulation

4.57

0.925

2.22

0.202

0.485

2.39

South

0.742

11.5

7

1.2

5

15.6

1.69

0.108

Statehours

7.04

2.26

0.104

0.322

0.015

0.046



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population decreased by 51% the odds of a state enacting new licensing regulationsas opposed to folding in hair braiders to existing regulations. The preference forexemption or new regulation over more moderate reform reveals a dynamic differentfrom the one which obtains in the case of Black interest-group demand. As Dorsey~1983! argues, states with large Black urban populations may be more likely to

support a large secondary or segmented labor market in Black hair care As a result ofthe market segmentation in these states, interest groups such as licensed Blackbeauticians may be limited in their ability to protect their market share throughregulation. Alternatively, it could be that these states would rather exempt hairbraiders than try to engage in costly regulation of this segmented and undergroundmarket, or perhaps in these states Black elected officials must be somewhat respon-sive to the claims made by hair braiders and their allies that regulation causeseconomic damage to minority communities.

By contrast, the presence of African immigrants in a state had almost the oppo-site effect on state regulatory choice from that of Black interest groups. The presence

of African immigrants did not lead states to embrace exemption. Instead, states stuckwith the status quo, folded in hair braiders, or enacted new licensing. For example,the presence of a significant African immigrant population increased a states likeli-hood to fold in hair braiders by a factor of 6.9. the likelihood of requiring a newlicense for hair braiders rather than exempting them from existing license require-ments increased by a factor of 2.18, while the choice to stick with the status quorather than exempt hair braiders increased by a factor of 2.9. When comparing thechoice between enacting new licenses versus folding in, states with a significantAfrican immigrant population were less likely to enact new licensing regulations.

These results suggest two interpretations. Exemption was perhaps largely not

preferred by immigrants and by the states. It was hypothesized that African immi-grants would prefer no new regulations, and indeed would actively seek exemption,since the enactment and0or enforcement of regulations would put pressure on themto step out of a segmented but largely overlooked market. However, the findingssuggest the opposite. For immigrants, exemption would subject them to continuedunregulated competition, further depressing their wages, and leading to abuses suchas the human trafficking that occurred in New Jersey hair braiding salons. Thus thepreferences of African immigrants may have diverged from their allies at the Institutefor Justice. Immigrants may have preferred the right kind of regulation rather thanno regulation at all. For state regulators, complaints about cultural clashes betweenbraiders and consumers as well as the issue of competition between immigrantbraiders and licensed and often native-born beauticians perhaps drove the decision toplace the immigrants within some type of regulatory framework.

Racial deference claims in the form of a braiding case provided the strongest andmost statistically significant finding of all the demand variables. The presence of abraiding case has a positive effect on a states decision to adopt any policy other thanmaintaining the status quo. The effect was largest for exemption; the presence of acase increased a states probability of adopting exemption by a factor of 34.47. Thepresence of a braiding case decreased by 89% the probability of a state choosing tofold in hair braiders, and decreased by 40% the probability of a state adopting newlicensing regulation. The only exception to this pattern occurred when the choice laybetween creating new licensing regulations or folding in hair braiders. In this case,states were far more likelyby a factor of 5.57to enact new licensing regulationsthan to fold in hair braiders to the existing regulations. Thus the strategy of theInstitute for Justice in filing and0or supporting racial deference claims was somewhatsuccessful. States were more likely to exempt hair braiders from regulation when

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faced with this kind of pressure. The Institutes approach, however, was not com-pletely successful. Many states chose to enact new regulations, which, while perhapsmore sympathetic to the interests of hair braiders, were nonetheless new regulationsand thus blocked the Institutes goal for a free market in occupations.

The regional and regulatory environment of states had interesting effects on state

policy choices. Southern states were far more likely to enact any policy choice otherthan exemption. There was a slight preference for choosing new licensing rather thanregulatory exemption or the status quo. Southern states were strongest in the likeli-hood of preferring to fold in hair braiders to existing regulations rather than exemptthem or stick with the status quo. Indeed, in the choice between new licensing andfolding in, Southern states were 89% less likely to choose new licensing than to incor-porate hair braiders into existing regulations. State regulatory context in the form ofentry barriers also displayed interesting effects. States with higher barriers ~i.e., statesrequiring more hours of training!were more likely to either exempt hair braiders fromor fold them in to current state regulation. Given other choices, these states were less

likely to prefer new licensing, This suggests that states with higher barriers to entrywere less able to respond to the demands from the new interest groups of hair braidersandimmigrants. The choice to exempt, and indeed to resist newlicensing, could reflectcurrent licensees unwillingness to open up the market to new entrants, or the inabilityof state regulators to oversee another group of market entrants or be flexible enough todesign or reform a regulatory system that could accommodate new interests.

DISCUSSION AND CONCLUSION

The results of this analysis show that state regulatory decision-making about AfricanAmerican hair care varied widely. While racial deference claims in the form of legalcases put pressure on states to exempt hair braiders from regulatory oversight, by andlarge states did not choose this path. For states that did address the demands for mar-ket protection or market relief, most chose to enact new regulations rather than incor-porate hair braiders under old regulations. Despite the invocation of racial deferenceclaims, African American hair care was not freed from state oversight; rather, respond-ingtoconcernsforpublicsafetyaswellasthedemandsfromavarietyofinterestgroups,state regulators became more flexible in their oversight of Black hair care.

For much of the history of state regulatory oversight of African American hair,the content of the regulatory requirements embodied in these statutes reinforcedideas and norms about race and gender identity. This analysis has shown that changesin American society such as increased immigration and the embracing of claims ofracial deference by economic conservatives as well as African American activists haveaffected how states view the role of regulation and ethnic0racial0gender identity.State regulation of Black hair care is no longer a regulatory afterthought; instead, itis now the focus of a highly visible politics in which traditional as well new claims forstate protection and0or relief have been invoked. African American hair care contin-ues to be a political matter.

This analysis has also briefly considered, in light of state hair-care regulation,some of the drawbacks of occupational licensing. Certainly occupational licensinghas been used by particular groups to limit market competition, and has been rightlycriticized as encouraging excessive rent-seeking by some groups. Licensing has alsohad a disparate and sometimes discriminatory impact on minority groups, the lesseducated, and on new immigrants. Yet while state regulatory structures have beenderided by many researchers, this analysis suggests that the public as well as state




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authorities still see the state as playing an important role in ensuring public safetyand health. In an era of fiscal cutbacks, occupational licensing is a means, howeverimperfect, of ensuring some agreed-upon level of safety and health standards.

On a broader level, this analysis supports the argument that an intersectionalapproach can be useful in understanding the hidden effects of policy decisions on

women of color. State regulation of Black hair care affects African immigrants andAfrican Americans in multiple ways: as citizen and noncitizen, as native-born andimmigrant, as producer and consumer, and as women in a society which valorizes agendered and racial aesthetic diametrically opposed to the physical appearance ofmany women of African descent.

While new forms of Black hairstyling and practice have been recognized by thestate, it remains to be seen if these new forms will be recognized by other membersof American society as not political hair, but just hair.

Corresponding author: Professor Kimberley S. Johnson, Department of Political Science, BarnardCollege, Columbia University, 3009 Broadway, New York, NY 10027. E-mail: [email protected]

NOTES

1. The terms African American and Black will be used interchangeably where the analy-sis refers to native-born Americans of African descent, recent immigrants from Africancountries, or immigrants of African descent from the Caribbean and elsewhere.

2. Kleiner ~2000! provides a good overview; see also Stigler ~1971!, p. 171.3. See also Babou ~2009!.4. See also Bundles ~2001!.

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