Tennessee Court Snips High School Diploma Requirement From Barber Licensing

Tennessee's requirement that barbers have at least a high school education is "unconstitutional, unlawful, and unenforceable," ruled the state's Chancery Court.

When the state of Tennessee told Elias Zarate in 2017 that he could no longer be a barber, it wasn't because he'd accidentally hurt a customer or because he gave bad haircuts.

It was simply because he didn't have a high school diploma.

Zarate had dropped out of high school to take care of his orphaned younger siblings and eventually landed a job as a barber in Memphis, even though he wasn't licensed. When the state's barbering cops busted Zarate for working without a permission slip from the proper bureaucratic authorities, he tried to get the proper license, only to discover that before he could pursue a career doing the thing he was already doing, he'd first have to backtrack and finish high school.

That didn't make much sense to Zarate, and last week the Tennessee Chancery Court** confirmed as much. In an order granting summary judgment in favor of Zarate, the court declared Tennessee's requirement that barbers have at least a high school education "unconstitutional, unlawful, and unenforceable," and imposed a permanent injunction against its enforcement.

"The government shouldn't stand between Elias and the career he loved just because he didn't graduate high school," says Braden Boucek, vice president of legal affairs for the Beacon Center of Tennessee, the free market nonprofit that backed Zarate's legal challenge. "If emergency personnel don't need to graduate high school to restart the heart of a person who stopped breathing, then you can cut hair without a high school degree. Today's ruling finally righted this injustice."

Indeed, the high school graduation requirement doesn't apply to most other professions in Tennessee. It doesn't apply to cosmetologists, which are regulated in much the same (often excessive) manner as barbers. It doesn't even apply to state lawmakers, who in 2015 added that provision to Tennessee's barbering regulations, Boucek notes.

Before then, obtaining a barber's license in Tennessee required an applicant to show that he or she had completed the 10th grade. In other words, when Zarate dropped out of school in the 12th grade in 2008, he would have been eligible for a barber license. By the time he sought the license in 2017, he was not.

But why does that requirement exist at all? Before the state, the Tennessee Board of Cosmetology and Barber Examiners said the education mandate would "promote the goal of education" by incentivizing Tennesseeans to complete high school, ensuring that barbers have sufficient reading comprehension and math skills to do their jobs, and guaranteeing that they understand the state's rules for their profession.

The court rejected it all because the board's arguments did not meet the rational basis test, the justices wrote in the unsigned order.

"The Board simply does not make a sufficient tie between a high school degree and barbering," the court ruled. "Zarate, on the other hand, has provided the Court with detailed information regarding the barber training program and licensure exam. The program's thorough coverage of all matters related to barbering, including sanitary requirements, chemical solutions, and the use of straight razors satisfies the Court that the material makes public safety a priority."

The case is not only a win for Zarate and other GED-less would-be barbers in Tennessee. In striking a small blow against the so-called "rational basis test"—a legal doctrine that allows courts to accept nearly any justification for a government-made regulation as long as officials can provide some rational reason why that rule might exist—the court has sent a message that it won't accept ad hoc justifications for onerous regulations.

In other words, the state shouldn't get away with saying that it's good for people to graduate high school as a justification for a law that limits the career opportunities for those who fail to do so. More courts should have a similarly skeptical view of those arguments when advanced by government officials.

Kevin Walters, communications director for the Tennessee Department of Commerce and Insurance, said in a statement that the department is reviewing the order. The department will "continue to protect Tennesseans through balanced oversight of regulated professions while enhancing consumer advocacy, education, and public safety," he said.*

When Reason profiled Zarate in 2018, his case caught the eye of Federal Communications Commission Chairman Ajit Pai. Along with dozens of other total strangers, Pai helped Zarate pay off more than $1,500 in fines assessed by the Tennessee barbering authorities.

Now, the courts** has given that feel-good story an even happier ending.

*UPDATE: This post was updated to include comments from the Tennessee Department of Commerce and Insurance. 

**CORRECTION: The headline and text of this post inaccurately described the ruling as being made by the Tennessee Supreme Court. It came from the Tennessee Chancery Court