Occupational Licensing

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.

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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

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  2. How can you use scissors without knowing how to diagram a sentence?

    1. They need high school biology so they know how to differentiate hair from other parts of the body. Do you want them cutting off ears?

      1. I thought it was understanding the geometry of the head and what functions best approximate various hairstyles that was needed.

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  3. My god…. I hope Tennessee is prepared for an exponential increase in barbicide poisoning deaths. I’m no mathmagician, but 0 to the tenth power seems about right.

  4. Tennessee? Something about a monkey trial???

  5. Stupid requirement but also there is little reason not to finish HS or get the equivalency. Will you be a barber forever? Odds are no. Well at least our “student” athletes in football can now focus on their educations. Chortle.

    1. Barbering’s a good career for life. It’s very unlikely to be automated away. It may not stand the test of “essential” that allows it to be forbidden for this emergency, but you can’t count on social distancing’s being required forever. It’s not like it’s a logical stepping stone to any other job, except maybe some in health care and rehab. You’re a barber to be a barber; those skills serve us for life.

  6. Some legislators sure think they’re gods. A “Tennessee Board of Cosmetology and Barber Examiners”? They must be joking… Bureaucracy run-amok.

    I wonder if your holiness would allow me to cut my neighbors hair. This is the end-result of preemptive legislation habits. Can’t we WAIT until a crime is committed BEFORE we prosecute/fix?

    1. And note that the legislators did not require high school graduation – or even Kindergarten graduation – for themselves. Obviously, they consider hair-cutting a more important job than legislating.

  7. Tennessee became less violent.

  8. Also good on Good-Guy Pai for chipping in.

  9. “But why does that requirement exist at all? Before the state Supreme Court, 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.”

    If it were about incentivizing education for everyone, then the requirement would be more ubiquitous.

    Something smells off….Why would they be singling out barbers?

    Is there a particular demographic that tends to have a higher drop out rate (or is perceived by lawmakers as to having a higher drop-out rate) than others that also is highly represented in the ranks of barbers ?

    The cynic in me wonders if this requirement was either about protecting white barbers from excessive competition from black barbers or paternalism for black barbers to encourage them to complete HS.

    1. I doubt it had much to do with race. It was probably just about limiting competition in general. Barber shops tend to be fairly segregated anyway (non-compulsively) in both clientele and ownership. Competition from cheap, “under educated” entrants impacts existing owners pretty ubiquitously and probably doesn’t do much by way of disparate impacts.

      1. Rules like this are always about limiting competition in some way, shape or form. Usually they do it under the guise of safety. Pretending to do it because they care about education is a new one to me.

        1. Yeah, but to be honest, I’d probably be more sympathetic to an “education incentive” argument than the “public safety” reasoning for cosmetics professions. Very stupid for state intervention either way though.

  10. monkey hair is much more difficult to shape.

  11. This is almost as bad as Jersey not letting me pump my own gas. I wonder if their certified gas pumpers have to be high school graduates too…

    1. high school graduates in New Jersey?

      1. (Sh)It happens. Just don’t expect literacy, or any other actual educational attainment.

  12. 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 Tennessee Supreme Court has sent a message that it won’t accept ad hoc justifications for onerous regulations.

    That’s the heart of the whole problem right there – it is presumed that government can do anything it pleases as long as there’s no specific prohibition against it (and often even if there is, as long as it’s not “too much” – see “balancing tests” and “Congress shall make no law…”) instead of all power being inherent in the people and government being limited to doing only that which it has a specific grant to do. Who is the servant and who is the master here?

  13. I don’t know if I’d be comfortable having my hair cut by a guy who hasn’t read Beowulf or Canterbury Tales.

    1. What about a guy without diversity training?

      1. -1

    2. Hester Prynne could cut some hair.

  14. He could’ve gotten his GED in the time this took to get thru court, although that wouldn’t’ve set a precedent. I wonder if he did that as a fallback while litigating.

  15. A rare win for the people.
    Worse are States that require hairdressers to be mandatory reporters! Mind your damn business.

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  17. I wonder what kind of haircut Steven Schrage got before he put on the conference where he begged the Trump Campaign to send someone (Carter Page) to be preyed upon by Stefan Halper

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