Zarate v. Tennessee of Cosmetology and Barber Examiners

Why should a barber have to graduate high school? Barbers cut hair. They don’t need to know calculus, or explore themes of alienation in King Lear. So why does Tennessee require barbers have a high school diploma or a GED even before they can attend barber school? And then once in barber school, barbers are still required to get 1,500 of training, and then pass a state exam. Won’t that ensure everything a barber could possibly need to know to ensure public safety? This is the question posed in Tennessee in Zarate v. Tennessee of Cosmetology and Barber Examiners.

The high school requirement appears irrational enough on its own. But when compared to other professions that do not require a high school degree, it becomes downright mind-blowing. Cosmetologists don’t need to graduate high school and they have virtually the same job description. Other jobs in Tennessee that a person can do without a high school degree include Emergency Medical Responders, who provide lifesaving interventions in emergency situations, as well as governor, senator, and representative. If Elias wanted to save a life or write a law, his educational level would not disqualify him. Unfortunately, it does disqualify him from cutting hair.

Elias is the picture of the American determination, with a particular kind of spirit only found in a city as soulful as Memphis. He has not had an easy life. When he was a boy, his mother was pushing their stranded car off a busy road when a truck slammed into the back of the car, crushing her and sending Elias into a coma. Not long after, his father abandoned the family. At age thirteen (13), Elias was on his own in the streets of Memphis. Grandparents first cared for his younger brother and sister, but the situation was to get still worse.

Elias, although essentially homeless, still made it to his senior year of high school, attending classes by day, working odd jobs at night, and couch surfing when he needed sleep. But he had to drop out to begin assuming care of his brother and sister. His academic career was derailed for good. In the middle of his senior year, he dropped out and dedicated himself solely to their needs.

Now, ten (10) years later, Elias is settled down and a father of his own baby girl. He is ready for something more satisfying than just a job. He wants a career. And he has always had a dream of becoming a barber.

When he was a boy, he grew up around barbershops. He found the calling endlessly fascinating. He loves the scissors, the gowns, the white shirt, and the barber pole. Barbering is the perfect career for someone like Elias who is likeable, creative, hardworking and social. And it is one of the few stable professions with a pathway to business ownership available to persons without a high school degree. So why would Tennessee deny that to him?

Nothing is more American than Elias’s relentless determination to rise in the face of this adversity. He wants nothing other than to redeem the most American of promises – to make sure that his family has it better than he did. He has sacrificed enough by delaying his dream in service of others. This would be his time, but for a Tennessee law with no legitimate justification.

It is hard not to see the hand of protectionism behind the scenes. The challenge is to try and even dream up another justification other than protecting licensed barbers from upstarts. And the high school requirement is not some relic; it was passed in 2015 as part of a sprawling “clean up” bill that never even mentioned that it was upping the standards for barbers. The legislators didn’t even seem to know about it. Unsurprisingly, there is no record of consumer complaints over insufficiently educated barbers mentioned in the legislative record.

Typically, review of economic liberty claims falls under the rational basis test. Under this form of review, the government is given extreme latitude, a fact the government makes evident when responding to these claims. The government will argue that there is no such thing as a constitutionally arbitrary law when it comes to taking away a person’s right to earn a living. Why should that be when we spend most of our time at our jobs? After our families, what else is more important? And even more arbitrary is the decision to a greater burden on barbers then are placed on other jobs, including ones that would seem to pose an equal (cosmetology) or greater (EMR) risk to public safety. If any case was calculated to test for whether such a thing as a constitutionally arbitrary law exists, this is it.

Tennessee typically follows the example of federal courts when it comes to economic liberty claims, but it has not really been put to the test recently. Of course, the states have their own constitutions. Those can and often do have different constitutional protections for liberty as befits a separate and equal sovereign. There’s no reason why Tennessee or any other state should feel obligated to give the government this much rope to intrude on one of our most precious rights – the right to earn a living.

Tennessee was one of the first states created after the original thirteen. The principle interests of its founders were all economic as small farmers streamed across the Appalachian Mountains in search of good land after the Revolutionary War. Its people had a different experience. Its Constitution is a reflection of a distinct heritage. Economic liberty should be considered a vital and fundamental right in Tennessee.

What is at stake for Elias sure feels like a fundamental right. He can only hope that Tennessee courts recognize the importance of economic liberty, if not as a matter of federal law, then as a matter of Tennessee state law. He has sure earned it.