United States Court of Appeals

For the Eighth Circuit

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No. 16-3968

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Ndioba Niang; Tameka Stigers

lllllllllllllllllllll Plaintiffs - Appellants

v.

Emily Carroll, in her official capacity as Executive Director of the Missouri Board

of Cosmetology and Barber Examiners; Wayne Kindle, In his official capacity as a

member of the Missouri Board of Cosmetology and Barber Examiners

lllllllllllllllllllll Defendants - Appellees

Betty Leake

lllllllllllllllllllll Defendant

Jackie Crow, In her official capacity as a member of the Missouri Board of

Cosmetology and Barber Examiners; Joseph Nicholson, In his official capacity as

a member of the Missouri Board of Cosmetology and Barber Examiners; Leata

Price-Land, In her official capacity as a member of the Missouri Board of

Cosmetology and Barber Examiners; Lori Bossert, In her official capacity as a

member of the Missouri Board of Cosmetology and Barber Examiners; Linda M.

Bramblett, In her official capacity as a member of the Missouri Board of

Cosmetology and Barber Examiners; Leo D. Price, Sr., In his official capacity as a

member of the Missouri Board of Cosmetology and Barber Examiners; Christie L.

Rodriguez, In her official capacity as a member of the Missouri Board of

Cosmetology and Barber Examiners

lllllllllllllllllllll Defendants - Appellees

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Missouri African Hairbraiders and Their Customers; Pacific Legal Foundation;

Public Choice Scholars; Cato Institute; Reason Foundation; Individual Rights

Foundation; Senator Rand Paul; Goldwater Institute; Beacon Center of Tennessee;

The Show-Me Institute

lllllllllllllllllllllAmici on Behalf of Appellant(s)

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: September 20, 2017

 Filed: January 11, 2018

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Before COLLOTON, BENTON, and KELLY, Circuit Judges.

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BENTON, Circuit Judge.

Missouri statutes require African-style hair braiders to be licensed as barbers

or cosmetologists. Ndioba “Joba” Niang and Tameka Stigers challenge this

requirement under the Fourteenth Amendment. The district court granted summary 1

judgment for the State. Having jurisdiction under 28 U.S.C. § 1291, this court

affirms.

African-style hair braiders are required to have a license to work for pay in

Missouri. §§ 328.020, 329.030 RSMo 2016. License candidates must (1) complete

The Honorable John M. Bodenhausen, United States Magistrate Judge for the

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Eastern District of Missouri, to whom the case was referred for final disposition by

consent of the parties pursuant to 28 U.S.C. § 636(c).

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a costly and time-intensive training course—1,000-hours for barbering and

1,500-hoursfor hairdressing, (2) disclose criminal, citizenship, and limited character

background, and (3) pass a licensing exam. These requirements apply to those who

“cut and dress the hair for the general public” or perform “arranging, dressing,

curling, singeing, waving, permanent waving, cleansing, cutting, bleaching, tinting,

coloring or similar work upon the hair of any person by any means.” §§ 328.010(1)

(barbers), 329.010(5)(a) (cosmetologists) RSMo 2016. Niang and Stigers—two

unlicensed, compensated, African-style braiders—believe African-style braiding is

different from barbering and cosmetology with distinctive techniques not covered in

either training course or the exam.

This court reviews de novo a grant of summary judgment. Torgerson v. City

of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). “Where a law neither

implicates a fundamental right nor involves a suspect or quasi-suspect classification,

the law must only be rationally related to a legitimate government interest.” 

Gallagher v. City of Clayton, 699 F.3d 1013, 1019 (8th Cir. 2012). This review is

“a paradigm of judicial restraint” where “a statutory classification . . . must be upheld

against equal protection challenge if there is any reasonably conceivable state of facts

that could provide a rational basis for the classification.” FCC v. Beach Commc’ns,

Inc., 508 U.S. 307, 313-14 (1993) (citations omitted). Courts must give “a strong

presumption of validity” to state laws. Heller v. Doe, 509 U.S. 312, 319 (1993)

(citations omitted). Courts must be “very reluctant” to “closely scrutinize legislative

choices as to whether, how, and to what extent those interests should be pursued.”

United States v. Windsor, 133 S. Ct. 2675, 2717 (2013), quoting City of Cleburne

v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441-42 (1985). When a “rational basis”

passes equal protection review, it “also satisfies substantive due process analysis.” 

Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d 562, 569 (8th Cir. 2008).

The braiders argue that the license requirement is not rationally related to any

legitimate government interest. According to the State, its interests are protecting

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consumers and ensuring public health and safety. The State offered evidence of

health risks associated with braiding such as “hair loss, inflammation, and scalp

infection.” The State also presented evidence of scalp conditions that braiders must

recognize as unsuitable for braiding.

The district court added two purposes: stimulating more education on

African-style braiding and incentivizing braiders to offer more comprehensive hair

care. The braiders object that the district court cannot offer justifications. To the

contrary, courts are “not bound to consider only the stated purpose of a legislature.” 

Kansas City Taxi Cab Drivers Ass’n, LLC v. City of Kansas City, 742 F.3d 807, 809

(8th Cir. 2013). The braiders have the burden to negate not only the State’s

justification, but also “every conceivable basis which might support it.” FCC, 508

U.S. at 315 (internal quotations and citations omitted).

As the braiders acknowledge, the license requirement furthers legitimate

government interests in health and safety. See Barsky v. Bd. of Regents of U., 347

U.S. 442, 449 (1954) (as “a vital part of a state’s police power,” it may “establish and

enforce standards of conduct within its borders relative to the health of everyone

there,” including “the regulation of all professions concerned with health.”). In the

cases the braiders cite, the government did not have a legitimate interest. See

Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (restricting casket sales to

funeral directors—“protecting a discrete interest group from economic

competition”—“is not a legitimate governmental purpose”); St. Joseph Abbey v.

Castille, 712 F.3d 215, 222 (5th Cir. 2013) (same); Ranschburg v. Toan, 709 F.2d

1207, 1211 (8th Cir. 1983) (finding “intent to discriminate is not a legitimate state

interest”); Fowler v. United States, 633 F.2d 1258, 1263 (8th Cir. 1980) (“no rational

interest” “to summarily discharge without cause a mentally retarded worker, but not

a non-retarded worker who performs the same job”).

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The braiders argue that the State’s means do not fit its purposes. They

emphasize an exception allowing unlicensed braiding “without the use of potentially

harmful chemicals . . . while working in conjunction with any licensee for any public

amusement or entertainment venue.” See § 316.265 RSMo 2016. The braiders also

cite a legislative proposal by the licensing Board for a special barber/cosmetology

license for braiders.

The licensing requirement is rationally related to the State’s interest in public

health and safetynotwithstanding the licensing exception and the legislative proposal. 

The State is not required to “choose between attacking every aspect of a problem or

not attacking the problemat all.” United Hosp. v. Thompson, 383 F.3d 728, 733 (8th

Cir. 2004), quoting Dandridge v. Williams, 397 U.S. 471, 487 (1970). “[E]ven when

there is an imperfect fit between means and ends” courts are still compelled under

rational basis review “to accept a legislature’s generalizations.” Heller, 509 U.S. at

321. The fit need only be arguable and rational, with “some footing in the realities

of the subject addressed by the legislation.” Id. “The assumptions underlying these

rationales may be erroneous, but the very fact that they are arguable is sufficient.” 

FCC, 508 U.S. at 320 (internal quotations and citation omitted). “It is enough that

the State’s action be rationally based and free from invidious discrimination.”

Dandridge, 397 U.S. at 487. See also Schware v. Bd. of Bar Exam. of N.M., 353

U.S. 232, 239 (1957) (a state violates the Fourteenth Amendment when its “action is

invidiously discriminatory”). Here, the fit between the licensing requirement and the

State’s interest is imperfect, but not unconstitutionally so.

The braiders assert that the Missouri licensing regime is too overbroad and

under-inclusive to be rationally related to the State’s interest. They cite the State’s

concession that only about 10 percent of the required training courses is relevant to

African-style braiders, and that almost all the exams do not test on braiding. To the

contrary, the State “may exact a needless, wasteful requirement in many cases,” which

may “not be in every respect logically consistent with its aims” but still be

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“constitutional.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88

(1955). “It is enough” that the State identify “an evil at hand for correction” and

believe regulation “was a rational way to correct it.” Id. at 488. “A State can require

high standards of qualification” if it has “a rational connection with the applicant’s

fitness or capacity to practice.” Schware, 353 U.S. at 239. There may be advantages

and disadvantages to a license requirement, “[b]ut it is for the legislature, not the

courts, to balance” them. Williamson, 348 U.S. at 487.2

Finally, the braiders argue that the statutes violate equal protection by treating

different professionals—braiders and barbers/cosmetologists—similarly. The

premise of this argument is wrong. The braiders define their profession as “braiding,

locking, twisting, weaving, cornrowing, or otherwise physically manipulating hair

without the use of chemicals that alter the hair’s physical characteristics.” The

braiders’ definition isrational, but it is not the only rational way to define professions

that involve hair dressing and other similar services. And their definition falls

squarely within the scope of the definitions of barbering and cosmetology that the

Missouri legislature has chosen. Barbering is to “dress the hair for the general

public.” § 328.010(1) RSMo 2016. Cosmetology is “arranging, dressing . . . or

similar work upon the hair of any person.” § 329.010(5)(a) RSMo 2016. A

legislature rationally could conclude that African-style braiding is not a different

profession than barbering or cosmetology. “We see no constitutional reason why a

The braiders’ citations to Peeper v. Callaway Cty. Ambulance Dist., 122 F.3d

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619 (8th Cir. 1997) are not persuasive because it is a non-economic case about

restraints on First Amendment rights. See Kansas City Taxi, 742 F.3d at 810

(acknowledging non-economic cases are not persuasive in the local economic

sphere); Lee v. Driscoll, 871 F.3d 581, 585 (8th Cir. 2017) (interpreting Peeper as

addressing restrictions on the First Amendment right to associate).

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State may not treat all who deal with [dressing hair] as members of a profession.” See

Williamson, 348 U.S. at 490.3

The Missouri statutes do not violate the Fourteenth Amendment rights of the

African-style hair braiders.

* * * * * * *

The judgment is affirmed.

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The braiders rely on rulings by three district courts. Because these decisions

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do not appropriately defer to legislative choices, they are not persuasive. See

Brantley v. Kuntz, 98 F. Supp. 3d 884, 893 (W.D. Tex. 2015) (To “shoehorn two

unlike professions ‘into a single, identical mold’” violates substantive due process);

Clayton v. Steinagel, 885 F. Supp. 2d 1212, 1215 (D. Utah 2012) (finding a violation

of equal protection where State “irrationally squeezed ‘two professions into a single,

identical mold’”); Cornwell v. Hamilton, 80 F. Supp. 2d 1101, 1103 (S.D. Cal. 1999)

(same), questioned in part by Merrifield v. Lockyer, 547 F.3d 978, 985 (9th Cir.

2008) (district court’s reasoning in Cornwell “cannot survive equal protection

analysis”).

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