ISIS BRANTLEY and ISIS ORNAMENTATIONS AND NATURAL HAIR CARE CONSULTANT d/b/a The Institute of Ancestral Braiding, Plaintiffs,
WILLIAM H. KUNTZ, JR. in his official capacity as Executive Director of the Texas Department of Licensing and Regulation; MIKE ARISMENDEZ in his official capacity as Chair of the Texas Department of Licensing and Regulation; LUANN ROBERTS MORGAN in her official capacity as Vice-Chair of the Texas Department of Licensing and Regulation; and FRED N. MOSES, CATHERINE RODEWALD, DEBORAH YURCO, RAVI SHAH, and THOMAS F. BUTLER in their official capacities as members of the Texas Department of Licensing and Regulation, Defendants.
SAM SPARKS, District Judge.
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Defendants' Partial Motion to Dismiss [#3], Plaintiffs' Response [#5], and Defendants' Reply [#6]; and Plaintiffs' Motion for Leave to File Sur-reply [#7], and Defendants' Response [#8]. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders.
In this case, Plaintiffs Isis Brantley and her business, Isis Ornamentations and Natural Hair Care Consultant d/b/a The Institute for Ancestral Braiding, raise constitutional challenges to the State of Texas's regulation of hair braiders. Specifically, Brantley alleges Texas's barber instructor licensing scheme, spread across various statutory provisions and regulations,  is unconstitutional as applied and violative of (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) the Privileges or Immunities Clause of the Fourteenth Amendment. Defendants are individuals within the Texas Department of Licensing and Regulation, the state agency charged with overseeing businesses offering barbering services. Defendants now move to dismiss Brantley's privileges or immunities and equal protection claims.
A. Texas's Regulatory Scheme
Brantley's "African hair braiding" business is regulated by Texas statutes governing the barbering profession generally. The definition of "barbering" covers a variety of services, including hair cutting, shaving, nail treatments, and facial care. TEx. OCC. CODE § 1601.002. Brantley's hair braiding services fall within the portion of the definition directed at "braiding a person's hair, trimming hair extensions only as applicable to the braiding process, and attaching commercial hair only by braiding and without the use of chemicals or adhesives." Id. § 1601.002(1)(K). Thus, although Brantley's Complaint operates from the premise "[b]raiders are not barbers, " Texas law currently defines them as such. Compl. [#1] 2.
In Texas, barbers cannot practice their trade without a certificate, license, or permit. TEx. OCC. CODE § 1601.251(a) ("A person may not perform or offer or attempt to perform any act of barbering unless the person holds an appropriate certificate, license, or permit."). Individuals seeking to braid hair for pay may obtain a "Hair Braiding Speciality Certificate of Registration, " a credential which allows an individual to "perform only barbering as defined by Section 1601.002(1)(K)." Id. § 1601.259(a). In order to obtain such a certificate, a person must be at least seventeen years old and complete an approved training program. Id. § 1601.259(b). The training program consists of thirty-five hours of instruction across a range of topics, including technical skills, health and safety law and rules, and hair analysis and scalp care, with no final examination. 16 TEX. ADMIN. CODE §§ 82.20(h), 120(k).
Individuals who have obtained hair braiding certificates may continue their training and serve as hair braiding instructors, enabling them to teach courses satisfying the regulatory standards. The first teaching option is the Barber Instructor License. TEX. OCC. CODE § 1601.254. This license requires an individual to be a "Class A barber" and either complete a 750-hour course in a barber school or have one year of work experience as a licensed Class A barber and have completed alternative training focused on pedagogical methods (e.g., fifteen hours of collegiate education courses in education). Id. The second option is the Hair Braiding Specialty Instructor License. This license requires a valid specialty certificate and similar course work (or a combination of course work and work experience). 16 TEX. ADMIN. CODE §§ 82.20(m), 82.120(c).
B. Brantley's Hair Braiding Activities
Brantley owns and operates a sole proprietorship in Dallas, Texas. She holds a Hair Braiding Specialty Certificate, and is therefore authorized to braid hair for compensation. She does not hold either instructor license, and is not licensed as a Class A barber. Brantley has, in the past, provided hair braiding instruction at her business, and charged her students for the classes. However, because Brantley is not licensed as an instructor and because she does not operate a registered barber school,  her students cannot use her classes to satisfy their thirty-five hour course work requirement. Brantley has also taught as a "guest instructor" at the Texas Barber Institute, a registered barber school. There, she has taught courses satisfying the thirty-five hour hair braiding curriculum.
I. Motion to Dismiss-Rule 12(b)(6)-Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. Civ. P. 8(a)(2). A motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. Civ. P. 12(b)(6). The plaintiff must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at 678. Although a plaintiff's factual allegations need not establish that the defendant is probably liable, they must establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining plausibility is a "context-specific task, " and must be performed in light of a court's "judicial experience and common sense." Id. at 679.
In deciding a motion to dismiss under Rule 12(b)(6), a court generally accepts as true all factual allegations contained within the complaint. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, a court is not bound to accept legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not mere conclusory allegations." Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the complaint, as well as other sources such as ...