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May 2, 1997

JOANNE CORNWELL, et al., Plaintiffs,

The opinion of the court was delivered by: BREWSTER

 This matter came on regularly for hearing on defendants' motion to dismiss. Plaintiffs are represented by David Kleinfeld and Richard Segal of Pillsbury, Madison & Sutro LLP and by Clint Bolick and Donna Matias of the Institute for Justice. Defendants are represented by Kathleen Lam, Deputy Attorney General for the State of California. After careful consideration of the moving and opposing papers, the Court hereby GRANTS defendants' motion to dismiss as to plaintiff American Hairbraiders and Natural Hair Care Association (AHNHCA), and DENIES defendants' motion to dismiss as to plaintiff JoAnne Cornwell.

 I. Introduction

 Plaintiffs Dr. JoAnne Cornwell (Dr. Cornwell) and the American Hairbraiders and Natural Hair Care Association (AHNHCA) are suing two State of California agencies and various individuals alleging that California's licensing requirement for hairbraiders violates the due process, equal protection and privileges and immunities clauses of both the federal and California constitutions. The Court has jurisdiction over these claims under 42 U.S.C. § 1983, 28 U.S.C. §§ 1331, 1367.

 II. Background

 A. The Parties

 Plaintiff Dr. Cornwell is the owner of Sisterlocks, a sole proprietorship, which specializes in African hair styling. Plaintiff AHNHCA is a non-profit nationwide organization dedicated to protecting the rights of hairbraiders and natural hair stylists. Its members are individuals and salons engaged in the business of African hair styling and natural hair care. Complaint PP 5-6.

 Defendants Rosemary Faulkner, Daniel Seirras, Dianne Eastman, Joan Castle Joseff, Jeanette Keaton, Ronald Lind, Carole Matchette, Howard Stein and Philip Taylor are board members of defendant California Board of Barbering and Cosmetology (CBBC). Defendant Pamela Ramsey is the Executive Officer of defendant CBBC, and defendant Susan Harrigan is an Enforcement Officer for the CBBC. The CBBC is established and authorized by Cal. Bus. & Prof. Code §§ 7302 and 7312 to regulate the practice of barbering and cosmetology in the State of California, to issue licenses, to discipline persons who violate the Barbering and Cosmetology Act (Cal. Bus. & Prof. Code §§ 7301 et seq.), and to oversee inspections of barbering and cosmetology establishments. Plaintiffs are suing these defendants in their official capacities for enforcing the Barbering and Cosmetology Act. Complaint P 7.

 Defendant Department of Consumer Affairs (DCA) is established as a State and Consumer Services Agency by Cal. Bus. & Prof. Code § 100 to regulate various occupations. The DCA is responsible for establishing minimum qualifications and standards of competency, issuing licenses, and ensuring compliance with regulations authorized under the California Business and Professions Code. The CBBC acts under the authority and supervision of the DCA. Complaint P 8.

 Defendant Daniel E. Lungren is the Attorney General for the State of California. Pursuant to Cal. Bus. & Prof. Code § 321, the Attorney General has the authority to seek an injunction against any acts or practices in violation of any state law that the director of a regulatory agency finds may cause harm to consumers. Plaintiffs sue Lungren in his official capacity. Complaint P 10.

 B. The Barbering and Cosmetology Act

 Under the Barbering and Cosmetology Act, it is unlawful for a person to engage in barbering, cosmetology, or electrolysis for compensation without a valid license from the CBBC, to engage in barbering or cosmetology in an establishment that does not have a valid license, or to operate an establishment without a valid license. Cal. Bus. & Prof. Code § 7317. Cosmetology includes "arranging, dressing, curling, waving, machineless permanent waving, cleansing, cutting, shampooing, relaxing, singeing, bleaching, tinting, coloring, straightening, dyeing, brushing, applying hair tonics, beautifying, or otherwise treating by any means the hair of any person." Cal. Bus. & Prof. Code § 7316(b)(1).

 On May 16, 1982, the Attorney General issued an opinion that the practice of African hair braiding falls within the definition of "cosmetology" and requires a cosmetology license. 65 Op. Atty. Gen. 284 (May 6, 1982). In order to obtain a license, a person must take a licensing examination. Cal. Bus. & Prof. Code § 7321. In order to be qualified to take the examination, a person must have at least a tenth grade education and must have completed a course in an approved cosmetology school, completed an apprenticeship program, or have practiced cosmetology outside of the state for a requisite period of time. Cal. Bus. & Prof. Code § 7321. In its regulations, the CBBC requires cosmetology schools to provide 1,600 hours of technical instruction and practical operations in cosmetology techniques. Cal. Code Reg. § 950.2. These courses must provide instruction in a broad range of cosmetology techniques as well as bacteriology, anatomy, physiology, disinfection and sanitation. Plaintiff alleges that completing such a course takes at least nine months of full-time study and costs between $ 5,000 and $ 7,000.

 C. African Hair Styling

 African hair styling is distinct from the type of styling taught in cosmetology schools in that it rejects the application of harsh chemicals to the hair of African-Americans. These chemicals can cause long-term damage to the hair. Instead, African hair styling uses the natural texture of the hair to style the hair. Complaint PP 30-33. African hair styling involves physical manipulation of the hair and is labor intensive, often requiring between four and twelve hours to complete, including instruction in the proper maintenance of the hairstyle. Complaint P 34.

 Many African-American women choose to have their hair styled in African techniques as an expression of their cultural heritage. Complaint P 28.

 D. Facts Giving Rise to the Instant Action

 Plaintiff Dr. Cornwell founded Sisterlocks, a San Diego based company, to meet the natural hair care needs of women with textured hair. Complaint P 39. Dr. Cornwell both styles the hair of African-American women, and trains others in African hair styling. She runs a two-day training seminar and has trained approximately 75 people. Complaint P 40-44. Dr. Cornwell seeks to open her own salon, but she cannot do so unless she obtains a license from the CBBC. Complaint P 48. Dr. Cornwell is not a CBBC-licensed cosmetologist, and believes that the instruction she would receive at a CBBC-approved cosmetology school would be irrelevant to the techniques of African hair styling that she employs. Complaint P 49.

 Plaintiff AHNHCA is a nationwide trade association composed of individuals and salons engaging in various forms of hair braiding and African hair styling. Complaint P 53. One of AHNHCA's primary efforts is to "challenge the arbitrary and unreasonable application of state cosmetology and barbering licensing laws and regulations to individuals engaged in the art of African hair styling." Complaint P 55.

 Ali Rasheed and his salon, the Braderie, belong to AHNHCA. The Braderie is an African hairbraiding and weaving salon in San Diego. Rasheed owns the business with his wife and their business partner, Marguerite Sylva. Complaint P 60. Ms. Sylva is a Master Braider, certified by the National Braiders Guild, and a licensed cosmetologist. Complaint P 61. At the two Braderie salons, seven individuals, none of whom are licensed cosmetologists, perform braiding and weaving services for customers. Most of them, including Ms. Sylva, learned their craft in Africa. Complaint PP 64-65.

 On October 2, 1996, a CBBC inspector visited the Braderie in San Diego and issued a "Notice of Violation and Assessment of Fine" to the salon and to Ms. Sylva whose cosmetology license had expired. Ms. Sylva was cited for practicing cosmetology without a license and the Braderie was cited for "aiding and abetting unlicensed activity." Both Ms. Sylva and the Braderie were fined $ 100. Complaint PP 67-68. The Braderie was also charged with operating an establishment without a license and for braiding activity by unlicensed people. Complaint P 70. Ms. Sylva and the Braderie have appealed their citations and fines. Complaint P 71.

 Many of the braiders at the Braderie cannot afford to take a cosmetology course, and believe that such a course would not teach them anything relevant to African hair styling. Moreover, many of them emigrated from Africa and do not possess the tenth grade education required for eligibility to take the licensing examination. Complaint P 75.

 E. Plaintiffs' Complaint

 Plaintiffs' complaint asserts three main claims: (1) the Cosmetology and Barbering Act, as applied to African hair styling, violates plaintiffs' due process rights under the United States and California constitutions (claims 1 and 4); (2) the Barbering and Cosmetology Act, as applied to African hair styling, violates plaintiffs' equal protection rights under the U.S. and California constitutions (claims 2 and 5); and (3) the Barbering and Cosmetology Act, as applied to African hair styling, violates plaintiffs' rights under the privileges and immunities clauses of the U.S. and California constitutions (claims 3 and 6). Plaintiffs seek a declaratory judgment that the Barbering and Cosmetology Act is unconstitutional as applied to African hair styling, a permanent injunction against the enforcement of the statute and its attendant regulations, and attorney's fees and costs. Plaintiffs do not seek monetary damages.

 On March 27, 1997, the defendants filed motions to dismiss.

 III. Discussion

 A. Standard of Law

 A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims in the complaint. A claim can only be dismissed with prejudice if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). This court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court need not, however, accept every allegation in the complaint as true; rather, the court "will examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted).

 B. Whether Plaintiff's Claims Against the DCA are Barred by Eleventh Amendment Immunity

 The Eleventh Amendment does not preclude suits against state officers for prospective injunctive relief, even when the remedy will enjoin the implementation of an official state policy. Ex Parte Young, 209 U.S. 123, 161-62, 52 L. Ed. 714; 28 S. Ct. 441 (1908); Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985); Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir. 1989); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1173-75 (9th Cir. 1984). Defendants are correct that neither state agencies nor state officials acting in their official capacities are "persons" for purposes of a § 1983 suit seeking monetary damages. Will v. Michigan Department of State Police, 491 U.S. 58, 70-71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). State officials acting in their official capacity, however, are "persons" for the purposes of § 1983 when sued only for prospective injunctive relief.

Of course a state official acting in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because "official-capacity actions for prospective relief are not treated as actions against the State." Kentucky v. Graham, 473 U.S. at 167 n. 14; Ex Parte Young, 209 U.S. 123, 159-60, 52 L. Ed. 714; 28 S. Ct. 441 (1908). The distinction is "commonplace in sovereign immunity doctrine." L. Tribe, American Constitutional Law § 3-27, p. 190, n. 3 (2d ed. 1988), and would not have been foreign to the 19th-century Congress that enacted § 1983[.]

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