Waugh v. Nevada State Board of Cosmetology
Waugh v. Nevada State Board of Cosmetology
Opinion of the Court
Order Granting in Part and Denying in Part Plaintiffs’ Motion for Summary Judgment and Defendant’s Motion for Summary Judgment
(Dkt. Nos. 27, 29)
I. BACKGROUND
Plaintiffs Lissette Waugh and Wendy Robin seek to operate makeup artistry schools in Nevada without being licensed as cosmetology or aesthetics instructors, and without their facilities being licensed as cosmetology schools. The Nevada State Board of Cosmetology (the “Board”) contends that makeup artistry is a branch of cosmetology, and therefore may be taught only by licensed instructors at licensed schools of cosmetology. The Plaintiffs are not licensed cosmetology or aesthetics instructors and their schools are not licensed schools of cosmetology. The undisputed facts are as follows.
A. Lissette Waugh & L Makeup Institute
Waugh, a licensed aesthetician in Nevada, owns the L Makeup Institute (“LMI”) in Las Vegas, Nevada. In June 2010, Waugh opened LMI to exclusively teach makeup artistry.
In October 2010, in response to an anonymous complaint, the Board contacted Waugh and asked to meet with her at LMI to learn more about her business. Annie Curtis, the Board’s Chief Inspector, and Jeffrey Green, a Board inspector (collectively, the “Inspectors”), visited Waugh at LMI. The Inspectors told Waugh that the Board’s position was that she was teaching aesthetics without an instructor’s license and that LMI was an illegal unlicensed cosmetology school. They also told Waugh that she must stop holding her business out as a makeup artistry school. The Inspectors “made it clear” that the Board believed that LMI fell under the Board’s jurisdiction and that in order to advertise LMI as a makeup artistry school, Waugh would have to apply for a cosmetology school license and comply with all regulations governing cosmetology
In February 2011, Waugh presented her case to the Board. The Board informed her that the cosmetology licensing scheme applied to her and to her school, and that the only way she could get an exemption from the occupational licensing laws was through the state Legislature. Waugh continues operating LMI as a makeup artistry school, risking punishment under the cosmetology statute including a fine up to $2,000.
B. Wendy Robin & Studio W
Robin’s struggles with the Board parallel Waugh’s. Robin has been a licensed cosmetologist in Nevada since 2010. In December 2010, she opened Studio W in Henderson, Nevada to exclusively teach makeup artistry.
In February 2011, Inspector Green informed Robin that the Board had received an anonymous tip that she was illegally teaching makeup artistry. Shortly thereafter, Robin met with the Inspectors (Green and Curtis) at the Board’s office in Las Vegas. The Inspectors told Robin that she would have to either disable the Studio W website or completely change the website’s language. The Board objected to the website’s use of the words “classes” and “course” in the full context in which they were used.
Robin has since closed Studio W and now teaches makeup artistry on a freelance basis. However, she does not have an instructor’s license and faces a fine of up to $2,000 every time she teaches.
C. Facts Common to Both Plaintiffs
The parties agree on these common facts related to cosmetology and makeup artistry broadly, what the Board has demanded for compliance with the cosmetology statutes and regulations, and the Board’s present conduct with respect to Plaintiffs’ activities. Cosmetology includes a broad range of specialty occupations focusing on hair care, skincare, and nail care. Makeup artistry, on the other hand, is more limited; among other differences with cosmetology, makeup artistry does not include hair cutting, hair coloring, hair styling, or hair removal.
To comply with the Board’s interpretation of Nevada’s cosmetology licensing scheme, Waugh and Robin would have to obtain either a cosmetologist instructor license or an aesthetician instructor license. In addition, Waugh and Robin would have to convert their makeup artistry schools into schools of cosmetology. Cosmetology schools train students to work as hair stylists, skincare specialists (aestheticians), and manicurists by teaching them how to treat the hair, skin, and nails. Cosmetology schools provide some instruction in makeup application. But the mandatory curriculum for cosmetology and for aesthetics does not include instruction for applying makeup with an airbrush, for special effects makeup, or for applying makeup for high-definition film or television. The state examinations to become a licensed cosmetologist and licensed aesthetician test only the most basic makeup applica
The Board has closed its investigations of both schools because it believes LMI and Studio W came into compliance by not operating as schools — i.e., not accepting fees to teach makeup artistry. The Board has not taken any disciplinary action against Waugh or Robin. In June 2012, Plaintiffs filed suit against the Board under 42 U.S.C. § 1983, claiming violations of the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Privileges or Immunities Clause of the Fourteenth Amendment, and the Free Speech Clause of the First Amendment.
II. ANALYSIS
A. Legal Standard — Summary Judgment, Fed.R.Civ.P. 56
The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In determining summary judgment, courts apply a burden-shifting analysis. ‘When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontrovert-ed at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.”
If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish either that a genuine issue of material fact exists or that the moving party is not entitled to judgment as a matter of law.
At summary judgment, a court’s function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial.
Finally, “[a] trial court can only consider admissible evidence in ruling on a motion for summary judgment.”
Because there are no genuine disputes of material fact in this case, a conclusion to which both sides agree, I can order judgment as a matter of law.
B. Legal Standard — 42 U.S.C. § 1983
42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
, Section 1983 provides a mechanism for the private enforcement of substantive rights conferred by the U.S. Constitution and federal statutes.
Neither side raised the issue of Eleventh Amendment immunity in the moving papers. I will address it, nonetheless. For claims brought under § 1983, the Eleventh Amendment affords immunity to the State of Nevada and to agencies of the State, such as the Nevada State Board of Cosmetology.
Similarly, the Board asserted in its Answer that it is immune from suit under the Eleventh Amendment,
C. Article III Justiciability
The Board argues that Plaintiffs’ claims are not justiciable under Article III of the U.S. Constitution, which “requires that [federal courts] decide only ‘cases’ or
1. Standing
To have standing, a plaintiff must show “(1) a concrete injury; (2) fairly' traceable to the challenged action of the defendant; (8) that is likely to be redressed by a favorable decision.”
a. Injury-in-Fact
The injury must be actual or imminent, not conjectural or hypothetical.
When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and .there exists a credible threat of prosecution thereunder, he “should not be required to await and undergo a ... prosecution as the sole means of seeking relief.” ... But persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.41
Here, Plaintiffs do not just allege an intent to engage in prohibited conduct. They are presently doing so. Waugh continues to operate LMI without a license, and Robin occasionally teaches makeup artistry freelance. The Board agrees that they face penalties up to a $2,000- fíne for each instance of unlicensed instruction. That the Board is not presently investigating Plaintiffs and has no present intention to do so are of no moment. An anonymous complaint triggering an investigation could arrive at any time. The threat of a complaint is not just hypothetical, as the Board received complaints about both Plaintiffs within months of the opening of their respective makeup artistry schools. In an analogous case, the Ninth Circuit determined that a purportedly regulated party — the operator of a pest removal company — had standing “because he cannot engage in his trade unless he first satisfies the current licensing requirement or receives an exemption.”
b. Causation
Plaintiffs’ predicament stems directly from the Board’s investigation of their schools, the Board’s interpretation of state cosmetology laws and regulations, and the Investigators’ conclusions that the schools were operating illegally. The al
c. Redressability
“A plaintiff meets the redress-ability requirement if it is likely, although not certain, that his injury can be redressed by a favorable decision.”
Therefore, Plaintiffs have standing to bring their claims.
2. Ripeness
“The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.”
“Ripeness has both constitutional and prudential components.... The constitutional component of ripeness overlaps with the ‘injury in fact’ analysis for Article III standing.”
Courts weigh two considerations to evaluate the prudential component of ripeness: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”
In this case, the issues are entirely legal, and there is no need for further factual development. Indeed, the parties intend the cross-motions for summary judgment to resolve the claims as a matter of law. Withholding review would maintain a precarious status quo for Plaintiffs. They would continue operating under a pall of likely future enforcement actions. The Board is aware of the existence and nature of their ongoing operations. Although there is no “final” Board action being challenged, the Board has apparently communicated to Plaintiffs that it does not intend to modify its interpretation of the cosmetology statutes and regulations. The Board’s position is thus sufficiently “final” for ripeness purposes. Without review, Waugh’s school faces the constant threat of shutdown and Robin faces an uncertain professional existence as an “illegal” freelance instructor. Plaintiffs are in a bind: either expend considerable time and resources to meet the current licensing regime or face serious financial penalties. Plaintiffs’ claims are ripe.
3. Mootness
“Article III of the United States Constitution limits federal court jurisdiction to ‘actual, ongoing cases or controversies.’ ”
Plaintiffs’ claims are undoubtedly “live.” The conflict between Plaintiffs and the Board is ongoing. The Board’s current inaction against Plaintiffs does not preclude review. If it did, then the Board could simply halt an investigation whenever sued over its imposition of the cosmetology licensing scheme.
In summary, Plaintiffs satisfy the justi-ciability requirements of Article III.
D. Burford Abstention
Relying on the abstention doctrine which the Supreme Court established in
Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; or (2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.63
Yet, “[w]hile Bwrford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a potential for conflict with state regulatory law or policy.”
“[T]he power to dismiss under the Bwrford doctrine ... derives from the discretion historically enjoyed by courts of equity.”
Here, there exists some possibility of conflict with state regulatory policy, but that conflict would arise solely as a result of the regulatory scheme violating the federal constitution. Plaintiffs’ claims do not implicate any difficult questions of state law. The State of Nevada has a regulatory process to regulate cosmetology, but this case seems very unlikely to unduly interfere with that process. Plaintiffs do not mount a facial challenge to the entire regulatory scheme. Rather, this is a relatively narrow, as-applied challenge. Finally, while the State of Nevada has an interest in regulating the field of cosmetology for the public welfare, this case also seems unlikely to disrupt the State’s efforts to establish a coherent policy for doing so. In light of the Supreme Court’s instruction that Bwrford abstention is to be rarely invoked, I decline to invoke it.
I analyze the free speech issues first because their resolution determines the applicable standard of review — either rational basis or intermediate scrutiny.
1. Speech or Conduct?
The threshold issue is whether the Board purports to regulate conduct or speech, which in turn depends on whether teaching makeup artistry is expressive conduct (a form of speech, also called symbolic speech).
Under Texas v. Johnson, “[t]o constitute expressive conduct protected by the First Amendment, an act must be made with an ‘intent to convey a particularized message,’ and that message must be likely to ‘be understood by those who viewed it.’ ”
If Plaintiffs meet that burden, they will be subject to the State’s cosmetology scheme only if the scheme meets the intermediate scrutiny standard set forth by the Supreme Court in United States v. O’Brien
Plaintiffs rely on the Supreme Court’s decision in Holder v. Humanitarian Law Project (“HLP ”)
The Court rejected the Government’s proposition that the law regulated only conduct, and likewise rejected the plaintiffs’ argument that the teaching and training amounted to “pure political speech.” The Court framed the issue as “whether the Government may prohibit what plaintiffs want to do — provide material support to [FTOs] in the form of speech.”
The Court first addressed whether the plaintiffs’ desired activity was conduct or speech for purposes of First Amendment analysis. The Court held that “material support” can take the form of speech, although it usually does not, and that part of the plaintiffs’ desired support activities constituted speech.
Referring to the Cohen jacket-with-epithet, the Court in HLP reasoned that “this suit falls into the same category. The law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.”
In HLP, the Court implicitly performed a two-step analysis. First, it impliedly determined that the plaintiffs intended to communicate a particularized message' through their teaching and training that would likely be understood by the message’s viewers. Thus, the plaintiffs’ desired activities amounted to expressive conduct, implicating at least O’Brien’s intermediate scrutiny standard. Second, the Court determined that the criminal statute targeted the plaintiffs based on the content of their message:
Plaintiffs want to speak to the [FTOs], and whether they may do so under § 2339B depends on what they say. If*1008 plaintiffs’ speech to those groups imparts a “specific skill” or communicates advice derived from “specialized knowledge” — for example training on the use of international law or advice on petitioning the United Nations — then it is barred.... On the other hand, plaintiffs’ speech is not barred if it imparts only generalized or unspecialized knowledge.88
Therefore, the law was content-based and strict scrutiny applied.
This analytical process is instructive, but HLP does not supply the answer in this case that Plaintiffs assert it does. HLP did not hold that all teaching and training is expressive conduct.
Similarly, I do not read HLP to hold that the mere communication of a message converts conduct into protected speech. In the colloquial sense, all speech communicates a message, just as dictating a grocery list communicates what the person intends to purchase. But not all verbal communication is protected by the First Amendment, and not all conduct, even if verbal in part, communicates a particularized message likely to be understood by its viewers and listeners. “[I]t has never been deemed an abridgment of freedom of speech ... to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”
Moreover, the relevance of HLP to the instant case is questionable. In Pickup v. Brown — -the recent Ninth Circuit decision upholding a California law which prohibits licensed professionals from practicing sexual orientation change efforts (“SOCE”) on minors — the court distinguished HLP as “pertaining] to a different issue entirely: the regulation of (1) political speech (2) by ordinary citizens.”
Examples of expressive conduct include (i) overnight camping in connection with a demonstration;
On the other hand, courts have held that the act of tattooing is non-expressive,
[n]umerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, ... corporate proxy statements, ... the exchange of price and production information among competitors, ... and employers’ threats of retaliation for the labor activities of employees.105
In NAAP, a membership association of professional psychoanalysts argued, among other things, that the State’s application of psychology licensing laws to psychoanalysts violated its members’ First Amendment right to free speech.
The Ninth Circuit continued this line of reasoning in Pickup, holding that performing SOCE on minors is conduct “that is not inherently expressive.”
So, because teaching is not expressive conduct per se, the relevant question in this case is whether Plaintiffs have carried their burden as to whether they intend to communicate a particularized message through the teaching of makeup artistry that is likely to be understood by their students and by other viewers. The answer is no.
At oral argument, Plaintiffs confirmed that they are very passionate about teaching makeup artistry. The particularized message about which they are passionate is unclear, however. Plaiptiffs’ moving papers focus on the legal arguments that teaching is protected speech under the First Amendment and that the instructor licensing requirement is content-based.
I hold that teaching makeup artistry is. non-expressive conduct. Plaintiffs define makeup artistry as “the professional application of stylized makeup for film, television, print photography, and advertising.”
In addition, teaching makeup artistry is distinguishable from two recent cases which held that giving guided city tours contains speech components. In Edwards v. District of Columbia^ the United States District Court for the District of Columbia analyzed whether a licensing scheme for sightseeing tour guides violated the free speech rights of the tom’ guides.
Plaintiffs also argue that teaching is “pure speech” under the First Amendment, and that academic freedom is of special concern under the First Amendment. Plaintiffs’ academic freedom argument is irrelevant, however, because teaching makeup artistry is non-expressive conduct. In addition, the cases Plaintiffs cite are largely inapposite. Several deal with government interference with academics during the Cold War for political purposes,
2. Commercial Speech
Even if teaching makeup artistry constitutes protected speech, it would not be commercial speech. “Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression.”
The teaching of makeup artistry itself is not an advertisement, nor does it propose a commercial transaction. The students have already agreed to attend Plaintiffs’ schools by the time the teaching
3. Content-Based or Content-Neutral?
Even if teaching makeup artistry constitutes protected speech, the restrictions at issue are not content-based. Content-based restrictions on speech are presumptively invalid and must meet strict scrutiny.
The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.... The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.... Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.138
“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.”
Plaintiffs contend that the Board’s instructor licensing requirement is content-based because “[i]f plaintiffs taught any other subject — math, art, photography, [etc.] — the government would not require Plaintiffs to first obtain a license.”
First, Plaintiffs’ argument is overly broad in that it ignores the fact that licenses are properly required for many professions outside of teaching cosmetology, including primary school teaching.
F. Fourteenth Amendment — Substantive Due Process
1. Legal Standard
The substantive component of the Due Process Clause forbids the government from depriving a person of life, liberty, or property in such a way that ... interferes with rights implicit in the concept of ordered liberty.... A threshold requirement to a substantive ... due process claim is the plaintiffs showing of a liberty or property interest protected by the Constitution.146 Individuals have a “liberty interest in. pursuing an oceupation of [their] choice.”147 “[A] plaintiff can make out a substantive due process claim if she is unable to pursue an occupation and this inability is caused by government actions that were arbitrary and lacking a rational basis.”148
“Under rational basis review, a statute will pass constitutional muster if it is ‘rationally related to a legitimate state interest.’ ”
I cannot “overturn a statute on the basis that no empirical evidence supports the assumptions underlying the legislative choice.”
The existence of facts supporting the legislative judgment is to be presumed, unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.155
I am “obliged to consider every plausible legitimate state interest that might support the [statutory scheme for cosmetology, as applied to makeup artistry instruction] — not just the .'.. interests] forwarded by the parties.”
“ ‘A State can require high standards of qualification, such as good moral character or proficiency ... before it admits an applicant ..., but any qualification must have a rational connection with the applicant’s fitness or capacity to practice [the profession].’ ”
2. The Cosmetology Licensing Scheme
Plaintiffs challenge the requirements that (a) their schools comply with the statutes and regulations for “schools of cosmetology,” and (b) they be licensed instructors. Although the requirements overlap to some degree, I take each in turn,
a. Schools of Cosmetology
Under the cosmetology statute, “[a]ny person desiring to conduct a school of cosmetology in which any one or any combination of the occupations of cosmetology are taught must apply to the Board for a license....”
The first question here is whether makeup artistry falls within one of the seven enumerated occupations of cosmetology. It does, as both cosmetologists and aestheticians are defined, in part, to include the practice of applying cosmetics.
The cosmetology statute does not define the term “cosmetic,” but the regulations refer to the federal Food and Drug Administration’s (the “FDA”) determinations for cosmetic products that contain hazardous substances.
The term “cosmetic” means (1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance; and (2) articles intended for use as a component of any such articles; except that term shall not include soap.166
Makeup artists’ essential task is applying cosmetics, as there can be little doubt that they rub, pour, sprinkle, and spray articles (make-up) onto the human body (generally, the face) to beautify, promote attractiveness, and alter the recipient’s appearance. By defining both cosmetologists and aestheticians as persons who “apply[ ] cosmetics ... to any person,” the Nevada Legislature apparently intended to subject makeup artists to the Board’s jurisdiction.
Makeup artistry thus fits within two occupations of cosmetology: cosmetologist and aesthetician. Consequently; a school that teaches makeup artistry must be licensed by the Board and must comply with the requirements that apply to schools of cosmetology.
Plaintiffs contend, however, that “makeup artistry and cosmetology are fundamentally different occupations.”
At oral argument, Plaintiffs admitted that their definition of makeup artistry intends to match the statutory exceptions that allow cosmetologists in certain limited circumstances to practice without a license. A license is not required if cosmetological services are “rendered in connection with
[a] person employed to render cosmeto-logical services in the course of and incidental to the production of a motion picture, television program, commercial or advertisement is exempt from the licensing requirements of this chapter if he or she renders cosmetological services only to persons who will wear in that motion picture, television program, commercial or advertisement.174
Also, retail cosmetic demonstrators are exempt if the demonstration is without charge and “the retailer does not advertise or provide a cosmetological service except cosmetics and fragrances.”
Plaintiffs rely on these exceptions and on Plaintiffs’ narrow definition of makeup artistry to contend that practicing makeup artists are wholly exempt.from the State’s cosmetology licensing scheme. However, Plaintiffs’ own explanations of the work they and their students perform indicate that Plaintiffs’ proffered definition of “makeup artist” does not so neatly match the scope of the exceptions. Waugh and Robin .both explain that makeup artists may work in retail and in fashion, preparing models for the runway.
Moreover, even if Plaintiffs taught only those skills that matched precisely with the statutory licensing exceptions, makeup artistry would still fall within the occupations of cosmetologist and aesthetician. The exceptions do not alter the scope of work of cosmetologists or aestheticians. For example, the exceptions do not state that applying cosmetics on a stage actor is within the occupation of aesthetician while applying cosmetics to a television actor is without. The exceptions provide scenarios in which a license is not required to provide cosmetological services; the exceptions do not alter the definition of those services or the definition of the occupations that provide the services. Regardless of when a cosmetologist needs a license to practice her services, the occupation of cosmetologist includes the application of cosmetics. The same is true for aestheticians.
In sum, makeup artistry falls within the occupations of cosmetologist and aestheti-cian, and therefore may be taught only at a school of cosmetology. This is not to say that the Legislature was wise in structuring cosmetology and aesthetics to encompass makeup artistry, but the statutory scheme nonetheless imposes certain requirements on makeup artistry schools as
b. Legitimate State Interests
Plaintiffs challenge the legitimacy of the State’s purported health and safety interest, as applied to makeup artistry instructors, by pointing out the gaping exceptions that allow practice without a license. If the State believes it is safe to apply makeup on television and film sets, and on advertising and photography shoots, then the State cannot now point to the dangers of teaching people to apply makeup in those same contexts. However, the State need not regulate on an all-or-nothing basis; it can choose which “evils” to regulate.
Moreover, teaching makeup artistry and practicing makeup artistry&emdash;even in exempt circumstances&emdash;are sufficiently different that the Legislature could have reasonably chosen to regulate one and not the other. Practicing makeup artistry in exempt areas involves applying makeup to professionals who are generally accustomed to being made up. Teaching makeup artistry involves applying (and teaching) makeup to novices and to the general public. More to the point, teaching makeup artistry also involves the act of teaching, which practicing does not. The health and safety concerns of teaching may be different than the health and safety concerns of practicing, and that decision is the Legislature’s to make.
Furthermore, the Legislature indicated its belief that at least some aspects of teaching cosmetology present risks of disease transmission. The statute grants the Board power to promulgate “regulations governing sanitary conditions as it deems necessary with particular reference to the precautions to be employed to prevent the creating or spreading of infectious or contagious diseases ... in schools of cosmetology,” and these regulations cannot be adopted until they are approved by the State Board of Health.
That the Board has failed to provide any empirical evidence to support the Legislature’s apparent bélief that disease creation and transmission can occur in schools of cosmetology is of no import. The eviden-tiary burden is not on the Board under rational basis review.
Even though the massive exceptions for many (but not all) practicing makeup artists undercut the State’s asserted health and safety interest, the State nonetheless retains legitimate interests in consumer protection and in the health and safety of makeup artistry instructors, students, and the public who receive services at makeup artistry schools.
c. Rational Relationship to the State’s Interests
The dispositive question, then, is whether the requirements for schools of cosmetology, and for licensed instructors at schools of cosmetology, are rationally related to the State’s legitimate interests. Plaintiffs contend the entire regulatory scheme, as applied to them, is irrational. On the present record, I disagree. For example, the regulations provide detailed guidelines on how various forms of creams, lotions, cosmetics, and powders must be stored and applied.
However, because some of Plaintiffs’ particular grievances have merit, I will address each specifically. Plaintiffs contend that the requirements for schools of cosmetology, as applied to makeup artistry, are irrational because (i) the mandatory cosmetology and aesthetics curricula are overbroad, as they require instruction on tasks that makeup artists do not perform; (ii) the mandatory curricula is un-derinclusive, as they include makeup instruction only in the most basic sense; (iii) the mandatory curricula expose instructors and students to dangers they would not otherwise face in the course of teaching makeup artistry — namely, sharp instruments and various chemicals; (iv) the mandated equipment is excessive, as hair and nail care equipment is entirely unnecessary to teach makeup artistry; and (v) cosmetologist and aesthetician licensing exams only superficially test basic makeup application.
Plaintiffs argue next that the mandatory curriculum to become a licensed cosmetology instructor is irrelevant to teaching makeup artistry because (i) the 500 to
i. Requirements for Schools of Cosmetology
In pertinent part, the statute requires that a school of cosmetology must:
(1) “[c]ontain[] at least 5,000 square feet of floor space and adequate equipment”;191
(2) “[m]eet[] all requirements established by regulations of the Board”;192
(3) “maintain a staff of at least two licensed instructors and one additional instructor for each 25 enrolled students, or major portion thereof, over 50 students.... Persons instructing pursuant to provisional licenses [under] NRS § 644.193 are considered instructors for the purposes of this section.”;193
(4) “at all times be under the immediate supervision of a licensed instructor who has had practical experience of at least 1 year in the majority of the branches of cosmetology in an established place of business”;194
(5) “maintain a course of practical training and technical instruction equal to the requirements for examination for a license as a cosmetologist ”;195
(6) “[m]aintain apparatus and equipment sufficient to teach all the subjects of its curriculum”;196
Of these requirements, only the fourth, fifth and a portion of the first may possibly not be rationally related to the State’s legitimate interests in health and safety and consumer protection. There is no reason to believe that 5,000 square feet is an irrational minimum size for a makeup artistry school; requiring two instructors (and one more for each 25 students) is a rational, minimal step to promote adequate contact between teachers and students and student oversight; and the remainder of the first, second, third, and sixth requirements give sufficient discretion to school operators to run their facilities as they see fit.
I begin with the analysis of the fifth requirement — that makeup artistry schools must “maintain ... training and ... instruction equal to the requirements for examination for a license as a cosmetologist.”
The statute provides permissive guidelines for the cosmetologist exam:
Examinations for licensure as a cosmetologist may include:
1. Practical demonstrations in shampooing the hair, hairdressing, styling of*1021 hair, finger waving, coloring of hair, nail technology, cosmetics, thermal curling, marcelling, facial massage, massage of the scalp with the hands, and cutting, trimming or shaping hair;
2. Written or oral tests on:
(a) Antisepsis, sterilization and sanitation;
(b) The use of mechanical apparatus and electricity as applicable to the practice of a cosmetologist; and
(c) The laws of Nevada and the regu- ■ lations of the Board relating to the practice of cosmetology; and
3. Such other demonstrations and tests as the. Board may require.198
Only paragraph 2.(a) — testing on “[a]nti-sepsis, sterilization and sanitation” — bears any direct relationship to practicing makeup artistry.
The regulations that flesh out the statute include more detailed examination and curricular requirements for cosmetology:
An examination for licensure as a cosmetologist will include, but is not limited to, a test on:
1. Infection control and safety;
2. The provisions of this chapter and chapter 644 of NRS;
3. Chemical treatments;
4. Haircutting;
5. Arching of the eyebrow;
6. Hot work;
7. Shampoo; and
8. Manicure, pedicure, and wrapping and extending fingernails.199
Similar to the statutory guidelines, these requirements include only one element that is directly relevant to makeup artistry: infection control and safety. To prepare for this exam, makeup artistry students would need to learn many tasks that they would not perform in practice. And only one out of eight exam topics — infection control and safety — is rationally related to the State’s health and safety interest.
The detailed curriculum for cosmetologists demonstrates the same points:
Each school of cosmetology must offer the following subjects for training barbers and students to be cosmetologists:
(a) Blow-drying.
(b) Dispensary.
(c) Extensions and wrapping of nails.
(d) Facials, arching, skin and makeup.
(e) Finger waving.
(f) Hair coloring.
(g) Haircutting.
(h) Manicuring.
(i) Miscellaneous practical and technical instruction, including, without limitation, field trips relating to the practice of cosmetology.
(j) Modeling.
(k) The provisions of this chapter and chapter 644 of NRS.
(l) Pedicuring.
(m) Permanent waving and chemical straightening.
(n) Reception desk training.
(o) Salon management.
(p) Scalp treatments.
(q) Shampooing and rinses.
*1022 (r) Skipwaving.
• (s) Theory, with a minimum of 50 hours mandatory for students who are barbers and 250 hours mandatory for all other students.
(t) Thermal straightening, curling and marcelling.
(u) Wet hairdressing.
(v) Wigs and hairpieces.201
Of these subjects, only one may be rationally related to the health and safety concerns of makeup artists: learning the provisions of the cosmetology statute and regulations. Yet this is a fairly indirect relationship which teaches sanitation by requiring students to become generally familiar with the statute and regulations. There is no reason why makeup artistry instructors should be compelled to teach— and makeup artistry students should be compelled to learn — this laundry list of subjects that are, save one, wholly unrelated to makeup artistry.
As to equipment, the statute’s language is acceptable, as it requires only “adequate equipment.”
Each school must have the following working equipment:
1. Ten shampoo bowls that are. located so that all 10 bowls may be in use at the same time.
2. Ten hair dryers, each of which must be equipped with a chair and a device that releases air on the client’s hair....
3. Two facial chairs.
4. Ten manicure tables or bars, and stools.
5. Adequate wet and dry disinfectants that are registered with the Environmental Protection Agency.
6. Hot work equipment consisting of:
(a) Five electric heaters.
(b) Combs, as follows:
(1) Fine-teeth combs;
(2) Coarse-teeth combs;
(3) Five electric pressing combs;
(4) One shampoo comb per student;
*1023 (5) Hard rubber combs; and
(6) Styling combs.
(c) Curling irons, as follows:
(1) Twenty marcelling irons with revolving handles; and
(2) One electric curling iron per student.
(d) Oils and conditioners consisting of:
(1) Pressing oils;
(2) Scalp conditioners;
(3) Hair conditioners for pressed hair made without a soap base, such as petroleum jelly;
(4) Curling creams made with was or other acceptable oils; and
(5) Products for cleaning curling irons.
7. Ten dozen cold-wave rods of assorted sizes.
8. One covered container for hairpins, clips, nets and similar items for each student.
9.- Five brushes, furnishéd by the school, for each student.
10. Closed waste containers of sufficient size and in sufficient quantity to permit the disposal of all refuse and waste matter by the school and its students.
11. One block, weft or mannequin on a firm stand for each beginning student.
12. One time clock which punches the date and time on time cards, or a computer or any other device approved by the Board, for use by the students to record their hours of training at the school.
13. Two shampoo capes for each student.
14. One chair for each student, or a sufficient number of tables and chairs for all of the students, in classes on theory.
15. Mirrors, worktables and styling chairs of sufficient number to accommodate the students enrolled.
16. At least one textbook per student and adequate reference material, charts, teaching aids and other materials to support the instruction in the school.
17. Adequate and safe electrical outlets.206
Far less than half of these items are rationally related to makeup artistry instruction: item numbers five, ten, eleven, twelve, fourteen, fifteen, sixteen and seventeen (in italics above). The remaining items appear to relate only to hair care, nail care, and giving facials. The health and safety of those involved in makeup artistry instruction is not dependent on providing physical equipment whose only purpose is to provide instruction for non-makeup branches of cosmetology. Therefore, NAC § 644.085(l)-(4), (6)-(9), and (13) are unconstitutional as applied to makeup artistry schools.
The regulations also mandate “[m]ini-mum requirements for space and accommodations,” all of which survive a rational basis analysis: 5,000 square feet of floor space, “properly equipped lecture rooms of sufficient size to accommodate all students,” and separate lockers for each student.
ii. Requirements for Licensed Instructors
The fourth requirement under NRS Chapter 644 listed above for makeup artistry schools mandates that such schools “be under the immediate supervision of a licensed instructor who has had practical experience of at least 1 year in
A cosmetologist engages in the practices of:
(a) Cleansing, stimulating or massaging the scalp or cleansing or beautifying the hair by the use of cosmetic preparations, antiseptics, tonics, lotions or creams.
(b) Cutting, trimming or shaping the hair.
(c) Arranging, dressing, curling, waving, cleansing, singeing, bleaching, tinting, coloring or straightening the hair of any person with the hands, mechanical or electrical apparatus or appliances, or by other means, or similar work incident to or necessary for the proper carrying on of the practice or occupation provided by the terms of this chapter.
(d) Removing superfluous hair from the surface of the body of any person by the use of electrolysis where the growth is a blemish, or by the use of depilatories, waxing, tweezers or sugaring, except for the permanent removal of hair with needles.
(e) Manicuring the nails of any person.
(f) Beautifying, massaging, stimulating or cleansing the skin of the human body by the use of cosmetic preparations, antiseptics, tonics, lotions, creams or any device, electrical or otherwise, for the care of the skin.
(g)Giving facials or skin care or applying cosmetics or eyelashes to any person.210
As can be readily seen, the vast majority of cosmetologists’ competencies have nothing to do with makeup artistry, let alone makeup application of any sort. Only “applying cosmetics or eyelashes to any person” relates to the practice of makeup artistry.
This is not to say that instructors at makeup artistry schools may be unlicensed, or that they need not have any occupational license at all to become an instructor, or even that the State may not require any practical experience to become an instructor.
However, as discussed above, there is sufficient overlap between the practices of aesthetics and makeup artistry such that requiring the mandatory supervisor/instructor under NRS § 644.400(1) to be a licensed instructor of aestheticians could pass constitutional muster. Such a requirement would further the State’s legitimate interests in promoting health and safety and in assuring that makeup artistry instructors obtain some minimal level of competency as teachers.
G. Fourteenth Amendment — Equal Protection
1. Treating Like Groups Differently
Plaintiffs contend that treating practicing makeup artists differently than makeup artistry instructors — by requiring instructors to obtain licenses and allowing practitioners to proceed without — violates the Equal Protection Clause. Because Plaintiffs are not in a protected class, rational basis applies.
2. Treating Different Groups Alike
Merrifield indicates that treating different groups alike, as Plaintiffs argue the Board did, is not appropriately framed as an equal protection claim but rather a due process claim.
Based on the foregoing, Plaintiffs’ Fourteenth Amendment Equal Protection claims lack merit.
H. Fourteenth Amendment — Privileges or Immunities Clause
As Plaintiffs concede, I am constrained by the Supreme Court’s interpretation of the Privileges or Immunities Clause in the Slaughter-House Cases.
In accord with the above, I hereby ORDER:
1. Plaintiffs’ motion for summary judgment (Dkt. No. 27) is GRANTED IN PART and DENIED IN PART. Summary judgment is granted in Plaintiffs’ favor on their claims under the Due Process Clause of the Fourteenth Amendment.
NRS § 644.400(2)(a)’s requirement that schools of cosmetology must prepare students for the cosmetologist license examination is unconstitutional as applied to makeup artistry schools; makeup artistry schools are not required to prepare students for the cosmetologist license examination. NAC § 644.085(l)-(4), (6)-(9), and (13) are unconstitutional as applied to makeup artistry schools; makeup artistry schools are not required to provide the equipment mandated by these subsections.
NRS § 644.400(1) is unconstitutional as applied to makeup artistry schools in one limited respect — the mandatory supervisor/instructor need not have “practical experience of at least 1 year in the practice of a majority of the branches of cosmetology in an established place of business” (that is, be a licensed cosmetologist).
All other aspects of the cosmetology statutes and regulations remain enforceable against Plaintiffs.
2. The Board, its agents, and its employees are enjoined from enforcing against Plaintiffs the aforementioned unconstitutional portions of NRS §§ 644.400(2)(a) and 644.400(1), and NAC § 644.085(l)-(4), (6)-(9), and (13).
3. The Board’s motion for summary judgment (Dkt. No. 29) is GRANTED IN PART and DENIED IN PART. Summary judgment is granted in the Board’s favor on Plaintiffs’ claims under the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.
4.The Clerk of Court shall enter judgment accordingly. Dated this 6th day of August, 2014.
. (Compl. ¶ 78; Am. Answer ¶ 78.)
. (Compl. ¶ 84; Am. Answer ¶ 84.)
. (CompL, Dkt. No. 1.)
. (Dkt. Nos. 27, 29.)
. Fed.R.Civ.P. 56(a).
. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. See id.
. Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).
. See Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548.
. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).
. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
. Id. at 255, 106 S.Ct. 2505.
. See id. at 249-50, 106 S.Ct. 2505.
. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
. Id. (internal quotation marks and citation omitted).
. Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)).
. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66-67, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967-68 (9th Cir. 2010).
. Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1082 (D.Haw. 2012) (citing ITSI T.V. Prods., Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993)).
. Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1021 (9th Cir. 2010) (internal quotation marks and citation omitted).
. Id. at 1022.
. Id.
. (Dkt. No. 12 at 12.)
. See Johnson, 623 F.3d at 1022.
. Cf. 995 Fifth Ave. Assocs., L.P. v. N.Y. State Dep’t of Taxation & Fin., 963 F.2d 503 (2d Cir. 1992) (affirming in part bankruptcy court’s affirmative injunction against the State of New York to refund certain tax payments).
. Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir. 1999); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
. Lujan, 504 U.S. at 560, 112 S.Ct. 2130.
. Culinary Workers Union, 200 F.3d at 617.
. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
. Id. at 560, 112 S.Ct. 2130.
. Id.
. Babbitt v. United Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).
. Id.
. Id.
. See Merrifield v. Lockyer, 547 F.3d 978, 980 n. 1 (9th Cir. 2008).
. Wolfson v. Brammer, 616 F.3d 1045, 1056 (9th Cir. 2010).
. Id. (quoting Lujan, 504 U.S. at 561-62, 112 S.Ct. 2130).
. Id.
. Nat'l Park Hospitality Ass’n v. Dep't of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal quotation marks omitted).
. Wolfson, 616 F.3d at 1057 (quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)).
. Id. (internal quotation marks and citation omitted).
. Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).
. Id. at 1058.
. Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507.
. Wolfson, 616 F.3d at 1060 (internal quotation marks and citation omitted).
. Id. (internal quotation marks and citation omitted).
. Id. (internal quotation marks and citation omitted).
. See id.
. Wolfson, 616 F.3d at 1053 (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)) (emphasis added).
. N.C. v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam) (internal quotation marks and citations omitted).
. Wolfson, 616 F.3d at 1053.
. See id. at 1053-54 (actions “capable of repetition, yet evading review” are excepted from the mootness doctrine).
. See id. at 1054.
. 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943).
. (Def.'s Mot. Summ. J. 11-12.)
. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (internal quotation marks and citation omitted).
. Id. at 362, 109 S.Ct. 2506 (internal quotation marks and citation omitted).
. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996).
. Id. (internal quotation marks and citation omitted). "
. Id. (quoting Burford, 319 U.S. at 334, 63 S.Ct. 1098).
. Id. (internal quotation marks and citation omitted).
. See id.
. See Pickup v. Brown, 740 F.3d 1208, 1225 (9th Cir. 2014); Nat'l Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology (uNAAP”), 228 F.3d 1043, 1053-54 (9th Cir. 2000).
. R.A.V. v. City of St. Paul, 505 U.S. 377, 389, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).
. Pickup, 740 F.3d at 1225 (quoting Rumsfeld v. Forum' for Academic & Institutional Rights, Inc. ("FAIR II"), 547 U.S. 47, 62, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006)).
. Edwards v. Dist. of Columbia, 943 F.Supp.2d 109, 118 (D.D.C. 2013) (quoting Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)), rev’d on other grounds, 755 F.3d 996 (D.C.Cir. 2014).
. Spence v. Wash., 418 U.S. 405, 411, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974).
. Clark, 468 U.S. at 293 n. 5, 104 S.Ct. 3065 (emphasis added).
. 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
. Id.
. McCullen v. Coakley, - U.S. -, 134 S.Ct. 2518, 2530, 189 L.Ed.2d 502 (2014).
. 561 U.S. 1, 130 S.Ct. 2705, 2723-24, 177 L.Ed.2d 355 (2010).
. Id. at 2722-23.
. Id. at 2716.
. Id. at 2724.
. Id. at 2723.
. Humanitarian Law Project, 130 S.Ct. at 2724.
. Id.
. Id. at 2723-24.
. See id. at 2724.
. Id.
. Id.
. See id. at 2729.
. See id. at 2723-24.
. Tenn. Secondary Sch. Athletic Ass’n v. Brentwood Acad., 551 U.S. 291, 297, 127 S.Ct. 2489, 168 L.Ed.2d 166 (2007) (internal quotation marks and citation omitted).
. NAAP, 228 F.3d at 1054 (quoting City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989)).
. FAIR II, 547 U.S. at 66, 126 S.Ct. 1297.
. Pickup, 740 F.3d at 1220 (quoting Nev. Comm’n on Ethics v. Corrigan, - U.S. -, 131 S.Ct. 2343, 2350, 180 L.Ed.2d 150 (2011)).
. Id. at 1230.
. See id.; FAIR II, 547 U.S. at 65-66, 126 S.Ct. 1297.
. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).
. Johnson, 491 U.S. at 405-06, 109 S.Ct. 2533.
. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
. Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966).
. 16A Am.Jur. 2d Constitutional Law § 528 (2d ed. 2014).
. Hold Fast Tattoo, LLC v. City of N. Chicago, 580 F.Supp.2d 656, 660 (N.D.Ill. 2008).
. Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004).
. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).
. 228 F.3d 1043.
. See id. at 1054-55.
. Id. (internal quotation marks and citation omitted).
. Id. at 1056.
. Id.
. Pickup, 740 F.3d at 1230.
. Id.
. Id. at 1231 (emphasis in original).
. Id.
. (See Pis.’Mot. Summ. J. 26-30.)
. 547 U.S. at 52, 126 S.Ct. 1297.
. (Pis.'Mot. Summ. J. 6.)
. See Hold Fast Tattoo, 580 F.Supp.2d at 660.
. Id. at 118.
. Id.
. Id.
. See Edwards, 755 F.3d at 1001-02, 2014 WL 2895938 at *3 (applying the O'Brien intermediate scrutiny test).
. See Kagan v. City of New Orleans, 957 F.Supp.2d 774 (E.D.La. 2013), aff'd, 753 F.3d 560 (5th Cir. 2014).
. Keyishian v. Bd. of Regents of Univ. of State of N. Y., 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Barenblatt v. U.S., 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957).
. Goulart v. Meadows, 345 F.3d 239, 248 (4th Cir. 2003); Universal City Studios, Inc. v. Corley, 273 F.3d 429, 446 (2d Cir. 2001).
. Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Village Sch. Dist., 624 F.3d 332, 343-44 (6th Cir. 2010) (quoting J. Peter Byrne, Academic Freedom: A "Special Con
. Pickup, 740 F.3d at 1231.
. Locke v. Shore, 634 F.3d 1185, 1191 (11th Cir. 2011) (quoting Accountant’s Soc. of Va. v. Bowman, 860 F.2d 602, 604 (4th Cir. 1988)).
. Lowe v. SEC, 472 U.S. 181, 232, 105 S.Ct. 2557, 86 L.Ed.2d 130 (1985) (White, J., concurring).
. Pickup, 740 F.3d at 1231.
. Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (internal quotation marks and alterations omitted).
. 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); see Charles v. City of Los Angeles, 697 F.3d 1146, 1151 (9th Cir. 2012).
. Hunt v. City of Los Angeles, 638 F.3d 703, 715 (9th Cir. 2011).
. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).
. N.Y. State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 409, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973); see Higdon v. U.S., 627 F.2d 893, 899-900 (9th Cir. 1980).
. Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 358, 129 S.Ct. 1093, 172 L.Ed.2d 770 (2009).
. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (internal quotation marks and citations omitted) (emphasis in original).
. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).
. A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006).
. (Pis.’ Mot. Summ. J. 29.)
. See, e.g., NRS § 391.031 (licenses for teachers and educational personnel).
. See Kagan, 957 F.Supp.2d at 784.
. See Edwards, 943 F.Supp.2d at 120.
. Plaintiffs argue that the Supreme Court recently "clarified the standard for determining whether a regulation of speech is content based” in McCullen v. Coakley, 134 S.Ct. 2518. (Dkt. No. 44 at 1-2.) I disagree, as the Court still relied upon the standard enunciated in Ward. 134 S.Ct. at 2531.
. Engquist v. Or. Dep't of Agric., 478 F.3d 985, 996-97 (9th Cir. 2007), aff'd, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (internal quotation marks and citations omitted).
. Id. at 997.
. Id.
. Merrifield, 547 F.3d at 984 n. 9 (quoting City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976)).
. Armour v. City of Indianapolis, Ind., - U.S. -, 132 S.Ct. 2073, 2080-81, 182 L.Ed.2d 998 (2012) (internal quotation marks and citation omitted).
. Craigmiles v. Giles, 312 F.3d 220, 225 (6th Cir. 2002).
. Id. at 225 (internal quotation marks and citation omitted) (emphasis added).
. Powers v. Harris, 379 F.3d 1208, 1217 (10th Cir. 2004).
. Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).
. U.S. v. Carolene Prods. Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).
. Powers, 379 F.3d at 1218.
. Merrifield, 547 F.3d at 986 (quoting Schware v. Bd. of Bar Exam. of State of N.M., 353 U.S. 232, 239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) (discussing state requirements to practice law)).
.NRS § 644.380(1).
. NAC § 644.025.
. NRS § 644.024.
. NRS §§ 644.0205(l)(a), (b), 644.023(l)(a), (f), (g).
. NRS § 644.023(l)(g) (emphasis added).
. NRS § 644.0205(1) (emphasis added).
. NAC § 644.372(1).
. 21 U.S.C. §§ 301-399Í.
. Id. § 321(i).
. NRS §§ 644.0205(l)(b); 644.023(l)(g). See Cornwell v. Hamilton, 80 F.Supp.2d 1101, 1103, n. 5 (S.D.Cal. 1999) (holding that California’s Barbering and Cosmetology Act covered African hairbraiding because hair-braiders, "at minimum, arrange, beautify, or otherwise treat by any means hair.” (citing Cal. Bus. & Prof.Code § 7316(b)(1))).
. NRS § 644.0205(l)(b).
. NAC § 644.021.
. See NRS § 644.380(1); NAC § 644.025.
. (Pis.’ Mot. Summ. J. 6.)
. (Id.)
. INRS § 644.190(3)(d).
. NRS § 644.190(4) (emphasis added).
. NRS § 644.460(l)(d).
. NRS § 644.460(l)(e).
. (Dkt. No. 27-1 at 5; Dkt. No. 27-2 at 6.)
. (Dkt. No. 27-1 at 5.)
. See Silver v. Silver, 280 U.S. 117, 123, 50 S.Ct. 57, 74 L.Ed. 221 (1929); Carr v. U.S., 422 F.2d 1007, 1012 (4th Cir. 1970).
. NRS§ 644.120(1), (2).
. NRS § 644.120(3).
. See Powers, 379 F.3d at 1217.
. (Dkt. Nos. 34-35.)
. See Randazza v. Cox, No. 2:12-cv-02040-JAD-PAL, 2014 WL 1407378 at *1 (D.Nev. Apr. 10, 2014).
. Armour, 132 S.Ct. at 2080-81.
. NRS § 644.400(2)(f).
. NRS § 644.408.
. NRS § 644.380(1)©.
. NAC § 644.345.
. NAC § 644.372.
. NRS § 644.380(2)(b).
. NRS § 644.380(2)(e).
. NRS § 644.395 (emphasis added).
. NRS § 644.400(1) (emphasis added).
. NRS § 644.400(2)(a) (emphasis added).
. NRS § 644.400(2)(b).
. NRS § 644.400(2)(a) (emphasis added).
. NRS § 644.240 (emphasis added). ■
. NAC § 644.051 (emphasis added).
.See Cornwell, 80 F.Supp.2d at 1115 (noting that only about 10% of the cosmetology exam subjects were applicable to natural hair care).
. NAC § 644.115(1) (emphasis added).
. See Cornwell, 80 F.Supp.2d at 1110-11; Clayton v. Steinagel, 885 F. supp.2d 1212, 1215 (D.Utah 2012).
. Plaintiffs submitted purported copies of the textbooks used to teach cosmetology. (Dkt. Nos. 27-19 to 27-22.) I must disregard those exhibits, however, because they are not authenticated. See Fed.R.Evid. 901.
. Plaintiffs’ expressed concerns about makeup artistry instructors and students facing unnecessary danger with sharp instruments and non-makeup related chemicals is alleviated by not requiring the cosmetology curriculum in makeup artistry schools.
. NRS § 644.3 80(2)(b).
. NAC § 644.085 (emphasis added).
. NAC § 644.080.
. NRS § 644.400(1) (emphasis added).
. See NRS § 644.023.
. NRS § 644.023(1) (emphasis added).
. NRS § 644.023(l)(g).
. See Cornwell, 80 F.Supp.2d at 1117-18.
. See Merrifield, 547 F.3d at 987 (upholding training requirements that include work with pesticides for exterminators who do not use pesticides).
. See NRS § 644.1955.
. (Dkt. No. 27-3.) This document is self-authenticating under Fed.R.Evid. 902(5).
. U.S. v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012).
. Merrifield, 547 F.3d at 985-86.
. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1872).
. Merrifield, 547 F.3d at 984 (citing Slaughter-House Cases, 83 U.S. (16 Wall.) at 77).
. See Clayton v. Steinagel, 885 F.Supp.2d 1212, 1213 (D.Utah 2012).
Reference
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- Lissette WAUGH and Wendy Robin v. NEVADA STATE BOARD OF COSMETOLOGY
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