Is it legal for Kansas to require the State Board of Cosmetology to have at least one African-American member?

Plain-English summary

A state senator asked the Attorney General to review K.S.A. 74-2701(a), the statute creating the eight-member State Board of Cosmetology, which requires that if none of the Board's licensed-cosmetologist members is African-American, then at least one of the members representing the general public interest must be. The senator wanted to know whether that requirement is legal.

The Attorney General explained that because the requirement sorts board membership by race, it triggers the Equal Protection Clause and must survive "strict scrutiny," the most demanding form of constitutional review, which the U.S. Supreme Court has called a "daunting" and "searching" test that few race-based laws pass. That test has two parts: the state needs a compelling reason for the racial classification, and the classification must be narrowly tailored, meaning necessary, to serve that reason. The opinion found the 2002 legislative record silent on why lawmakers added the requirement, leaving only two plausible guesses: guarding against discrimination in licensing or Board appointments, or ensuring the Board includes someone familiar with hairstyling techniques common in the African-American community. Neither justification has clear supporting evidence in the record, and even if one qualified as compelling, the opinion noted the state could likely achieve the same goals in a race-neutral way, for instance by requiring a board member with relevant hairstyling experience rather than a member of a specific race. Because of that gap, the opinion concluded it could not say the statute is constitutional, and defending it in court would likely be difficult.

What this means for you

Legislators considering whether to amend or repeal K.S.A. 74-2701(a): the opinion signals the current race-based seat requirement rests on unstated justifications that may not survive strict scrutiny, and suggests a race-neutral alternative, requiring relevant experience or expertise rather than a specific racial identity, could serve the same underlying goals with less constitutional risk.

State Board of Cosmetology members and appointing officials: the opinion does not strike down the statute, since only a court can do that, but it puts appointing authorities on notice that relying on this specific requirement to fill a seat carries litigation risk if challenged.

Attorneys evaluating an equal protection challenge to a state board's composition requirements: the opinion walks through the current strict scrutiny framework, including the narrow list of interests courts have accepted as compelling for race-based government action, and applies it directly to a real Kansas statute, useful as a template for similar composition-requirement questions.

Common questions

Why does requiring one African-American board member trigger the same test as more obviously discriminatory laws?
Because the Equal Protection Clause applies strict scrutiny to any law that classifies people by race, including laws intended to help rather than harm a particular racial group, according to the opinion; good intentions do not exempt a racial classification from the test.

What would the state need to show to defend this law in court?
The opinion says the state would need to identify a compelling interest, such as remedying specific, proven past discrimination, and show the requirement is necessary to serve that interest, but notes the legislative record does not document either element clearly.

Could Kansas achieve the same goal without sorting board seats by race?
The opinion suggests yes, for example by requiring a board member with experience or training in hairstyles common in the African-American community, which could address both possible justifications, discrimination and technical expertise, without classifying anyone by race.

Background and statutory framework

K.S.A. 74-2701(a) establishes the eight-member State Board of Cosmetology, requiring at least two licensed cosmetologists and two members representing the general public interest, and adding that if none of the licensed-cosmetologist members is African-American, at least one public-interest member must be. This "Representation Requirement" was added to the statute in 2002. Under the Equal Protection Clause of the Fourteenth Amendment, and the Kansas Constitution's own equal protection guarantees (which Kansas courts have held are coextensive with the federal standard), any law that classifies people by race is subject to strict scrutiny, requiring the government to show the classification is narrowly tailored to a compelling interest.

The opinion applied the framework from the U.S. Supreme Court's 2023 decision in Students for Fair Admissions v. Harvard, which described strict scrutiny as a demanding two-step test and limited compelling interests largely to remedying specific, identified instances of past unconstitutional or unlawful discrimination. Because the 2002 legislative history behind K.S.A. 74-2701(a)'s Representation Requirement does not document such specific findings, and because a narrower, race-neutral alternative (an experience-based qualification) appears available to serve the same practical goals, the opinion concluded the statute's constitutionality is genuinely in doubt.

Citations and references

Statutes and constitutional provisions:
- K.S.A. 74-2701(a)
- U.S. Const. amend. XIV, § 1

Cases:
- Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023)
- Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007)
- Rivera v. Schwab, 315 Kan. 877, 512 P.3d 168 (2022)
- Gratz v. Bollinger, 539 U.S. 244 (2003)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/22870/638723797906900000

Original opinion text

January 13, 2025

ATTORNEY GENERAL OPINION NO. 2025-1

The Honorable Renee Erickson
State Senator, 30th District
State Capitol, Room 445-S
300 SW 10th St.
Topeka, Kansas 66612

Re: State Boards, Commissions and Authorities—State Board of
Cosmetology—Kansas State Board of Cosmetology; Appointment;
Qualifications

Synopsis: As a race-based classification, the requirement that the State Board of
Cosmetology have at least one African-American member is
constitutional only if it is narrowly tailored to achieve a compelling
government interest. Cited herein: K.S.A. 74-2701.

                         *            *            *

Dear Senator Erickson:

As State Senator for the 30th District, you ask whether K.S.A. 74-2701(a)'s
requirement that one member of the State Board of Cosmetology be an African-
American is legal. Because this is a race-based classification, the requirement is
constitutional only if it is narrowly tailored to further a compelling government
interest. While we can hypothesize a few interests to support the requirement, it is
unclear whether a court would find those interests compelling and the statute
narrowly tailored to those interests.

K.S.A. 74-2701(a) creates the State Board of Cosmetology, and it provides that the
Board have eight members. Relevant here, at least two members must be licensed
cosmetologists and two members must represent the general public interest.1 And
"[i]f none of the licensed cosmetologist members of the [B]oard is an African-
American, at least one member representing the general public interest shall be an
African-American."2 Through this "Representation Requirement," the statute
effectively mandates that at least one Board member be African-American.

Because the Representation Requirement classifies Board members on the basis of
race, it implicates the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.3 Accordingly, the Representation Requirement must be
narrowly tailored to further a compelling government interest.4 This is known as
"strict scrutiny" review, and it is a very demanding standard.5

First, there must be a compelling government interest to justify the race-based
classification. Only a few interests suffice, including the remediation of "specific,
identified instances of past discrimination that violated the Constitution or a
statute."6 It is not clear why the legislature adopted the Representation
Requirement. It was part of the House Substitute for Senate Bill 643, passed into

1 K.S.A. 74-2701(a).
2 Id. This requirement was added to the statute in 2002. See Act of May 30, 2002, ch. 187, § 16, 2002
Kan. Sess. Laws 1196, 1217.
3 The Equal Protection Clause prohibits a State from "deny[ing] to any person within its jurisdiction

the equal protection of the laws." U.S. Const. amend. XIV, § 1. Section 1 of the Kansas Bill of Rights
provides: "All men are possessed of equal and inalienable natural rights, among which are life,
liberty, and the pursuit of happiness." Section 2 provides in part: "All political power is inherent in
the people, and all free governments are founded on their authority, and are instituted for their
equal protection and benefit." Some older case law asserted that "Section 1 applies in cases . . . when
an equal protection challenge involves individual rights." State v. Limon, 280 Kan. 275, 283, 122
P.3d 22 (2005). But the Kansas Supreme Court has recently recognized that "the textual grounding
of equal protection guarantees contained in the Kansas Constitution Bill of Rights is firmly rooted in
the language of section 2," whose protections are "coextensive with" the federal Equal Protection
Clause. Rivera v. Schwab, 315 Kan. 877, 894, 512 P.3d 168 (2022), cert. denied sub nom. Alonzo v.
Schwab, 143 S. Ct. 1055 (2023). At any rate, if the Representation Requirement were evaluated
under the Kansas Constitution, the court would also apply strict scrutiny review. See Farley v.
Engelken, 241 Kan. 663, 669-70, 740 P.2d 1058 (1987) (discussing strict scrutiny review for race-
based classifications). Accordingly, if the Representation Requirement violates the United States
Constitution, it likely violates the Kansas Constitution. And if the Representation Requirement
violates federal law, it is unenforceable even if it does not violate state law. See U.S. Const. art. VI,
cl. 2.
4 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (SFFA), 600 U.S. 181,

206-07 (2023).
5 See id. at 206 (calling strict scrutiny "a daunting two-step examination"); Parents Involved in

Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007) (recognizing that strict scrutiny is a
"searching standard of review" for race-based classifications); City of Los Angeles v. Alameda Books,
Inc., 535 U.S. 425, 455 (2002) (Souter, J., dissenting) (recognizing that "strict scrutiny leaves few
survivors").
6 SFFA, 600 U.S. at 207.

law in 2002, but the legislative record does not contain the rationale for its
inclusion. While the legislature's reasoning is uncertain, at least two plausible
reasons exist.

The first is that the Representation Requirement safeguards against either
discrimination in the licensing and investigation of African-American
cosmetologists and cosmetology businesses owned by African-Americans or the
seating of members on the Board itself. Because of the Board's broad authority and
long history, it is not inconceivable that it (or a predecessor entity) engaged in past
discrimination against African-American stylists, businesses, or potential Board
members.7 But there is no apparent evidence of such discrimination in the
legislative record.

The second possible reason is that the Representation Requirement may make it
more likely that at least one member of the Board is familiar with hairstyles that
are prevalent in the African-American community. This would ensure the Board
considers these hairstyles while issuing licenses, conducting investigations, and
promulgating rules and guidance. It is unclear whether a court would consider
either justification to be sufficiently compelling.8

Second, even when supported by a compelling governmental interest, the race-based
classification must be narrowly tailored to that interest, i.e., the classification must
be "necessary[ ]to achieve that interest."9 "[T]he most exact connection" must exist
"between justification and classification."10 Here, it is questionable whether the
Representation Requirement is necessary to achieve its goals. Certainly, it ensures
African-Americans have a voice on the Board, which might help prevent
discrimination and potentially provide the Board with information about hairstyles
that are prevalent within the African-American community. But these objectives
could likely be fulfilled in a race-neutral manner. For example, K.S.A. 74-2701(a)
could be amended to require that one member of the Board have experience or other
relevant background in hairstyling techniques and styles that are prevalent within
the African-American community. This would both provide a check against
potential discrimination and provide the Board with knowledge about these
hairstyles.

7 See generally State ex rel. Smith v. Cavender, 131 Kan. 577, 578-79, 292 P. 763 (1930) (recognizing
broad reach of initial 1927 Cosmetology Act).
8 See SFFA, 600 U.S. at 208 (recognizing that race-based classifications require a "most

extraordinary case" to be legal); Brown v. Ent. Merchants Ass'n, 564 U.S. 786, 799 (2011) (noting the
government "must specifically identify an 'actual problem' in need of solving" (quoting United States
v. Playboy Ent. Grp., Inc., 529 U.S. 803, 822-23 (2000)).
9 SFFA, 600 U.S. at 207 (internal quotes omitted).
10 Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (internal quotes omitted).

Consequently, we cannot say with certainty that K.S.A. 74-2701(a)'s Representation
Requirement is constitutional. Defending it in court against a constitutional
challenge would likely be a difficult task.

                                 Sincerely,

                                 /s/ Kris W. Kobach

                                 Kris W. Kobach
                                 Attorney General

                                 /s/ Adam T. Steinhilber

                                 Adam T. Steinhilber
                                 Assistant Solicitor General