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Caleb Trotter: Time for North Dakota's music therapy license to go

SACRAMENTO, Calif.—Nearly 27 percent of North Dakotans can't work unless they have a license from the government. But many of these government permission slips are needless: they create red tape that serves to protect industry insiders from competition, not the health or safety of the public.

Take North Dakota's requirement that music therapists be licensed.

Music therapy is often used to help people work through their stress, anxiety or depression, and is also used to help people deal with diseases that cause memory loss. When engaging in their profession, music therapists typically play a musical instrument and encourage their clients to play along.

Six years ago, North Dakota became the first state in the country to require that music therapists be licensed. In subsequent years, four other states have followed suit. But the trend of requiring music therapists to obtain the government's permission before practicing their trade should be reversed; and the reversal should start in North Dakota.

To begin, let's assume that the public needs protection from unlicensed music therapists. The fact is, North Dakota's music therapist license scheme fails to give the public any meaningful protection that is not already adequately addressed through existing alternatives.

It's just red tape: a tax on music therapists and an unnecessary barrier to aspiring therapists seeking a job.

For example, before a music therapist may apply for a license, North Dakota law requires the applicant to be approved by the Certification Board for Music Therapists after passing an exam. Furthermore, the applicant must have graduated from an educational program accredited by the American Music Therapy Association before they may take the exam.

Yet the proponents of the license have never provided any actual evidence that these years of schooling and examination are necessary to protect public health or safety. Much less have they shown that a license, in addition to approval by the board, is necessary.

The education requirement is particularly problematic. UND used to have an accredited music therapy program. But in the face of budget shortages, UND dropped the program for new students effective with last fall, leaving the state without an accredited program.

As a result, future music therapists can legally work in North Dakota only if they first earn their degree out of state. Practically, this closes the profession to North Dakotans who aspire to a career in music therapy but can't move just to pursue years of largely unnecessary training.

Furthermore, the fact that music therapists can work without government permission in 45 other states should itself call the necessity of North Dakota's license scheme into question.

Instead of allowing music therapists to differentiate themselves based on their individual experience and qualifications, and empowering consumers to choose whose services to engage (and whether they're willing to pay a premium for a certified therapist), North Dakota has monopolized the music therapy trade for the benefit of the few therapists who have already obtained the highest credentials.

This kind of cronyism is unfair and unconstitutional. The Fourteenth Amendment to the U.S. Constitution protects the right to earn a living free of arbitrary government controls. While North Dakota may regulate various professions and occupations, any limitations on the right to practice a trade must be rationally connected to the professional's fitness or capacity to practice the trade.

In the absence of any evidence showing the public is at risk from the practice of unlicensed music therapy, it is irrational to prohibit all aspiring music therapists without a license.

In sum, when government and industry insiders seek to enact burdensome occupational licensing laws that are widely recognized to stifle employment and economic growth, they must not resort to irrational schemes based on scant evidence. If they do, it's only a matter of time until the courts address the issue.

North Dakota would be wise to respect all North Dakotans' economic liberty and stop unnecessarily infringing their right to earn a living.

Caleb R. Trotter is an attorney at Pacific Legal Foundation, which litigates nationwide for limited government, property rights and free enterprise.

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