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Navajo Not Spoken Here By: Henry Mark Holzer
FrontPageMagazine.com | Thursday, February 27, 2003


One section of Title II of the Civil Rights Act of 1964 – enacted purportedly on the strength of Congress’ power to regulate interstate commerce – punishes discrimination in places of “public accommodation” on the basis of race, color, religion or national origin. In Heart of Atlanta Motel, Inc. v. United States, the act’s constitutionality as applied to hotels/motels was upheld by the Supreme Court of the United States.  In Katzenbach v.  McClung, the Court held the act could be applied to a family-owned restaurant – even though the establishment was more than a mile away from an interstate highway – because the law swept into its ambit any restaurant either serving interstate travelers, or providing to intrastate customers products that had earlier moved in interstate commerce.  (Ollie’s Barbeque had bought about $70,000 worth of food out-of-state the year before).

In other words, under the public accommodations section of the Civil Rights Act of 1964, private establishments open to the public were prohibited from discriminating for reasons of race, color, religion or national origin.  While discrimination of that kind is certainly immoral and ought not to be practiced by decent people, the fact that hotels, motels, restaurants, saloons, bowling alleys, and like places were private property made no difference to the do-gooders who used the power of government to turn their views of an egalitarian society into law.

In the nearly 40 years since the Heart of Atlanta Motel and Ollie’s Barbecue were forced to accommodate people they would have rather not served, other categories of discrimination have become predominant: e.g, gender, disability, homosexuality.  For example, using the Civil Rights Act of 1964 as a basis, the federal Equal Employment Opportunity Commission has asserted jurisdiction to sue over so-called “language restrictions” – as the owners of R.D.’s Drive-In learned recently.

The burgers-fries-and-pies restaurant is located in Page, Arizona, close to the sprawling Navajo reservation.  For two decades, R.D.’s served its burgers in peace, with a staff consisting almost completely of Navajos.  Two years ago, however, customers and employees alike complained to R.D.’s owners that some Navajo-speaking employees were making lewd comments in the Navajo language to their co-workers, and to customers. According to the owners, “Some of the things they said were terrible.  Some workers said they felt verbally abused and sexually harassed.”  Job-seekers at the restaurant were discouraged.  Customers were offended.

R.D’s conscientious owners searched the EEOC’s website for guidance about how to deal with the problem, well aware that they were treading on dangerous legal ground, given the government’s solicitude for the “rights” of minorities.  The owners’ solution: a policy requiring only English to be spoken in their restaurant, except if a customer spoke only Navajo. “The owner of this business can speak and understand only English.  While the owner is paying you as an employee, you are required to use English at all times.  The only exception is when the customer cannot understand English.  If you feel unable to comply with this requirement, you may find another job.”

Predictably, four employees quit.  Together with the federal EEOC, the four sued R.D.’s Drive-In for violating the Civil Rights Act by prohibiting Navajos from speaking their native language on the job.

To their credit, the owners refused a deal with the government that was tantamount to an admission of wrongdoing – even though they face as much as $200,000 in fines and at least $100,000 in legal fees.

Putting aside such questions as whether the Interstate Commerce Clause is an adequate basis upon which to justify the “public accommodations” section of the Civil Rights Act of 1964 (it has been held sufficient), whether the owners of R.D.’s Drive-In were prejudiced against Navajos (they weren’t), whether the diner’s “No Navajo” policy cured the harassment problem for both employees and customers (it did), and whether the EEOC’s lawyer means it when he says, “We don’t want to put them out of business” (which is what will happen if the owners lose the case), the R.D. restaurant case demonstrates yet again the pernicious effects of the public accommodations section of the Civil Rights Act.

It was bad enough that a do-gooder Congress enacted, and a glory-seeking president signed, a so-called Civil Right Act containing the public accommodations section.  Now a federal administrative agency (the EEOC) has made it illegal for the owners of private businesses that accept the public as customers to impose language restrictions – even if they are used to defend one’s private property, protect its employees and customers from harassment, and prevent the ruination of one’s business.

The R.D.’s Drive-In case will be watched closely.  In it, much more is at stake than speaking Navajo in a Page, Arizona, burger restaurant.  At stake – yet again – is the right of a private property owner to use his property as he wishes, so long as no one is injured, and to defend that use against, not only foul-mouthed Navajos, but also against their patron, the government of the United States.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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