Governing by Guidance: Civil Rights Agencies and the Emergence of Language Rights

Abstract

This article addresses the enduring question of how law and legal institutions adapt to the changing needs of a multicultural society. On the 50th anniversary of the Civil Rights Act of 1964, it asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965-1980, the article demonstrates that entrepreneurial agency officials engaged in informal policymaking that expanded on the undefined term “national origin discrimination” during their implementation of the Civil Rights Act of 1964. Judicial deference to these agency policies facilitated the creation of “regulatory rights,” albeit to different extents in schools and workplaces. Normatively, the article draws on the lessons of the past to recast current controversies over whether to assist immigrants and bilingual individuals and to instead figure out how best to do so.

Keywords: civil rights, immigration, race, language rights, administrative law, legislation, politics, public law, legal history