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

On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 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 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term national origin discrimination during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, albeit to different extents in schools and workplaces. The Article highlights the use of guidances to protect language minorities as a distinctive breed of civil rights law. It uses a historic, yet understudied episode to illustrate an often used, sometimes contested practice: governing by guidance