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Celebration of Title VII at Forty by air20214


									                                11/28/2005 7:22:43 PM

     Celebration of Title VII at Forty
                           ERIC S. DREIBAND*

      It is a pleasure to be here to celebrate forty years of Title VII.
It is a particular privilege to be in Memphis, a city that played a
historical role in this nation’s civil rights struggle as, among other
things, the place where Martin Luther King, Jr. gave his final
speech. Given the topic of this conference—forty years of Title
VII—and the position I hold as General Counsel of the United
States Equal Employment Opportunity Commission, I thought it
most appropriate that I speak with you today about the origins of
the Act that created the EEOC, which was the Civil Rights Act of
      First, I thought it useful to discuss the events that led to the
creation of the EEOC. Much of the history is likely familiar to
you. In 1954, the Supreme Court’s Brown v. Board of Education
decision declared segregation to be inconsistent with the Constitu-
tion’s guarantee of “equal protection of the laws.” From 1954 to
1963, the nation witnessed the civil rights movement in action:
lunch counter sit-ins, the Montgomery, Alabama bus boycotts of
1955 and 1956, acts of civil disobedience, controversies over the
desegregation of schools, resistance to integration, and the murders
of civil-rights activists.
      The events of 1963 and 1964—the events that led two presi-
dents and the Congress to act—are what I will focus on today.
What is striking is how much of a moral issue the Civil Rights Act
of 1964 was, both for its supporters and for its opponents.
      In the spring of 1963, Martin Luther King, Jr. was arrested in
Birmingham, Alabama for leading civil rights protests there. Eight
members of the Alabama clergy publicly criticized civil rights pro-

      *    Eric S. Dreiband is a Partner with Akin, Gump, Strauss, Hauer, &
Feld, LLP in Washington, D.C. Mr. Dreiband served as General Counsel of the
United States Equal Employment Opportunity Commission prior to joining the
firm’s Labor and Employment practice group. He delivered these remarks at the
Fogelman Executive Conference Center at the University of Memphis on April
1, 2005, in Memphis, Tennessee.

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6              The University of Memphis Law Review                Vol. 36

testers for their unwillingness to be more patient about the issue of
racial justice. On April 16, 1963, Dr. King responded with what is
now known as his “Letter from Birmingham Jail.” He asked them
to consider “our legitimate and unavoidable impatience.”
     “We have waited for more than 340 years for our constitu-
tional and God-given rights,” he explained. Dr. King then listed
some of the many forms of racial injustice that existed in the nation
at that time. He wrote about lynchings, police brutality, and the
various forms of humiliation and horror suffered by so many be-
cause of racism. His description of his children’s suffering is par-
ticularly poignant. This is what he said:

       [W]hen you suddenly find your tongue twisted and your
       speech stammering as you seek to explain to your six-
       year-old daughter why she can’t go to the public
       amusement park that has just been advertised on televi-
       sion, and see tears welling up in her eyes when she is
       told that Funtown is closed to colored children, and see
       ominous clouds of inferiority beginning to form in her
       little mental sky, and see her beginning to distort her
       personality by developing an unconscious bitterness to-
       ward white people; when you have to concoct an answer
       for a five-year-old son who is asking: “Daddy, why do
       white people treat colored people so mean?;” when you
       take a cross-county drive and find it necessary to sleep
       night after night in the uncomfortable corners of your
       automobile because no motel will accept you; when you
       are humiliated day in and day out by nagging signs read-
       ing “white” and “colored;” when your first name be-
       comes “nigger,” your middle name becomes “boy”
       (however old you are), and your last name becomes
       “John,” and your wife and mother are never given the
       respected title “Mrs.;” when you are harried by day and
       haunted by night by the fact that you are a Negro, living
       constantly at tiptoe stance, never quite knowing what to
       expect next, and are plagued with inner fears and outer
       resentments; when you are forever fighting a degenerat-
       ing sense of “nobodiness”—then you will understand
       why we find it difficult to wait.

     Dr. King and his supporters met their opponents in a struggle
that continued throughout Birmingham and elsewhere during the
summer of 1963. Indeed, the summer of 1963 witnessed, in Dr.
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2005               Celebration of Title VII at Forty                7

King’s words, “a simultaneous, massive assault against segrega-
tion.” In Birmingham, civil rights supporters protested segregation
in public facilities, and their protests met a violent reaction. Ala-
bama Governor George Wallace, then a supporter of “segregation
now, segregation tomorrow, segregation forever,” received a warn-
ing from President John Kennedy that he would order federal
troops into Birmingham if the violence continued. This did not
deter Governor Wallace. In June 1963, he stood at the door of the
University of Alabama and proclaimed that he would block the
enrollment of black students there. He relented after the president
federalized National Guard troops and sent the troops to integrate
the university.
     Still, the violence continued in Birmingham and elsewhere.
Television brought the violence in Birmingham into American
homes. Americans turned on their television sets and saw police
dogs snarling at protesters and fire hoses being turned against
marchers. These images shocked the nation.
     The violence was not limited to Birmingham. Dr. King wrote
that during the summer of 1963:

       America’s shame acquired new place names: Oxford,
       Mississippi—mobs shrieking for blood attack federal
       marshals and before order is restored two men are dead. .
       . . Gadsden, Alabama—a new and barbarous weapon is
       introduced for use against Negroes, the electric cattle
       prod. . . . Danville, Virginia—upright white citizens,
       concerned that police brutality is insufficient to intimi-
       date Negroes, begin wearing guns in their belts.

     “Seen in perspective,” Dr. King reflected, “the summer of
1963 was historic partly because it witnessed the first offensive in
history launched by Negroes along a broad front.” Dr. King also
noted that “the virtues so long regarded as the exclusive property
of the white South—gallantry, loyalty, and pride—had passed to
the Negro demonstrators in the heat of the summer’s battles.”
     On June 11, 1963, President Kennedy spoke to the nation in a
nationally televised address.
     “We are confronted primarily with a moral issue,” the presi-
dent said. “It is as old as the scriptures and it is as clear as the
American Constitution. The heart of the question is whether all
Americans are to be afforded equal rights and equal opportunities,
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8               The University of Memphis Law Review          Vol. 36

whether we are going to treat our fellow Americans as we want to
be treated.”
     “It ought to be possible,” he continued, “for every American
to enjoy the privileges of being American without regard to his
race or his color. In short, every American ought to have the right
to be treated as he would wish to be treated, as one would wish his
children to be treated. But this is not the case.”
     The president announced that he was, therefore, “asking the
Congress to enact legislation giving all Americans the right to be
served in facilities which are open to the public”—hotels, restau-
rants, theaters, retail stores, and similar establishments. The presi-
dent added, “I’m also asking the Congress to authorize the Federal
Government to participate more fully in lawsuits designed to end
segregation in public education. . . . Other features will be also
requested, including greater protection for the right to vote.”
     The President’s remarks, and his proposed civil rights bill, did
not please everyone. The next day, June 12, in Jackson, Missis-
sippi, civil rights activist Medgar Evers led a protest against segre-
gation. That evening, Mr. Evers arrived home, stepped out of his
car, and was shot in the back. He fell to the ground, and died in his
driveway as his wife and children watched in stunned disbelief.
     A week later, on June 19, 1963, the president sent Congress a
civil rights bill. The bill proposed to outlaw race and other forms
of discrimination against Americans in voting, places of public
accommodations, and education. On August 28, 1963, in Wash-
ington, D.C., as part of the March on Washington, Martin Luther
King, Jr. gave his “I Have a Dream” speech.
     The dream would remain a dream in 1963. On a Sunday
morning in September, 1963, members of the Ku Klux Klan
bombed a Birmingham church. Four young girls were killed and
twenty-one others were injured.
     Meanwhile, in Washington, Congress continued to debate the
president’s bill. The debate in the House of Representatives was
long and contentious. The Department of Justice drafted the origi-
nal bill, and that draft did not extend to employment. During the
summer of 1963, a subcommittee of the House Judiciary Commit-
tee conducted hearings and strengthened the president’s bill by
adding, among other things, the guarantee of equal employment
opportunities. The House Judiciary Committee issued a favorable
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2005               Celebration of Title VII at Forty                9

report about the bill on November 20, 1963. Two days later, on
November 22, 1963, President Kennedy was killed in Dallas.
      Following President Kennedy’s death, President Lyndon
Johnson made civil rights legislation a priority, equal to that of the
planned 1964 election-year tax cut. Five days after the Kennedy
assassination, on November 27, 1963, the President addressed a
joint session of Congress and called on the Congress “to enact a
civil rights law so that we can move forward to eliminate from this
Nation every trace of discrimination and oppression that is based
upon race or color.” The president added, “The time has come for
Americans of all races and creeds and political beliefs to under-
stand and to respect one another.” He called on Americans to “put
an end to the teaching and the preaching of hate and evil and vio-
lence. Let us turn away from the . . . apostles of bitterness and
bigotry, from those defiant of law, and those who pour venom into
our Nation’s bloodstream.”
      Back in the Congress, the bill remained stalled before the
House Rules Committee until January 30, 1964, when the Commit-
tee released the bill to the full house. For nine days, the House
debated various amendments to both the Act generally and to the
employment section, Title VII, specifically.
      On February 1, 1964, Mississippi Representative Abernathy
charged that Title VII was unconstitutional. Title VII, he said,
would reach and control “the most remote corner of our social
structure and virtually all of our economic structure.” According
to Representative Abernathy, Title VII would “assume authority
over the American people in a manner unmatched in modern his-
tory outside acknowledged dictatorships.” Representative Aber-
nathy said that, under our Constitution, “[i]f a department store
manager wants to hire all blond sales clerks, he can hire blond
sales clerks. His wife might object, but the Federal Government
      On February 8, 1964, the House considered an amendment
that would have entitled employers to refuse to “hire and employ
any person because of said person’s atheistic practices and be-
liefs.”     The amendment’s proponent, Representative John
Ashbrook of Ohio, observed that, while the bill would prohibit
discrimination because of religion, “[i]t seems incredible that we
would even seriously consider forcing an employer to hire an athe-
ist.” This, he said, “is one of the booby traps in the bill which the
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10               The University of Memphis Law Review               Vol. 36

sponsors have very glibly alleged did not exist.” The House
adopted the amendment, but the Senate deleted it later.
     That same day, February 8, 1964, Representative Howard
Smith of Virginia—an individual who had held up the bill in the
House Rules Committee and was thought to oppose the bill—
offered a one-word amendment.
     “After the word ‘religion,’” Smith said, “insert the word
     Conventional wisdom has held that Representative Smith of-
fered the amendment to derail the bill, though some recent scholar-
ship has called that notion into question.1 Representative Smith
himself explained when he proposed the amendment that “all
throughout industry women are discriminated against in that just
generally speaking they do not get as high compensation for their
work as do the majority sex.” He added that his proposed amend-
ment would not “do any harm” and that “I think it will do some
good for the minority sex.” Representative Smith’s remarks reflect
the fact that the prohibition of sex discrimination was added only
to Title VII—the employment section—and not to any of the other
parts of the Act.
     Representative Martha Griffiths of Michigan and an entity
called the National Women’s Party had suggested the amendment
to Smith, probably because Representative Smith had been a sup-
porter of the Equal Rights Amendment since as early as 1943, and
the National Women’s Party had lobbied for it since 1923. And, at
least one recent scholar has asserted that Title VII’s sex prohibition
was a surrogate for the Equal Rights Amendment.2 Additionally, a
year earlier, the Congress had heard extensive testimony about sex
discrimination faced by women in the work force. Eight months
earlier, in June 1963, President Kennedy had signed the Equal Pay
Act, which protects men and women who perform substantially
equal work in the same establishment from sex-based wage dis-
     Whatever the reasons, the House debated the amendment in
what became known as “Ladies Day.” Representative Emanuel

     1.   See Jo Freeman, How "Sex" Got Into Title VII: Persistent Opportun-
ism as a Maker of Public Policy, 9 LAW & INEQ. 163 (1991).
     2.   See id. at 163–84.
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2005                Celebration of Title VII at Forty                  11

Cellar, who opposed Smith’s amendment, said that in his house-
hold there was no tension between the sexes.
     “I usually have the last two words,” he said, “and those words
are ‘Yes, dear.’”
     Representative Edith Green joined the opposition. “I do not
know whether, after I leave the floor today, I shall be called an
‘Uncle Tom’—or perhaps an ‘Aunt Jane,’” she said. “But I do not
believe this is the time or place for this amendment. . . . This bill is
primarily for the purpose of ending discrimination against Negroes
in voting and in public accommodations and in education, and yes,
in employment.”
     Representative Katharine St. George spoke in support of the
amendment: “We outlast you. We outlive you. We nag you to
death. . . . We are entitled to this little crumb of equality. The ad-
dition of that little, terrifying word ‘s-e-x’ will not hurt this legisla-
tion in any way. In fact, it will improve it. . . . It will make it
     The amendment passed that day, by a vote of 168 to 133.
     Two days later, on February 10, 1964, the House considered
an amendment that would permit employment discrimination
against communists and other similar “subversive groups.” One
supporter of the amendment, South Carolina Representative Wil-
liam Jennings Bryan Dorn, declared that permitting discrimination
against communists was “essential to the security of this Nation.
Communists and subversives have been all too active under our
present laws. We have been too lenient.” Representative Dorn
warned that “[t]o force an employer to hire Communists and sub-
versives will endanger our American way of life and would be the
surest way to undermine America as the arsenal of democracy and
the heart and core of the free world.”
     The amendment passed by a voice vote.
     Another amendment would have limited the life of the EEOC
to four years. Representative Robert Sikes of Florida proposed the
amendment. He predicted that the EEOC would “reduce all
American enterprise to a commissar-dictated shambles and all
American employees to a common dull level.” Rep. Sikes added:

        When Khrushchev said he would bury the West, he
        probably had in mind a procedure like this, by which
        America destroys itself. But in his wildest dreams, I
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12             The University of Memphis Law Review                Vol. 36

       doubt that he envisioned our two major political parties
       scrambling for top hold on the shovel with which to dig
       the grave.

     “This bill,” Sikes charged, “would kill the American free en-
terprise system. . . . It would give the Russians their finest oppor-
tunity to pass us on all fronts—to take over world leadership.”
     One supporter of the bill, Representative John Lindsay of New
York, said that the proposal to kill the Commission after four years

       reminds me of the story of the lady who was being tried
       for killing her husband and testified that “It was really
       very painful for me to have to kill my husband, but out
       of my deep love for him when I pulled the trigger on the
       double-barreled shotgun I squeezed ever so gently.

      Rep. Sikes objected: “I hope,” he said, “the gentleman is not
implying that I love this bill.”
      The amendment was defeated by a vote of 86 to 131.
      Finally, after debate ended, the House voted in favor of the
bill on February 10, 1964, and sent it to the Senate. The Senate
took more time with the bill. Senate supporters of the bill feared
the opponents on the Senate Judiciary Committee would kill the
bill in committee, so, by a 54 to 37 vote, they persuaded the full
Senate to place the bill directly on the Senate calendar. More par-
liamentary maneuvering delayed the Senate’s full consideration
until March 26, 1964.
      Opposition to the bill in the Senate was fierce, and opponents
led a filibuster of the bill. On April 8, 1964, for example, North
Carolina Senator Sam Ervin denounced Title VII because, he said,
“[t]his bill is based on the proposition that an employer’s guilt de-
pends solely upon an illegal thought; in other words this is a
thought control bill. The employer is to be judged on the basis of
what he thinks rather than on what he does.” Senator Ervin ob-
jected to the creation of the EEOC. He warned that “[t]he Com-
mission could say to the employer, ‘You will either do as we say,
or we will put the law to you.’” The pending bill, Senator Ervin
warned, “would remove the power from employers to hire, pro-
mote, and discharge their own employees.”
      New Jersey Senator Clifford Case, a supporter of the bill,
charged that Senator Ervin was “spinning a fine web of fantasy.”
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2005                Celebration of Title VII at Forty                13

Senator Case added that “[t]here is discrimination in this country in
employment, as well as in other areas, and it is time we did some-
thing about it.”
     On May 13, Illinois Senator Everett Dirksen joined with Sena-
tors Mike Mansfield and Hubert Humphrey and proposed changes
to the House bill. The major change in what was called the Dirk-
sen-Mansfield substitute was to lessen the emphasis on federal en-
forcement in cases of fair employment and public accommodations
violations. The substitute gave higher priority to voluntary com-
pliance than the House bill, and it encouraged more private, rather
than legal, initiatives. Under the substitute bill, the EEOC would
not be able to sue employers in federal court for alleged violations
of Title VII, and the Attorney General could only intervene in pri-
vate lawsuits and bring pattern or practice cases.
     Still, in spite of the Dirksen-Mansfield substitute, the filibuster
continued. Opponents of the bill continued to rail against the crea-
tion of the EEOC. “It goes without saying,” West Virginia Senator
Robert Byrd opined, “that the Commission will need an army of . .
. persons to police and administer the act. . . . Here we shall see the
sprouting and flowering, the mushrooming, ballooning of an en-
tirely new bureaucratic activity which, like Tennyson’s brook, will
go on and on forever.” He continued, “Law-abiding, conscientious
people are being sold a ‘pig in a poke.’”
     Finally, on June 10, 1964, after the bill’s opponents had made
their case, Senator Everett Dirksen rose on the floor of the Senate
and spoke support of the bill. He asked the Senate to end the fili-
buster. “Pending before us,” he said, “is [a] moral issue. Basically
it deals with equality of opportunity in exercising the franchise, in
securing an education, in making a livelihood, in enjoying the
mantle of protection of the law.”
     Senator Dirksen noted that “[t]oday is an anniversary. It is in
fact the one hundredth anniversary of the nomination of Abraham
Lincoln for a second term for the presidency on the Republican
ticket.” At Gettysburg, Dirksen observed, Lincoln seconded Tho-
mas Jefferson’s Declaration that the United States was “‘a new
nation, conceived in liberty and dedicated to the proposition that
all men are created equal.’” Dirksen added, “Today let us not be
found wanting in whatever it takes by way of moral and spiritual
substance to face up to the issue and to vote cloture.”
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14             The University of Memphis Law Review                  Vol. 36

     The Senate, or at least seventy of its members, agreed with
Senator Dirksen, and the Senate voted to end the filibuster, 71 to
29. The vote that day was the first time in history that the Senate
had voted to end a filibuster of a civil rights bill.
     Two days later, on June 12, Roy Wilkins, Executive Secretary
of the National Association for the Advancement of Colored Peo-
ple, wrote to Senator Dirksen that

       [w]ith the passage of the bill . . . the cause of human
       rights and the commitment of a great, democratic gov-
       ernment to protect the guarantees embodied in its consti-
       tution will have taken a giant step forward. Your leader-
       ship of the Republican party in the Senate at this turning
       point will become a significant part of the history of this

     Nine days later, on June 21, 1964, civil rights workers Mi-
chael Schwerner, Andrew Goodman and James Chaney disap-
peared in Philadelphia, Mississippi. They were there to investigate
a Ku Klux Klan attack on Mount Zion Methodist Church.
     Police arrested them, allegedly for speeding, jailed them, and
then released them. After they were released, carloads of Ku Klux
Klansmen ambushed and murdered them. Their bodies were found
after a forty-four day search, buried in an earthen dam.
     Less than two weeks after the murders in Philadelphia, and af-
ter more back-and-forth between the House and Senate, the bill
reached President Johnson’s desk on July 2, 1964. Before he
signed the bill, the president spoke.
     “We believe,” he said, “that all men are created equal—yet
many are denied equal treatment. We believe that all men have
certain inalienable rights. We believe that all men are entitled to
the blessings of liberty—yet millions are being deprived of those
blessings, not because of their own failures, but because of the
color of their skins.” He continued:

       The reasons are deeply embedded in history and tradi-
       tion and the nature of man. We can understand without
       rancor or hatred how all this happens. But it cannot con-
       tinue. Our Constitution, the foundation of our Republic,
       forbids it. The principles of our freedom forbid it. Mo-
       rality forbids it. And the law I sign tonight forbids it.
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2005               Celebration of Title VII at Forty                15

      As enacted, the Civil Rights Act primarily sought to make
unlawful race, color, and religious discrimination in voting, public
accommodations, public education, and employment. Title VII of
the Act made race, color, religion, sex, and national origin dis-
crimination in employment unlawful. The Act also made it unlaw-
ful to discriminate against any individual who opposed unlawful
discrimination and made it unlawful to discriminate against any
person who filed a charge or otherwise participated in a Title VII
      Title VII established the five-member Commission. The
President was to appoint each Commissioner with the advice and
consent of the Senate. According to the Act, no more than three
members could be of the same political party, and Commissioners
would serve staggered five-year terms. The Act provided that the
president would designate one of the Commissioners to serve as
the Chairman or Chair, and another to serve as Vice Chairman or
Vice Chair. The Chair was to be responsible for the administrative
operations of the Commission. The Act also provided that the
Commission would have an “official seal which shall be judicially
      Title VII originally gave the Commission authority to receive,
investigate, and conciliate complaints when it found reasonable
cause to believe that discrimination had occurred. When the
EEOC was unsuccessful in conciliating the complaints, the statute
provided that individuals could bring private lawsuits, and the
EEOC could refer cases that involved a “pattern or practice” of
discrimination to the Department of Justice for litigation. The De-
partment of Justice could file lawsuits in pattern or practice cases
and could intervene in lawsuits if the Attorney General certified
that the case was of “public importance.” Under the Act, the fed-
eral government had no other ability to enforce Title VII by court
      The Act did not solve the nation’s ills, nor did it unite the
country. Two days after the President signed the bill, Alabama
Governor and presidential candidate George Wallace denounced
the bill as “the most monstrous piece of legislation ever enacted by
the United States Congress. It is a fraud, a sham, and a hoax.”
Governor Wallace predicted that “[t]his bill will live in infamy. . . .
It is the assassin’s knife stuck in the back of liberty.”
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16             The University of Memphis Law Review          Vol. 36

     The Civil Rights Act of 1964 was far from perfect. The
EEOC came into existence with no meaningful ability to enforce
the law. Unlike the National Labor Relations Board, it did not
have cease-and-desist authority. The EEOC also did not have liti-
gation authority. The Justice Department’s litigation authority was
     But the Act in general, and Title VII in particular, represented
a statement by our elected officials—Presidents Kennedy and
Johnson and majorities of both Houses of Congress—that dis-
crimination was both immoral and unlawful. In this sense, it was
like President Lincoln’s Emancipation Proclamation. That Proc-
lamation declared slavery wrong, and unlawful, but it was limited
to liberating only “persons held as slaves within any State or des-
ignated part of a State . . . in rebellion” as of January 1, 1863. It
therefore freed not a single slave. The Proclamation’s defects were
corrected later with the enactment of the Thirteenth Amendment to
the Constitution.
     And, after 1964, Congress and subsequent presidents saw fit
to amend Title VII. In 1972, Congress authorized the EEOC to
conduct litigation in the federal courts of the United States and
directed the President to appoint a General Counsel with the advice
and consent of the Senate. I am personally happy about those
     In 1991, Congress and the President added jury trials and
compensatory and punitive damages to Title VII. These and other
changes have added to the EEOC’s enforcement mechanisms, and,
I suspect, will not be the last we see of changes to Title VII over
the years.
                              11/28/2005 7:22:43 PM

2005                Celebration of Title VII at Forty            17


    CongressLink, The Dirksen Congressional Center, Everett M.
Dirksen, The Civil Rights Bill, June 10, 1964.

       CongressLink, Major Features of the Civil Rights Act of 1964.

     Jo Freeman, How “Sex” Got Into Title VII: Persistent Oppor-
tunism as a Maker of Public Policy, 9 LAW & INEQ. 163 (1991).

Norton & Co. 1963).

    Reorganization Plan No. 1 of 1978, 43 F.R. 19807, 92 Stat.
3781 (Feb. 28, 1978).

(W.W. Norton & Company 2003).

OF 1964 (1968).

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