Trump’s Travel Ban: Is There a Way Out?

By Rita Samaan
Associate Editor, Vol. 22

In the wake of the Ninth Circuit Court of Appeals’ decision to block President Trump’s Executive Order 13769 (“Executive Order”), the President vowed to issue “a new executive action . . . that will comprehensively protect our country.”[1] The President’s officials have disclosed their intent to advocate more strongly for why the revised ban should apply to the seven listed countries.[2] They hope to overcome the amassing legal scrutiny of the travel ban and make it less of a “Muslim ban” in effect.[3]

So, who stood in the way of Trump’s order? Washington and Minnesota brought an action against President Trump, the Secretary of Homeland Security, Secretary of State, and the United States for a declaratory judgment that portions of the Executive Order were unconstitutional.[4] The states filed a motion for a temporary restraining order (TRO).[5] The United States District Court for the Western District of Washington granted the TRO and denied motion for stay pending appeal.[6] The federal government moved for an emergency stay of the district court’s TRO while waiting for its appeal to proceed.[7]

The decision on the government’s motion for an emergency stay came before the Ninth Circuit Court of Appeals. The court faced two questions: 1) whether the Government had made a strong showing of its likely success in its appeal and 2) whether the district court’s TRO should be stayed in light of the relative hardship and the public interest.[8] The court answered “no” to both questions,[9] listing several reasons for its decision. Continue reading

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The Continuing Significance of the Non-Unanimous Jury Verdict and the Plantation Prison

By Madeleine Jennings 
Associate Editor, Vol. 22

In 1934, Oregon voters amended their Constitution to allow for non-unanimous jury verdicts in all non-first degree murder and non-capital cases.[1] The Louisiana Constitution requires unanimity only in capital cases.[2] Grounded in xenophobia and anti-Semitism, the Oregon law was passed by a ballot measure following the trial of a Jewish man who, accused of killing two Protestants, had received a lesser manslaughter conviction following a single juror hold-out.[3] The Louisiana iteration was crafted post-Reconstruction to increase convictions of then-freed Blacks, thereby increasing the for-profit labor force.[4] The State had, for decades, leased convicts to plantation owners and, in 1869, leased its prison and all of its inmates to a former major in the Confederate Army, who later moved the prisoners to Angola, the site of the former plantation, named for the country that was once home to its slaves.[5]

Once an 8,000-acre plantation, Angola now sits on 18,000 acres—roughly the size of Manhattan—and consumes its own zip code.[6] Today, it is one of the nation’s largest maximum security prisons, and has been named “America’s Bloodiest Prison.”[7] Continue reading

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Upcoming Event: So I Wanted to Work for the Federal Government… and then Trump Got Elected. What Now?

The Michigan Journal of Race & Law will be hosting a panel with professors to discuss options for students who are interested in working for the federal government but who have reservations or concerns as a result of the current political climate.
Featuring 
Professors Bagenstos, Katz, Uhlmann and Schlanger
as well as
Melanie Macey and Alan Kahn
to present OCP’s perspective

Monday March 13

11:50-12:50

116 Hutchins Hall

Co-Sponsored by OPIS, WLSA & MJLR
Lunch will be provided to the first 50 people
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Imposition of Identity: Trump’s Immigration Order and the Racialization of Islam

By Asma Husain
Associate Editor, Vol. 22

On January 27 of this year, newly-inaugurated President Trump issued an executive order temporarily immigration from Iran, Iraq, Syria, Sudan, Somalia, Libya, and Yemen pending a report from the Department of Homeland Security, to be completed within thirty days of the order’s date.[1] Despite singling out only Muslim-majority countries, and despite Trump’s campaign promise of a “total and complete shutdown of Muslims entering the United States,”[2] the Trump administration has refused to characterize the immigration order as a “Muslim ban.” However, the ban impacts predominantly Muslim and Muslim-looking people and contributes to the classification of Muslims as a monolithic race by both the state and popular opinion.

The immigration order is couched in language about national security, but there is no doubt of its intentions to single out Muslim immigrants. A member of Trump’s team during the presidential election, Rudy Giuliani, spoke with Fox News about how Trump told him to craft a Muslim ban that could be carried out legally.[3]

And what we did was, we focused on, instead of religion, danger – the areas of the world that create danger for us. What is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.[4] Continue reading

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Supreme Court Considers Limits of Racial Gerrymandering

By Marcus Baldori
Associate Editor, Vol. 22

In the coming months, the Supreme Court is expected to clarify its stance on the legal boundaries of racial gerrymandering. In December 2016 the Supreme Court heard oral arguments for Bethune-Hill v. Virginia State Board of Elections; the case will explore whether a requirement that certain districts have a minimum of 55% Black voting population violates the Equal Protection Clause and the Voting Rights Act.[1] The plaintiffs allege that the 55% floor was a scheme to pack black voters into a few districts, thereby diluting minorities’ overall effect on delegate elections in Virginia.[2]

Before the Supreme Court granted cert for this case, the U.S. District Court for the Eastern District of Virginia held[3] that there was no Equal Protection violation because race was a not a predominant factor in the creation of 11 of the 12 challenged state district maps (citing criteria like compactness, contiguity, and incumbency protection[4]). The district court acknowledged that a “racial sorting” violation is independent of intent to dilute minority vote, and focuses only on whether the State has used race as a basis for separating voters.[5] Still, the Court held that the plaintiffs did not make the required showing that the legislature subordinated race-neutral principles to racial considerations in drawing the districts.[6] Continue reading

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Civil Rights Enforcement in the Trump Era

By Ali Boyd
Associate Editor, Vol. 22
Online Publications Editor, Vol. 23

In the wake of President Trump’s recent inauguration, millions of people across the world came out in protest of his rhetoric and policy agenda.[1]  The day after the inauguration, the Women’s March on Washington and sister-marches around the world demonstrated a widespread fear shared by millions that the rights of vulnerable Americans will be violated under President Trump’s administration.[2]  Civil rights could, of course, be curtailed through the legislative process, but often this takes time.  What is perhaps even more terrifying is the reality that the Trump administration could simply stop enforcing rights that are currently in place, a decision which could have immediate effect.

One of the key institutions for the federal government’s enforcement of civil rights is the Civil Rights Division of the Department of Justice, which was created after the passage of the Civil Rights Act of 1957.[3]  Since that time, the Division has been responsible for enforcing federal statutes designed to protect some of the most vulnerable members of our society, [4] including the Americans with Disabilities Act (ADA), the Equal Educational Opportunities Act of 1974, the Civil Rights Act of 1964, and the Voting Rights Act.[5]  The Civil Rights Division has been responsible for some remarkable legal work since its installation.  The DOJ website boasts of the prosecution of the eighteen individuals for civil rights violations surrounding the murder of three civil rights workers in Mississippi in 1964 as well as the Civil Rights Division’s involvement in the investigations of the assassination of Dr. Martin Luther King, Jr.[6] Continue reading

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Announcing the Volume 23 Executive Editorial Board

Congratulations to Our
Volume 23 Executive Editorial Board!

Editor-In-Chief
Asma Husain
 
Managing Editor
Tara Patel
 
Managing Executive Editor
Laura Page 
 
Executive Articles Editor
Jesus Narvaez 
 
Executive Notes Editor
Lauren Powell
 
Online Publications Editor 
Alexandra Boyd 
 
Symposium Co-Chairs
Madeleine Jennings
&
Claire Nagel 
 
Race & Curriculum Editor
Claire Nagel
Posted in Announcements

Deterrence and Democracy: Election Law After Preclearance

By Asma Husain
Associate Editor, Vol. 22

In 2013, Chief Justice Roberts delivered the Court’s opinion in Shelby County v. Holder, which struck down key provisions of the Voting Rights Act. Considered the crown jewel of the Civil Rights Movement, the Voting Rights Act had, until that decision, required covered jurisdictions to preclear changes to their election laws through either the Department of Justice or the District Court for the District of Columbia. The Court’s decision in Shelby County held that the preclearance formula was unconstitutional, and preclearance itself became a moot point. Almost immediately thereafter, several states implemented new election laws. Without the deterrent effect of Section 5 of the Voting Rights Act, 860 polling places in previously covered jurisdictions were closed within three years and new voter ID requirements proliferated. These changes, which would have had to be pre-approved under the VRA’s preclearance regime, could now be implemented without impediment. Although no reliable data yet exists comparing voter turnout and ballot accessibility in pre- and post-Shelby County presidential elections, what is clear is the message that striking down portions of the VRA sent.

What the majority and dissenters of the Shelby County court could not agree on was one central issue: was the Voting Rights Act still necessary in 2013 and beyond? Chief Justice Roberts stood firmly against the idea, stating that the coverage formula kept “the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.” Justice Ginsburg, in dissent, argued for the continued relevance of the preclearance formula. She boldly stated: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

The opposing sides of the Court came at the question of Shelby County from two inconsistent viewpoints. The preclearance formula, which covered jurisdictions that had a documented history of race-based voting discrimination, scrutinized changes to those jurisdictions’ voting laws under the assumption that there was a danger of further discrimination going forward. The majority truncated the context of the issue to the present, and stated that because the VRA had effectively corrected for the egregious race-based disenfranchisement of the Jim Crow South, it had served its purpose. The dissent, on the other hand, took a long view of history and saw the preclearance formula as a deterrent against future efforts to suppress or dilute minority voting strength, providing a check on future discriminatory laws before they could go into practice. Ultimately, Chief Justice Roberts’ viewpoint prevailed, and the formula was declared unconstitutional. The message sent to the states and to voters was that jurisdictions that had historically engaged in race-based voter suppression no longer needed to be kept under the watchful eye of the federal government. That portion of the Voting Rights Act was no longer necessary.

However, just seven years earlier, the Senate had reaffirmed its belief that the Voting Rights Act was necessary. In 2006, by a vote of 98 to 0, the Senate reauthorized the Voting Rights Act in its entirety for a further twenty-five years. In fact, Congress had continually reauthorized the Voting Rights Act since its initial passage in 1965, renewing its provisions in 1970, 1975, and 1982. Although the Shelby County majority declared that the preclearance regime was no longer necessary, Congress, at least up until 2006, had vehemently disagreed.

Laws function to control behavior in a variety of ways, the least of which is not through their expressive function. By “making statements,” laws can shape what is deemed acceptable by society at large. The preclearance regime of the Voting Rights Act acted in a such a way, standing for the proposition that voting is a fundamental right, and denying it to others on the basis of race is simply unacceptable.

The loss of that simple declaration was felt almost immediately. Within a year of the Shelby County decision, “most of the feared consequences [had] come to pass – including attempts to: revive voting changes that were blocked as discriminatory, move forward with voting changes previously deterred, and implement new discriminatory voting restrictions.” Many states enacted more restrictive voting laws after 2013, including most jurisdictions that had previously been covered by the preclearance regime.

Would these new laws have been enacted had the preclearance regime remained in place? Perhaps. Some might well have survived federal scrutiny, although other changes may not have passed through state legislatures while preclearance stood as an obstacle. Certainly, the number of proposed election laws proliferated in the years after Shelby County. And while some of those changes have served to make voting more efficient, others have specifically targeted impoverished and minority voters.

When the Supreme Court looked at the preclearance regime and questioned its continued relevance, the majority asked whether the preclearance regime was actually serving to block discriminatory voting laws. They questioned the preclearance formula’s focus on historically discriminatory jurisdictions, and found that that section of the VRA had become disconnected from its historical raison d’être. But the action the preclearance regime was meant to stall returned in force immediately after it was struck down. The problem, which had begun to seem like a historical relic, is now revived. Shelby County, rather than declaring the decisive end of discriminatory election law, has given such discrimination new life.

In his 1975 testimony before Congress,  Modest Rodriquez said, “Democracy does not come easily and we are asking for your help in this matter.” Rodriguez sought to impress upon Congress the need for expanding the Voting Rights Act, and he was ultimately successful. But his cause was one of many steps, additions and amendments and ratifications that bolstered the VRA through its history. Although the Act still stands, its central deterrent effect no longer does, and once again democracy proves that it does not come easily.

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Betsy DeVos, School Choice, and the Resegregation of American Public Schools

By Laura Page
Associate Editor, Vol. 22

The Senate confirmation hearing of Betsy DeVos, the President’s nominee for Secretary of Education, was one of the most contentious and heated in recent history.[1]  Critics contend that the billionaire Republican donor has no experience in public education—neither she nor her children attended public schools or borrowed a federal student loan, and she has no experience in education management.[2]  Proponents respond that her lack of experience and position as an outsider of the education establishment are precisely why she will be an effective Secretary of Education.[3]

Despite her lack of formal experience, DeVos has been an outspoken advocate of “school choice,” a controversial federal program providing private school vouchers and charter school access to parents whose children attend low-performing schools.[4]  DeVos said that if confirmed, she will be a “strong advocate for great public schools.”[5]  But when public schools are “troubled, or unsafe, or not a good fit for a child,” she said, parents should have a “right to enroll their child in a high-quality alternative.”[6]

School choice has been heralded as a defense of parents’ rights to define their children’s education, but critics of the policy raise significant fears around educational inequity—specifically, that allowing parents the opportunity to “shop” for schools will lead to increased class and racial segregation in public schools.[7]  The fear that such freedom-of-choice plans facilitate racial segregation is not new, however. [8]  Since the landmark decision in Brown v. Board [9] mandating the integration of public schools, the American education system has struggled to make the ideal of educational equity a reality, considering options like school choice and other reforms as possible solutions to school segregation.[10]  As recently as 2016, the Government Accountability Office issued a report highlighting the increasing segregation in public schools.  The report noted that:

The proportion of schools segregated by race and class—where more than 75 percent of children receive free or reduced-price lunch and more than 75 percent are black or Hispanic—climbed from 9 percent to 16 percent of schools between 2001 and 2014. The number of the most intensively segregated schools—with more than 90 percent of low-income students and students of color—more than doubled over that period.[11]

Though it is not the only factor at play, critics worry that expanded parent choice and the availability of private school vouchers will lead to further class stratification and increased racial segregation.[12]

The governance structure of such freedom-of-choice plans is partly to blame, as higher discretion afforded to both parents and schools leads to unequal outcomes in the admissions process.[13]  School choice relies on the market system of educational management, in which parents choose the schools which appeal to their tastes, and schools select which students will attend.[14]  “Research shows that free-market school choice, without diversity as a stated goal of a program, tends to exacerbate segregation and inequality in schools,” notes Halley Potter, a former charter school teacher and co-author of A Smarter Charter: Finding What Works for Charter Schools and Public Education.[15] “The expansion of vouchers is particularly worrisome because of many private schools’ ability to pick and choose students based on academics, behavior, or even religion or sexuality.”[16] The influence of this wide discretion is striking.  As the UCLA Civil Rights Project reported in 2010:

While segregation for blacks among all public schools has been increasing for nearly two decades, black students in charter schools are far more likely than their traditional public school counterparts to be educated in intensely segregated settings.  At the national level, seventy percent of black charter school students attend intensely segregated minority charter schools (which enroll 90-100% of students from under-represented minority backgrounds), or twice as many as the share of intensely segregated black students in traditional public schools. Some charter schools enrolled populations where 99% of the students were from under-represented minority backgrounds. Forty-three percent of black charter school students attended these extremely segregated minority schools, a percentage which was, by far, the highest of any other racial group, and nearly three times as high as black students in traditional public schools.[17]

It is this free-market structure allowing wide discretion for both schools and parents that critics worry will increase racial and class stratification; while school choice may improve the quality of education in some individual schools, it does so at the expense of educational equity for all students.

In addition to the possibility of discrimination in parent and school discretion, critics posit that the free-market system may not be as “free” as it appears.  Eve Ewing, a sociologist of race and education at the University of Chicago School of Social Service Administration, articulates the criticism in terms of equity: “The notion of [school] ‘choice’ suggests that all options are on the table for all parents, but when resources like transportation, childcare, and information access are unequally distributed, the choices on the table are in fact very constrained.”[18]  Thus, while school choice allows some parents the ability to “shop” for the school that best fits their child’s needs, the parent who lacks the time and resources to seek out such information—and in turn, her child—is not afforded an equal opportunity to evaluate educational options and select the best school for her child.

Whether DeVos will prioritize an expansion of school choice policies as Secretary of Education remains to be seen.  If confirmed, she will have substantial power to shape the focus of the Department of Education, and if her confirmation hearing is any indication, America’s public classrooms may look much less diverse in the coming years.


[1] Education Secretary Confirmation Hearing, C-Span, (Jan. 17, 2017), https://www.c-span.org/video/?421224-1/education-secretary-nominee-betsy-devos-testifies-confirmation-hearing.

[2] Warren Challenges DeVos on Personal Experience, CNN Politics (Jan. 20, 2017), http://www.cnn.com/videos/politics/2017/01/18/betsy-devos-elizabeth-warren-confirmation-hearing-sot.cnn.

[3] Cory Turner, At DeVos’ Senate Hearing, Questions of Choice, Charters, Other Options,’ NPR (Jan. 17, 2017, 4:53 PM), http://www.npr.org/sections/ed/2017/01/17/510274817/watch-live-betsy-devos-secretary-of-education-confirmation-hearing.

[4] Nat’l Conference of State Legislatures, School Vouchers, http://www.ncsl.org/research/education/school-choice-vouchers.aspx.

[5] Emma Brown, Moriah Balingit & Ed O’Keefe, Betsy DeVos, Trump’s Education Pick, Lauded as Bold Reformer, Called Unfit for Job, Wash. Post, (Jan. 17, 2017), https://www.washingtonpost.com/local/education/senators-to-scrutinize-betsy-devos-trumps-pick-for-education-secretary/2017/01/17/3a0e6168-da8f-11e6-9a36-1d296534b31e_story.html.

[6] Id.

[7] UCLA, The Civil Rights Project (2010), Choice Without Equity: Charter School Segregation and the Need for Civil Rights Standards, https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/choice-without-equity-2009-report.

[8] See generally Green v. Cty. Sch. Bd., 391 U.S. 430 (1968) (freedom-of-choice desegregation plans unconstitutionally preserve segregated conditions).

[9] Brown v. Bd. Of Educ. of Topeka, 347 U.S. 483 (1954).

[10] Emma Brown, On the Anniversary of Brown v. Board, New Evidence that U.S. Schools are Resegregating, Wash. Post (May 17, 2016), https://www.washingtonpost.com/news/education/wp/2016/05/17/on-the-anniversary-of-brown-v-board-new-evidence-that-u-s-schools-are-resegregating/?utm_term=.84c0b2fb8e6a.

[11] Id.

[12] James S. Liebman, Voice, Not Choice, 101 Yale L.J. 259, 280 (1991-1992) (reviewing John E. Chubb & Terry M. Moe, Politics, Markets, and America’s Schools (1990)).

[13] Id.

[14] Id. at 284.

[15] George Joseph, What Betsy DeVos Didn’t Say About School Choice, The Atlantic: Citylab, (Jan. 19, 2017), http://www.citylab.com/politics/2017/01/what-betsy-devos-didnt-say-about-school-choice/513269/.

[16] Id.

[17] UCLA, The Civil Rights Project, supra note 7.

[18] Joseph, supra note 15.

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Reflecting on Race Relations: Thanks Obama

By Marcus Baldori
Associate Editor, Vol. 22

In 2008, it was an open question of how race relations would unfold under America’s first Black president. Eight years later, polling shows that 54% of Americans think race relations between Whites and Blacks have gotten worse; it is hard to recall the sense of optimism of when Obama stepped into office. In part due to his status as an African American, and in part due to the economic and social events that have created mounting racial tensions during his presidency, it is intuitive that the subject of race relations will be one of the most talked about when it comes to Obama’s legacy.  It seems that the media as well as the public have been quick to identify the Obama years as either unproductive or harmful to race relations.

Polls conducted in 2016 show a significant downward trend in perception of race relations from polls taken in 2009. The New York Times/ CBS News Poll and The Washington Post-ABC News Poll reached similar results; when people were asked what they thought of race relations between Whites and Blacks generally, six out of ten Americans said relations were bad. This reflected a shift from over 60% thinking race relations were generally good in 2008 to below 35% in 2016. Affirming the sentiment implied by this data, a recent CNN poll (asking “do you think race relations between blacks and whites in the U.S. have gotten better, gotten worse, or stayed the same since Obama became president”) shows that 54% of Americans think that race relations have gotten worse since Obama became president. The Pew Research Center poll directed its study at whether people thought Obama directly made race relations worse, and indicates that more than half of adults think that Obama either had no impact on race relations or made them worse. This sentiment is a classic correlation versus causation misunderstanding.

Unsurprisingly, these polls have been used by journalists and researchers to understand Obama’s impact on race relations. More often, they have been used by (mostly) conservative advocates as key evidence that Obama, himself, caused this perceived decline in race relations. A quick sampling of article titles include ‘Why Race Relations Have Gotten Worse Under Barack Obama,’ ‘60% Say Race Relations Have Gotten Worse Since Obama’s Election,’ and ‘Racial relations reach all-time low under Obama: poll.’

Attack articles argue that Obama has unnecessarily enflamed race relations by prematurely highlighting and characterizing police conduct as discriminatory in situations where ultimately the police were not prosecuted (Michael Brown; Trayvon Martin). In other words, the argument is that he incorrectly victimizes Blacks, and doesn’t address the greater problem of Black on Black violence.

The exact opposite argument has been used by Democrats who have faulted Obama for not siding more with Black activist groups—there was an initial backlash because he didn’t use the words “police brutality” when talking about Ferguson. When it comes to deeply divisive scenarios, any statement would enflame one side or the other, and it seems like Obama’s best option has been to appear relatively neutral. In regard to Ferguson, Obama’s statement that “there’s a big chunk of our fellow citizenry that feels as if because of the color of their skin, they are not being treated the same” is undeniably true, and doesn’t undermine the concerns of Black voters.

Not only would Obama limit divisiveness surrounding hot-button racial events through restrained language, but he would later respond with backing narrowly tailored laws and programs to prevent similar events. The ‘Blue Alert’ law requires instant nationwide system for notifying police of threats (in response to the racially motivated 2015 shooting of two New York police officers). $23.2 million in grants were awarded for law enforcement agencies to purchase police body-worn cameras (in response to Michael Brown’s death in 2014).

On hot-button racial events, Obama had a limited ability to pacify one side without upsetting the other, and these events appeared with increasing frequency. A contributing factor is undoubtedly the increasing nation-wide exposure to racially charged situations through advancements in technology and social media. It seems possible that newly elevated race-related tension is the result of an abundance of new information and communication methods available to the public. Optimistically, this new information will lead to mobilization around nuanced issues like police education, police oversight agencies, state governance/funding in minority communities, gun control, harsh drug sentences, and others. The smartphone era simply coincided with Obama’s time in office, and it is entirely possible that the developments of high profile, racially divisive events have far more to do with the that than with Obama.

These high profile events have overshadowed Obama’s efforts to ease racial tensions through addressing unattended grievances and raising the quality of life of minorities. In 2010, for example, Obama oversaw a $1.2 billion settlement awarded to Black farmers based on discriminatory loan practices. In 2012, the Labor Department reformed the Fair Labor Standards Act to extend minimum wage and overtime protections to home care workers—a growing profession that is comprised of 56% minorities. Another measure in 2012 was Obama’s executive order to stop deporting certain illegal immigrants who entered the United States as children; although this was contested by Republicans, the general consensus was that these were not individuals that the immigration removal process was designed to target.

Race relations were undeniably tumultuous from 2008 to 2016; but as time allows for reflection, Obama’s approach should be regarded as prudent. He has limited further divisiveness by commenting little on hot-button media topics while keeping his eye on target when it comes to elevating the quality of life for minorities.

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