When a group of Republican state lawmakers last summer mounted a
public campaign to find potential plaintiffs for a class-action lawsuit
against the University of Michigan’s affirmative action admissions
policies, Jennifer Gratz responded immediately. Gratz, a policeman’s
daughter and former high school homecoming queen, had been rejected by
Michigan in 1995 despite strong grades and high standardized-test
“When I was turned down, I was disappointed and embarrassed,” she
said in a recent interview. After receiving Michigan’s rejection
letter, Gratz, who is White, discussed with her parents the idea of
suing the school. “But it really wasn’t serious then. I knew we didn’t
have the resources.”
The resources and legal expertise that ultimately made the Michigan
lawsuit possible were provided by the Washington, D.C.-based Center for
Individual Rights (CIR), a conservative public-interest law firm that
over the past two years has mounted an all-out assault on university
affirmative action admissions policies.
Last year, CIR jolted the academic establishment with its stunning
legal victory in Hopwood v. State of Texas. It convinced the Fifth
Circuit Court of Appeals to, in effect, reverse long-standing Supreme
Court precedent that permits race to be considered as a “plus” in
admissions decisions. The Hopwood opinion is only binding law in the
Fifth judicial circuit which includes Texas, Mississippi, and
Louisiana. But it has been causing universities around the country to
reexamine their admissions policies.
Sensing that the academic establishment was on the ropes, CIR in
March sued the University of Washington Law School over its admissions
policies. The lawsuit against the University of Michigan undergraduate
program followed in October. And just this month, the Center filed a
separate lawsuit against the admissions policies at Michigan’s law
school. CIR’s rapid flurry of litigation has set in motion a legal
controversy that almost certainly will have to be resolved one day by
the U.S. Supreme Court.
“We’re trying to make clear to the higher education establishment
that they can’t just go on operating as if they’re above the law,” says
CIR spokesman Terence J. Pell. “Higher education officials know
perfectly well that their admissions policies are illegal and they just
go ahead and operate them anyway.”
Defying Neat Labels
It might be tempting to view CIR simply as a bunch of racists out
to roll back the gains that African Americans and other minorities have
made since the civil rights movement. With backing from several leading
conservative and libertarian foundations and some of the nation’s most
high-priced legal talent, CIR, since its founding in 1989, has been
bringing precedent-setting litigation challenging everything from
affirmative action to political correctness on campus. But whatever one
ultimately concludes about their motives, CIR is a complicated
organization whose far reaching political and courtroom agenda defies
In all of CIR’s university admissions cases, the lead plaintiffs
have been White women, a strategic decision that in the court of public
opinion undercuts arguments that affirmative action has primarily
benefitted this group. Yet CIR has hardly been an ally of the women’s
movement. For example, the group successfully challenged a Federal
Communications Commission program that gave women an edge in
competition for broadcast licenses.
In the free speech area, CIR has defended the rights of at least
two controversial university professors, one whose views were on the
political left, the other on the political right. In addition to all of
its higher education litigation, CIR also recently managed to squeeze
in a successful defense of California’s Proposition 209, which bars any
consideration of race, sex, color, ethnicity, or national origin in
state decision making. In November the Supreme Court declined to
consider a challenge to the statute, effectively removing any obstacle
to its implementation.
While CIR has railed against what it calls minority “racial
preferences,” it also sued Alabama State University on behalf of an
African American student over a “Whites only” scholarship administered
by the historically Black college in an effort to promote “diversity.”
The Alabama State lawsuit is viewed by CIR critics such as Theodore
M. Shaw, associate director-counsel of the NAACP Legal Defense Fund, as
a cynical move by CIR officials to sanitize their image. The Legal
Defense Fund has been criss-crossing the country in an effort to
counter CIR’s courtroom shooting spree.
“They’re pushing color blindness as a principle, and they’re
pushing it without regard to the effect it will have on African
American students,” says Shaw. “Even when they [CIR] represent Black
folks, it is always in pursuit of a principle which, I think, if
applied blindly will operate to the detriment of Black people.”
CIR Executive Director Dr. Michael S. Greve says that what
motivates the organization — whether it is opposing programs
benefiting Blacks, Whites, or women — is not opposition to civil
rights, but a firm belief in the conservative notion of limited
“It’s really a very bad thing for the government to silence
viewpoints or to discriminate against people on the basis of their
religion or their race,” he says. “If there is no line against those
things, then the government can do whatever it wants.”
What is at issue in CIR’s university admissions lawsuits is the
1978 U.S. Supreme Court decision in Regents of the University of
California v. Bakke. In that case, the Court struck down a program at
the University of California-Davis that set aside a specific number of
seats for minority students in the first-year medical school class.
Nevertheless, the Court said that a university’s First Amendment-based
interest in academic diversity could permit race to be used as a “plus”
in admissions decisions.
Hopwood was the first major affirmative action admissions case to
hit the courts since Bakke. In its opinion, the Fifth Circuit Court of
Appeals boldly asserted that the Bakke opinion was no longer valid in
the wake of more recent Supreme Court decisions outlawing state and
federal government programs that set aside government contracts for
At the University of Texas School of Law, the results of the
Hopwood decision have been devastating. Only eleven African American
students were offered admission to the first-year class, down from
sixty-five the previous year. Only four actually enrolled, compared
with thirty-one the previous year. The Supreme Court in July refused to
review the Hopwood case.
Despite its role in Hopwood, CIR officials nevertheless maintain
that they are proponents of diversity who support the idea that
state-run institutions such as the University of Texas and the
University of Michigan have a responsibility to provide educational
opportunities to all its citizens. They also claim to be troubled by
the dramatic decline in minority enrollment that has occurred at the
University of Texas Law School.
But CIR contends that this decline could have been averted if
university administrators at the University of Texas had not been so
determined to remain in the ranks of elite law schools, a ranking which
is largely based on the average grades and test scores of the student
body. Because law schools, like other institutions of higher learning,
have made grades and test scores the centerpiece of their admissions
decisions. CIR officials assert, it is discrimination for them to admit
minority students who have lower combined grades and test scores than
competing White students.
“If [state-run universities] really think their mission is to
educate all the citizens of the state, they’re going to have to
de-emphasize grades and test scores and look at other factors that
would help to identify students who will make a contribution to the
community,” says Pell, CIR’s spokesman.
CIR officials also assert that they do not object to consideration
of race by private institutions, such as Harvard. This is simply not a
proper role for state-run schools, they say. However, they do
acknowledge that if Bakke were reversed, even private schools could not
use race in their admissions decisions without new federal legislation,
which they say they favor.
Using the Opposition’s Strategy
Ironically, many affirmative action supporters agree with CIR that
grades and test scores should be de-emphasized. They also agree that
university admissions committees should be relying more on qualities
such as leadership potential, economic hardship, and community service
in making their decisions.
Sumi Cho, an assistant law professor at DePaul University and a
member of the board of governors of the Society of American Law
Teachers (SALT), says that in the wake of Hopwood, her society is
currently studying alternative approaches to admitting students, as
well as alternative methods of ranking law schools.
But Cho believes that even if law schools and undergraduate schools
were to change their admissions procedures, there will always be a need
to use race as a factor in order to achieve a diverse student body. For
Cho, CIR’s emphasis on colorblindness is misplaced because it ignores
this country’s history of racism.
“The real question is: `Should the state be in the business of
taking racism into account?'” she asks. “And if you take racism into
account, why can’t you also take race into account? Because to do
otherwise would be an endorsement of the accumulation of White
privilege over the centuries.”
CIR’s recent string of courtroom successes are rooted in a public
advocacy model first mastered by liberal organizations such as the
NAACP Legal Defense Fund and the American Civil Liberties Union. The
model has also been used by several conservative advocacy groups that
have sprouted around the country since the 1970s. They include the
Washington Legal Foundation, the Institute for Justice, and the Pacific
Like their liberal counterparts, CIR only accepts cases that have
been carefully selected for their precedent-setting value. Potential
clients are screened to ensure that they will make sympathetic
plaintiffs. CIR’s work is financed by healthy doses of cash from
private foundations of a conservative stripe. And the organization also
has benefitted from a network of politically like-minded lawyers who
have been willing to contribute their otherwise high-priced services
Finally, just as liberal advocacy groups benefitted from a
sympathetic judiciary during the heyday of the civil rights movement,
CIR has benefitted from the corps of conservative judges appointed
during the Reagan and Bush years. All three of the appellate judges who
decided the Hopwood case were appointed by either Reagan or Bush.
The Professors’ Attorneys
CIR co-founders Greve and Michael P. McDonald, both 41, met while
working at the Washington Legal Foundation (WLF) in the 1980s. The
foundation largely focuses on economic issues, but it was also
responsible for mounting a successful legal challenge to a University
of Maryland scholarship program established to benefit minority
Greve and McDonald decided to establish an organization that would
focus on three high-profile social policy targets: free speech, sexual
harassment — which to McDonald means “challenging the fanatical
application of sexual harassment regulations” — and civil rights.
McDonald already had a background in First Amendment law, and both men
say they were alarmed at what McDonald described as efforts by
university administrators to “muzzle” students and faculty in the name
of political correctness.
These campus “free speech” cases were some of CIR’s first efforts,
but in this area the organization has supported plaintiffs on both ends
of the political spectrum.
In 1990, CIR came to the aid of Michael Levin, a tenured professor
of philosophy at the City University of New York. In a series of
published articles Levin claimed, among other things, that, “It has
been amply confirmed over the last several decades that, on average,
[B]lacks are significantly less intelligent than [W]hites.”
When university officials began taking steps toward revoking
Levin’s tenure and creating “shadow” sections of his courses to shield
students who were offended by his views, CIR sued on his behalf. A
federal appellate panel eventually held that the university had
violated the professor’s free speech rights and prohibited any further
action against him.
However, in 1994 CIR also represented Robert J. Scallet, a White
contract professor at the University of Virginia’s Darden School of
Business. Scallet sued the school alleging that it refused to renew his
contract because, both in the classroom and in faculty meetings, he had
been a strong proponent of diversity and championed the idea of
refashioning the curriculum to make it more acceptable to women and
Last year, a U.S. District Court in Virginia agreed with the
university that Scallet had been dismissed solely because his conduct
was disruptive and because he had difficulty working with other faculty
members. The case has been appealed to the U.S. Supreme Court.
“In most of the cases we’ve done, the speech was plainly within the
purview of academic freedom,” says McDonald, explaining the center’s
decision to take on these seemingly distinct cases. “It was perhaps
offensive, but in all the cases I can recall [the speech] served
entirely legitimate academic purposes.”
Higher education has been a constant target for CIR. Of the
twenty-two active cases listed on the organization’s home page,
thirteen involve higher education. But the organization has not shied
away from other areas as well.
The Men Behind the Wheel
One of CIR’s first anti-affirmative action cases was Lamprecht v.
Federal Communications Commission. CIR represented a White male who
challenged the agency’s policy of giving an edge to women in the
competition for broadcast licenses solely because of their gender. In a
1994 opinion by then-appellate judge Clarence Thomas, the U.S. Court of
Appeals for the District of Columbia ruled that the program was
unconstitutional. He reasoned that there was no basis for concluding
that increasing female ownership of broadcast facilities led to an
increased diversity of viewpoints on the airwaves.
In another case, CIR defended Black student athletes against a
civil lawsuit brought under the 1994 Violence Against Women Act by a
White female student who claimed the students had raped her. CIR
successfully challenged the constitutionality of the statute — not,
they say, because they disagreed with its goal of protecting women, but
because they viewed the law as an overly broad use of federal
government power. An appeal in the case is currently pending.
Since CIR’s founding in 1989, Greve and McDonald have continued to
be the driving force behind the organization. Greve, who holds a
doctorate in government from Cornell University, is the organization’s
chief administrator, fund-raiser, and policy guru. Prior to working at
WLF, Greve served as a program officer for the Smith Richardson
Foundation, a conservative foundation that became one of CIR’s first
sources of funding.
Greve does most of the public speaking for CIR. He is active on the
lecture and conference circuit and is a frequent editorial writer. Tall
and blonde. Greve is quick with catchy one-liners. For example, in a
1995 article criticizing what he viewed as the extremes to which some
institutions had gone in race-based decision making. Greve wrote that.
“Racially exclusive programs are the partial-birth abortions of
affirmative action.” He is largely responsible for the irreverent tone
of Docket Report, the center’s quarterly newsletter.
A German citizen who has lived in the United States since 1981,
Greve speaks with a slight accent that betrays his German roots. Greve
says that his disdain for big government even explains why he has not
yet traded his green card for U.S. citizenship.
“I have a visceral reaction to any kind of bureaucracy, including the INS,” he quips.
McDonald is CIR’s chief legal strategist. He is shorter, more
cautious and soft-spoken. During a recent interview, he was the more
conservative dresser — coal black suit with pinstripes. His hands
twitch nervously. While Greve is given to broad policy pronouncements.
McDonald prefers to offer what he calls “more nuanced” opinions. A
graduate of Georgetown University Law Center. McDonald directed the
legal efforts of the American Legal Foundation, a public interest law
firm specializing in communications and First Amendment issues, before
Money, Friends, and Goals
Greve and McDonald make no secret of the sources that fund their
$1.3 million operating budget which supports a nine-person staff that
includes four full-time lawyers and pays the rent on the organization’s
swanky offices in downtown Washington. A list of contributors released
by CIR includes some of the country’s largest conservative or
libertarian foundations. During CIR’s fiscal 1997, nearly half of the
center’s budget came from five large foundations: the Smith Richardson
Foundation, the John M. Olin Foundation, the Carthage Foundation, the
Bradley Foundation and the Randolph Foundation. Olin, the center’s
largest single donor, contributed $200,000.
Matthew Freeman, senior vice president of People for the American
Way, a liberal advocacy group, says these five foundations have been in
the forefront of funding a Variety of conservative causes in recent
“These foundations are interested in shaping public policy in a
number of areas,” he says. “They have an agenda and they promote it.”
The Olin Foundation funds a variety of conservative college
publications and also supports the National Association of Scholars, an
organization of conservative professors. Both the Olin and Bradley
foundations have been contributors to the American Enterprise
Institute. which has supported conservative scholars such as Dinesh
D’Souza. And the Carthage Foundation has been a regular contributor to
the Federation for American Immigration Reform (FAIR), which has
lobbied for restrictions on legal immigration to the United States.
While foundation funding has been critical to CIR, perhaps even
more important has been the willingness of high-priced lawyers at some
of the nation’s most elite law firms to provide free legal assistance.
For example, in Hopwood, the center recruited high-flying lawyer
Theodore B. Olson of the Washington office of Gibson, Dunn &
Crutcher to handle the appeal.
Olson had been a top official in the Reagan Justice Department and
represented Reagan during the IranContra investigations. He also
successfully convinced the U.S. Supreme Court that a lower federal
court judge acted appropriately in deviating from federal sentencing
guidelines in order to impose a reduced jail term on Stacey Koon, one
of the Los Angeles police officers convicted in the 1991 beating of
motorist Rodney King.
While most legal observers are betting that one of CIR’s university
admissions cases will ultimately make it to the U.S. Supreme Court, CIR
officials say that their goal is not necessarily to overturn the Bakke
decision. McDonald argues that even if Bakke were overturned,
university administrators would still find some way to factor race into
their admissions decisions.
“As long as you have a box [on the admissions application] where it
says check your ethnicity, there’s a way for admissions officers to
make race into a bigger factor than it would be otherwise and not leave
as egregious a paper trail as they did in Hopwood,” McDonald says.
Rather, Greve and McDonald contend that since Bakke was decided,
university officials have grown arrogant, and have used the decision as
the basis for mounting a system of “blatant racial preferences.” They
believe their lawsuits will force university admissions officers to
review their policies and return to an approach that is more consistent
“It looks intransigent to say absolutely no consideration of race
ever,” says Greve. “But you have to say that has to be the legal
baseline, period. And then you have to live with the fact that nobody
is going to play by the rules anyhow. The NAACP learned that in the
sixties, and we’ll learn that now.”
RELATED ARTICLE: What’s At Stake
The Court Decisions Affecting Higher Education and Diversity
When the U.S. Supreme Court issued its opinion in Regents of the
University of California v. Bakke in 1978, the case was widely viewed
as a defeat for proponents of civil rights.
Yet today, Bakke’s key holding permitting race to be used as a
“plus” factor in university admissions decisions is under attack by the
Washington, D.C.-based Center for Individual Rights (CIR). As a result,
the civil rights community has taken to the trenches to defend it.
In the case of Hopwood v. State of Texas, one federal appellate
court already boldly scrapped the Bakke decision. And the assault on
Bakke continues as three other CIR-backed lawsuits are currently making
their way through the lower federal courts.
Given the sheer volume of litigation CIR has sparked, it seems
inevitable that the Supreme Court will eventually be forced to step in.
If that happens it is unclear whether Bakke will survive the challenge.
The Legal Guidepost
For nearly twenty years, Bakke has been the guidepost for
university officials seeking to enhance racial and ethnic diversity on
their campuses. But CIR has argued that university officials have
stretched Bakke far beyond its original narrow intent to mount a system
of “blatant racial preferences” that discriminate against Whites in
favor of less-qualified minority students.
“We seem to be living post-Bakke in a world in which we said we
would allow race to play a small part [in admissions decisions] and the
system got totally out of control,” says CIR’s chief legal strategist
Michael P. McDonald.
Samuel Issacharoff, a law professor at the University of Texas who
helped defend the school in Hopwood, predicted that even with its
largely conservative makeup, the Supreme Court would vote to uphold
“I think the Supreme Court has indicated no willingness at this
time to see the major institutions of society resegregated,” he says.
“That would cause the court to back off a categorical confrontation
However, all of the liberal-leaning justices who supported the
Bakke decision have long since left the court. Four of the current
justices — William Rehnquist, Sandra Day O’Connor, Anthony M. Kennedy
and Antonin Scalia — have opposed “diversity” as a rationale for using
racial considerations in the award of broadcast licenses. Clarence
Thomas has consistently demonstrated his dim view of affirmative
action, and justice John Paul Stevens, who has frequently sided with
the liberal wing of the current court, was one of the original justices
who opposed what has become the central holding of Bakke.
The legal issues raised by the CIR litigation are complex. Bakke
was the first of several “reverse discrimination” cases. In these cases
— whether they involve employment, government contracting, or higher
education — White plaintiffs have alleged that their antagonists have
violated one of several constitutional and statutory prohibitions
against racial discrimination. The term reverse discrimination is
something of a misnomer because, legally, there is know such claim but
the term has become popular in the media.
What makes the so-called reverse discrimination cases unusual is
that they raise the question of when and under what circumstances
racial classifications may be used in a “benign” manner to remedy the
effects of past societal discrimination.
The Bakke Case
In Bakke, a White would-be medical student sued the University of
California-Davis. Alan Bakke claimed that the school violated the
Fourteenth Amendment as well as the Civil Rights Act of 1964 by setting
aside a specific number of seats in the first-year medical school class
for minority students.
The lawsuit went all the way to the Supreme Court where it resulted
in an unusual plurality decision. The critical opinion was written by
former justice Lewis F. Powell who sided with current justices William
Rehnquist and John Paul Stevens in holding that any racial
classification, even if adopted for a “benign” purpose, must be
subjected to the strictest judicial scrutiny. That means that such
classifications must serve a “compelling” governmental interest and
must be narrowly tailored to achieve those ends. In practice this is an
extremely difficult standard to meet.
Powell agreed with Rehnquist and Stevens that the medical school’s
program was unconstitutional because it created a separate admissions
track for minority students. However, he said that colleges and
universities have a “compelling” First Amendment interest in academic
freedom that would permit them to consider race as a “plus” in an
More liberal justices, led by Thurgood Marshall and William
Brennan, would have applied a less restrictive standard of judicial
review and permitted the medical school’s original affirmative action
program to stand. Marshall and Brennan did not specifically sign on to
Powell’s academic freedom argument. But their opinion, together with
Powell’s, have widely been interpreted as permitting race to be used as
a factor in admissions decisions.
The Bakke decision endured without substantial challenge for nearly
two decades until Cheryl Hopwood, a military wife with a severely
handicapped child, sued the University of Texas School of Law because
she had been denied admission. She claimed that the law school used
lower admissions criteria for African American and Hispanic students in
violation of the Constitution and federal civil rights statutes.
The Hopwood Case
In the interim between Bakke and Hopwood, however, the Supreme
Court had continued to whittle away at programs aimed at remedying past
discrimination. It has applied strict judicial scrutiny to strike down
remedial programs established to steer government contracts to
minorities. The Court has also limited the extent to which race may be
used as a factor in drawing voting districts. In all of these cases,
the Court has held that the government only has a compelling
justification for using a racial classification if it is acting to
remedy the present effects of past discrimination.
In light of these decisions and the general conservative shift in
the composition of the Court, Powell’s lone opinion appeared to rest on
a shaky foundation. Hopwood set out to give that foundation a push.
It is ironic that the University of Texas School of Law became the
battleground over affirmative action. During the 1940s, the school was
targeted by Thurgood Marshall and the NAACP Legal Defense Fund for its
refusal to admit Black students. Back then, Texas was so adamant in its
position that it financed a separate law school for Black students,
which survives today as the Thurgood Marshall School of Law.
Eventually, in a landmark 1950 decision, the Court ordered the state to
admit an African American candidate to its premier law school. It was
the first time in its history that the Supreme Court had ever ordered a
White school to admit Heman Sweatt, a Black student. The Court’s
decision in the Texas case set the stage for its 1954 Brown v. Board of
Education opinion which effectively ended legalized school segregation.
The Hopwood court acknowledged Texas’s long history of racial
discrimination in elementary and secondary education. It also
acknowledged that Texas had been one of nineteen states compelled to
adopt affirmative action programs to alleviate vestiges of
discrimination in higher education under what is known as the Adams
case. But the law school’s admissions policies were not adopted as part
of the Texas affirmative action plan, the court found. It further
concluded that there was no evidence of present-day effects of past
discrimination that would support a race-based remedy. Rather, the
court stated, “[D]iscrimination by the law school ended in the 1960s.”
The Hopwood court went on to adopt CIR’s view that Powell’s opinion
had never been embraced by the entire Supreme Court and that, even if
it had been, that opinion is no longer valid in light of the Court’s
recent rulings in the area of government contracting and voting rights.
“The whole institutional academic freedom argument was preposterous,” McDonald maintains.
Apparently, the Fifth Circuit Court agrees.
CIR’s pending lawsuits against the University of Michigan and
against University of Washington School of Law essentially raise the
same issues as Hopwood. These cases will require the Court to decide
whether, twenty years after Bakke, the special niche which Powell
attempted to carve out for higher education’s affirmative action
programs still has any meaning.
In the Washington case, CIR contends that applicants were separated
into different pools according to race and that different grade and
test score standards were applied.
The lawsuit against the University of Michigan undergraduate
program is particularly troubling. A key piece of evidence in that case
will be documents obtained by a philosophy professor at the school that
purport to show that the school routinely admitted minority students
with lower grades and standardized test scores than Whites. In all the
cases, the schools have denied that race is a predominant factor in
their admissions decisions.
In any event, it may be several years before any of the current
crop of cases make it to the Supreme Court. One thing that is almost
certain, however, is that these cases will not go away.
Recently civil rights groups banded together to finance a
settlement in a lawsuit originally brought by a White school teacher
against the Piscataway, NJ., school board. The board fired the White
teacher to preserve the job of a Black teacher. The civil rights groups
feared that the case would have resulted in an adverse opinion from the
But CIR and the plaintiffs it represents are not in this battle for
the money. They will not be bought off. They are out to topple the
affirmative action admissions policies of hundreds of colleges and
universities around the country. They agree with Jennifer Gratz, the
lead plaintiff in the Michigan undergraduate case.
“I just feel strongly that something is wrong with the policy,” she says.
CENTER FOR INDIVIDUAL RIGHTSGRANTS & CONTRIBUTIONS (FY 1996-97)Donor Amount Amount FY 1996 FY 1997Foundations (>50,000)Smith Richardson Fnd 125,000 125,000John M. Olin Fnd 100,000 200,000Carthage Fnd 100,000 75,000Randolph Fnd 41,126 91,995Bradley Fnd 90,000 90,000Gilder Fnd 20,000Donner Fnd 50,000 50,000F.M. Kirby Fnd 50,000 50,000Dunn's Fnd 75,000 100,000 50,000 75,000Scaife Family Fnd 25,000 50,000Foundation (<50,000) 12,906 18,092Corporate/Legal 26,000 22,824Individuals 77,627 71,250Interest Income 5,233 12,009Micellaneous Income 509 4,855Attorney's Fees 40,609 268,333TOTAL 869,010 1,324,358YR/YR INCREASE 4% 52.4%TOTAL GRANTS 822,659 1,039,161YR/YR INCREASE 16.2% 26.3%
SOURCE: Center for Individual Rights
COPYRIGHT 1997 Cox, Matthews & Associates
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