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In San Antonio Texas there are two particular school districts which are the subject of San Antonio v. Rodriquez, 411 U.S. 1, (1973). Alamo Heights is a district in the north central part of San Antonio. It is one of the older neighborhoods and is home to the now defunct Alamo Cement Plant. In the cities earlier years the owners of Alamo Cement Plant and currently the wealthy of San Antonio live in Alamo Heights. Edgewood School District is located just south east of Alamo Heights and parts of it are relatively old as well. It has historically been a low income district.
The Edgewood School District brought suit attacking the Texas system of education funding. The suit was brought as a class action consisting of schoolchildren throughout the state who are members of minority groups or who are poor and reside in school districts having a low property tax base. Id. at 1281. The defendants consisted of the State Board of Education, the Commissioner of Education, the State Attorney General and the Bexar County Board of trustees. The District Court found that the Texas financing scheme violated the Equal Protection Clause of the Fourteenth Amendment. The District Court stayed its mandate for two years to give the legislation time to set forth a remedial order. Id. at 1281. The State appealed and the Supreme Court granted Certiorari. Id.
The funding scheme is essentially two fold. The localities contribute funds based on a tax rate set by each locality. The Texas Constitution limits the tax rate to $1.50 per $100.00 of property value. The other funding source is directly from the state. The court spends considerable time on the actual scheme of the funding but what is relevant is that the scheme resulted in the Edgewood School District receiving substantially less than Alamo Heights. The District Court held that the Texas system discriminates on the basis of wealth. Id. at 1286. The court enunciated that wealth is a suspect class and that education is a fundamental interest. Id. The District Court continued that the state failed to demonstrate a reasonable basis for its classification much less a compelling interest. Id.
The Lack of a Suspect Class
The Court endeavored to test whether or not there is a suspect class and whether there is a fundamental interest in education. If either failed, the test to be applied is whether the state funding scheme had a rational relationship to a legitimate interest. Id. at 1287. The District Court relied on classifications of indigent criminals and their ability to afford the appellate processes , as well as voting rights cases hinging on the wealth of candidates . There were three possible suspect class definitions: 1) Poor persons whose incomes fall below some level of poverty or who might be characterized as functionally indigent; 2) those who are relatively poorer than others; 3) all those who reside in relatively poorer school districts. Id. at 1288.
The indigents in the cases which the District Court relied on as did the Supreme Court suffered an absolute deprivation of access to the appeals system or to candidacy in the election process. In Griffin v. Illinois, 351 U.S. 12, (1956) the indigent could not afford to pay for a transcript such that a reviewing court could consider his case. In Bullock v. Carter, 405 U.S. 134 (1972), prospective candidates were required to pay a filing fee in order to run for office. In both cases the Court held that the indigency of the individual deprived him of some benefit. The District Court, in the case sub judice, found these cases controlling and that their premise was that wealth is a suspect classification. Id. 1287.
Justice Powell distinguishes this case from the voting and criminal indigent cases by way of defining or finding a lack of definition of the poor. Id. at 1288. Taking the three definitions described above piecemeal the Court proceeds to attack all but the last definition. As a foundation Justice Powell sets up the test for discrimination on an indigency basis by drawing from the voting and criminal indigent cases. First the indigent must be completely unable to pay for some desired benefit and second because of this lack of ability to pay the indigent suffers an absolute deprivation of a meaningful opportunity to enjoy the benefit. Id. at 1290. In Griffin, Douglas and Williams the court points out that the indigent was completely unable to pay for the desired benefit. Id. at 1290. In Douglas the indigent could not pay for counsel on direct appeal. An Equal Protection claim was perfected based on the fact that those with sufficient funds could retain counsel and be afforded Due Process while those without funds could not retain counsel. In Williams, the Supreme Court struck down what was essentially a "debtors prison" sanction. Thus the Court disallowed incarceration for the inability to pay a fine.
Justice Powell focuses on the indigents complete inability to pay and not on relative wealth. Rodriquez at 1290. Bullock v. Carter, 405 U.S. 134 (1972), demonstrates a barrier, set forth by statute, to candidacy for office in Texas. The State required a filing fee specifically gauged to the cost of the election. Thus prospective candidates were denied access as were their prospective voters from the electoral process. The Court pointed out in Bullock, as Justice Powell demonstrates in the case sub judice, that the candidates had 'no reasonable alternative'. Id. at 142.
The class set forth in Rodriguez is indefinable as it is not shown to fall below some identifiable level of poverty. Justice Powell points to statistics of Connecticut that all who live in poor districts are not necessarily poor. The Court mandates that absolute pecunity be the reference point in order to assume that the poorest people are concentrated in poor neighborhoods. Id. at 1291.
Justice Powell points out that there is not an absolute deprivation of education but merely a poorer quality education. Id. at 1291. The Court than notes, distinguishing wealth, that the Equal Protection Clause does not require absolute equality or precisely equal advantages. Id. The State asserts that the Texas public school system does as it set out to; it provides all with an adequate education. Id. Based on the lack of a definable class and the lack of an absolute deprivation the Court finds that the disadvantaged class is not susceptible of identification in traditional terms. Id. at 1292.
The second suspect class definition advanced by counsel and accepted by the District Court is characterized as a theory of relative or comparative discrimination based on family income. Id. at 1292. The lower the family income the lower the dollar amount of education received by the family's children. Id. The District Court relied on an affidavit stating which indicates a positive correlation between the wealth of school districts, measured in terms of property value per pupil, and their levels of expenditures. Secondly a similar correlation existed between district wealth and the personal wealth of its residents, measured in terms of median income. Id.
Justice Powell takes the affidavit and the District Courts decision to task by questioning to what degree of correlation is necessary to show a comparative disadvantage. Additionally, Justice Powell questions "whether a class of this size and diversity could ever claim the special protection accorded 'suspect' classes. Finally, Justice Powell points out that the positive correlations which exist are only at the high and low end of the classes for 10% of the districts in Texas. For the remaining 90% the correlation is inverted. Id. at 1293.
The Third suspect class was alleged to be all those who reside in relatively poorer school districts. Id. at 1293. The Court states this theory of suspect class in two alternative ways and then summarily dismisses the argument as a non-traditional suspect class. Id. at 1293-1294. The first recharacterization or restatement of the class; is all children in poorer districts except the most wealthy. The second is set forth by Justice Marshall's dissenting opinion as; children who reside in districts with assessable property which falls below the statewide average or median income or some other artificially defined level. Id.
Justice Powells comments as to this last argument is that the class is too amorphous, diverse and unified only by children who live in poorer districts. Id. The Court merely rephrases the last definition three different ways without explaining why it is insufficient. With that the Court ends any possibility that the poor children of Texas could be defined as a suspect class.
Education as a Fundamental Right
The Court begins its analysis by parading the importance of education before those which have espoused its essential nature to a free society. Education is perhaps the most important function of state and local governments. Brown v. Board of Education, 347 U.S. 483, (1954). Qualifying the rest of Brown's statements as "in the context of racial discrimination ", Justice Powell illustrates the importance of education.
Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is the very foundation of good citizenship. It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of education. The grave significance of education both to the individual and to our society cannot be doubted". Id. at 1295.
Justice Powell slights the iterations of previous courts by indicating that the importance of an interest does not determine whether it is a fundamental right. Id. at 1295. Seemingly in a feeling of guilt Justice Powell attempts to reconcile the lack of a fundamental right to education and the right to travel set forth in United States v. Guest, 383 U.S. 745, (1966). The distinction between interstate travel as a fundamental right, and education, is that interstate travel has long been recognized as a right of Constitutional significance. Rodriguez at 1295. Thus where a right has long been recognized as a Constitutionally significant right no further inquiry, or "ad hoc determination", as to the social or economic importance of the right is required. Id. at 1295.
In Dandridge v. Williams, 397 U.S. 471, (1970), the court struck down a claim for benefits in the form of the most basic needs of impoverished human beings. Id. The central importance of the benefit is not an adequate foundation for requiring the State to justify its law by showing some compelling state interest. The Court retreats behind federalism and indicates that it is not the role of this court to create substantive Constitutional rights in the name of Equal Protection. Id. at 1296. The right is not found by societal importance of the benefit but by looking to whether the Constitution explicitly or implicitly guarantees such a benefit as a right. Id.
The Court finds no explicit right and claims there is no implicit right. The respondents claim that education is a fundamental personal right as it is necessary to exercise other enumerated rights such as free speech and the right to vote. Id. at 1297. The marketplace of ideas is an empty forum for those lacking basic communicative tools. Id. "The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed". Id.
Justice Powell in rejecting these arguments retreats behind federalism and that it is not the judiciary role to implement such values. Justice Powell indicates that no charge fairly could be made that the system fails to proved each child with an opportunity to acquire the basic skills to vote or to exercise free speech.
Additionally, Justice Powell rejects an Equal Protection violation here on the grounds that each preceding Equal Protection case involved legislation which deprived, infringed or interfered with the free exercise of some such fundamental personal right or liberty. Id. at 1299. "[A] statute is not invalid under the Constitution because it might have gone farther than it did". Id. The Court notes that the Texas legislature has taken affirmative action to remedy its concededly disparate treatment of school children. Id. at 1302. Such action should be scrutinized with sensitivity to the nature of the State's efforts. Id.
The Court gives deference to matters of fiscal policy and taxation. A large area of discretion is needed in formulating sound tax policies. In taxation the legislature possess the greatest freedom of classification. Id. Again the Court uses the discretion of tax policy and federalism to abstain affording education to needy children. Id.
The court acknowledges that since the Civil War there has been a struggle between two forces: the desire to have educational opportunity for all children, and the desire of each family to provide the best education it can afford its own children. Id. at 1304. This is remedied in the Court's view by local control. Local control deserves merit in that our society feels a need to have a say in what occurs with our children. Id. Local control is the freedom to devote more money to the education of one's children and participate in the decision making of their education as well. Id. Justice Powell includes Justice Brandeis theory of state laboratory experimentation. Each State's freedom to choose will result in novel social and economic experiments. Id. (Citing New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) Brandeis, J., dissenting).
After marching the importance of local control before the public the Court responds to the Appellees argument that local control is precisely the issue: some locales have no control over their educational institutions due to a lack of funds. Id. at 1305. His response is that some inequality is allowable. It is only where the state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternative. Id. at 1305.
Once the Court denied Equal Protection to the Texas children, it went on to point out the impracticalities of the proposition of equal funding in education; the poorest families are not clustered in the most impecunious school districts ; that there is no more than a random chance that racial minorities are in poor districts ; and that any attempt to equalize education would result in higher taxes and lower educational expenditures in major urban centers. Of course, these practical considerations play no role in the decision of this case since it is a matter for the legislature. Rodriguez at 1309. Essentially, the Court struck down this claim because it failed to state a fundamental right and a deprivation of such a right by an indefinable class.
With respect to a fundamental right, Brown v. Board of Education states it clearly "where the state has undertaken to provide education, it is a right which must be made available to all on equal terms". Brown at 493. See also En5 supra. With such an explicit statement of education standing as a right one questions why and how the Court could find otherwise. Justice Powell attempts to distinguish the assertion of an educational right by indicating that Brown was a racial discrimination context. Rodriguez at 1294. Yet such a distinction with case law directly conflicting can not do justice to such a holding.
In Loving v. Virginia, 388 U.S. 1, 12, (1967) the court found that marriage is a "basic civil right of man" the interference of which violates Due Process and Equal Protection. The court did not look to any explicit or implicit constitutional guarantee but merely proclaimed that marriage is fundamental to existence and survival. Thus Justice Powell's admonishment that education is not implicit goes a short distance when compared to Roe v. Wade and the penumbra analysis of the right to privacy, much less Loving where no Constitutional explicit statement is used as a center for even a penumbra.
The Court finds that procreation is a right as fundamental as marriage without mention of a correlating Constitutional explicit guarantee or host guarantee. Skinner v. Oklahoma, 316 U.S. 535, 540, (1942). Ironically, the Court found a compulsory education statute in Oregon invalid insofar as it denied parents the right to bring up their own children. Pierce v. Society of Sisters, 268 U.S. 510, (1925) Again the court did not need an explicit guarantee or a direct connection to an enumerated right to find such a right. Id. at 516. The right to retain custody of ones own children is a Constitutionally protected right. Stanley v. Illinois, 405 U.S. 645 (1944) Shortly after the Rodriguez decision the same Court found a right to live in the same residence with one's family. Moore v. East Cleveland, 431 U.S. 494, (1977).
These cases span the history of Equal Protection and what entails a fundamental right from 1925 (Pierce) to 1977 (Moore) and each did not require what the Court exacted from the school children of Texas. Why the disparity in application of Equal Protection?
If one follows the right to access to the courts iterated by Griffin and its progeny their very same concern of how to define who is indigent arises. Justice Powell claims that only the absolute deprivation of access is sufficient, however the following cases demonstrate that the states must inquire into the indigency of defendant.
A California court in March v. Municipal Court, 7 Cal.3d 422, 429, 498 P.2d 437, (1972). found it unnecessary to establish total destitution although the defendant may be required to establish more than that the payment of the required filing fee would be burdensome or inconvenient. California requires only that indigency is such that it falls short of burdensome or inconvenient. In State v. Tymicio, 42 Ohio St.2d 39, 44 325 N.E.2d 556, 560 (1975) the very question of adequacy is used in a dictate concerning affording defense to an indigent defendant. Attorney General Robert F. Kennedy in his letter of transmittal of the Federal Criminal Justice Act of 1964 to President John F. Kennedy stated that the term indigency in 18 U.S.C. § 3006 A is avoided because of its implication that only an accused who is destitute may need appointed counsel or services. Id.
Justice Powell assumes huge incompetence among the courts to determine whether or not a person is indigent in need of state assistance. Florida courts consider whether the defendant is employed, whether he will have income while in custody, indebtedness, whether he is free on bond, and whether there are any tangible assets which could be used by the defendant. Bramlett v. Peterson, 307 F.Supp. 1311, 1323 (M.D. Fla 1969). Courts may fashion stringent requirements with respect to indigency. In North Carolina a defendant was deemed able to afford an attorney because he had $160.00 in the bank. The court took judicial notice that for a fee of less than 160.00 defendant could have obtained counsel. State v. Hoffman, 281 N.C. 727, 190 S.E.2d 842, 850 (1972).
The Second and Fifth Circuit dealt with the same issues of indigency. The Second Circuit found that where defendant had a girlfriend with a Cadillac, had 1800.00 in cash when arrested, could get credit such to be entrusted with three mink stoles the defendant was not indigent. United States v. Chaplin, 435 F.2d 320, 322-23 (2d Cir. 1970). The Fifth Circuit found that where defendant showed he had no property or money and earned a weekly salary of $85-$90 he was indigent as well. Samuel v. United States, 420 F.2d 371 (5th Cir. 1969). Even in Texas the courts are able to fashion requirements as to proof of indigency. A defendant had relatives who could sign for a 15,000 appeal bond did not defeat indigency claim. Barber v. Texas, 542 S.W.2d 412, (1976). In New Mexico: Defendant had a $2,000 equity in a trailer and only owed $650 on a car purchased for $15,00. The defendant did not have ability to retain a lawyer. State v. Anaya, 76 N.M. 572, 417 P.2d 58 (1966). The State legislature of Oregon had the competence to fashion what is indigent. Oregon codified the prerequisite for claiming indigency in Oregon Rev. Stat. 135.050. "If a court believes that the defendant is financially unable to retain adequate representation without substantial hardship in providing necessities to the defendant's family [he is indigent]".
Justice Powell indicates that the class is undefinable and strikes all the suspect classifications which the Appellee sets forth. How can this be when the law is rife with examples of the courts dealing with the indigency question in criminal justice?
It is the proposition of this paper that Equal Protection can remedy injustices in three areas of society: 1) Social 2) Political 3) Economic. When a case falls into the economic area the court will not decide it as an equal protection case. The author believes that based on different grounds than economic Equal Protection the Court may have afforded the Texas school children a meaningful education. The courts have given us examples of social and political and have eluded to economic Equal Protection. However, it is the authors proposition that there have been no truly economic cases except San Antonio v. Rodriguez.
Political Equal Protection
The District Court in Rodriguez relied on Bullock v. Carter as one of its guiding principles. Bullock involved a filing fee required to declare candidacy for a specific office. The Supreme Court found that such a fee placed a barrier before those wishing to run for office. The determining factor of effect on voters combined with the barriers established resulted in a violation of Equal Protection. The violated class being those unable to pay the fee to run. One would initially think that this is an economic distinction. There is no question that there is an economic element to this case but it is more a political deprivation than anything else.
This case is seemingly indistinguishable from Rodriguez. Both cases involve a person attempting to use government services but is unable to due to indigency. However there are two crucial differences. Initially it is appropriate to characterize such a case as political. Political is defined as that which pertains or relates to the policy or administration of government, state or national. BLACKS LAW DICTIONARY Fifth Ed. (1979). Undoubtedly filing fees pertain to the administration of government.
The first difference is that an individual person is required to pay for a service. The quality of that service is not in question but the deprivation of the service. As opposed to the state affording some service to some specific degree. Secondly the class is small. Not undefinable but small. The class in Rodriquez is definable as well but Justice Powell chose to overlook the cases cited supra which deal with classifying indigents for good reason depending on ones economic viewpoints.
Social Equal Protection
Griffin and Brown are examples of social equal protection. Race is undoubtedly a social issue. Webster defines "social" as pertaining to the life, welfare, and relations of human beings in a community. Webster Collegiate Dictionary, Random House Inc. New York, 1992. Race epitomizes such relations. The court endeavors to equalize citizens on social and political grounds, the bulwark of any democracy. Griffin may seem slightly different. However, it parallels Bullock. A criminal defendant seeks appellate review but cannot pay the fee for the record. Again the same two issues arise; the deprivation of a service; and the class is distinct and limited to the criminal courts. Griffin is social because it involves how a society relates to those which reek wrongs. It unquestionably has economic underpinnings but by and large the question is social because the court does not seek to economically equalize criminal defendants but merely gives them the means necessary to access the court system.
Economic Equal Protection
The dissent in Illinois v. Griffin alludes to the basis of the problems with Economic Equal Protection cases. Griffin is a Social Equal Protection case but Justice Burton, Justice Minton and Justice Reed allude with greater clarity the problem with Economic Equal Protection. It is assumed that the dissenters in Griffin feared what Rodriguez addresses but does not say.
In two short sentences the dissent carries forth the concerns of the Court. "Persons charged with crimes stand before the law with varying degrees of economic and social advantage...the Constitution requires the equal protection of the law, but it does not require the States to provide equal financial means for all defendants to avail themselves of such laws". Griffin at 595. The majority did not heed such warnings in Griffin because it was largely a social issue and only minutely an economic one. Additionally, the dissent in Griffin err in that Griffin does not required the state to provide equal financial means for all but only for the criminal and indigent.
For the majority to have held that all poor school children in the United States had a right to equal education would be tantamount to ending the capitalist idealogy which this country is based. The actual redistribution of the existing funds would have had effect, albeit marginal, on our capitalist ideology. The true sword would have been in stare decisis. Such a broad class consisting of only economic deprivation both currently and after education, remedied or not, would have essentially kept open the wall of sea for the Romans to cross.
There is no question that there is a great social issue in Rodriguez but it is overshadowed and greatly intertwined with economics. As Brown indicates education is the prerequisite for success in our society. Brown, supra, at 1295. Thus not only does the funding of education have capitalistic social effects so does the receipt of equal education.
Rodriguez in the context of our government and its engines of democracy.
Government has for its purpose protection of individual rights, property, and public order. Goldwin, How Capitalistic is the Constitution?, p23, 1982. President Franklin Roosevelt and Senator Edward Kennedy espoused the notion of reformist liberals, namely, that government as an institution smooths the edges of capitalism. Id. at 24. All ideologies agree that government is neutral & democratic. Id. Neutral in that it is not tied to a class or group, democratic in that it is the product of popular aspirations. Id.
While these notions generally hold true a single class dominates all of government machinery. Id. at 24. The government is the means by which the dominant act to protect their possessions from real or potential threats. Id. at 25. Some of these threats come from the downtrodden classes. Id. In a capitalist country the dominant class needs government because it can not maintain class dominance without it. Id. In some ways though the ruling class is hindered by capitalism and its fierce competition because it must serve the general good instead of a few enterprises. Id. Thus a government while protecting those that run it must also provide for the general welfare else the downtrodden may turn on the ruling class.
The state in its dual role is an aspect of class relations which masks and disguises the reality of class antagonism. Id. at 25. To protect the wealthy and pacify the underclass while maintaining government function is the hallmark of any civil government. Id. Law, a human construct and not a mystical force, is fashioned to the needs of the dominant class. Id. at 28. Our Constitution is a capitalist Constitution only because we as a country are capitalist, and not vice versa. Id.
While the preceding is somewhat extreme it stands for the proposition that if the Supreme Court would have affirmed Rodriguez two results would have occurred. 1) Precedent that the poor may receive equal financial status under the law. 2) Education, the very means to financial status would have been afforded all on an equal level.
In all Economic Equal Protection cases, 1) (above) is the primary reason why the court does not or should not allow for such broad class claims. Capitalism necessitates inequality but with opportunity to gain advantage. To distribute funds because one does not have is to ameliorate any notions of capitalism and adopt socialistic policy. If affirming Rodriguez would have the effect of ending capitalism the Court has done its duty to society and our government. If equal education can be afforded on a different legal theory it should. With respect to the motivation for the courts analysis, no basis in the law is apparent (as demonstrated above) it is hopeful that it is to preserve the capitalistic state and not to merely preserve the class structure.
Milton Friedman feels that education, a civil necessity, should be afforded equally. Milton & Rose Friedman, Free to Choose, Dow Jones & Co., 1979. Government measures which promote personal equality or equality of opportunity enhance liberty; government measures which seek to achieve fair shares for all reduce liberty. Id. With this Friedman describes well what our society thrives on. Equality of opportunity will give the poor and rich alike opportunity at self actualization primarily through education. If all is handed out and nothing earned than some will work harder than others. He continues that if we adopt a "fair shares for all" in education, than those with the least talent will consume more resources that those who are talented. Id. at 136. His reasoning up until the last sentence is commendable. The last sentence belies what he himself stands for. If we provide fair shares for all in education those with less talent will consume the same amount as those with talent because it is equal apportionment. He states that those who consume must produce. Id. Thus, children who consume educational dollars must produce whatever they study, economics, law accounting etc. etc. He couples the wealthy who have produced because they are wealthy with their children. Id. Merely because a child's parents have utilized resources well does not mean that they too will produce. It is an unknown which children will produce and which will not.
An analogy is helpful. Because children are a natural "commodity", commodities will be used for illustrative purposes. If one has a corn field and plants corn he does not know which seedlings will become productive corn plants. If one has pregnant cows he does not know which will yield good calves and which will miscarriage or which will die. To water any certain seedling any more than other is ludicrous. Likewise to feed one cow better grain because it gave a good calf previously is equally unfounded. The farmer waters all the seedlings and feeds the cows equally.
I stated earlier that his reasoning belies what Friedman the crusader efficiency and capitalism believes. It does so in the following manner. At any point in time there are idiots and imbeciles in Alamo Heights High School and there are geniuses. Likewise at any point in time there are idiots and imbeciles in Edgewood High School and there are geniuses. By providing Alamo Heights children with more education dollars the imbecile is afforded a better education. The imbecile graduates from Alamo Heights and takes college entrance exams scoring say an 850 and a 21 on the SAT and the ACT respectively. The genius graduates from Edgewood and scores an 830 and a 20 on the SAT and the ACT respectively. The imbecile scored well because he/she had a better education though his performance will be marginal at best in college. Since the genius scored slightly less he will be accepted into a college not as respected but will excel once there.
If the education had been equal the genius at Edgewood would have scored higher than the imbecile and "produced" more. Funneling funds to a single school to the neglect of another school is like watering a certain spot more in corn field because it yielded better corn the season prior. Our country would be much better off if we made our markets in students efficient.
San Antonio v. Rodriguez was decided on allegedly precedental grounds. Its underpinnings are that we as a society can not provide for all must provide for society. The key is that all who provide have an equal opportunity to provide, afforded by education, and thus may receive what they have wrought.
1. Jason Epstein is a third year law student at the John Marshall Law School.
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