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The Sex Bureaucrats Are Dug In

A scene from Orson Welles 1962 film The Trial, an adaptation of Franz Kafka’s novel.

Secretary Betsy DeVos recently announced that the Department of Education’s Office for Civil Rights will review the controversial Title IX guidelines on sexual assault and other forms of sexual harassment disseminated by the Obama administration. The new leadership at OCR has already made an important change in enforcement policy: no longer does it follow the 2014-2016 strategy of turning every sexual violence complaint filed by an individual into a well-publicized compliance review of the entire educational institution in question.

This decision unleashed a torrent of criticism from the Democratic Party, with 34 Democratic Senators telling Secretary DeVos that they were “extraordinarily disappointed and alarmed” by it. Twenty Democratic state attorneys general wrote “to express our serious concern over reports that your office is preparing to roll back important protections for survivors of sexual assault on college campuses.” The editorial board of the New York Times called it “Another Sign of Retreat on Civil Rights.” An op-ed in the Times by John Krakauer and Laura Dunn set the tone of the coming debate: if the Trump administration succeeds in revising Title IX guidelines, “The result may make colleges safer. For rapists.”

The press has focused primarily on the procedures that federal regulators require schools to use in addressing sexual assault accusations—especially the demand that schools use a “preponderance of the evidence” standard in disciplinary proceedings. (If investigators or a hearing board find the accuser only slightly more credible than the accused, they must find the accused guilty of sexual misconduct.)

Anyone who has read either of two new books, The Campus Rape Frenzy by K.C. Johnson and Stuart Taylor, Jr. or Unwanted Advances by Laura Kipnis, will know how thoroughly many colleges have trampled upon the due process rights of accused students. Among those who have sounded the alarm are law professors (including prominent feminist and African American scholars) at Harvard, who charged their institution with “jettisoning balance and fairness in the rush to appease certain federal administrative officials.” A task force of the American College of Trial Lawyers warned that “OCR has established investigative and disciplinary procedures that, in application, are in many cases fundamentally unfair to students accused of sexual misconduct.”

Moreover, schools pushed into instituting new rules by the OCR have repeatedly been castigated by state and federal judges. A federal district court judge in Massachusetts described the process used by Brandeis University as “closer to Salem, 1692, than Boston, 2015.” In Yolo County, California, a judge charged that “due process has been completely obliterated” by the actions of the University of California, Davis.

It is important to understand, though, that the “preponderance of the evidence” standard is just a minor part of the OCR’s procedural requirements, and its procedural requirements are only one piece of an ambitious set of demands that apply to every educational institution in the country. The real due process problems caused by the OCR stem from the agency’s rules on cross-examination and appeals; its informal pressure on schools to institute a “single-investigator model” that turns one person appointed by the school’s “Title IX Coordinator” into a detective, judge, and jury; and the intense pressure for schools to show they are “getting tough” on sexual assault.

Fiddling with the burden of proof alone will make little difference.

Disregard for due process is only one of the problems with the rules that the OCR announced unilaterally between 2010 and 2014. The agency’s broad definition of harassment threatens free speech. It requires schools to provide annual “training” for faculty, staff, and students designed to reeducate them on all matters sexual. It demands that schools establish large and autonomous internal Title IX compliance offices that will remain in place long after the OCR changes its formal policies. All this is necessary because the goal is not just to punish those guilty of sexual assault, but to “change the culture” in schools and the broader society. As a special Obama White House task force declared, “According to the experts, violence prevention can’t just focus on the perpetrators and the survivors. It has to involve everyone.”

To understand the ambitions that lay behind the OCR’s campaign under the previous administration, one must examine how the agency’s approach to the sexual assault/sexual harassment problem diverged from previous judicial and administrative policy. The Education Department had said little on the subject until the early 1990s. Initially it adopted the approach developed by federal courts and the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act. The EEOC and the judiciary designed a tort-based approach to address a problem that had not even been named when Congress enacted Title VII in 1964 and Title IX in 1972.

While the liability rules that slowly emerged are complicated, they can be quickly summarized: Employers were strictly liable for most forms of harassment committed by supervisors. For harassment by non-supervisory employees, courts would apply the “known or should have known” liability standard. Employers could protect themselves against potentially expensive and embarrassing litigation by establishing clear grievance procedures and taking swift action against those engaging in misconduct. Neither the courts nor the EEOC offered much guidance on how these grievance procedures had to be structured, or on what constituted “harassment.” Their goal was to create strong incentives for employers to institute policies that would eliminate behavior judges and juries would consider serious enough to constitute sex discrimination.

This framework—solidified by two Supreme Court opinions concerning Title VII, both handed down in 1998—has proven quite successful in practice. Labor law experts Michael Harper and Joan Flynn describe this as a rare instance in which “the Court not only brought much-needed clarity to the law, but also produced a coherent and logically defensible rule with which both plaintiffs and employees could readily live.” The rule was approved of by everyone from women’s rights activists to the Chamber of Commerce to federal trial judges.  

Well, not quite all women’s rights activists. Feminist legal scholars had long criticized this tort-based approach. The most prominent critic has been Catherine MacKinnon of the University of Michigan Law School, in some ways the godmother of contemporary sexual harassment law. Tort theory is inadequate, MacKinnon argued, for it treats “the incidents as if they were outrages particular to an individual woman rather than integral to her social status as a woman worker.” It attempts only to shave off the tip of the patriarchal iceberg: “Tort law considers individual and compensable something which is fundamentally social and should be eliminated.” Rather than focus on the crass, immoral, or unethical behavior of a few individuals, the law should see “women’s situation as a structural problem of enforced inferiority that needs to be radically altered.”

Ironically, it was another pair of Supreme Court decisions, these two narrowing schools’ liability for sexual harassment under Title IX, that led the OCR to reject the tort-based approach and move toward MacKinnon’s structural inequality model. In Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County School Board (1999), the Supreme Court held that under Title IX a school can be held liable for damages only if an official who “has authority to institute corrective measures” has “actual knowledge of, and is deliberately indifferent to” the misconduct. The Court also limited schools’ liability to instances of “systemic” harassment, and stressed that judges “should refrain from second-guessing the disciplinary decisions made by school administrators.”

These decisions were greeted with scathing criticism from women’s groups and legal scholars. It was suggested in one law review article that Gebser and Davis had caused “the metastasization of the sexual harassment epidemic in educational institutions.” Critics supported legislation to overturn them, but it has never gotten out of committee.

On the very last day of the Clinton administration in 2001, the OCR issued guidelines laying out directives that went well beyond what the Supreme Court had required. It justified its departure by claiming that the Court’s interpretation applied only to private suits for damages, not to requirements imposed by federal administrators.

On the one hand, this allowed the OCR to spell out in detail “a school’s Title IX responsibility to take effective action to prevent, eliminate, and remedy sexual harassment occurring in its program.” (Note the words “eliminate” and “remedy.” This went far beyond anything previously required under either Title VII or Title IX.) On the other hand, this left OCR without an effective enforcement mechanism. In the 45 years since enactment of Title IX, it has never—not once—used the only enforcement tool explicitly established by that law: termination of an offending school’s federal funding. It had relied instead on “implied private rights of action,” that is, lawsuits filed by private parties, to give enforcement teeth to its rules.

If the judiciary was no longer going to serve as its enforcement surrogate, how would the OCR make schools comply with its strictures? That question went unanswered for a decade. During President Obama’s second term, the OCR and the White House came up with a two-part answer.

First, the agency would depart from its longstanding practice of publicizing investigations only at their conclusion. Now it would publicize them at the outset to help induce schools to sign legally binding compliance agreements.

Second, each sexual assault complaint filed by an individual against a college would automatically trigger a compliance review of the entire institution. Compliance reviews were extensive and expensive, and often dragged on for years, threatening to tarnish the reputation of the institutions under investigation. In other words, the investigatory process became the punishment. Many colleges acquiesced to the OCR’s demands to avoid such an ordeal.

The regulatory requirements announced in the OCR’s 2011 Dear Colleague Letter on sexual assault, its 2014 “Questions and Answers on Title IX and Sexual Violence,” and its many compliance agreements are far too numerous to recount here. (I explain them in my forthcoming book, The Transformation of Title IX:  Regulating Gender Equality in Education.) Suffice it to say that they lay out in detail the structure of disciplinary procedures (just the type of “second-guessing” the Supreme Court had told judges to avoid); the remedies they must provide not just to victims of assault and harassment, but to the student body as a whole; the training that schools must give all employees and students to prevent future misconduct; and the authority schools must grant to their internal Title IX compliance offices.

In 2010, then-assistant Secretary of Education for Civil Rights Russlynn Ali told reporters that the administration’s Dear Colleague Letters and enforcement practices represented a “new paradigm” for dealing with sexual harassment. No longer would the focus be on identifying and disciplining perpetrators. Now the goal was to “change the culture on the college campuses, and that is hugely important if we are to cure the epidemic of sexual violence on our college campuses across the country.”

Repeated references to an epidemic by the OCR and by advocacy groups are not just overheated rhetoric. Behind the talk of “rape culture” lies a certain worldview: violence against women is so deeply engrained in our society that we hardly see it; and existing institutions will do nothing about it until they are reconstituted. Understanding the problem in this way requires us to change how we think about sex, gender, and sexuality.

There can hardly be a more sweeping educational undertaking than “changing the culture.” That is why no word is repeated more frequently in the OCR’s policy directives than “training.” Schools must provide regular training not just for investigators and adjudicators, but for all students, faculty, and staff, usually at least once a year. The agency requires prior approval of schools’ training programs, and dispenses lots of advice on what should be included. According to the OCR’s agreement with Tufts University, for example, training must cover “victim behavior, dynamics of power, [and] implicit bias.” Dynamics of power? Should federal administrators be determining what schools teach their students on this politically loaded topic?

In their important 2016 California Law Review article on this subject, Harvard Law Professors Jacob Gersen and Jeannie Suk note that the “college sex bureaucrats” who run these federally mandated programs “are not simply training students on the rules of rape, sexual assault, and sexual harassment.” Rather, they are

instructing on, advising on, counseling on, defining, monitoring, investigating, and adjudicating questions of sexual desire. . . . This jibes well with the public health framework that has so strongly influenced the federal regulatory orientation to sexual violence. Since the sex bureaucracy’s role is regulating health and safety, explanations of consent easily lead to instruction about what is “healthy” or “positive” in sex and relationships.

“Changing the culture” means changing how people think. That is why schools are required to exert control not only over the behavior of their staff and students, but over what the OCR calls “verbal conduct” (and the rest of us call speech). Its definition of sexual harassment includes “unwelcome” sexual advances “whether or not they involved physical touching.” This includes

making sexual comments, jokes, or gestures; writing graffiti or displaying or distributing sexually explicit drawings, pictures, or written material; calling students sexually charged names; spreading sexual rumors; rating students on sexual activity or performance; or circulating, showing, or creating e-mails or Web sites of a sexual nature.

The guidelines also prohibit “sexual-stereotyping,” which includes “persistent disparagement of a person based on a perceived lack of stereotypical masculinity or femininity.” To violate Title IX laws against sexual harassment “does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.”

Under pressure from the OCR and student activists, many schools have broadened their definition of sexual harassment to prohibit even more forms of speech. Harvard’s code prohibits “sexually suggestive innuendoes” and even “commenting about . . . an individual’s body.” Marshall University defines harassment as any expression that causes “mental harm, injury, fear, stigma, disgrace, degradation, or embarrassment.” Colorado State University at Pueblo defines it as the “infliction of psychological and/or emotional harm upon any member of the University community through any means.” While the OCR’s regulations are hardly the only threat to freedom of speech on campus, they are a significant one and a source of institutional support for students, faculty, and college bureaucrats eager to ban speech they find offensive.

Federal administrators have been savvy enough to understand that pressuring schools to sign compliance agreements would not be enough. They needed to establish offices within schools. The internal Title IX compliance offices mandated by the OCR have proved ambitious as well as expensive. Since 2013, Swarthmore, a college with only 1,500 students, has appointed four new Title IX deputy coordinators and a Title IX Fellow plus a “violence prevention educator and advocate” in its health center and a new sexual misconduct investigator in the college police department. By 2016, Harvard had 50 full-time and part-time Title IX coordinators, and Yale had 30. The University of North Carolina now has seven full-time Title IX compliance officers. This is a good example of how expanding government regulation increases the number and influence of academic administrators—an institutional shift of great significance for higher education.

These compliance offices do not limit themselves to responding to accusations of assault and providing support to survivors. According to Harvard’s new sexual assault office, “rape culture is ubiquitous,” it is the product of gender inequality, and “addressing gender inequality requires reflection, action, and vision that is rooted in an anti-oppression, social justice framework.”

The extent to which serious efforts to provide professional help to those who have experienced sexual assault have been combined with ideological proselytizing is evident in Princeton’s 2017 description of a new position for an “Interpersonal Violence Clinician and Men’s Engagement Manager.” Only one third of this person’s time will be devoted to providing counseling services. The rest will involve “promoting an environment for healthy male social development by challenging belief systems and social constructs that contribute to violence and offering alternative options.” Applicants must “possess knowledge about the challenges and privileges of male identity formation and the relationship with violence” and must demonstrate “expertise in and [be] committed to social justice issues.”

In short, Title IX compliance offices are engaged in relatively open political indoctrination as well as subtle efforts to curtail freedom of speech.

The Department of Education cannot repair all the damage done by the regulatory excesses of the previous administration. Many of these college sex bureaucrats will remain in power regardless of what federal regulators do from now on. What the Department can do is initiate a serious, comprehensive, and open rulemaking process that brings administrative policy into line with the Supreme Court’s interpretation of Title IX and refocuses its efforts on ensuring that schools provide equal educational opportunity to all students regardless of their sex—and not engage in a hubristic effort to change American culture on all matters relating to sexuality.

Reader Discussion

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on August 25, 2017 at 10:43:51 am

Its incredible how our Universities have become institutions of higher indoctrination instead of higher education. Mandatory course-work in the U.S. Constitution would be a worthwhile counter-measure.

Intact family units would seem to be the ideal venue for instilling moral and responsible sexual attitudes in young people, and "probably" would produce more effective outcomes. I realize this is not the reality that far too many young people emerge from, but this alone shouldn't be reason enough to make no place in policy discussion for promoting intact families as both beneficial and societal good - where else can young people better witness first-hand proper, respectful, non-manipulative human relationships. Marriages no longer (probably never really were) automatic incubators of patriarchal oppression, even most of the so-called, "traditional" ones.

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Paul Binotto
on August 25, 2017 at 11:26:19 am

I would very much value input from our community of persons properly trained in law, as this issue directly affects my work, and I do not know fully how to think about it.

I am not sure to what degree due process rights apply, at least in a state university setting. Clarification here would be very much helpful.

My university is a non-profit, state-chartered corporation. Authority is top down--corporate authority is vested in a board, which delegates authority to do the things universities do to corporate officers who answer to the board. Faculty like myself are several layers of delegation removed from the board.

Disciplinary matters are handled within the compass of the broad delegation of power given to the board by the state legislature in the corporate charter, aa defined by the bylaws of the corporation. There are actually several sets of bylaws: those apllying to faculty, published as the "Faculty handbook;" those applying to students, published as the "Student handbook;" and the collected as-hoc operating rules established from time to time by the board.

The university also must comply with relevant state and federal supervisory legislation.

Due Process rights accrue to citizens, as I understand it, in relationships to state and federal courts of law. But since rights attendant to disciplinary procedures within a corporation are matters of corporate governance, its not at all clear, at least to my ignorant eye, that due process rights apply.

Students who interact with a state corporation do enter into civil contracts--so the normal contractual remedies provided by state and federal civil law apply. But the venue for those remedies is a state or federal court, not an internal corporate disciplinary board. The operation of such a board will be governed by the corporate bylaws, which may or may not specify due process rights for the parties involved.

If any of my reasoning here is correct, isn't the appropriate solution to be found at the state level? These are state-chartered corporations, after all. The state legislature can regulate them as it sees fit. So can't the state legislature simply pass legislation to require state corporations to guarantee due process rights to accused persons, within the corporate disciplinary procedures?

What am I missing?

Many thanks in advance to those learned in the law, who can help me think properly about this issue.

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Kevin Hardwick
on August 25, 2017 at 14:10:36 pm

PB: "Mandatory course-work in the U.S. Constitution would be a worthwhile counter-measure."

Laurence Tribe is a world-renowned professor of constitutional law. Would you consent to his designing the curriculum? [FWlW, l'm no fan of Tribe.]

PB: "Its incredible how our Universities have become institutions of higher indoctrination ... Intact family units would seem to be the ideal venue for instilling moral and responsible sexual attitudes in young people"

Paul doesn't object to indoctrination . . . when HE is the one doing the indoctrinating. Translated, everyone in academia seems to be laughing at his stupid religion, and he doesn't like it very much. One is left to wonder what "responsible sexual attitudes" is supposed to mean, but he can have a moral code, as long as the Satanists get to choose it.

PB: "where else can young people better witness first-hand proper, respectful, non-manipulative human relationships."

Atheists seem to have more stable relationships than born-again Christians. Even the ministers screw around.... We should keep our kids away from Christianity.

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LawDog
on August 25, 2017 at 15:50:47 pm

Kevin,

There is a “doctrine” derived from Common-Law to the effect that when one engages in conduct prohibited by law (or “unlawful”) that results in injury or damage to another, the injured or damaged party may have a claim (usually in Tort) based on the damage caused by the unlawful conduct.

If an organization, chartered by a state, provides a food service for the users of the organizations facilities, and there is a federal statute governing the standards of food safety which are violated by that organization, it is doubtful that any state constitution, laws or regulations could prevent an injured individual from bringing action against the organization for the harm incurred.

The essay mentions the specific concerns of educational facilities with private actions based upon liabilities for failure of those facilities to implement particular federal standards. By setting standards of compliance federal authorities have provided the educational facilities with a potential defense based upon compliance with those standards.

I do not favor **any** of the federal involvement in education; so please do not misinterpret my providing this particular example.

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R Richard Schweitzer
on August 25, 2017 at 15:57:16 pm

"PB: “where else can young people better witness first-hand proper, respectful, non-manipulative human relationships.” - certainly not by witnessing the discourse between you and I, hey LawDog. They would likely reject all relationships and learning if they thought it produced the type of bitter hatred on display here.

I would not be so quick to assert who's laughing at who. It's well that you should hide behind your moniker if you are in academia, your anonymity at least spares your colleagues the embarrassment of admitting they're institution has produced such hateful and obnoxious reasoning and rhetoric. Of course, you are probably a regular pussy cat in person, quite the queen of your kingdom, or are you this much of an asshole even to those who know you?

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Paul Binotto
on August 25, 2017 at 15:58:59 pm

Prof. Hardwick:

There is an academic answer, and a real-world one. ln the real world, you literally have no right to due process. But in the sterile world of academia, the concepts remain robust and relatively simple:

"[N]o State can deprive particular persons or classes of persons of equal and impartial justice under the law. Law, in its regular course of administration through courts of justice, is due process, and when secured by the law of the State, the constitutional requisition is satisfied. And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.

Caldwell v. Texas, 137 U.S. 692, 697-98 (1891) (citations omitted).

Equal justice under law has two core components: equal protection of the law, and procedural due process. Equal protection concerns itself with what the Old Testament calls mishpat: like situations being treated alike. Justice Scalia summarizes this principle in five incisive sentences:

"Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions—no television in the afternoon, or no television in the evening, or even no television at all. But try to let one brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense of justice unleashed. The Equal Protection Clause epitomizes justice more than any other provision of the Constitution. And the trouble with the discretion-conferring approach to judicial law making is that it does not satisfy this sense of justice very well. When a case is accorded a different disposition from an earlier one, it is important, if the system of justice is to be respected, not only that the later case be different, but that it be seen to be so."

Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178 (1989).

By contrast, procedural due process deals with how you get there. The core elements are the right to be heard by a fair and independent tribunal, and the right to hear why. The simple case of Carey v. Piphus, 435 U.S. 247 (1978), will help you to wrap your mind around the concept.

How much process is due is a more abstruse and case-specific concept. The rules, such as they are, were set out in Mathews v. Eldridge, 424 U.S. 319 (1976). Three factors are considered:

1. The interests of the individual in retaining their property and the injury threatened by the official action;
2. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
3. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication.

Handbooks are an integral aspect of due process, as they lay out the terms of the contract between the student/faculty member and university. The alternative is amusing: As Suetonius records, the Roman emperor Caligula imposed taxes on food, lawsuits, and wages, but did not publish his tax laws; as a result, “great grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published a law, but it was written in a very small hand, so that no one could make a copy of it.” Suetonius, The Lives of the Twelve Caesars 280 (trans. A. Thomson; Bell, 1893), Ch. 4, § LXI.

What you are missing is the concept of preemption, embodied in the Supremacy Clause. lt provides:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." [COTUS, Art. Vl, cl. 2]

Where the feds are entitled to make rules, the States are essentially powerless. l would refer you to Scalia's bench statement in Arizona v. United States, No. 11- 182, for the countervailing argument. But a dissent has all the substance of a fart in the wind, and Nino lost badly.

Hope this helps.

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LawDog
on August 25, 2017 at 16:17:19 pm

Methinks the laddie doth protest too much.

Your hypocrisy is on florid display, and you don't have a rebuttal on the merits. You want to impose your worldview on society, which l find detestable.

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LawDog
on August 25, 2017 at 16:33:06 pm

The following comments are in no way criticism of the thoroughness of the points covered by Professor Melnick.

Where we run into a wall in understanding what is transpiring in our society, in his various social facilities; in this case, our educational facilities, is an almost consistent tendency to reify something like the statutorily created Office of Civil Rights [OCR] within the Department of Education as though it were a living creature that makes determinations and takes actions.

To penetrate the various such walls that are the crucial structures of the Federal Administrative State, requires understanding that they are “mechanisms,” in which, and through which, real live human beings, with objectives and motivations, conduct activities, make determinations.

A review of the history of the OCR will disclose the periodic growth of staffing and ranges of activities as implicit motivations for the individuals and groups working within the authorities established (and sometimes beyond).

At some point we may ultimately be benefited by a form of “biographical analysis” of the sources of, and motivations for, determinations of the “Agency,” “County Commission,” “the City,” “the Government” etc., ultimately giving us some clues as to what human beings with what actual motivations and actual objectives instigate activities and make determinations.

While we have tripped over the identities of IRS personnel and recaptured some of their “goodies” from former officers of Freddie Mac, it is becoming more and more essential that we discover and emphasize the identities of those who are instigating actions and shaping determinations pursuant to the broad authorizations devolved or granted by elected legislators to those UN-elected who will “shape,” manage, and control, rather than respond to, the people in a democracy.

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R Richard Schweitzer
on August 25, 2017 at 16:48:26 pm

Dawg:

You ARE a bit TOO cynical (not without cause, I suppose).

Also, do me a favor - stop berating "people of faith" - it is just, well, so *unseemly*. You are better than that as evidenced by your literate and informed commentary. One would think, judging by the intensity of your "hostility" to religion that you are one of the newly *converted* and thus approach your critique with all the zealotry of the "born-again" (Yep, there are "born-again" atheists).

I, for one, am not the least bit upset by any of these comments - BUT I suspect that others are.

Be nice! You are certainly intelligent AND literate enough to compose your criticisms as witticisms.

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gabe
on August 25, 2017 at 17:32:31 pm

Methinks that if you find me detestable that that in itself is a badge of honor for me.

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Paul Binotto
on August 25, 2017 at 18:37:32 pm

The dog doesn't upset me, Mr. Gabe. His ignorance is as laughable as it is pathetic.

As you know, I am not an attorney, so I can't be expected to be knowledgeable is such matters; I am only thinking out loud of course, its not like I am putting anyone on notice, or making threats, or anything like that, I am a good Papist Christian you know and always prefer to turn the other cheek; but I am a curious dude. I have to wonder how resistant a site like this one, which hosts public forums, would be in response to a subpoena, however baseless or ill conceived, to reveal the personal data, say an email addresses, of commentators, in conjunction with a suit, should they be named as co-defendant in a case of libel for failing to properly monitor their forums for particularly abusive and libelous commentary; not that this has necessarily occurred yet, but you know, things can escalate terribly, can't they, Charlottesville should teach us that, no? I mean, can anyone these days, really rely on the naïve notion that its possible to remain completely anonymous, untraceable, online these days? I wouldn't think this site has the deep pockets of say, a Google or Facebook, right?

I mean, just think of it, how funny it would be, if an unsophisticated and foolish Papist like myself, who is dumb enough to comment under his actual name may have, in doing so, actually unwittingly and by sheer dumb luck, preserved his protections against libel and defamation, those that might not otherwise be available say, to someone writing under nom de plume. That would just be my stupid dumb luck - ha!

Messy business I would think. I mean, I'm not intelligent enough to know, but I could only guess, you know, from watching Columbo and Perry Mason, and other such low-brow, low-class, (when I'm not tuning into re-runs of Mother Angelica and Fulton Sheen, of course, or weeping prostrate before my Crucifix for the ills of the world, that is) re-runs, that it could prove very embarrassing for a respected lawyer to be called before his bar to account for unbecoming conduct on an internet forum of all places, and against ignorant Catholic non-attorney, of all people .

I mean, this could never happen, right. Maybe we should ask LawDog for his best legal opinion. He seems more than willing to offer one, despite having only the information available to him contained in a posting. I am sure this is in keeping with professional practice ethics and standards, but of course my ignorance and stupidity of the law is surpassed only by my Papal narrow-mindedness and bigotry, so I couldn't know this. What could a fellow like me possibly know about such matters that require such a high degree of intelligence and sophistication unattainable by a bloke like me? Now that's laughable!

Well, just thinking out loud, perhaps just fantasizing as Papists are apt to do, we do live in fairyland, don't you know. I would love to stick around but I need to be about my business; I am sure there is some little darling whom I can force to carry her child to full term, or some gay sex-act going on somewhere that I might cast my judgmental net around, maybe douse with Holy Water. My work is never done, you know. So many sinners, so little time....

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Paul Binotto
on August 25, 2017 at 20:51:26 pm

So, how WAS your march in Charlottesville, Paul?

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LawDog
on August 25, 2017 at 21:53:03 pm

At the risk of fracturing Joyce, "All l have seen is a part of me." What l have seen in our courts has been so grotesque, l would rather be tried in Zimbabwe.

l have the same problem with Paul that l have with Larry Tribe (l still have his treatise on my bookshelf): He proclaims his fealty to COTUS, but seeks to rewrite it in his image. ln Paul's defense, however, he doesn't seem to have a working grasp of its nuances. As Justice Black once said: "The layman's Constitutional view is that what he likes is Constitutional and that which he doesn't like is un-Constitutional."

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LawDog
on August 26, 2017 at 05:47:22 am

I appreciate the author's insights on this issue. The breadth and scope of this crusade against not only sexual assault but against sexuality itself is astonishing. It seeks to redefine sexual assault to include even normal consensual sexual activity. It attacks our basic notions of fairness and justice by presuming guilt until proven innocent. It even attacks our freedom of expression in its attempt to redefine our sexual mores. The whole crusade rests on false premises regarding a non-existent "rape epidemic" and a mythological "rape culture". Ironically, the movement is inherently sexist in its assumption about female vulnerability and lack of agency and male criminality. Men are presumed to be the aggressor even when the evidence is murky at best or when they could have been the victim. There is even a basic misunderstanding of human nature when assuming that people (usually women) will not lie about rape despite numerous advantages in doing so. It also shows either a lack of understanding or callousness regarding the destructive impact of false sexual assault allegations. This may be even worse than the alleged crimes involved. In summary, this is a movement which needs to be stopped as swiftly and powerfully as possible in order to preserve our basic humanity and our sexual freedoms. It is not possible to completely eliminate sexual assault as these crusaders seem to desire without causing greater damage to our humanity. We can fight to limit sexual assault in a more measured and just manner while maintaining respect for the rights of every human being. I wish Ms. DeVos the best of luck and hope she is as forceful as necessary. But I fear that the malicious forces marshaled against her are too numerous and powerfully motivated by a perverse self-righteousness.

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David Remmler
on August 26, 2017 at 08:15:17 am

LawDog: "So, you and Paul are gay lovers? Makes sense. But that is beside the point." (http://www.libertylawsite.org/2017/08/24/choking-choke-point-a-return-to-the-rule-of-law/)

You see, Mr. Gabe, how these things tend to escalate?

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Paul Binotto
on August 26, 2017 at 08:36:14 am

PB: "His ignorance is as laughable as it is pathetic."

What don't l know about that brotherhood of boy-buggerers you call "priests"?

PB: "I mean, just think of it, how funny it would be, if an unsophisticated and foolish Papist like myself, who is dumb enough to comment under his actual name may have, in doing so, actually unwittingly and by sheer dumb luck, preserved his protections against libel and defamation,"

My protections against a libel action are facts and opinion. From an old mate of mine:

"At the same time that Christians claim to worship God as an omnipotent, omnipresent, omnibenevolent being, they make him out to be incompetent bumbler. Or worse. Simple forgiveness is beyond his capacities. God must "sacrifice himself to himself to change a rule he made himself!"

This is not only an absurdity, it is an essential absurdity. It is present in almost all forms of Christianity, and one can scarcely remove it and remain a Christian in anything but name. By definition, all Christians worship Christ - in some form - and most worship him as a saviour.

But what, exactly, is he saving us from? Though it varies from church to church, no matter what they call it, it's God himself. A hell created by God, a world fallen as a result of God's negligence, a separation from God imposed... by God.

Christianity certainly isn't the first religion to promote appeasement of its gods, and if it were merely another supernatural protection racket, it would be bad enough. Unfortunately, it doesn't stop there. Christians elevate appeasement to the realm of "personal relationship", transforming their religion into a true monstrosity.

This is the type of "relationship" that abused wives have with their husbands, that brainwashed hostages have with their captors. It is known in clinical circles as Stockholm Syndrome. Should it come as any surprise that the cries of the church, "The Bride of Christ" sound much like the cries of an abused wife attempting to protect her husband?

"He must beat me."
"I deserve it."
"He has no choice."
"It's for my own good."

These excuses don't work for human abusers, and they work even less well for God. For if God is omnipotent, he must have a choice. And if we are flawed, we are only flawed because that is the way he made us. (No excuses that we ruined his perfect creation. A truly perfect creation does not self-destruct.)

If the Christian God does exist - and I see no reason to believe that he does - he's not worthy of the name.

And that is the ultimate absurdity of Christianity."

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LawDog
on August 26, 2017 at 08:55:53 am

Context matters, Paul.

Scott: "I find it interesting that whenever people are being judgmental towards someone they are always guilty of the sin themselves. I don’t know why that is. It’s just a strangeness of human nature."

You punch; l counter-punch. And unlike Scott, l don't see the need to judge.

By Scott's "logic"--it is not a logical argument--it is tantamount to his open confession. lf you play the circumstantial ad hominem card, it will be trumped.

As a philosophical libertarian, l am naturally reluctant to tell others how to live their lives, and really don't see how my traditional marriage of four decades is in any way harmed by Ted and Fred tying the knot, or your daughter Suzie becoming a floozy. And marijuana is a viable and non-addictive alternative to Oxycontin; both are used for recreation. Why is it illegal?

And abortion? Roe v. Wade is straight from canon law, given ex cathedra. Either your god is a liar .... or he was a liar. Surely, a God worthy of the name doesn't change Her mind....

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LawDog
on August 26, 2017 at 09:41:45 am

What in the wqrld are you rambling on about?

You are really getting to be quite tiresome.

The role of Evangelical Atheist is as distasteful, more so on on this site, than a flock of Pentecostals knocking on my door on a Saturday morning.

Ahh! Lawdog - the Avenging Atheist.

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gabe
on August 26, 2017 at 10:18:47 am

Young people don't treat the sex act any more seriously than a handshake. One wonders if rape will even be considered a crime by future generations.

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Klara34
on August 26, 2017 at 11:35:04 am

Tiresome and rather embarrassing. I have to wonder who this dog ('God' spelled backwards - interesting) is trying to convince about God, me or himself?

It is amazing the bar finds him suitable to continue in practice, seems like some pretty obvious instabilities. Perhaps its as a result of having to always be right, and always talking over others.

I know this fellow isn't a believer, but by God, if there is a God, his wife of 40 years gotta be a living saint. Can you imagine spending 40 years with a loud-mouth belligerent as this? She's probably a good woman (would have to be) praying for the end of time...

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Paul Binotto
on August 26, 2017 at 11:37:39 am

As for me, I'm not married to this ass- I'm not waiting for the end of time to be rid of him; I'll check back from time to time; I suspect time is on my side - BYE-YA!

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Paul Binotto
on August 26, 2017 at 14:11:09 pm

Excellent and important article. Bravo.

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Mark Pulliam
on August 26, 2017 at 18:05:59 pm

What David and Mark said. Chilling. But essential reading. Look forward to the book (in a schadenfreude sort of way).

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Paul Seaton
on August 27, 2017 at 11:51:46 am

Well, Dawg:

When it comes to INDOCTRINATION, how does this strike your "liberty - loving" fancy, wherein kindergartners are indoctrinated into the new "gender" diaspora (yep, that is the proper term):

https://pjmedia.com/parenting/2017/08/23/kindergartners-traumatized-transition-party-transgirl-parents-outraged/

IT IS NOT just Federal and State bureaucrats promulgating this insanity but our "beloved, yet *underappreciated* (yeah, right) teachers who force the received wisdom of the day upon young children.

One simple question for the mother of this *transitioning child" - "Will this make you the "talk" of the party as you encourage the commiseration of like-minded persons as you discuss the difficulties and the courageous struggle that YOU are making to support the (absolutely) uninformed *choice that your child is making - or rather that you ARE making for him / her.

Goodness gracious, can you not see that young children, who have absolutely no concept of gender, are at times fascinated by a colorful outfit, or frills, sequins, etc. Is it not your role to direct the child to a point in his life where his choice will be based upon something other than a fascination with bright colors / frills.

Case in point: My young grandson saw a pair of pink boots in a thrift store. He wanted them. Mother bought them. I went and bought him a pair of "dinosaur boots" - Guess what. The pink boots now cover the feet of his younger sister and he loves his *dino-buuts*.
Case solved.

Except for this in the progressive who insist upon imposing their warped and UN-OBSERVANT view of the world upon others.

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gabe
on August 27, 2017 at 13:23:49 pm

l have no problem with people of faith per se--they can believe whatever damnfool thing they want. What l have a problem with is what l call the American Taliban: those who insist that society adopt THElR moral code.

While l wasn't aiming that remark at Paul, he apparently resembles that remark.

Why anyone in their right mind would ever bankroll that band of boy-buggerers known as priests is beyond me. But somehow, l can't call his religion "stupid" or "silly"?

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LawDog
on August 27, 2017 at 13:44:01 pm

You're the ones clamoring for charter schools.

This wouldn't happen in a public school--nor would kids be regaled by a depiction of Jesus riding on a dinosaur. Kids are going to have to come to grips with the fact that Heather has two mommies--we've always known that Catholic priests were sexual predators--but the extreme example you cite has no place in a public school curriculum.

The problem with charter schools is a lack of adequate public control.

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LawDog
on August 27, 2017 at 14:31:00 pm

PB: "It is amazing the bar finds him suitable to continue in practice, seems like some pretty obvious instabilities."

Translated, Paul is incapable of intelligent rebuttal.

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LawDog
on August 27, 2017 at 16:53:20 pm

Dog,

You say one thing, but most of your words speak what you really feel. Of course you were aiming that remark at me, at least in part. You have a very big problem with people of faith. But, in truth, you have a bigger problem with anyone that believes differently than you, most especially when they stand up to you. This while patting yourself on the back for being so open minded and inclusive. Which you are entitled to.

If people of faith are so insistent on forcing society to adopt our moral codes, they sure haven't been very successful. You don't know me, and you don't know a darn thing about my faith or where I've been; you only think you know everything about me based on your very distorted view of reality and pre-conceived notions, but most especially because you hate me simply for being a Christian. You would hate me if I never spoke a word about any of the issues that enrage you so, but simply because I believe in the divinity of Christ. That's enough to dislike me, as you say, by fact and opinion.

You have nothing against people of faith so long as they aren't Christians. If you dared to speak half as mean-spirited about Islam, you would find your head resting on your stomach instead of your neck. Attacking Christians is an easy and safe target for your hatred.

Catholic Priests are no more likely to molest boys than any other segment of population, and the clear fact that the cases (most of them in excess of twenty - fifty years dated) tend to be same-sex incidents, demonstrates clearly, it is a GAY issue not a Pedophile issue. But, you would probably be the first to scream if the Church were to through Gays out of the Priesthood. Meanwhile, there is a large sub-culture of Gays that exists between older men and boys below age of maturity. But, I'm sure you would condemn this; just see how the LBGQT, et al would come down on you for berating this practice.

Furthermore, take note, the public school unions fight hard that laws going after pedophiles apply to private schools and institutions, while (conveniently) providing exclusions to the public sector. Otherwise, you would see a whole lot more of these incidents across the board, private and public. So, in actually, these laws are more about persecuting Catholics than Pedophiles. The extension of the statute of limitations movement going on now for instance; in all most every case, including my PA, these laws exclude public sector schools - why, what are they afraid of if - I don't need to tell why this is so. And, its not because the problem doesn't exist, but because they know well that it exists there in abundance.

Lastly, I used to believe the study of law to be a noble profession and have considered studying law at my late age of 54, now that I've had a good career and am more able to. But, if what you are, is what becomes of a man because of the legal system, I can't think of any thing I would rather stay as away far away from than the law, to avoid the risk of turning into a bitter, mean-spirited, obnoxious, hate-fill, hate-spewing man as yourself.

I owe you a world of thanks for saving me from such a hopeless and pathetic fate. So, Thanks for that much.

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Paul Binotto
on August 27, 2017 at 17:02:01 pm

Fine accusation coming from a fellow whose comments are populated with every form of unintelligent hate-filled rhetoric.

I can only imagine you feel comfortable acting so poorly because you enjoy anonymity. Certainly even you would feel ashamed to have your spouse, or your kids, or grand-kids, or the members of your Bar. I hope you get to, someday.

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Paul Binotto
on August 27, 2017 at 17:13:27 pm

Corrections: Certainly even you would feel ashamed to have your spouse, or your kids, or grand-kids, or the members of your Bar, hear or read how you respond here. I hope they get to, someday. Mr. Gabe tries to make excuses for you; I try to give you the benefit of the doubt and extend an olive branch, but just as quickly you respond with more venom. I can only conclude, you are as rotten as you act, regardless of what Gabe says. That really is too bad, you have much to offer here, even though I disagree with most of what you say, you make pretty good points.

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Paul Binotto
on August 27, 2017 at 17:57:03 pm

Getting sex is no different than getting a car. You go into a car dealer and say, "I think that's the car I want" and a car salesman gives you the keys, he is giving you the car because he knows you want it. You have no need to ask, "you really mean to give me this car" because it's implied. Sex is the same way, if she let's you kiss her, then she is yours to do anything you want. It's implied, just like it's implied that you now own the car when the salesman gives you the keys when you say you like the car.

Agreement never needs to be explicit, everything is implied.

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mulp
on August 28, 2017 at 17:45:59 pm

What has happend? This was a dignified site; a site where readers could enjoy a high standard of respectful, well-reasoned discussions. The legal reasoning was impressive. The academic commentary as well. It provided ordinary readers with a frame of reference for thinking about important subjects. Now this ... .

When researching another subject today, I happened upon a history text book, "A History of the Modern World" by Professor R. R. Palmer and Dr. Joel Colton. The early chapters record the story of great progress and terrible decline; one seeming to follow the other, as night follows day. It seemed a familiar story; too familiar.

The mirror of justice blog eliminated comments. I will not be surprised if that happens here as well. But the articles and book reviews will still inspire, they will still instruct. They will still, at least for me, lift my spirits and give me hope.

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Linda Smith
on August 28, 2017 at 20:22:50 pm

Dawg:

Are yoy "effin" kidding?

this would not happen in Public Schools. It happens with a far greater regularity in PUBLIC schools than in other schools. I will not trouble you with the problems confornting local "beneficiaries" of public education as they are too numerous to mention BUT I assure that this charter school is an outlier.

AND WHY do you ignore the most salient issue in the story: The fact that the modern "gender diasporists" are proselytizing their rather unique conception of *gender8 to the most innocent amongst us.

Cut the crap, Dawg"

I REALLY and TRULY a expected better of you. C'mon, when someone is WRONG, admit it!

You disappoint me, Dawg! and consequently present yourself as just another ideologue in the current gender wars.

I am serious - you disappoint me! "PUBLIC CONTROL" - yEAH, THAT WOULD MEAN EXACTLY WHAT - THAT THE CHILD WOULD BE SUSPENDED FOR HAVING NON-CONFORMING VIEWS - EVEN THOUGH, IT MAY BE FAIRLY SAID THAT THE CHILD IS INCAPABLE OF FORMING ANY VIEW ON THE SUBJECT. (excuse the caps - I suck at typing and look at the keyboard).

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gabe
on August 28, 2017 at 21:13:46 pm

I think it was the eclipse that set this site asunder recently, Linda. Hopefully, the temperature has come back into seasonal ranges now.

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Paul Binotto
on August 29, 2017 at 06:49:38 am

Thank you. A few early morning thoughts from the "common man":

Our laws provided boundaries. By defining actions falling below a generally understood standard of right behavior - murder, theft, sexual misconduct, slander, coveting of a neighbor's spouse or possessions - laws provided societal order and security, not perfectly of course; but then nothing human is perfect.

Computers achieve a kind of perfection; they attain the end for which they were created. They are marvels of technology, of human intelligence, but they are not humane. "Humaneness" is apparently up to us human beings to sustain. But we are fast losing its meaning, the root so hard-earned through great trial and horrible error.

A web of error does seem to have settled upon us, or I should say, is being settled upon us. We abandoned our original inspiration. We seem to have expected the void thus created to remain empty. That is not happening.

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Linda Smith
on August 29, 2017 at 07:15:23 am

Well at least we have an interesting demonstration of loss of societal standards. From the author I mentioned, R. R. Palmer, discussing the establishment of Byzantium, Latin Christendom, and Arab/Islamic entities, these words seem significant:

After the collapse of Roman order (for various reasons), he writes: Within Latin Christendom,""all government had fallen to pieces" in spite of efforts by some leaders. Persons having no acquaintance with the former culture "milled about in rough groups.

At the same time, within Byzantium "art and architecture, trades and crafts, commerce and navigation, thought and writing ... were still carried on actively in the eastern Empire".

Within the Arabic and Islamic cultures: "the Arabs speedily took over the civilization of the lands ... Huge buildings, magnificent palaces were constructed ... . In the sciences the Arabs not only learned from but went beyond the Greeks."

This is all basic knowledge. I mention it because we seem to be attempting to replicate this historical arrangement. Have we lost our minds or our nerve - or both?

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Linda Smith
on August 29, 2017 at 08:50:30 am

A rule too often forgotten: Do not post comments before breakfast.

My little analogy limps badly since there remains no entity known as or replicating ancient "Byzantium".

The original Arab/Islamic and the remains of Latin Christendom societies do exist; one in almost complete disarray; one not.

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Linda Smith
on August 29, 2017 at 14:20:33 pm

You are really are an ideologue!

"This wouldn't happen in a public school." _It happens ALL the time and with ever greater regularity.

And in case you missed it - Charter schools are regulated by the State and it was State "controls" that permitted the school to assign this *lesson* without informing parents OR permitting an opt - out.

Lastly, all this constant haranguing of the Catholic church because of the sick actions of some priests.

WHY do leftists ALWAYS overlook the single most SALIENT fact of the whole disgusting episode - that IT WAS HOMOSEXUAL priest who were abusing young boys - not straight priests.
The SAME is true for the Boy Scouts - HOMOSEXUAL Scout Leaders were abusing young boys and the leftist ideologues SOLUTION to the problem was to REQUIRE, that's right, REQUIRE the Boy Scouts to HIRE MORE HOMOSEXUAL Scout Leaders.

Oh, yeah, that's right, the Left is always "interested in the children."

What idiocy, what lunacy, what self-serving hypocrisy!!!!

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gabe
on September 01, 2017 at 12:05:30 pm

An out of sequence comment about a disturbing trend.

A line from a book of no great repute, "Finding God in Man" by a then-priest, a Fr. Boros, who, if I remember correctly, did leave the priesthood. He wrote: "The decline of love is mirrored in the decline of manners." I did not forget that and believe it is true.

Here, at the distinguished liberty law site, there has been a sudden decline in civil language. What, I wonder, does this decline mirror?

Please keep up the good fight!

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Linda Smith

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