This is Part 2 of a 3-post series titled “50 Years Later . . .” The first post included the transcript of John W. Calhoun’s argument. This post includes the transcript of William B. Ball’s argument.

As the 50th anniversary of the United States Supreme Court case Wisconsin v. Yoder approaches, the 50th anniversary of the hearing (December 8, 1971) leading to the decision (May 15, 1972) has already passed. One of the things I recommend that everyone listens to is the actual audio from the 1971 hearing. It’s only 1 hour and 3 minutes long. There were no other hearings. 

(Scroll to the end or click here for the audio/video version of this post.)

This landmark case deemed children to be the property of parents, like inanimate objects, without any rights despite the fact that children are human beings and do have constitutional rights and were, by default, parties to the litigation. 

It took a mere 1 hour to seal the fate of American children who happened to be born into the wrong group of people. Those children were specifically singled out to be . . .

. . . denied the right to an education past the 8th grade by the highest court in the United States.

Throughout the 50 years since then, the instant they’re born, children of practicing Amish are stripped of the educational rights that all other American children are understood to have. 

Because of the precedent set by Wisconsin v. Yoder, any parent/guardian can now point to Yoder to claim the right to also deny their child an education past the 8th grade. It gets even worse: United States citizens (children and adults) don’t have the right to any education at all in the eyes of the federal court. This was solidified by Yoder, which overrides any state that has a Constitution that spells out a right to education for its residents, including compulsory education laws.

The audio of the Wisconsin v. Yoder oral argument, or hearing, is spooky. The old technology from 50 years ago makes the sound of the voices crackle and echo, like an old-time radio murder mystery show during the golden days of network broadcasting before television. That effect is even spookier when I, as a woman, hear nothing but male voices. Not a single woman or girl was allowed the opportunity to have a say in this hearing or be adequately represented in the case. The spookiness is amped up even further when I hear Ball’s self-indulgent, fictional account about me (i.e., the Amish).

The arguments by William B. Ball — the attorney who won the case for the parents, at the expense of the children — are riddled with fantasies and fetishizations about my Amish people. Ball won the case based on the most incredibly outlandish, illogical, and false claims ever made about a specific group of people. John W. Calhoun — the attorney who lost the case for the state, which was supposed to work in the best interest of the children — argued, on the other hand, in such a mild way compared to Ball who followed after him that it seems, if for no more sinister reason, the case got won by the attorney who dazzled the Supreme Court justices with an oratory performance rather than the attorney who presented the straightforward, indisputable facts. The justices should all be condemned in our history books, classrooms, and courtrooms for betraying the rights of an entire population of innocent children and subsequent adults forever after. The state also needs to be jailed for refusing to ensure that the children’s rights were protected, such as appointing them a guardian ad litem.

I wonder why the state ever challenged Ball’s win at the Wisconsin Supreme Court level when they refused to carry out such basic things as appointing the children their own attorney. Why did the state even bother appealing the decision to the federal Supreme Court? Calhoun couldn’t have done a worse job; it sounds like he intentionally tried to lose the case. What backroom deal did he benefit from?

Lest it sounds like I have nothing against Ball, I do. He didn’t care at all about us Amish and our religious rights. The only thing he cared about was using us as a guinea pig to see if he could get an extreme, i.e, unconstitutional, religious liberty exemption pushed through. If he was successful, he could use Yoder as a precedent for demanding all sorts of other extreme, i.e, unconstitutional, religious freedom exemptions. As I’ve written in other posts and articles, this case was never about protecting Amish religious freedom; it’s just marketed as such.

At any rate, if you want something truly shocking to hear about a single group of humans (and a decision that directly affects you, too!) as you commute, work out, or go about your daily routine, this audio should be at the top of your list. It’s included at the end of this post and also on my and the Amish Heritage Foundation’s YouTube channels.

If you’re more of a reader, skim the audio’s transcript. I edited the transcript for brevity and it’s broken down into three parts: John W. Calhoun’s argument, William B. Ball’s argument, and Calhoun’s rebuttal. Happy listening/reading! 

Oral Argument of the United States Supreme Court Case Wisconsin v. Yoder on December 8, 1971

[Part 2: William B. Ball’s argument]

Chief Justice Warren E. Burger of the United States Supreme Court:

Mr. Ball. 

William B. Ball, attorney for the Amish parents: 

Mr. Chief Justice and may it please the Court. The Wisconsin Attorney General’s attempt to have these Amish parents found criminally guilty has now entered the fourth year. This in spite of the fact that in January of this year, the Supreme Court of the State, by a six to one vote, tendered two conclusions. 

And I am quoting now from the concurring opinion “that there has been an inadequate showing that the state’s interest in establishing and maintaining an educational system overrides the defendants’ right to free exercise of religion” and secondly, “that Amish should not be required to attend the school which meets the requirements of state law beyond the eighth grade.” 

And even the one dissenting opinion, that of Mr. Justice Heffernan, talked about how this prosecution came to be triggered. So there’s strong evidence that the purpose of this prosecution was not to further the compelling interest of the state in education, rather a reprehensible objective under the facts of this case to force the Amish into school only for the purpose of qualifying for augmented state age. 

I’m going to tax the Court by going over just a little bit of some of the facts as they have been presented because I think they’re basic, from hearing the questions that have been asked. The legal basis for this prosecution is the refusal of these parents on religious grounds to afford the three children in question at most two years of high school under a statute which requires not a high school course, not four years of high school, not even one year necessarily, but merely school through age 15, not through age 16, through age 15 according to the statute. 

Now, the state interest becomes a little bit varied when we think in terms of compelling state interest because if there is a VO school, or the technical school, vocational school in the school district, then the age limit is 18, up to 18 the child is to attend. 

A different standard applies where there is no VO school and the record in this case establishes that there was no vocational school in this district. 

Now, then in terms of the interest the state has in trying to compel these children to attend school beyond the eighth grade, we have to realize that for Frieda Yoder, the daughter of Jonas Yoder, one of the three children in question, only one year of schooling was involved because she was 15 years and five months old on the day the criminal complaint was brought against her father. Barbara Miller would have only six months of the state benefit of additional compulsory education, because she was 15 years and eight months old at the time the criminal complaint was brought. 

Now, it is the position of the Amish parents that the application of the statute to them violates their free exercise of religion and that there has been no showing whatever, no showing at all, that non-application of the statute to them violates or creates any substantial danger to any interest of the state of Wisconsin. 

Nobody on our side challenges the fact that the compulsory attendance laws bespeak a compelling state interest. We have merely, in fact, emphasized in this case and in our defensiveness, it is our whole sole support of the statement of this Court in Brown versus the Board of Education [Brown v. Board of Education of Topeka] wherein the Court said education is a principle instrument in awakening the child’s cultural values and preparing them for later professional training and in helping him to adjust normally to his environment. This is a superb description of what the Amish people believe in terms of education. 

My argument, may it please the Court, will pursue two points: One, the pre-exercise claim and secondly, the question of danger to interests of the state, which the state of Wisconsin has said exists to a substantial degree. 

The free exercise point is extremely important, that is, it is extremely important, but I try to develop this at some length, because here we’re not talking about one tenet of the religion being at stake, for example, observance of the Sabbath or opposition to military training. We’re not talking here about one particular practice, say, spreading the gospel through speech or press or assembly as appeared in a number of cases. We’re not talking about one forced exercise, such as the salute to a graven image or recitation of prayers or bible reading. We’re talking about a whole complex of religious interests, religious interests and rights in education and worship and parental nurture, an individual religious choice in vocation, in communal association with respect to teaching and learning, with respect to privacy as we have tried to spell out in our brief. And indeed we’re talking about, as will appear, the continued existence of the Amish faith community in the United States. 

In Garber versus Kansas, Kansas versus Garber [State v. Garber] rather, the only other State Supreme Court decision in point, very scant attention was paid to the actualities of the Amish religious claim. And therefore, we’re dwelling on that to some extent here this morning. 

Justice Potter Stewart: 

The Amish are in what, about a dozen or 15 states of the Union, something? 

William B. Ball: 

Yes, about 15, Mr. Justice Stewart. 

Potter Stewart: 

And is it, about? 

William B. Ball: 

About 50,000 people. 

Potter Stewart: 

And each Amish community is unique in a way, is it not? There are local variations among them, are there not? Among them? 

William B. Ball: 

There are slight variations among them. I would say the Old Order Amish are fairly uniform whether you find them in Lancaster County, Pennsylvania or whether you find them in New Glarus, Wisconsin. They’re very much the same. They follow the same practices and have the same attitudes toward religion, education, children, the simple life, and so on. 

Potter Stewart: 

Same basic lifestyle? 

William B. Ball: 

Yes, sir. 

Potter Stewart: 

Dictated by their religious belief? 

William B. Ball: 

Yes, sir. 

Potter Stewart: 

And we’re talking in this case about the Old Order Amish. Is it only the Old Order Amish, so-called [doers?], who object to formal education? 

William B. Ball: 

Old Order Amish and Order Mennonite and some variants of these same groups, which are nevertheless basically the same. 

Potter Stewart: 

They have a common [voice overlap] the Anabaptists as I understand it? 

William B. Ball: 

Yes, that is correct. 

Potter Stewart: 

And these particular people go back to Switzerland in the, what, 16th century? 

William B. Ball: 

They do. They go back to a time in the 16th century, Mr. Justice Stewart, when a number of people of the Protestant Reformation sought to return to what they believe to be the golden age of Christianity, in the early centuries of Christianity, and reject the institutional churches of the Catholic Church and the other Protestant Churches. And to do this, and to have that life, they believe that their lives had to be governed completely by the Sermon on the Mount and this would be therefore the call for the creating of a community of love, of mutual health, of simplicity, closeness to nature, animals, soil, plants, and so on, turning the other cheek, and extremely importantly, perhaps the most critical point in the understanding of the Amish religion, separation from the world, which they believe was not only the practical means whereby this light could be lit, but was also a means, a principle enjoined upon them by the Gospels themselves, where St. Paul speaks and says, “Do not be conformed to this world.” This is a basic doctrine of Amish religious teaching.

And so, therefore, they in two ways have sought to separate themselves from the world and have maintained this over the centuries. First of all, they see that there has to be a separation from what they consider pride of intellect, that is to say the higher learning, as they express it. They believe that education’s aim should be the life of goodness, not the life of the intellect, the making of a good man, not the making of the good American life. They believe that this life of goodness rejects the world of technical cunning and instead embraces wisdom. They believe that life is a very short pilgrimage and its whole purpose is to get human beings to their salvation in the arms of God. 

A question was posed, a very enlightening question was posed, upon the trial by the Deputy Attorney General assigned to the Department of Education in Wisconsin. He said to Professor John Hostetler, who was an expert witness on the side of the defense and who is the world’s foremost authority on the Amish people, he asked Dr. Hostetler, “Isn’t it the point of education to help a person to get ahead in the world?” 

And Dr. Hostetler superbly replied, “It depends on which world,” later explaining that of course what he meant was that the aim of education as far as the Amish are concerned is to get to heaven. 

Therefore, they reject what many of the rest of us accept in a world of knowledge and they believe that the education in writing and reading and arithmetic, which a child can acquire up until the time of adolescence, is sufficient education, particularly in view of the fact that Amish life is not concerned with technical and technological achievement and development. 

Potter Stewart: 

And Dr. Hostetler grew up in an Amish community and he is a Ph.D? 

William B. Ball: 

That is correct. 

Potter Stewart: 

And how is that to be explained? 

William B. Ball: 

It shows that he left the Amish faith. It shows that people can leave the Amish faith and that the fact that they began in life as Amish children is not necessarily a crippling experience. He later elected to leave the Amish faith and this is done in the Amish faith at the time of adult baptism. At that time, a child or a young man or woman must face up to the fact that whether he wishes to live the Amish life or not. He may refuse to live the Amish life if he wishes to. Some do. There are no wholesale departures from the ranks of the Amish people. I think that we brought out in our brief and in Dr. Hostetler, as many of his works on this subject is shown, that while there is some attrition, the community has continued in pretty much the same size over the years. 

Well, this first rejection then is a rejection of the world of intellect and the second . . .

Potter Stewart: 

Is there a belief in elementary education or just an acceptance of it? I’m talking about education through the eighth grade, learning to spell and decipher and read and write.

William B. Ball: 

Well, they believe that those basic skills are sound and desirable for a child to have. They’re quite aware of their citizenship. They believe that a person should be able to read and write and communicate. 

Potter Stewart: 

So there’s more than just an acquiescence in that? There’s an affirmative acceptance? 

William B. Ball: 

Yes, there’s an affirmative acceptance of education from that point. 

Justice Harry A. Blackmun: 

Mr. Ball, I take that in the, among the consistent adherence to the church, there are no professional people, no lawyers, no positions? 

William B. Ball: 

That is quite true, Mr. Justice Blackmun. 

Harry A. Blackmun: 

Unless they come back after the education? 

William B. Ball: 

Yes. Yes, that is quite correct. 

Harry A. Blackmun: 

And yet they do rely on, certainly on, medical knowledge and elsewhere, do they not? 

William B. Ball: 

Yes, they rely upon medical knowledge. They simply, their point of view is not whether medical knowledge is necessarily good for the world. Their point of view is simply based upon the fact that they believe that they themselves may not pursue the higher learning. This is a point of strict religious belief with these people. 

Harry A. Blackmun: 

But they will seek medical treatment? 

William B. Ball: 

Yes, they will seek medical treatment. Right now, they are receiving legal help, though they did not seek it. It came to them through the National Committee for Amish Religious Freedom. But they do not, they would far rather suffer personally, prosecution, then make a test case going to court and so on. 

Harry A. Blackmun: 

In that connection, is there any, has there been any attempt to compromise the situation as evidently was done in Pennsylvania and . . . ? 

William B. Ball: 

Yes, Mr. Justice Blackmun, the supplemental appendix sets forth the ethics which we made under a number of provisions of Wisconsin law in which we felt there was some daylight for these people. We attempted a negotiation for them to avoid having any kind of court case and these attempts were rejected out of hand, as I think the supplemental appendix very clearly reveals. 

The second element of separation is the separation from the ways of the world. The Amish do not want their children, and they do not want themselves, to be exposed to the spirit of luxury, lust, temptation, of strife, consumerism, competition, speed, violence, and other such elements, as are commonly found in our American way. Therefore, education for them embraces a rejection of the higher learning and a positive emphasis upon the learning of the agricultural life. It rejects the concept of exposure to and service in the ways of the world. And when you add to this the factor of adolescence, you will see why an Amish person, whether we would agree with him or not, may not, from a religious point of view, attend school beyond the eighth grade. That factor of adolescence is extremely basic in Amish religious thinking. It’s the time which leads to adult baptism. It’s the time of the starting of life’s work, meeting the challenges of real responsibilities on the part of young people. It’s a very sensitive time when values are formed. The Amish religion forbids high school then, because of those three elements. It puts tremendous stress on the importance of the opportunity which adolescence creates. 

Now, if they are placed in school, the record shows that they are going to be, these children are going to be exposed to the social life in the school, be it public, private, or parochial. They are going to be exposed to a curriculum much of which they must religiously reject and much of which is superfluous to their intended life as growing up in the Amish faith community. 

Justice William J. Brennan, Jr.: 

Well, one of those schools that the Attorney General has said the Amish have established [voice overlap] where they adhere to the state standards and curriculum? 

William B. Ball: 

Mr. Justice Brennan, those are all elementary schools. The Amish do not maintain any high school whatever . . . 

William J. Brennan, Jr.: 

That is, if you were reading, writing . . .

William B. Ball: 

Yes, that’s correct Mr. Justice Brennan. 

Now, when you take a child from Amish life at adolescence and place him in a high school, he is naturally going to be exposed to those values which his parents’ religion rejects, is going to be exposed in those ways of life which typify high school today. And this alienation, which is abundant testimony in the record, this alienation of the child who has been raised as he has a right to be raised in the Amish faith community up until adolescence — there’s no disagreement with that on the part of the state — he has been raised in that atmosphere up until then to be suddenly placed in a high school where there’s different dress, different speech, very, very different people with very, very different backgrounds. This is extremely traumatic to the person and this alienation is psychologically damaging to such a person. 

Potter Stewart: 

Why is that so much more traumatic than the eighth grade would be? 

William B. Ball: 

In the eighth grade, our particular defendants were in parochial schools, Amish parochial schools until the eighth grade. They attend an eighth grade, they attend up to that time whether they are in a public or an Amish school to be at least in part associated with other Amish children. 

The Amish place a tremendous importance [?] coming to adolescence. They believe that it is at that time in one’s life when you’re heading toward adult baptism and when the whole person is in the state of ferment and change, that at that time in your life, the influences of the world can be especially deadly to the Amish child. I think adolescence is a very important part of this whole thinking of the Amish. That up until the eighth grade in those earlier years, the chance or the temptations to become a worldly person and the imposition of values in another school system may have far less impact than they will to a child who is beyond or in adolescence. 

Justice Thurgood Marshall: 

Do I understand that this particular community, the elementary school is more or less regional, so that most of the students are Amish students? Or not? Is that what you’re saying? 

William B. Ball: 

Yes, this is correct. The Amish parochial schools are Amish schools and the children . . .

Thurgood Marshall: 

There are none here, in this town, are there? 

William B. Ball: 

Yes, in fact it was understood that this prosecution was triggered by the very fact that, as the record shows, an Amish one to eighth grade school had been started. 

Thurgood Marshall: 

Yes, it started. I know they started it . . .

William B. Ball: 

Now these children . . .

Thurgood Marshall: 

What about that time they went to the regular [school]? 

William B. Ball: 

There’s a number, many Amish children have attended public schools, Mr. Justice Marshall. 

Thurgood Marshall: 

Well, where they mixed in with others or were they . . . 

William B. Ball: 

Yes. 

Thurgood Marshall: 

Because of locality? 

William B. Ball: 

The pattern varies. The pattern varies. In some cases they have been mixed in with others, and some where it had been perhaps a majority of Amish children in school. 

Thurgood Marshall: 

But at the high school level there would be a broader mix obviously? 

William B. Ball: 

In the high school level it would be a very much broader mix.

And at the time of high school the child is then in the Amish religion being prepared for a complete vocation in Amish life. And this is extremely disrupted to that vocation. And secondly, it is a time in life when exposures to these elements are going to have a very serious impact upon his values. He will have been raised, even in the eighth grade, in the eighth year, essentially in an Amish community and the involvement in high school with its social life and everything else is going to be destructive of his faith. 

Warren E. Burger: 

The religious point of view, is this elementary education approach somewhat like that of the Jewish faith with the, I think it’s age 13 when a Jewish child is considered to have become a mature adult? 

William B. Ball: 

Yes. 

Warren E. Burger: 

Is there an analogy between the Amish attitude and that of the Jewish faith? 

William B. Ball: 

I think it’s a close analogy, Mr. Chief Justice Burger, and I think that’s well brought out, by the way, in the brief of the, brief amicus curiae in this case, by the Synagogue Council of America and other related Jewish groups. 

The, I would like to comment, if I may, with the time that remains to discuss the danger which the state has said it is faced with, if these Amish children for religious reasons are permitted to not attend school through age 15. One has to ask whether the state, with its very ample legal research resources, why they never placed a single witness on the stand, produce any documentary evidence at all, one scrap of any study, which would give color to the charge that Amish non-attendance threatens some compelling state interest. All the evidence on that point of compelling state interest came to the defense. 

State offered really two points. First of all, that Amish non-attendance — two years, one year, six months, whatever it might be — threatens of all things, the state’s establishing and maintaining an educational system. Six judges below and the Wisconsin Supreme Court denied this fact. Certainly, here there is no danger of fraud. Very few people could show what the Amish have shown. That is, to say, a unique and ancient religious tradition and religious claim, that the obvious nurture and protection of children, which takes place in the Amish community which treasures children, the whole factor of training in life for a useful and productive vocation and no casting of the children upon the community. Certainly here there is far less danger, fraud, or disturbance of a system that was found in Sherbert v. Verner. No one else’s rights are harmed by virtue of Amish non-attendance. And here I am reminded of the statement of Mr. Justice Brennan in dissenting in Braunfeld [Braunfeld v. Brown] when he said the values of the First Amendment looked primarily towards preservation of personal liberty rather than toward fulfillment of collective goals. Here you have precisely that put into scope. The collective goal is not going to be disturbed by the fact that these children do not attend school. 

Additionally to that I have to reinforce what Mr. Calhoun said a few moments ago when he quoted to the Court the findings of the Trial Court, the finding of the Circuit Court and the determination by the State Supreme Court that the free exercise of the Amish religion was patently here involved. That the state’s action enforcing these children into high school constitutes a denial of the free exercise of religion. This I think is established in the case irrespective of what may be thought of the Amish religion. 

The remaining question then becomes one of a compelling state interest, which means what is the danger to the state and certainly it is not in the general enforcement or maintenance of an educational system. Now, does it deny the child free choice? Does it deny the child, as the state says, his right to an education? There’s a national consensus that we have cited in our brief at page 32 to this effect that there is no compelling state interest reflected in state compulsory attendance laws in having children attend school beyond the 15th birthday. And this seems to be, if this is the case in state after state after state, that the state doesn’t feel that a child needs to attend school beyond 15, then it seems to me that these children in question do not present in terms of their own rights to an education any danger to any compelling state interest. 

We have produced in evidence and cited in our brief this study which was by Professor John Hostetler under a Commission from the US Office of Education of achievements of Amish children and standardized testing and it reveals that they perform well. 

The state has referred to Prince v. Massachusetts in its argument on behalf of parens patriae, but we have been able to show, I think quite clearly, that there is no such danger to these children as was involved in the Prince case, whose facts were that of a child hawking religious magazines at night in streets. 

Amish life is a garden of nurture of children. 

Certainly, the Attorney General is not telling us that the child labor laws in Wisconsin are not enforced. And certainly, therefore, if there is any need for protection in that direction, the state of Wisconsin is very able to afford that protection. 

The state has thought loosely about the disease of ignorance and opening the gateways of opportunity to these children. But we introduced positive evidence which shows that Amish education produces good people. We cited the testimony of Dr. Erickson of the University of Chicago, and we specifically asked him questions concerning Amish education, which he had very carefully studied and his comment was this: “The Amish definitely provide for their children of high school age what could be called an education. Remember this was uncontroverted by anything the state chose to put in the record. I would be inclined to say that they do a better job at this than most of the rest of us do. The Amish are in a fortunate position respecting schooling which they conduct for children beyond the eighth grade. It is learning by doing, an ideal system. We are learning that current education is detached from the real world and that in the things they talk about, pupils do not become involved or have real responsibility. The lack in modern education of a clear connection between learning and doing is responsible for much of the student actions that we have today.”

We asked what kind of people these are and we put the Sheriff of Green County on the stand. We asked him question after question after question about those crimes of violence which most typically committed by young people today: arson, looting, rape, etcetera, etcetera, etcetera. The Sheriff gave these people a complete bill of health. They have never been known for the commission of crime. 

Dr. Littell, an authority in the history of the Amish people, stated that they have not been known who have committed a felony in 250 years on this soil. They are a peaceable people and an asset in our society, not in terms of gross national product or the building of missiles, but certainly, but certainly in terms, but certainly in terms of the goodness that they afford as an example for the rest of our society. 

We placed the Welfare Director on the stand, the Welfare Director of Green County, and we asked him whether the Amish take care of their old people, their dependent people. And the Director of Welfare testified that the Amish completely take care of themselves. They do not cast their burden on the community. They do not have people on relief or welfare. They do not have their aged in public homes for the aged. 

I think that what we’re talking about here are really great achievers. They’ve been in the education business for 300 years. They’re the finest natural farmers in the Western Hemisphere. You go up, members of the Court, you go up to Lancaster County in Pennsylvania and if you were to see these people, see them in actuality, you would find young men who are heads of families and managers of large farms, experts in husbandry, you would find in their women very model women, managers of households, very fine people. I think that it’s quite surprising that these people are singled out as not having an education, denying their people an education. For 300 years, these people have done superbly. For 300 years these people have performed very well in our society. 

The question before the Court then is whether the state may destroy — because that’s what it’ll come to if these children are forced into high school — a peaceable, self-sustaining community, 250 years on this soil on the ground, if parents in that community cannot send their children, on account of a clear mandate of their religion, to one or two years of high school. 

Mr. Justice Stewart, in Braunfeld it’s said that the Orthodox Jews in that case were faced with a cruel choice. A far crueler choice is presented in this case. If the decision of this Court is against the Amish, I fear that many people will feel that this Court has indicted our nation as too ossified, too brittle, too [?], to allow difference, innocent difference to exist and to flourish in its midst. The Amish do not come here as fearful supplicants to this Court. They come here with confidence, believing in this Court as their brothers in justice, in love and goodness, and belief in constitutional liberty. 

Thank you. 

Warren E. Burger: 

Thank you, Mr. Ball. 

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