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Women’s rights or religious rights: which come first?

A professor believes his university is offering too much religious accommodation.

A recent development in the arts faculty of a large Canadian university can be seen as a pivotal case of human rights and academic freedom. Some people, though, might see the incident as an example of appropriate religious accommodation blown out of proportion by an academic department, and that it serves to show how little power a university administration has in setting the policy of a university.

University Affairs is writing about the case because we think the principles are important. At a secular, public university, how much accommodation is appropriate for religious reasons? Who gets to decide what is appropriate? And do religious rights trump gender rights, when they are in conflict?

The professor involved wrote UA in late December, and provided a great deal of documentation about this case. Early this academic year, the professor had an unusual request from one of his male students. For religious reasons, the student asked to be excused from a required group assignment so that he wouldn’t have to publicly interact with female students. Complicating matters, the course is given online, and students who take the course from other locations, especially other countries, aren’t required to take part in the group assignment.

The professor’s reaction was that he taught at a public and secular university that had a commitment to equality. He felt that to grant the accommodation would give tacit support to a negative view of women. But, he believed the principled statement to that effect should come from the university, rather than from a professor. So he forwarded the request to both the dean of arts and the human rights office.

The person assigned by the dean to reply said that the professor should comply with the student’s request, since similar accommodations were made for students who couldn’t take part due to their distance from the university. The reply from the human rights office, although more nuanced, was largely consistent with that of the administration. In neither case was a distinction made between accommodations based on the geographic inability of a student to interact with others in the class and accommodations based on a student’s preference not to engage with his female classmates. Both situations were treated as equal.

From the professor’s viewpoint, this was a question of discrimination, not religious freedom. “Can I assume that a similar logic would apply if the group with which he did not want to interact was comprised of Blacks, Moslems or homosexuals?” he asked the dean. He also said that it wasn’t fair to the female students in the class, “who could expect to interact with other students independent of their sex, sexual orientation, religion, race and so on.”

The dean’s office saw the principles differently. In their view, these were: (1) sincerity of the student’s beliefs, which had to be taken as granted; (2) accommodation should in no way interfere with the experience of other students in the class; and (3) academic integrity of the course should be intact. The professor then raised the issue of accommodation at his departmental meeting. There was general agreement that excusing a male student from interacting with females was inconsistent with the secular rights of women. A motion was passed without dissent:

“Whereas it is recognized that [the University] recognizes diversity, be it resolved that academic accommodations for students will not be made if they contribute to material or symbolic marginalizations of other students, faculty or teaching assistants.”

On the basis of that motion, the professor informed the student in writing that the accommodation was denied.

The professor also sought expert opinion on the possible religious justification for the accommodation. Based on the student’s name, he asked one Judaic and two Islamic scholars whether the request would be legitimate in their religions, and all scholars gave written answers concluding that accommodation wasn’t required.

In the end, the student said that he would respect the professor’s decision, and thanked him for how he had handled the request. “I cannot expect that everything will perfectly suit what I would consider an ideal situation,” he wrote. For the professor, this was a further indication that the request was handled properly and that accommodation wasn’t “a religious essential” but perhaps “a ‘nice to have’.”

After being informed of this, a senior administrator said that these developments didn’t materially affect the university’s obligation to accommodate and he continued to insist that the professor accommodate (which the professor refused to do, thereby leaving himself open to disciplinary measures). Moreover, it was the administrator’s view that the non-participation of one male wouldn’t have a “substantial impact” on any other student’s rights.

Likely females in the class would have disagreed. In a survey conducted in another course, the professor presented students with a comparable scenario and asked for comment. Many female students were outraged. For example, one wrote that “many people believe that their religion legitimizes discrimination based on gender, race, class, sexual orientation, etc. Would the right to manifest religion in practice always come before the right to gender equality?” The student concluded her comment with the question: “what if a male student asked that the women be seated at the back of the class or on the other side of a partition?” Based on the three principles articulated by the dean’s office, the professor says that these requests might be seen as legitimate.

The male student has participated in the assignment, but the larger issue remains unresolved, and the administration continues to insist on accommodation. In the end, it seems to have morphed into an issue of academic governance. The professor argues that the university’s judgment should be reversed. “Rather than leaving a determination of whether or not an accommodation infringes the rights of others to the administration, a decision could be made by a committee comprised of a cross-section of the professoriate. A precedent for this type of decision-making is provided by the research ethics committee.”

There are several issues tangled in this case, but, like the professor, I think it is a situation that warrants airing in the academy. What do you think? University Affairs is eager to start a respectful discussion about the issues of this case.

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Comments on this Article

I've written about this confounded case here:

Paul Allen, Jan 20, 2014 10:50 AM

What we lack in this account is what is crucial to sorting out questions of this sort: What are the pedagogical objectives of this assignment, and of this course, such that working in mixed groups is essential to success? Only on those grounds should the issue be decided.

As a feminist, I am reflexively outraged that a student would want to be excused from working with women. But as someone who has had to think for a long time about accommodation of religious rights, and other minority rights, in public institutions, I can't insist that the secular university simply impose my values--or the values even of the majority of Canadian professors--on everyone else. The values that the secular university can rightly impose on everyone else are only those that are intrinsic to its mission and to each of the constituent elements of that mission on a case-by-case basis.

Thus, if the goals of the particular assignment requires mixed groups, then that's that. If the working culture of the class would be compromised badly by accommodating the student's religious preferences, then a trade-off must again be made in favour of the university's mission. But religious rights mean nothing if they don't mean occasionally accommodating a view that most of the rest of us don't like. And accommodation should always be given as a prima facie right unless it can be shown that the university's educational mission is at stake.

Those who might want to read more along these lines are invited to visit here:

John Stackhouse, Jan 13, 2014 7:37 PM

If the lone male student had been allowed the accommodation then other students would have been impacted. It would have required that at least one grouping would have to be comprised of only men and those men would lose the benefit of being in a mixed gender group.

This isn't a case of accommodating one man but of changing the class structure to make the accommodation.

Ann Van Regan, Jan 11, 2014 2:11 PM

I was very surprised by the administration’s insistence that the student’s request be strictly honoured. I feel the pertinent issue here is the administration’s understanding regarding the application of reasonable religious accommodation. The principle of religious accommodation is not the issue. The consideration of reasonable religious accommodation is the student’s legal right. In this case I feel the issue is how the administration responded. A sincerely held belief needs to be heard and honoured, it does not, however, need to be automatically acceded to. Universities are only legally obliged to provide reasonable accommodation. In determining what is reasonable consideration needs to be untaken by the two parties with the helpful guidelines that Professor David Seljak reminds us in his previous post from the Ontario Human Rights Commission:

“--show dignity and respect for one another
--encourage mutual recognition of interests, rights and obligations
--facilitate maximum recognition of rights, wherever possible
--help parties to understand the scope of their rights and obligations
--address stigma and power imbalances and help to give marginalized individuals and groups a voice
--encourage cooperation and shared responsibility for finding agreeable solutions that maximize enjoyment of rights."

It is my consistent experience that with the above guidelines in mind the intersecting rights of different parties are often resolved in a face to face meeting between a student and a professor without having to escalate the request. The wisdom in this practice lies in the fact that when the professor and student in this instance actually met to discuss the request, it was resolved.

Richard Chambers
Director, Multi-Faith Centre, University of Toronto

Richard Chambers, Jan 10, 2014 9:32 AM

Another editor might have framed this article differently. If we move the venue, the question becomes clearer. If a restaurant owner is asked by a patron to be seated in a non-smoking section should the owner deny the request? In the article a prof was asked by a student for a concession and that concession had already been granted to online students.
It’s important to develop and teach critical reading skills so we aren’t influenced by someone else’s agenda. The power struggle within the university setting was more interesting for me.

Dave Grimshire, Jan 10, 2014 8:18 AM

As for a strictly legal analysis, I do find Tim Stanley’s post quite persuasive regarding an individual’s sincere belief being the relevant criterion as opposed to the established dogma of a faith tradition. The point about what course content or participation is strictly “academically relevant” or potentially excusable on a case-by-case basis is also significant. However, that does not mean that the university is necessarily bound to relent in this (or any given) instance. Useful, broadly applicable precedents can only be set in law can only be set when individuals and organizations are willing to risk litigation to test competing values when actual, novel disputes arise. Had the university been willing to back the professor (and the department) – and, crucially, had the student actually sought to challenge it, which he apparently made no moves to do – then an OHRC hearing might have been quite instructive not only for the parties, but for all of us, regardless of the outcome.

Mark Mercer notes that professors undercut academic freedom by referring the matter to the university in the first place. It certainly seems this professor’s assumption that the administration would back his position was misplaced, but I suppose the compromise reached here between the student and the professor notwithstanding shows the significance of academic freedom in this instance, assuming the professor’s willingness to ignore the school’s orders is due, at least in part, to the latitude afforded by tenure. Hopefully this case doesn’t result in other, meritorious, requests for accommodation being refused (and long-settled battles re-fought) because professors become unwilling to seek counsel as to what might or might not be an appropriate course of action.

Greg Smith, Jan 9, 2014 12:27 PM

From the article: "The student concluded her comment with the question: “what if a male student asked that the women be seated at the back of the class or on the other side of a partition?” Based on the three principles articulated by the dean’s office, the professor says that these requests might be seen as legitimate."

I think this speculation goes too far, since the school's continued insistence on accommodating the student after the prof's refusal is on "the administrator’s view that the non-participation of one male wouldn’t have a “substantial impact” on any other student’s rights."

There is a clear, distinct difference between students a) seeking accommodation by removing themselves from class participation and b) insisting on differential participation by an entire set of others belonging to an identifiable group. That said, once the university makes it clear – as it now has – that it is willing to accommodate students who wish to self-segregate based on gender, it is far from clear that “the non-participation of one male” in one assignment in one class will be the end of the matter.

Greg Smith, Jan 9, 2014 12:26 PM

I agree with previous post that this matter was a routine class room management matter and did not require all this hassle. I believe student did not discriminate against female students in the class, rather he has isolated himself. So what is so big fuss about it. We may have students with whatever reason to not to do something. Should we force them to do things that we believe are right. To me, this is an interference in the personal domain. The administration is absolutely right in the decision. I ask this question: have you not heard this statement from students, "I can't work with this group because ......" you can add one million reasons after because. Do you accept all the time those excuses? Sometimes you do, most of the time not. This was a simple case but have been made complicated for whatever motives behind it.

Dawood, Jan 9, 2014 6:51 AM

Most of the comments so far have focussed on defining where lie the limits of accommodation by the public institution to the religious beliefs of the individual. May I turn the focus around for a moment? At which point on the level-of-observance spectrum does it behove the student to affiliate with the appropriate religious institution for higher study (where the problem wouldn't arise), instead of attending a public institution? I can't imagine that it is only in the group project situation described in the article that the student was placed in an uncomfortable position. Basically, don't all ultra-observant people have to make compromises (as the student mentioned in the article ultimately did) if they chose to attend a public, secular university, rather than cloistering themselves in their own communities of like-minded folks?

Reuben Kaufman, Jan 8, 2014 11:34 PM

I applaud the Professor in the article for his diligence and persistence. Although it may be argued that there was negligible disadvantage to the women in the class, the matter is one of principle. If we continue down the slippery slope where religious freedoms trump constitutional human rights, then women in this country will become second-class citizens as they are in so many other countries.

T. O'Connor, Jan 8, 2014 7:01 PM

I am impressed by the quality of this discussion, and by the original article, and by the consideration of the professor who is its subject. Perhaps I am less impressed by the OHR law which indicates strongly held beliefs should be accommodated. Let us remember that not so long ago the belief was widely and strongly held that women should not be part of the academic community. In this case, the student might have satisfied his religious issue by taking the course on line.

Nicholas Tracy, Jan 8, 2014 6:36 PM

If it had been a female student requesting the same accommodation, the response would not have included a discussion on the potential abuse of male rights.

Excellent response Andrew Gow; I'm non board with you.

AP, Jan 8, 2014 6:16 PM

The professor should not have referred the case to the university. The matter is one of academic freedom with regard to teaching. Professors should honour no request that would compromise the integrity of their course, and professors are the sole effective judges of what would and wouldn't compromise the integrity of their course. If the requrest doesn't compromise the integrity of the course, then honour it. If it does compromise the integrity of the course, then decline to honour it. That's all there is and it is that easy, and it covers whatever grounds a student might have for requesting an accommodation--religion, disability, illness, whatever. Unfortunately, when professors take these matters to their universities, they unwittingly undercut their academic freedom.

Mark Mercer, Jan 8, 2014 4:51 PM

It is about time that religion is seen for what is really is, a reflection of personal convictions like people believing in ghosts, Santa Claus etc. As such it has no place in a constitution or any legal document and accommodation to requests based on religious motives should become a thing of the past in a secular society. This is not going to happen anytime soon in North-America I'm afraid, but hopefully cases like this will enforce the need to work towards cleaning up legislation at all levels of government.

Pascal van Lieshout, Jan 8, 2014 4:09 PM

i agree that the professor involved appears to have handled this case with great integrity, but I am afraid that I have to agree with the university administration on the specifics of this case.
1) Under the Ontario Human Rights Act what matters is not the actual official teachings of a religion, but the person's belief. If this person believed that his religion taught that he was not allowed to interact with women, whether the religion actually teaches this is not relevant. It is the belief that needs accommodation.
2) The only grounds to deny accommodation under Human Rights legislation are costs (never an issue at the a large university because the total budget of the institution is at play) and health and safety (not an issue in this case, but it can be in other cases).
3) The other way around is to take the whole matter out of the jurisdiction of the courts and legal system by making it into a purely academic matter, i.e., to argue that it is academically essential that students in the program be able to work together regardless of gender (race, religion, sexual orientation, etc). This can easily be argued in many professional programs, in the health sciences, medicine, social work, education and the like. To be certified as a teacher for example, you need to be able to work with men and with women on school staffs and teach both boys and girls. MDs have to be able to treat both men and women patients. If something is academically essential to a program and the requirement cannot be accommodated, then so be it. Someone who is tone deaf, for example, cannot expect accommodation in a program designed to train people to be opera singers. They would still have the right to enter such a program, but if they fail because they cannot meet the academic requirements for success, they would fail and could not claim accommodation.

But for something to be academically essential, it needs to be agreed to by the collectivity of professors up to an including the university Senate. Here most university programs have all sorts of things that they take for granted as academically essential, but they have not made them explicit. Virtually every science program considers lab work essential, but they do not explicitly state that it is academically essential therefore that students be able to follow lab safety procedures. What is academically essential needs to be made explicit up front to students at the time of admission.

If working together in gender equitable groups were specified as essential to the learning outcomes of this course and the program it is in, the issue would not arise. But, since this activity was in fact optional because other students in the course did not have to do it, it was also optional for this student and could be accommodated.

Tim Stanley, Jan 8, 2014 2:29 PM

I was a human rights practitioner for 22 years. I now teach human rights law and policy. A few years ago, I came across a situation not unlike the one in the above story.

An Ontario university was asked to set up a separate gym for men of a particular faith group. The men said that, because of the dictates of their religion, they could not share workout space with scantily clad women, The university acceded to the student request and went as far as erecting a sign indicating that a particular period had been reserved for men. Luckily, after being approached by a community member, I was able to get the university in question to see that the request was not so much one for religious accommodation as for the university discriminate against another group - women.

I worry that, at times, institutional agreement with requests such these are based on two false premises. First, that there is an unquestionable institutional duty to accommodate. Second, a notion, based upon ignorance, that some religions are so riddled with objectionable practices that just about any request made by adherents will be discriminatory. Faced with that conundrum, the way out is to accede to the request rather than face a loud and embarrassing human rights complaint.

Perhaps these false premises continue to exist because there is sparse guidance from Tribunals on these matters, perhaps they exist because of a failure to think of and truly understand the first principles that apply to human rights - our institutions are required, by law, to provide services to everyone without discrimination. Requests that would injure the interests of one protected group in favour of another violate that first principle.

Patrick Case, Jan 8, 2014 2:18 PM

I think the professor acted properly. For those who favour accommodation of the male student's right to not mix with women, what if this one request suddenly became 5 or 10, or 50% of the class? Will the female student's rights be compromised then? I think setting cultural precedent now will help us to avoid trying to forcibly shut a can of worms later on.

Sheri Yasue, Jan 8, 2014 1:41 PM

As long as religion is not wholly removed from the public sphere (education, government, health care, etc.), there will be intractable conflicts. This is just a simple example. What if this student demanded that the class schedule be adjusted to accommodate his prayer schedule? Several years ago the final exam schedule in a university was altered to accommodate a student who refused to write a final exam on a certain day due to religious reasons. A completely ridiculous situation, but a fact.

Religious rules and observances are subjective with little agreement amongst practitioners as well as (so called) scholars. There is hardly a clear or commonly accepted rule on anything, allowing individuals to argue whatever they want in the name of "religious freedom". However, what is really needed is a public sphere that is "free from religion".

Universities should be places of unbiased, nonjudgemental, secular inquiry and learning. But, that would require a principled approach rather than expediency...

Ismet Ugursal, Jan 8, 2014 1:31 PM

Agnostics, atheists and others may refer to religion as a human construct but it could also be considered a theistic construct in which case, a commitment to such a belief system may be more difficult to change than is suggested by some of these comments. Indeed, for some it may be more difficult to change their beliefs than to have a series of michael-jackson-style surgeries to change physical appearance. This is evidenced by the more than 100,000 people (based on very modest estimates from one belief system) who are martyred for their beliefs every year. Suggesting that people can choose their religion to resolve a conflict is akin to asking people to choose secularism as their religion.

Garry Dyck, Jan 8, 2014 12:52 PM

The Ontario Human Rights Commission has developed a sensitive and intelligent policy on the issue of "competing human rights," which is at the heart of this episode. Developed after extensive consultation with scholars and stakeholders, the policy is based on Supreme Courts decisions, the Charter of Rights and Freedoms, and the Human Rights Code. Essentially, the policy follows the Supreme Court in stating that no one right is absolute and no right automatically trumps another and that decisions need to be made on a case by case basis. How is this done?

Let me quote part of the policy:

"For example, everyone involved should:

--show dignity and respect for one another
--encourage mutual recognition of interests, rights and obligations
--facilitate maximum recognition of rights, wherever possible
--help parties to understand the scope of their rights and obligations
--address stigma and power imbalances and help to give marginalized individuals and groups a voice
--encourage cooperation and shared responsibility for finding agreeable solutions that maximize enjoyment of rights."

It seems to me that the professor involved did due diligence with regards to this student's request for accommodation. The administration should have read the OHRC policy (its logic applies outside of the province of Ontario) and then affirmed his decision (which, in my opinion, the OHRC policy supports).

That being said, the professor's decision to ask a scholar of Judaism and of Islam their opinion shows that he too would benefit from reading the OHRC's policy. In its Anselem decision, the Supreme Court has ruled that the Charter's defense of freedom of religion and conscience applies to any "sincerely held belief" of an individual. What a religious institution or scholar of religion has to say on the matter is irrelevant (in the U.S. the case is different). The new religious diversity in Canada presents us all with new challenges.

Great article. I'll be assigning it to my Religion in Canada class for discussion!

David Seljak, St. Jerome's University in the University of Waterloo

David Seljak, Jan 8, 2014 12:49 PM

The professor handled this nuanced and potentially explosive issue with great consideration and reasonableness. I appreciate hearing about the issue and being invited into a broader discussion about the implications of various types of accommodation. It is ironic, and disturbing, that our efforts to ensure opportunities and equality often result instead in different forms of injustice.

Joanne, Jan 8, 2014 12:44 PM

Clearly the existing policy was that students shall participate in groups as assigned. Accommodation is a process whereby the instructor decides to give exceptions. The mistake here is that the instructor tried to attain a policy decision where one wasn't required, and now complains because administrators disagree with his decision. Administrators pander to many influences that are not in the best interest of a clean academic and educational environment. Don't involve them if you don't want mud in your waters.

Vern Moen, Jan 8, 2014 12:39 PM

This is a poser. To argue by analogy: in a small, intimate seminar I had three observant Muslim students. Ramadan fell in Septemeber and the course began at 1:00 and ran until 4:00 p.m. Students now assume they can bring food to any class. I asked the other students not to bring food to class unless it was truly necessary, out of respect for those students who were fasting. One student complained (anonymously) on the evaluation form at the end of the term, not because s/he had needed to eat but in principle, because s/he felt hir rights were infringed on by my request. I do not think that student's rights were encroached upon by my request. Only the student's theoretical right to eat anywhere, at any time, was at stake. I had made it clear that anyone who needed to eat (unable to get lunch before class, etc.) should just do so.

In the case of this request not to interact publicly with a woman, no woman's rights would have been infringed upon if the professor had allowed the request. The issue is not one of equality of persons in a real situation, but in principle. Only theoretical rights could have been infringed as no individual could have found herself at a disadvantage due to such an accommodation.

In non-legal settings, surely we do not need to act quite so zealously to ensure that theoretical rights are respected as we do when real situations are at stake. When we place so much emphasis on a theoretical right in the absence of any real harm, there is reason to suspect that other (ideological or political) motives are at play. The student's request did not discriminate against women; it articulated a widespread aversion, in many religious cultures, to what their practitioners see as unwholesome (and uncomfortable) mixing of the sexes. It is one's right to understand the world in that way even if others do not, so long as woman are not disadvantaged by this principle. I personally find it hard to justify it or see how such separation will not produce disadvantages for women, but secular norms cannot and should not decide all such questions a priori for everyone. Otherwise we need to ban members of the Catholic Church and all of evangelical churches from operating in our schools and universities, given the ways in which they segregate men and women, distinguish between their functions, and prohibit women from exercising certain functions. The only 'out' I can come up with relies on an appeal to feminist analyses of the positive as well as negative consequences of 'separate spheres' (many of which persist strongly in so-called secular society in any case).

Observant Muslims are much more athwart the mores of 'secular' societies that are based on and operated according to the norms of (formerly) Christian cultures and societies than Christian or post-Christian westerners are. But the problem is not necessarily in Islam any more than it is an any other religion. We need to understand how 'secular' societies have internalized and naturalized Christian or at least christianonormative values, rules, mores, and viewpoints. Christian polemics against Islam and Judaism have relied on depicting those religions' supposed 'treatment of women' as brutal and unfair (even as traditional Christianity and Christian societies rigorously excluded women from power, public roles, and positions of influence on religious and cultural principle). Most 'secular' critiques of how Islam treats women simply repeat centuries-old patterns of Christian Judeophobia and Islamophobia, and clothe the objections in feminist or secular garb. There's a lot more at stake here than women's rights, I'm afraid. Therefore I would like to suggst that we might want to err on the side of caution and focus on protecting the concrete rights of real individuals in the first instance when confronted by such situations. The priniciple in this case (that women or some other group not SEEM to be discriminated against or marginalized) su

Andrew Gow, Jan 8, 2014 12:15 PM

Professor is correct on all accounts. I love the way He handled it. Authorities should support and praise Him.

Farhan Shah, Jan 8, 2014 12:05 PM

This is a great article, it really gets at the issue and the current tendency to pander to sexists in the name of religious freedom. I particularly like the fact that the article - and the professor - are considering the impact of these religious accommodations on the women in the class. I find this is often forgotten.

Jane Butler, Jan 8, 2014 11:42 AM

I don't think that it would be fair to provide the mail student with what he was asking for. When you go to school in a setting like this, you should know from the very beginning what you have to do here. If you can't agree with those, why don't you enroll in a special school in Canada or in some other countries where they teach only male students? Asking any special facility like this means that you are ignoring equal rights of people. Born and raised in a religiously biased country, I know how detrimental these people could be for females!

Sidd Paul, Jan 8, 2014 11:39 AM

This exemplifies the fight women still have to obtain equal rights. Too often Human Rights abuses against a women are downplayed. Would the response have been the same if he did not want to work with Jews? If a person's beliefs - and I underline beliefs, I cannot change my gender, but one can change their beliefs - does not allow them to interact with the other 50% of the population in a society that values equality, well then that belief is discriminatory and cannot be tolerated, or accommodated. Discriminating against another group of people (black, Queen, women...) is NOT "accomodation".

Natalie Waters, Jan 8, 2014 11:38 AM

It seems to me that gender is a biological imperative whereas religion is a human construct. It takes extreme surgical measures to re-allocate gender, but people can freely choose their religion. Accordingly, gender and other permanent characteristics (race, ethnicity, disability, sexual orientation) should always trump religion as a human right.

Louise Fish, Jan 8, 2014 11:37 AM

I don't know whether this is off topic, but the peak UK universities body had to withdraw its guidance on external speakers in higher education institutions because of the opposition it generated by contemplating acceding to external organizations' requests that audiences be segregated by sex.

Gavin Moodie, Jan 8, 2014 10:14 AM

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