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Sotomayor’s racial quota reasoning in Ricci was opposed 9-0 by the Supreme Court

Posted by iusbvision on July 2, 2009

UPDATE – Sotomayor had a conflict of interest in the Ricci case – LINK.

In spite of what some people may think of Ann Coulter’s social and political commentary, she is a very good lawyer.  Her analysis of the Ricci decision really cut to the quick as to how wrong headed Obama’s next appointment for the Supreme Court is. Even Justice Ginsburg who is the farthest left rejected Sotomayor’s view on a very key issue.

Coulter:

Obama’s Justice-designate Sotomayor threw out their lawsuit in a sneaky, unsigned opinion — the judicial equivalent of “talk to the hand.” She upheld the city’s race discrimination against white and Hispanic firemen on the grounds that the test had a “disparate impact” on blacks, meaning that it failed to promote some magical percentage of blacks.

This strict quota regime was dressed up by the city — and by Sotomayor’s opinion — as a reasonable reaction to the threat of lawsuits by blacks who were not promoted.

That’s a complicated way of saying: Racial quotas are peachy.

According to Sotomayor, any test that gets the numbers wrong — whatever “wrong” means in any given context of professions, populations, applicants, workers, etc. — is grounds for a lawsuit, which in turn, is grounds for an employer to engage in race discrimination against disfavored racial groups, such as white men.

Consequently, the only legal avenue available to employers under Sotomayor’s ruling is always to impose strict racial quotas in making hiring and promotion decisions.

Say, if the threat of a lawsuit permits the government to ignore the Constitution, can pro-lifers get New Haven to shut down all abortion clinics by threatening to sue them? There’s no question but that abortion clinics have a “disparate impact” on black babies.

This week, the Supreme Court ruled 5-4 for the white and Hispanic firefighters, overturning Sotomayor’s endorsement of racial quotas.

But all nine justices rejected Sotomayor’s holding that different test results alone give the government a green light to engage in race discrimination. Even Justice Ginsburg’s opinion for the dissent clearly stated that “an employer could not cast aside a selection method based on a statistical disparity alone.”

Indeed, the dissenters argued that the case should be returned to the lower courts to look for some hidden racial bias in the test. For Sotomayor, the results alone proved racial bias.

The one advantage Sotomayor’s talk-to-the-hand opinion has over Justice Ginsburg’s prolix dissent is that brevity prevented Sotomayor from having to explain why quotas aren’t quotas.

That was left to Ginsburg.

17 Responses to “Sotomayor’s racial quota reasoning in Ricci was opposed 9-0 by the Supreme Court”

  1. Angelo said

    I heard on NPR that the test that was being used by New Haven was, in a sense, antiquated by more modern standards. That the test included a multiple choice portion that counted for 60% of the total and most other states have adjusted the impact of the multiple choice portion due to the fact that some minorities statistically don’t do well on that portion whereas whites do. Perhaps a case could be made that New Haven’s failure to adjust modern testing practices has led to a premeditated and disproportionate amount of white promotion.

    for reference:
    http://www.npr.org/templates/story/story.php?storyId=103289178

    [So multiple choice is racist….. sounds silly to me. – Editor]

  2. Angelo said

    It is not that multiple choice is racist but that the failure of New Haven to acknowledge the statistical bias of multiple choice and adapt a less discriminatory testing practice is basically illegal.

    from above NPR link:
    “The law surrounding testing is complicated. In 1971, the Supreme Court ruled unanimously that employment tests have to be job-related to ensure that extraneous criteria are not used intentionally or unintentionally to screen out applicants because of their race, gender or ethnicity.
    To cite the most obvious example, a height requirement often screens out Hispanics and women. A year after the Supreme Court’s ruling, Congress codified that decision, and today the law states that if a test for merit disproportionately knocks one racial or gender group out of the box and some equally good merit test does not, then the employer has to use the latter test.”

    So it would appear that the failure of New Haven to adapt a more current testing program would have been an illegal attemp to [continue to] disproportionately promote whites. Moreover, the new tests are developed, not only to be less discriminatory, but also more comprehensive. Therefore, the only apparent reason of keeping the former tests is to favor whites. Yet, irregardlesss of one’s personal convictions of whether adjusting testing paramaters to make them more ‘fair’ is ethical or not, a failure to adjust for a discernible bias would still be illegal [from what I understand].

    [Angelo – This point was addressed specifically in the decision. Perhaps you should have read it before you commented here. – Editor]

  3. Angelo said

    So what you are saying, or what you are saying that the ruling is saying, is that the Congress’ codification has been overruled by this new case?

    [Well partially. Courts can use judicial review to say that a law passed by Congress, is either unconstitutional on its face, or is being applied unconstitutionally.

    Courts are very independent here, almost too independent. If there is a major constitutional question for example, the courts can ignore it and/or kick the can down the road. Sometimes a situation intersects with two pieces of case law or two statutes etc etc. Sometimes a previous court test is fine until a new situation comes and the test is found to be inadequate.

    In the Ricci case the Supreme Court did modify one of the legal tests used in these kinds of cases and the justices were 5-4 on that new test. But the judges were unanimous on the fact that, just because all of the blacks in a small fire department bomb on a test, it doesn’t mean that this automatically means the test was racist and that the city can promote the black fire fighters anyways over whites and hispanics as if there was a quota. Using a quota has been illegal for a long time, but Sotomayor when she ruled on this wanted the quota, but couldn’t just say so or she would be dinged for not following the law as she has in the past. So she dismissed the case outright and tried to prevent it from going over her head. Other judges in the circuit cried foul and right they should have.

    Having read some of Sotomayor’s work what I have seen is that her undersdtanding of the law in areas I am familiar with is inferior to my own. Granted I have studied a great deal of First Amendment and Constitutional case law as a hobby, so I am an enthusiast, but as a federal circuit judge, her understanding of it should be at least equal to my own, and it is obvious that it is just not and that worries me a great deal. – Editor]

  4. Angelo said

    “But the judges were unanimous on the fact that, just because all of the blacks in a small fire department bomb on a test, it doesn’t mean that this automatically means the test was racist and that the city can promote the black fire fighters anyways over whites and hispanics as if there was a quota. Using a quota has been illegal for a long time…”

    I don’t quite understand the difference(s) between the illegality of a quota and the legal requirement to inact non-discriminatory testing if possible. Neither is it my opinion that the fire fighters that have passed the available exam should be punished or denied promotion. But if the city has known about prior disproportionate test results and has not considered changing testing procedures, and this lack of consideration also coincides with a departure from societal norms (i.e. many other cities are doing it and having success and reccomendations for it), then the city would appear to have a racially biased motivation to continue to use the merely legitimate, but not necessarily optimun, testing procedure. So it should be the city and not the fire fighters that face reprisal. Shouldn’t this case serve as a warning? And if continued disproprtionate test results continue and no adjustments to testing protocols are made, and thereby the city invites dissension, shouldn’t the city be reprimanded for not mediating the forseeable situation? Now that I think of it, I am thinking of this in a similar way as some do for abortion: If the person (firefighter) is conceived (passes the test) then it is the responsibility of the parent (city) to honor the life (promote the firefighter) and not abort the life (fail to promote the firefighter), for it is the responsibility of the parent (city) to prevent the conception (discrimination).

    [The city did not take the proper tests to see if the test was genuinely discriminatory…..as was mentioned in the case. Again, if you read the case all of these questions are answered. – Editor]

  5. Angelo said

    I never read the case, just the post, some news articles, and NPR. Like you said, law is your thing. I like medicine, but I’m trying to learn more about politics and law.

    [Ok Now I see where you are coming from. Angelo the elite media very often leaves out facts and or buries the most important facts to the bottom of an article. They also present those facts with an attitude that is designed to create a narrative in your mind.

    Let me give you an example of what I am talking about. There was an article from the Washington Post saying that the FBI had misused the Patriot Act and used it to look at the private information of some American citizens. It then said that the Attorney General had not ruled out filing criminal charges. The article then went on to trash Bush and the Patriot Act with some editorialized comments in the news story.

    Sounds pretty bad huh?

    When you get to paragraph 22 the story told you that out of 1500 uses of the Patriot Act, about 24 misuses of the Patriot Act were caught by the Justice Department Inspector General and new procedures to lower the error rate even more were being implemented.

    This means that the error rate at the FBI was about 1% on a brand new program under difficult circumstances, which means that the people there were doing their jobs and doing them pretty well, but that wasn’t the narrative they wanted to tell. – Editor]

  6. Angelo said

    I’ll have to read the full case later. But for now I’d like to address your apparent allegation that is only the elite media, and not others (of whom you would be included), that create a narrative for alterior motives. For example, previously in the post you had written,

    “Say, if the threat of a lawsuit permits the government to ignore the Constitution, can pro-lifers get New Haven to shut down all abortion clinics by threatening to sue them? There’s no question but that abortion clinics have a “disparate impact” on black babies.”

    But the correlation doesn’t really exist. It would have to be something about hiring procedures based on interpretable racially discriminatory testing practices, rather than on the percentage of one consumer [of abortion services] over another. Now, I do not say this because I believe the child has no right to life or no right to be free of discrimination, but that in the context of current law, the rights of the child are not applicable. It is like you are saying that because too many people of one race are consuming a product that the supplier of that product is racist. So you have attempted to create a narrative that is against disparate-impact laws without adequately addressing the concept.

    [Angelo, the quote that you are attributing to me I did not write, it was a quote from Ann Coulter.

    As someone who I thought was a pro-life activist, I am shocked that you are unaware of what Ann is saying. One black pregnancy in three ends in abortion. No other community even comes close. When you look at where Planned Parenthood mills are placed most are placed to service minorities in the inner city. Margaret Sanger who founded Planned Parenthood stated very clearly that her goals was to use abortion as a form of eugenics for minorities.

    And it seems that you have missed the point of the argument, based on the number alone with the exam Sotomayor was convinced that there was sufficient racism for the city to enact a quota for the black fire fighters who failed the test and restrict all of those who passed the test (whites and 2 hispanics) a refuse to promote any of them. So if we are going to go strictly by the numbers take a look at abortion, yet for the far left, a number or a quota is all they need to render a decision that will help one of their constituency groups, but in an area they have a different sensitivity the totally lopsided numbers (like in abortion) mean nothing.

    For example, I saw a hearing where a judge was up for nomination and was asked if a person who had hired no minority assistants over a long number of years was engaging in illegal racial discrimination. The judge for nomination said yes based on those numbers that it appears that the person doing the hiring was engaging in illegal discrimination. The legislator than lowered the boom on the judge up for nomination, that the very judge who said it was racist had never, ever hired a minority intern and those numbers given were that judges hiring statistics.

    And that Angelo, is Ann’s point.

    Never just take Ann Coulter’s writings at face value. There is always a deeper point and she is challenging you to be smart enough to figure out exactly what her meaning is. – Editor]

  7. Angelo said

    I think you still underestimate my ignorance of the political and economic world. I apologize for attributing to you something Coulter said, I think I was confused by the contrasting bold and non-bold statements in the quote and my ignorance of who Coulter is. I should admit that over the past few weeks I have been trying to ‘stay on top of the ball’ of your current postings and I knew that ‘taking a stab’ at this ruling would be challenging for me. (I tried to show this in my first comment here). Thanks for reminding me how ill equipped I am and that reading the case is fundamental. Nevertheless, I don’t agree that my motivation toward the protection of the unborn is in question. Neither have I ever advocated that there be a quota and that the firefighters lose their promotions. Also, when I mentioned the services of Planned Parenthood, I was unaware of Sanger’s statements. What I had in mind was the economics of supply and demand and the fact that nobody was necessarily forcing anybody to get an abortion, and that if they were, that would be a different scenario also. For example, an Asian market might be the top consumer and supplier of milled rice in a neighborhood but does that make their supplier racist? Not necessarily, [if] it is just supply and demand. Sometimes I think America’s president has a point when he says that abortion is a sensitive issue. To me, Ann’s statement is still perhaps– an unethical at worst and unproductive at best– attempt at disclaiming the morality of disparate impact laws. Since Sotomayor was for a quota it would have been more appropriate and effective if the analogy is targeted at the quota and not disparate-impact which is not necessarily the same thing. Disparate-impact laws can protect minorities in a fair way but can also be abused. But correlating a hot issue topic such as abortion in a partial attemp to show a protective nature toward blacks while at the same time undermining a legal principle that can help protect them is not only unnecesary but also sinister, in my opinion. My preemptive apologies to both you and Coulter if I have misunderstood the facts or am too uninformed to have a valid viewpoint.

    Correction: (I tried to show this in my second comment here.)
    or Alternately: (I tried to show this in my comments here.)

    [Thats fine, and really its not all your fault. Journalists are bloody awful as reporting or even understanding these things and most also editorialize their reporting greatly while claiming to be “objective”.

    By the way – the editorializing in journalism goes so far that they find far left talking heads that will say what the journalist wants them to say and present them as “independent experts”.

    So consider this, if you listen to NPR and read the occasional newspaper and watch Katie Couric or Charlie Gibson you would think that you are reasonably well informed, but that sad truth is that one would’t be even close to having enough information to make an informed judgment or informed vote; no one would.

    I commend you on making an effort to get more informed and as you are discovering it is not easy at all is it? For me, getting and keeping informed is a full time job. It takes several hours every day.

    As far as Coulter, she is a super intellectual satirist who is super well informed. She designs her statements to deliberately enrage who she considers the ignorant, while making those who do understand her smile. By saying that I am not implying that you are somehow stupid, but the simple fact is that a layman who is new to Coulter will have almost no chance of understanding the meaning of her message. – Editor]

  8. Angelo said

    I don’t really listen to NPR on a regular basis and I don’t watch Charlie Gibson or Katie Couric to get informed either. Couric and Gibson are on a T.V. I am around often but I usually only hear their voices and the intonation of them or catch a glimpse of the show. I might listen to NPR every once in a while but it’s more to emulate those I know who do as well than to get informed. I have found this website to be rather informative, and aside from the frequent misuse of what may be considered my pet peeve, condescension, I would reccomend this site to others. Another concern I have is the/your use of the ‘victim role’ coupled with an often aggressive or impudent response to bloggers. I should add that I have been focusing on evaluating you (as an aspiring Limbaugh) and Cousinavi (as an aspiring Maher) while simultaneously trying to find a way to encourage you [both] to make higher goals.
    BTW: I just got a used textbook at the thriftstore. It’s called, Social Welfare: Politics and Public Policy, by Diana M. DiNitto and Linda K. Cummins, 6th edition c. 2005.

    [Keep in mind when I say “you” I don’t just mean you specifically I am talking about the populace in general.

    As far as the “condescention”, it is very hard in text to get across the true feeling of something while trying to educate people. It is difficult to be so much better informed and not come off as condescending especially if the person is not used to dealing with someone as confident as I am. When I talk to people I am all business, I do get condescending when dealing with people who are intellectually dishonest, but such people are not interested in the facts, they are interested in either destroying you or shutting you up.

    I am direct and all business and while I can go out of my way to use fluff and cute emoticons to make people feel better, I know very well why so many people come to this site and its not for fluff. Having made use of text as a form of communication I have learned to avoid reading any emotion into the text and just take its substance on face value. Think of the text as a teacher explaining things to a student. – Editor]

  9. Angelo said

    Not that I am too aware of Limbaugh and Maher either. I have seen like one show of Maher’s, actually it was the one with Meghan McCain and I was totally focusing on how much he was touching her and how uncomfortable she seemed to be with that but I did notice that he is really an immoral character and it was kind of shocking. Then later I was informed by friends and family about some more of his antics and I was thoroughly appalled. Limbaugh has been pretty much like a side show for me. I’ve never really heard his viewpoint on anything too much really. I just figured that those must be your (and Cousinavi’s) aspirations, kind of on instinct. Yup, I’m that ignorant of the political and economic world, and that willing to try to explain the thoughts that occur in the void where perhaps awareness should be.

    [While Bill Mahar uses cute rhetorical jokes and cussing to make his points, from time to time he engages in substance and it is possible to have a conversation with him. Cousinavi just cusses and slings racial insults while avoiding most of the truly substantive points. Trying to have a conversation with him is like talking to a brick. Cousinavi strikes me as a fellow with deep spiritual problems, which explains why he is so mired in hate and envy and hostility.

    As far as Limbaugh, he has an audience that is more than ABC, NBC and CBS evening news combined. There is a reason for that. – Editor]

  10. Angelo said

    And to venture going on a tangent you might find it interesting that the Palin/Couric interview really made me want to learn more about politics (though I saw only a clip) and also a documentary called Right Americca: Feeling Wronged. I assume you are familiar with this and have seen it yourself and are aware of the portion where somebody tried to interview Couric and apparently there was some editing. What really piqued my interest was Couric’s wave before getting on the palne?bus?etc.? I replayed the wave-to-turn sequence numerous times in various speeds trying to decipher if it was really the allusion to the Wayne’s World’s ‘Dream/Vision Intro’ that I perceived ot to be, or just some signature wave. Maybe you’d like to weigh in on that or it’s too far out in left field, so to speak?

    [I can tell you that Palin did not trust Couric at all and felt like every question was a trick or some kind of setup. Back then Palin was still under the delusion that journalists were professionals and that one should never pick a fight with someone who owns TV or buys their ink by the barrel. Now she has learned that journalists are nothing more than political opponents. She also had to deal with them John McCain’s way and John McCain was very fond of these media people. These are mistakes and limitations that Palin will not have to deal with again. – Editor]

  11. Angelo said

    To make that observation more clear: The wave in question began as a peace sign and ended with a certain appreggio of the fingers reminiscent of the Wayne’s World popular trance inducing (yet much more dramatic) waving of hands and fingers while saying something to the effect of, ‘doodle oo, doodle oo, doodle, oo, etc.’ So the sum total of the wave’s verbal equivalence, in one observation of mine, was “All we are saying, is…doodle oo, doodle oo,…Bye bye now.”

    [Maybe not a peace sign at all, perhaps a victory sign – editor]

  12. Angelo said

    “As far as Limbaugh, he has an audience that is more than ABC, NBC and CBS evening news combined. There is a reason for that. – Editor”

    When I called him a side show it was basically a slur from interpreting him (Limbaugh) as a ‘Krusty the Clown’ like figure and Maher as a ‘Sideshow Bob’ because, from what I remember or have acknowledged about the two, is that Limbaugh has been around longer. Also, that power structure, where Maher is the aberrant insubordinate, played thru in Cousinavi’s dialogues with you as well.

    Some other tidbits that might aid clarification are:
    1)The hand wave gesture investigation may have stemmed from an awareness of ‘micro-emotions’-small, usually rapid, facial expressions that reveal hidden emotions- and a desire to find out if there is some sign/gestural equivalent to them.
    2)The time I watched the Maher show where Meghan was on was not premeditated so it was like an eerie coincidence to me as I had just been commenting on your open letter to her.
    3)A few times I have given semi-public speeches targeted to the media and politicians in which I have referenced those particular SNL antics, Lennon lyrics, and comedic excerpts; and I
    was wondering if it was possible to discern from Couric’s hand signals if my message had got that far or not.

    Also, thanks for your insight and patience.

  13. Angelo said

    And further reference and relevancy of these COuric musings is to contrast with Coulter’s forms of istigation or aggravation, which I have interpreted, perhaps in my ignorance, as being anti-semetic. Couric’s use of gestures to aggravate (if actually occurring) would coincide with a principle and/or story of Judaism.

    “Then Jerubbaal, who is Gideon, and all the people that were with him, rose up early, and pitched beside the well of Harod: so that the host of the Midianites were on the north side of them, by the hill of Moreh, in the valley.
    And the LORD said unto Gideon, The people that are with thee are too many for me to give the Midianites into their hands, lest Israel vaunt themselves against me, saying, Mine own hand hath saved me.
    Now therefore go to, proclaim in the ears of the people, saying, Whosoever is fearful and afraid, let him return and depart early from mount Gilead. And there returned of the people twenty and two thousand; and there remained ten thousand.
    And the LORD said unto Gideon, The people are yet too many; bring them down unto the water, and I will try them for thee there: and it shall be, that of whom I say unto thee, This shall go with thee, the same shall go with thee; and of whomsoever I say unto thee, This shall not go with thee, the same shall not go.
    So he brought down the people unto the water: and the LORD said unto Gideon, Every one that lappeth of the water with his tongue, as a dog lappeth, him shalt thou set by himself; likewise every one that boweth down upon his knees to drink.
    And the number of them that lapped, putting their hand to their mouth, were three hundred men: but all the rest of the people bowed down upon their knees to drink water.
    And the LORD said unto Gideon, By the three hundred men that lapped will I save you, and deliver the Midianites into thine hand: and let all the other people go every man unto his place.
    So the people took victuals in their hand, and their trumpets: and he sent all the rest of Israel every man unto his tent, and retained those three hundred men: and the host of Midian was beneath him in the valley.” (Judges 7:1-8 KJV)

  14. Angelo said

    Afterword: I have really only focused on two of Coulter’s statements–the one in the Meghan McCain letter and the above one in this post. I really have no awareness of who Coulter is, and I think I may have been confusing her with Michelle Malkin (who I also know basically nothing about). I just watched a video link on Coulter’s talk about Obama’s trip tp Russia and missile defense. But, for clarification, I never really interpreted Coulter’s statements as being strongly anti-semetic or anti-black but rather that they lacked sensitivity to the issues.

    [Sensitivity is where euphemisms and spin come in. Coulter, like most satirists, makes her points without the Novocain. – Editor]

  15. Angelo said

    Disclaimer: Perhaps due to an oversight of mine, the editor, in reply #6, has pointed out that my position on abortion may be unclear ( “As someone who I thought was a pro-life activist…”).
    I have written previously on this website, at a post/blog named “Is There a Moral Justification for Abortion?”, about primarily my religious views on the issue of abortion. I can not say that I have ever truly considered myself a ‘pro-life activist.’ I am, however, a Christian, and my reasons for addressing the issue of abortion are primarily to purify the Christian faith of any undermining teachings and to glorify the Christ [and the Holy Catholic Church].
    For the sake of clarity I am submitting a correction to my post in reply #6 where perhaps the misunderstanding arose: “Now, I do not say this because I believe the child has no right to life or no right to be free of discrimination, but that in the context of current [American] law, [(of which Coulter is referring),] the rights of the child are not applicable [from what I understand of them].”
    I apologize for any misunderstanding.

  16. Angelo said

    [Sensitivity is where euphemisms and spin come in. Coulter, like most satirists, makes her points without the Novocain. – Editor]

    I patently disagree with your philosophy here and I think your statement is, not only disrespectful, but contrary to the site’s motto, “audacter per claro.” I would agree with the statement, “Lack of clarity is where euphemisms and spin come in…” but, in my opinion, to confuse and/or correlate sensitivity with lack of clarity is detrimental [to cognition and understanding].

    [If you don’t understand the effectiveness and importance of satire and literary device; something that has been used to make serious intellectual points and dialogue since the time of the ancient Greeks, and even played a role in our own revolution, then the problem here is yours and yours alone. – Editor]

  17. Angelo said

    [If you don’t understand the effectiveness and importance of satire and literary device; something that has been used to make serious intellectual points and dialogue since the time of the ancient Greeks, and even played a role in our own revolution, then the problem here is yours and yours alone. – Editor]

    It’s not that I don’t understand what you are saying about satire but you should know as well that racism has been around that long too and that these are trying times for race relations. The whole case and most of my posts are about the identification and eradification of racial discrimination. What I don’t understand is why you infer that if someone is, or ever will be, offended by Coulter’s remarks then they have a problem; or why you shamelessly assert that Coulter’s remarks are just innocent and ingenious satire– even while I’m arguing otherwise. Basically it has appeared to me that you have side-stepped the issue of racism, glorified Coulter as a justification for her remarks, and turned your accusations against me. As for me, my intention has been to provide constructive criticism by illustrating how Coulter’s remarks may be ineffective at eliminating injustice and offensive toward others.

    [Just because some one is offended, doesnt mean that they have an intellectual point that can stand up to scrutiny and has genuine merit.

    You say that you understand satire, but your accompanying comments demonstrate beyond reasonable doubt that you do not. So on that point we are at an impasse.

    I understand Coulter’s work very well, she is the very farthest thing from a racist. Anyone who says that she is a racist is misunderstanding her either by ignorance, convenience or design.

    You have no idea the amount of heat myself and my allies have taken for standing up for minorities at this very university. When my book comes out, I will take more heat, but the truth is worth it.

    So let me be clear, I never side step injustices, bigots quite frankly irritate me and I enjoy sticking it to them. – Editor]

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