updated 5/9/2006 9:53:18 PM ET 2006-05-10T01:53:18

The attorney general's office argued in court Tuesday that a judge's inclination to prohibit California's high school exit exam from taking effect this year should apply only to the students who filed the lawsuit, not the thousands who failed to pass.

Alameda County Superior Court Judge Robert Freedman issued a tentative ruling on Monday siding with plaintiffs who said the exam is discriminatory because the state does not provide an equal education to all students.

During a hearing on the matter Tuesday, Freedman said he would issue his final ruling on Friday. In the meantime, he gave the state's lawyers time to file arguments about which students should be covered by his decision.

He is considering granting a waiver for this year's seniors, the first class required to pass the test to receive a diploma.

About 47,000 seniors have not yet passed both the English and math sections. In a typical year, about 50,000 seniors fail to graduate for various reasons.

A group of 10 high school students and their parents filed the lawsuit in February against the state Department of Education and school Superintendent Jack O'Connell, claiming the exam was illegal and discriminates against poor students and those who are learning English. They sought a court injunction to delay the consequences for students this year.

On Tuesday, attorneys for four of the students requested they be withdrawn from the lawsuit because they have since passed the math portion of the exam. The judge took that request under advisement. The remaining six students are classified as English-learners.

‘Not because they weren’t taught’
"The remaining students are struggling with the English. Is it because they haven't been taught? Is it because there's a lack of curricular alignment? Your honor, the answer is clearly no," Douglas Press, supervising deputy attorney general for California, told the judge. "These students simply lack English-language proficiency — again, not because they weren't taught."

He said several of the plaintiff students had been in U.S. for only a few years.

The judge said he based his tentative decision on the plaintiffs' argument that all California students do not have access to the same quality of education.

He further explained his decision by saying the harm to students who do not receive their diplomas is serious. Meanwhile, the effect on the state is negligible if it is required to grant diplomas to all students who otherwise meet the requirements this year, he said.

"We have a serious problem in the state of California with respect to the distribution of our teachers. ... We have a severe shortage of credentialed teachers, especially in minority communities and in low-income communities," said Arturo Gonzalez, the lead plaintiff attorney.

Because of that, Gonzalez argued, his clients and other students who have failed the test did not have equal opportunity and were not taught the material on the exit exam.

After Freedman issued his tentative ruling on Monday, O'Connell said he would appeal any ruling blocking the exam's implementation. He called the test "a cornerstone of California's school accountability system."

O'Connell wrote the 1999 legislation that enacted the test. Last week, the Department of Education said about 11 percent of this year's senior class has yet to pass the English and math sections, although students have multiple opportunities to take the exam.

Failing students can take another year of high school, get extra tutoring, enroll in summer school or attend community college until they pass, he said.

Schwarzenegger criticizes tentative ruling
Gov. Arnold Schwarzenegger also is a supporter of the exam and criticized Freedman's tentative ruling when it was made public Monday night. He said the test was the state's best tool to measure school performance and said delaying its consequences "does a disservice to our children."

Nationwide, 23 states have graduation exams, while four others are phasing them in by 2012, according to the Washington, D.C.-based Center on Education Policy. Most states also offer options for students with special needs and those who are learning English, center president Jack Jennings said.

California's exam tests 10th-grade English, ninth-grade math and level-one algebra. Students need to answer 60 percent of the questions correctly to pass each section.

At the start of this school year, about 100,000 seniors had not passed at least one of the sections — more than one-fifth of the state's roughly 450,000 high school seniors. That number has dropped by more than half since then, as students have been given several chances to take the test.

In some districts, high school seniors have a chance to take the exam for the last time on Tuesday and Wednesday.

Other lawsuits
Earlier this year, the state settled a separate lawsuit by agreeing to give special education students a one-year reprieve on the exit exam requirement.

Freedman, the Alameda County judge, is scheduled to hear arguments next week in another lawsuit filed against the exam. Public Advocates, which previously won a $1 billion settlement over equal access to education in California schools, claims the department failed to properly investigate alternatives to the exam.

That suit claims the department did not hold a public hearing to consider alternatives until last December, six years after the legislature approved it as a graduation requirement.

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