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Near the end of arguments Tuesday over the validity of the state’s high school exit exam, Justice Ignazio Ruvolo gave some insight into his own thoughts by quoting a 35-year-old U.S. Supreme Court ruling. “Diplomas and tests are useful servants,” the First District Court of Appeal justice read from Griggs v. Duke Power Co., 401 U.S. 424, “but Congress has mandated the common-sense proposition that they are not to become masters of reality.” That quote segued perfectly from Ruvolo’s previous questions challenging lawyer Arturo Gonzalez’s arguments that diplomas are vital in helping economically disadvantaged students succeed. The state had argued that diplomas are meaningless if students haven’t shown the learning or skills to possess them. “Their point,” Ruvolo said, “is that we’re talking education bottom-line, not diplomas.” Ruvolo, presiding justice of the First District’s Division Four, was joined by Justices Timothy Reardon and Patricia Sepulveda in an 80-minute hearing that will decide whether thousands of students who failed the exit exam should be denied diplomas even though they fulfilled all other graduation requirements. The court could also decide to have the state take a closer look at the process and determine whether students are adequately prepared for the test, which the class of 2006 was the first to endure. In early May, Alameda County Superior Court Judge Robert Freedman stayed the test, saying the record was “replete with evidence” that the California High School Exit Examination � which requires proficiency in English and mathematics � has a disparate effect on students at poorer schools. The case had been filed by seven students who failed the test and were denied diplomas. The California Supreme Court in late May ordered San Francisco’s First District to hear arguments. For more than half of Tuesday’s session, Gonzalez, a Morrison & Foerster partner who represents the students, was in the hot seat. While the three justices obviously had some concerns about the effectiveness of the exam, they seemed more disturbed at the thought of handing out diplomas to kids who haven’t shown they deserve them. “Giving them social promotion is not the answer to the harms that have been raised,” Ruvolo told Gonzalez. “All you’re doing is sending the students out into the world with a piece of paper, but not an education.” Gonzalez responded to Ruvolo by saying the lower court injunction “does not give a diploma to anyone for free,” but rather gives the state an opportunity to see whether schools have aligned their curriculums so students are actually taught what’s on the exam. “English learners,” he said, “are not taught what’s on this test.” Nonetheless, Ruvolo, who dominated the questioning, said he thought giving diplomas to kids who fail the exam devalued the effort put forth by those who pass it even though they attended poorer schools. He also said the state seemed to have “a legitimate argument” that the trial judge may have exceeded his authority. He cited case law in which a court once kept schools open during one district’s financial crisis, but didn’t tell the superintendent how to fix the underlying problem. Gonzalez stood his ground, making a few points that drew support from the justices. But by comparison, San Francisco-based Deputy Attorney General Karin Schwartz, representing the state Department of Education, had a cakewalk, being grilled for far shorter of an interval than her opponent. She explained the history of the exam and its purpose, while citing statistics showing an increasing pass rate every year. “If you look at the pass rates,” she said, “we know students are learning.” Ruvolo, however, challenged Schwartz, by asking her to concede that many students haven’t mastered English and math, some are getting an unequal education, and the state had arbitrarily distributed funds aimed at making the test work. He also wondered whether it wouldn’t have been “more prudent” for the state to “roll up its sleeves,” sit down with the students, and come up with alternatives to denying diplomas. Schwartz argued that failing students had options, such as continuing their school studies, going to a community college or even taking adult education classes so they could retake the test. “In the long term, if they don’t have the skills the state believes are essential,” she said, “the harm is even greater.” A decision in O’Connell v. Superior Court ( Valenzuela), A113933, is due within 90 days, but Ruvolo advised attorneys Tuesday that the court will attempt to expedite the ruling.

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