California Supreme Court Halts Injunction against Grad Test

K-12 Testing

The California Supreme Court lifted an injunction issued by a district court judge that would have allowed thousands of high school seniors to earn a diploma despite not passing the state's graduation test. The case was sent to a court of appeals, which scheduled arguments for July 25, a month or more after graduation. Judge Robert Freedman had issued an injunction after finding it was likely the student plaintiffs would be able to prove that all students had not had an adequate opportunity to learn the content on the. Some 47,000 students, or 11 percent of the senior class, have not passed the test.


"The case has a long way to go," said Arturo Gonzalez, whose law firm, Morrison & Foerster, filed the class action lawsuit. "If we prevail, these students will still receive their diplomas."


On May 12, Judge Freedman granted a preliminary injunction blocking use of the California High School Exit Exam (CAHSEE) as a graduation requirement for this year's high school seniors. The California Education Department appealed directly to the state's Supreme Court, seeking the reversal in time to prevent students from actually graduating.


To win the injunction, lawyers for the plaintiffs had to show that students will suffer significant harm if the test hurdle remained in place and that they are likely to prevail on the merits of the case when it goes to trial. In his decision, Freedman said: "The evidence of potential harm weighs heavily in favor of the plaintiffs… Prospective harm to a student who is otherwise fully qualified to graduate is sufficiently clear."


In presenting its case, the state argued that students who passed CAHSEE, employers, colleges and the quality of public education would all suffer if the exit exam were not imposed this year. Freedman observed, "There is no persuasive credible evidence of harm flowing to anyone from granting the requested relief."


The judge based much of his decision on the students' claim that they had been denied equal protection under the law because of the inadequacies of the schools they have attended. Freedman concluded:
"There is evidence in the record that shows that students in economically challenged communities have not had an equal opportunity to learn the materials tested on the CAHSEE, that some schools have yet to fully align their curriculums to the State's content standards, and that demonstrates that the negative effects of scarcity of resources continue to fall disproportionately on English language learners, particularly with respect to the shortage of teachers who are qualified to teach these students."


While the state had allotted $20 million for remedial education to help students pass the test, the judge found that half the eligible students did not receive any assistance from this fund.


- Judge Freedman's full decision can be found here.


Reactions to Freedman's decision

 "With the bold stroke of a pen, Judge Freedman has given 47,000 students an opportunity to walk the stage with their classmates and to receive their high school diplomas," said attorney Arturo Gonzalez, whose law firm, Morrison & Foerster, filed the class action lawsuit.


The Los Angeles parent-student-teacher group, Coalition for Educational Justice (CEJ), issued a statement pointing out that the underlying reason for the victory in this case was the organizing and education done by grassroots groups like itself and Californians for Justice (CFJ), joined by the teachers unions, over the past five years. California members of FairTest's Assessment Reform Network have been among the tireless opponents of the graduation exam. The coalition Campaign for Quality Education had won a delay of the test from 2004 to 2006 and promoted student-friendly legislation that Governor Arnold Schwarznegger vetoed (see Examiner, Fall 2005).


The group Education Trust, which claims to support low income children, acknowledged that Judge Freedman was right about the lack of resources, but still criticized the decision and reiterated the group's commitment to high-stakes tests. Many newspaper editorials also denounced the decision.



As of early May, 2006, nearly 47,000 seniors--mostly poor, African-American, Latino and English language learners--had not yet passed the California High School Exit Exam (CAHSEE) and were at risk of not graduating from high school. While the overall pass rate is 89 percent, it is just over 80 percent for African American, Latino and low-income students. For English language learners, the passing rate is a mere 71 percent.


Underscoring arguments that the exit exam would punish California high school students for inadequate opportunities to learn, a study released in April found that California sends just 23 percent of high school seniors to four-year colleges. Only Mississippi sends a smaller percentage. (The study was done by the Institute for Democracy Education and Access, at the University of California, Los Angeles. It is available at


Other Litigation

Judge Freedman dismissed a second challenge to the graduation exam which claimed that the state had failed to consider alternatives to the CAHSEE in a timely manner, as required by the law that created the exit test requirement. CFJ and the non-profit law firm Public Advocates, which brought the case, said they would appeal. A bill to allow alternatives had passed the legislature but was vetoed by Schwarznegger (see Examiner, Fall 2005).


Yet another lawsuit has been filed in San Francisco Superior Court by 10 high school students and their parents seeking an injunction on the consequences of the exam.


And earlier this year, special education students won a one-year reprieve from the exit exam after Gov. Schwarzenegger signed a bill allowing them to graduate if they meet all other requirements. The bill grew out of a 2001 lawsuit on behalf of special education students and a subsequent settlement with the state. The legislature had initially passed a bill allowing a two year exit exam waiver, but Schwarznegger vetoed it.