Of course it's not your fault: this is America

According to a California judge, as reported by Nanette Asimov, ("Judge Says California Exit Exam is Unfair," San Francisco Chronicle, Tuesday, 9 May 2006 [cited 9 May 2006]), being poor, among things, is a sufficient enough excuse for failing a high school exit exam that the exam itself can be declared unconstitutional because it violates the “equal protection clause” of the Constitution by virtue of being “unfair.” Unfair. I have come to hate that word. Allow me to critique the ruling, as reported by Asimov.

A judge in Oakland struck down California's controversial high school exit exam Monday, issuing a tentative ruling suggesting the test is unfair to some students who are shortchanged by substandard schools.

If finalized, the unexpected ruling would block the state from carrying out its plan to deny diplomas for the first time to tens of thousands of seniors who have been unable to pass the exit exam.

Judge Robert Freedman of Alameda County Superior Court said he based his ruling on the concept of "equal protection" and is expected to make a final ruling at a 2 p.m. hearing today.

“Equal protection?” Is he kidding us? The phrase has been used so much that it is almost devoid of meaning. At base it means a law that applies to me also applies to you. If I have to meet certain requirements in order to vote so must you. If I have not been to law school and passed a bar exam and neither have you, then if I am not permitted to practice law you are not either. Let’s apply this equal protection garbage another way. I know a guy who would like to have gone to law school, but could not afford it. Other, and lesser minds, merely because they could afford it, have gone to law school and are for that reason alone allowed to practice law. Notice how the laws respecting the practice of law are” unfair.” I mean, come on, the only reason he failed the bar exam was that he was too poor to afford to go to law school. It’s unfair to penalize someone—to deprive him of the opportunity to engage in work that he might enjoy—just because he is poor. (The full import of this seemingly ridiculous point will be clear below, when we see how the issue of poverty is raised..)

His ruling comes just weeks before graduation ceremonies begin at 1,129 California high schools and just days after state schools Superintendent Jack O'Connell announced that 46,768 seniors -- 10.7 percent of the class of 2006 -- had not yet passed the exit exam. Of those students, 61 percent are poor, and 44 percent are English learners.

Here we see the issue of poverty. The law is unfair—and thus violates “equal protection”—because poor people just don’t have the opportunity to learn what they need to learn in order to pass the test. Just like laws restricting the practice of law to law school graduates violates “equal protection” by denying an occupation to the poor? Now, note how the numbers are used here. “Of those students [i.e., the 46,768 who failed the test] 61 percent are poor….” This 46,768 is 10.7 percent of the class of 2006. If you know how to do math, which I do—despite being poor (and a native Spanish speaker) as a child—then you know that the class of 2006 is comprised of about 437,084 students. If 10.7 percent of that number of students failed the test, then (using math, again) 89.3 percent passed the test; that is 390,316. Now, I wonder what percentage of that 89.3 percent are poor. I also wonder why we are not told that in this story. Are we to believe that this 89.3 percent are all the rich kids in California? I’m not buying it. Moreover, given that 61 percent of the failing students are poor, it must be that the other 39 percent are not poor. Not poor. What’s their excuse? Just a bunch of stupid, rich white kids, I guess. Not only that, but recall that 44 percent of failures are English learners. This tells me that 56 percent of failures are not English learners (i.e., they already know English). Now, to my mind, if 61 percent was supposed to indicate that poverty had much, or something, to do with the failure, then the 56 percent figure ought to tell us that English-learning had little, or nothing, to do with it. (Question: Would Nancy Pelosi call the relation between the failure and poverty a causal relation?)

Many of them, such as Iris Padilla, a senior at Richmond High in the West Contra Costa Unified School district, have been watching their graduating classmates with envy. Earlier Monday, before the ruling, she was in tears when asked by a reporter whether she planned to attend her prom on May 19.

Now, did the reporter ask her in English? I’m just curious.

"How am I going to enjoy myself and celebrate graduation if I'm not going to get a diploma?" asked Iris, who is passing all classes with the help of Spanish-speaking teachers and classmates.

¡Ay, pobresita! Nó llore. Todo será bién. Silly little girl. It might occur to you—as it did to me once upon a time—that you could enjoy yourself and celebrate graduation by getting that diploma legitimately, of course, which you could do by learning English. I know I sound insensitive. That’s because I am. I’ll tell you something (only to demonstrate that I have some standing on this issue): one of the many reasons I joined the Army was that I did not think my prospects for college were all that great. And I’m not talking about money. I sucked as a student; I graduated in the lower 25 percent of my high school class with a whopping GPA of 2.25. (I had the same problem with attending classes that John Nash did.) While I was in the Army I decided that it would enhance my military career if I got a degree. That meant taking the SAT, which I did not do in high school: I didn’t see any point to it. Taking the SAT meant learning all the math that I did not care to learn in high school (because I just wasn’t interested in the subject). And I learned that math on my own; I got math books and sat in my barracks room for days and weeks on end reading the instructions, following along with the examples and working every problem. I now possess a bachelor’s degree and a master’s degree. I am insensitive. I believe I’ve earned the right to be. I learned a priceless lesson teaching myself all that math: learning is the responsibility of the learner. Iris Padilla is a girl who, when presented with a choice between learning and whining, has chosen whining. Well, there is at least one sense in which she is assimilating to American culture. She’s got the intitlement business down pat. And the “your failure is always someone else’s fault” business also. Too bad.

But everything changed a few hours later when news of the tentative ruling hit the student grapevine.

"Wow! How? This is so good!" Iris laughed and laughed and laughed some more.

Yes. It is a good and joyful thing always and everywhere for a whiner to be validated.

O'Connell, who wrote the exit exam legislation in 1999 when he was a state senator and has called it a cornerstone of his school reform efforts, wasn't laughing.

"Recognizing that today's ruling is not final, I intend to do everything in my power to ensure that at the end of the legal day we maintain the integrity of the high school exit exam," O'Connell said. He noted that independent research has shown that the exit exam has actually led more students to buckle down to try to pass the test, and that struggling students have more access to tutoring than in the past.

“[T]he exit exam has actually led more students to buckle down to try to pass the test….” No kidding. On the other hand, if you don’t think anyone should have to buckle down to do anything, who really cares?

California's high school exit exam also carries strong support among voters and the business community -- future employers of today's high school students -- who share O'Connell's view that a diploma should indicate a basic level of academic skill.

Oh. God forbid that a diploma should signify anything real. Why next we’ll be hearing that graduating law school and passing the bar should indicate some level of skill in the law, or that completing basic training should indicate at least a modicum of military preparedness. What next? Soon we’ll be expecting licensed drivers actually to know how to drive!!! (Well, maybe not in California.) Is there no decency in the world anymore?

The exit exam tests 7th- to 10th-grade English, math and algebra skills. In all, 389,600 seniors have passed the test, although it is not clear how many have completed all their other graduation requirements.

Gov. Arnold Schwarzenegger said he was "disappointed" at the tentative ruling and said that "delaying the exam's implementation does a disservice to our children by depriving us of the best tool we have to make sure schools are performing as they should be."

“Och! Bitte schön, Herr Schwarzenegger! What can you be thinking? The idea that schools should perform. Schools aren’t actors you know. Schools don’t perform; they teach. But then who could expect an actor to know anything about that?” he said, tongue planted very much in cheek.

But attorney Arturo Gonzalez of the San Francisco law firm Morrison & Foerster, who brought the lawsuit challenging the exam, said he was thrilled with the judge's tentative ruling.

"I felt strongly that the state should not deprive a student of a diploma unless the state can say that every student has been fairly and properly prepared for that test," Gonzalez said. "There is overwhelming evidence that students throughout the state have not been taught the material on the test. And many students have been taught by teachers not credentialed in math and English."

Think of what a diploma is supposed to signify: that the required material has been learned. A student takes a test, demonstrating that she has not learned the material required for a diploma. On Gonzalez’s view, the student should be given the diploma—which signifies that the required material has been learned—even when she fails the test. His reasoning is ridiculous. It would be one thing if he wanted to assert that a student who failed the test because the material on it wasn’t taught had standing to sue the school for, say, malpractice. But to assert that the student is still entitled to the diploma, despite clearly not having learned the test material, is a non sequitur. If you don’t have what the diploma signifies then you can’t be entitled to the diploma. And it doesn’t matter why you don’t know the material; that is a separate issue. The most you would be entitled to is remedial education at the school’s own expense (i.e., the school receives neither state nor federal funds to do what it should have done in the first place). The state doesn’t have to prove anything except that the student didn’t learn the material; it should be up to the student to prove malpractice on the part of the school. It is real simple: the student knows the material or she doesn’t; if she does, she gets the diploma. If she doesn’t that is hardly the state’s fault; if it’s the school’s fault, then let her prove it. On Gonzalez’s logic there is no point in even having the test: every student is presumed to be worthy of a diploma until and unless the state, by school, proves otherwise! I’ll bet he sure wishes law school was like that. (On the other hand, the whole law school thing is a cute little protection racket. No point in giving that up.)

Gonzalez said he filed the suit after reading news reports last fall that about 100,000 seniors were poised to be denied a diploma. (The number has since dropped by more than half because many students eventually passed the exam, while others were exempted by a separate lawsuit on behalf of students with disabilities.)

On Feb. 8, Gonzalez sued the state in an 11th-hour attempt to block the exit exam altogether.

Earlier attempts to ban the test failed because, until now, no students were on the brink of being denied a diploma.

The suit, Valenzuela vs. California, was named for its lead plaintiff, Liliana Valenzuela, who, like Iris Padilla, is a Richmond High senior. According to the suit, Liliana maintains a 3.84 grade-point average and is 12th in her senior class of 413 students. She has passed the math portion of the exam, but not the English portion. Her first language is Spanish.

Oh, that poor little Spanish speaker. My heart is just bleeding. Did any Asians also fail the test? Asimov doesn’t include this sort of information in her story. Or is it that there are no Asian immigrants in California? (If you ask me,those Asians were busy actually studying and learning English while their Spanish-speaking peers were busy whining, in Spanish.)

The suit said that students who have repeatedly failed the test -- especially English learners -- have not had a fair opportunity to learn the material because they are more likely to attend overcrowded schools and have teachers without proper credentials.

When you think about it, the language here isn’t very helpful. “More likely to attend overcrowded schools”? Notice we are not given a percentage here. In this story we are told that 46,768 (10.7 percent of the total that took the test) failed the test and that, of these, 61 percent are poor and 44 percent are English learners. We are not told, among other things, what percentage of failures attend overcrowded schools and have uncredentialed teachers. We are also not told how many test-passers went to these overcrowded schools. And again we are not told anything about Asians, or anyone other than Spanish-speakers.

In his tentative ruling, Freedman said he was inclined to agree with that argument but will give the state's lawyers a chance to persuade him to change his opinion. However, Freedman may have signaled a reluctance to reverse himself when he asked lawyers on both sides to come prepared to talk about how conditions in the schools can be equalized.

He also asked the students' lawyers to explain what it will take to make the exit exam fair for future classes.

As for Iris Padilla of Richmond High, asked again whether she'll go to the prom, she smiled and said, "Si."

Now, isn’t that response just telling? She could not be prevailed upon to give up a “Yes.” It had to be “Sí.” I think this girl’s problem is that she just doesn’t want to learn English. Will Gonzalez also represent any students who, down the road, may be “deprived” of jobs because they don’t know speak English? After all, it’s surely not their fault.

It’s pretty disappointing how times have changed. I tell you the truth: when I was a kid and didn’t make the grade I didn’t crawl up into my mother’s lap to have her run her fingers through my hair while I complained of the unfairness of it all, saying “No te preocupes mijito. I wasn’t that good in school either.” (Bullcrap. She was a physics major in college.) My study time after school got longer, my free time shorter and in some cases I got my butt whipped. It was very motivating. If I wasn’t going to work hard for a good future, then I was going to work hard to keep from having my butt whipped. (Butt whippings, properly administered, have an almost magical quality!) And it was like that in every other hispanic home with which I was familiar.



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