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Alameda County Superior Court Judge Robert Freedman struck down California’s new high school exit exam last week, saying the test is unfair to students who have been shortchanged by substandard public schools.

The attorney who filed the lawsuit, Arturo Gonzalez of the San Francisco law firm Morrison and Foerster, 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.” His lawsuit pointed out that many students who failed the exit exam had attended overcrowded schools.

Had it not been for this court ruling, in June an estimated 8 percent of California high school seniors would have failed to earn a diploma because they had flunked all attempts at the exit exam. That 8 percent failure rate would be sad enough if this had been a real high school exit examination. In fact, the math portion is really an eighth-grade level test and thus better-suited as a middle-school exit exam.

Further, if the 30 percent of our kids who drop out of high school had been given that same exam, the vast majority of them likely would have failed also. We then might have seen as many as 38 percent of our high school seniors failing to achieve eighth-grade math proficiency.

With this kind of massive failure and so much at stake, what is holding us back from taking the next logical step and advocating making attractive alternatives available for these kids, who so much need a break?

In fact, the federal No Child Left Behind act mandates such alternatives. On March 23, disadvantaged minority families supported by the national Alliance for School Choice announced that they were taking action against Los Angeles Unified School District as well as the Compton district, demanding immediate relief from schools failing to teach basic reading and arithmetic. The requested relief was in the form of a transfer to a quality school.

On May 1, U.S. Education Secretary Margaret Spellings wrote to state Superintendent of Public Instruction Jack O’Connell and asked him to take action on the complaints against Los Angeles Unified and Compton. She also noted concerns about compliance with the No Child Left Behind mandates by the Oakland and Stockton school districts.

In all four districts, Los Angeles, Compton, Oakland, and Stockton, the numbers of children trapped in failing schools so vastly outnumbers the available openings in high-performing public schools in any of the districts that simply allowing transfers within the districts will never solve the problem. And all four districts are so heavily racially segregated that shifting kids within the districts won’t begin to integrate their schools.

What would meet the requirements of the law is some combination of allowing transfers to high-performing public schools outside the districts; allowing existing schools within those districts to convert to charter schools; and giving students in failing public schools scholarships to attend private schools.

Judge Freedman’s ruling will, of course, add pressure to the public outcry for quality schools for all. If the court finds – as it surely will – that many public schools are not meeting legal limits on class sizes, it could mandate making available scholarships to schools that observe small class sizes. And, if it finds that many teachers of math and English do not have college degrees in their subjects, it could order scholarships for students to attend schools with properly trained teachers.

We are nearing a day of reckoning for California’s failed public schools. The day is fast coming when a quality education in a school freely chosen by the family is considered not a privilege, but rather, a fundamental human right.

Alan Bonsteel is president of California Parents for Educational Choice.  This article originally appeared in the Orange County Register.