State Argues CLAS Test Does Not Require Consent : Courts: Education Department files brief in lawsuit by parents, saying the exam does not invade privacy.

State Department of Education officials Wednesday fought back at critics of the California Learning Assessment System tests, filing a legal brief in a Los Angeles lawsuit brought by opponents seeking to require parental permission for the tests.

In winning court permission to intervene in the lawsuit brought last week against the Los Angeles Unified School District, the education department has its first opportunity to respond to allegations that the test violates state and federal laws against invasion of privacy, the department’s top attorney said.

“We believe firmly that the CLAS tests do not require (parental) consent. It’s a reading and writing test, not a Masters and Johnson-type survey,” said Joseph R. Symkowick, the department’s general counsel.

More than two dozen suits have been filed against school districts statewide in which parents and religious groups have complained that the exam questions pry into students’ personal lives. Plaintiffs in most cases have received legal help from one or the other of two organizations, the Escondido-based United States Justice Foundation and the Rutherford Institute of Charlottesville, Va.

The groups allege that the language arts portions of the tests, now being administered to more than 1 million public school students in grades four, five, eight and 10, require prior written parental permission because they ask students to divulge personal matters.

The privacy question has become a big issue in the tests, which like other standardized exams are kept confidential to preserve their fairness and effectiveness. Although the state has allowed school board members to review test questions under certain circumstances, the department has fought public dissemination of the tests and has felt hampered in its efforts to dispel rumors.

The state Education Code provides that “no test, questionnaire, survey or examination containing any questions about the pupil’s personal beliefs or practices in sex, family life, morality and religion, or any questions about his parents’ or guardians’ beliefs and practices in sex, family life, morality and religion, shall be administered” to anyone in kindergarten through 12th grade without written permission from a parent or guardian.

The Los Angeles suit is significant, the state lawyers said, because it is the first to explore the issues themselves--the nature of the questions and whether they invade privacy. In other cases, judges have ruled on restraining orders but have not held hearings on the issues in the suits.

Judge Robert O’Brien, who has asked to examine copies of this year’s tests, has scheduled a hearing Friday in Los Angeles Superior Court on whether parental permission must be obtained before the tests are given.

Gary Kreep, head of the U.S. Justice Foundation, said he had not yet seen a copy of the state’s brief and could not comment. But he said his reading of last year’s questions, some of which were released as samples to prepare students for this year’s exams, convinced him that the questions “clearly are invasive.”

In court documents, state attorneys offer examples of questions they say would require parental consent and those that would not, and argue that the CLAS questions fall into the latter category. For example, a question such as, “How many husbands has your mother had?” would clearly require parental consent and ones asking a student to comment on how a father in a story treated his two sons would not, the state argues.

The purpose of the CLAS questions is “not to elicit the personal beliefs and practices of the student” because the student has many ways of responding.

The state also alleges that none of the questions the plaintiffs have submitted appear on this year’s tests.

Further, the state argues that the Legislature, in calling for development of the CLAS system, clearly intended to create performance-based tests in which students would use “written expression to demonstrate reading comprehension and writing skills” and that it clearly meant for virtually all students to take the exams.