Attorneys fighting public school furloughs said they will continue to pursue their lawsuits and will also appeal a federal judge's decision yesterday not to block 15 more furlough Fridays scheduled through the remainder of the school year.

In making the ruling, 9th U.S. Circuit Court of Appeals Judge A. Wallace Tashima said he did not feel the legal challengers have enough evidence to prevail and urged the parties to continue settlement discussions with federal District Judge David Ezra.

Tashima said he believed the plaintiffs, represented by private attorneys Eric Seitz and Carl Varady, did demonstrate that the special-education students they represent will suffer "irreparable harm" because of the state's decision to eliminate 17 classroom instruction days from October though May.

But on balance, Tashima said, ordering schools to be reopened would cause more harm than good.

"There is no easy choice here," Tashima said at the close of a court hearing that ran for more than two hours.

"What's the least bad of all the choices?" Tashima said.

Seitz said the school closures will rob children "of the opportunity to succeed in their lives."

And he accused state Attorney General Mark Bennett of being "very cold and calculating when he talks about children" and the effects the closures will have on them.

"This is not a technical or a mechanical process," Seitz told Tashima.

Bennett in turn "vigorously objected" to charges from Seitz that Department of Education personnel had engaged in unethical conduct by speaking to children represented by Seitz and Varady about the effects of the furlough days.

Bennett called those allegations "meritless and offensive."

Tashima rejected the suggestions of unethical conduct and also turned aside arguments that Bennett's office was in a conflict of interest by representing the Department of Education and Gov. Linda Lingle simultaneously.

Bennett said the state administration has been wrestling with problems created by "unprecedented" budget shortfalls.

Federal laws set forth special protections for students with disabilities, and the state has been endeavoring to meet those federal requirements despite the furlough days required by the budget restrictions, Bennett said.

Tashima said he was influenced by the argument that the budget restrictions had been applied across the board at schools and didn't single out specific groups of students.

"The public interest certainly doesn't favor shutting down schools," Tashima said.

"But what else are you going to do? Fire teachers and increase class sizes? Is that better?" the judge said.

Varady said after the ruling that he planned to appeal, saying he could not reconcile Tashima's finding that students will be "irreparably harmed" with his refusal to block the furloughs.

Seitz said his suit will proceed to trial next year if the issues aren't settled before then.

"Judge Ezra is still in the picture," he said.

And Seitz expressed hope that additional funds can be found by the Legislature or obtained from Congress.