Schools fire back against physical education instruction lawsuit

Credit: Jane Meredith Adams/EdSource Today

Forty-two school districts from Palo Alto to Elk Grove to Carlsbad are asking a court to throw out a lawsuit alleging that the districts’ elementary school students do not receive the minimum amount of physical education instruction required by law, according to court documents filed on Monday and last week.

The documents are the first flurry of rebuttals to a lawsuit filed this fall against 89 school districts and the California Department of Education by the advocacy group Cal200, Albany attorney Donald Driscoll and Alameda resident Marc Babin.

Filed in San Francisco Superior Court, the suit, Cal200 and Marc Babin v. Apple Valley Unified et al., charges the districts with failing to provide elementary school students with a minimum of 200 minutes of physical education instruction every 10 days, as required under the California Education Code. The lawsuit also charges that the California Department of Education encouraged districts to falsify data.

The suit alleges that California Department of Education employees advised districts that were undergoing Federal Program Review – a federal compliance check on many measures including physical education instruction – to submit falsified paperwork. The suit states education department employees directed districts to file documents that showed they were providing 200 minutes of physical instruction, even when the classroom teachers’ schedules showed they weren’t. “This, naturally, results in widespread fraud in the area of physical education monitoring,” the lawsuit alleges.

The lawsuit included a series of alleged email exchanges between the department and officials in the unified districts of Porterville, Dinuba and San Juan, in which a department staff member instructed the district officials to change information.

In one alleged incident, a department employee complained that Porterville Unified had uploaded a teacher schedule that showed 80 minutes of physical education over one week, when 100 were required.

“Please upload a schedule for this teacher showing 100 minutes for the week,” the department employee allegedly wrote.

The California Department of Education declined to comment on the case.

In their rebuttals, the unified school districts, including San Diego, Sacramento City, San Juan, Sanger and Poway, argued that Cal200 had no standing to file a case, could not provide evidence of district non-compliance or was wrong in its allegations.

The Buckeye Union School District, for instance, claimed that Cal200 failed to provide sufficient factual evidence. Cal200 filed a court document that included images of teacher schedules from Buckeye, Cajon Valley Union and Capistrano Unified. In the Buckeye Union district, the schedule for Mrs. Paridon’s 3rd grade class, for example, listed physical education as occurring once a week on Mondays from 1:40 to 2:10 p.m.

“District after district said they were complying,” Driscoll said. “All you have to do is look at the web to know they’re not.”

The remaining districts and the California Department of Education have yet to file a response with the court.

Cal200, Babin and Driscoll successfully sued and reached a settlement this past spring with 37 school districts, including Los Angeles Unified, that now requires the districts to create a publicly visible online tracking system or a paper binder of schedules to allow parents to see when their children are receiving physical education.