Bill seeks to curb lawsuits over physical education minutes

March 16, 2015

On the verge of a final settlement of a lawsuit over noncompliance with physical education requirements, three of the largest districts in the state are supporting a new bill they believe will curtail litigation in the future.

The unified school districts of Los Angeles, San Francisco and San Diego, as well as the San Diego County Office of Education, are backing Assembly Bill 1391, introduced by Assemblyman Jimmy Gomez, D-Los Angeles, according to Gomez’s office. The proposed law would require students and parents to use a complaint process run by school districts and the California Department of Education to address allegations that districts are failing to provide physical education as required by the California Education Code.

“The whole point of the bill is to say instead of people filing lawsuits over physical education instructional minutes, let’s create a mechanism to ensure compliance that’s effective,” said Abe Hajela, a legislative advocate for the San Francisco Unified School District and the San Diego County Office of Education.

The call for change comes as 37 school districts, including San Francisco Unified and Los Angeles Unified, await final approval by a San Francisco Superior Court judge of a settlement in a 2013 lawsuit. That suit, brought by Alameda parent Marc Babin and his physical education advocacy group, Cal200, alleged that the districts failed to provide 200 minutes of physical education in grades 1 through 6 every 10 days, as required.

As part of the settlement agreement, expected to be finalized Friday, the districts are to publicly document how many minutes of physical education elementary students receive. The terms of the agreement extend for two or three years, depending on the district.

In the wake of the settlement, some district officials have expressed outrage about having to pay the fees of Albany attorney Donald Driscoll, who brought the case, Cal200 and Marc Babin v. San Francisco Unified School District et al.

“Part of the settlement is that Donald Driscoll is receiving $1.1 million in attorney’s fees, which is an unfortunate use of resources, especially in this time of scarcity,” said Leilani Yee, deputy director in the Office of Government Relations for Los Angeles Unified.

Driscoll was awarded fees by the San Francisco Superior Court under a California Civil Code provision that allows a court to award attorney’s fees in a case that has resulted in “the enforcement of an important right affecting the public interest.”

Driscoll said, “We are going to be donating a portion of fees to nonprofits that support quality physical education in the schools.”

Robert Garcia, founding director of The City Project, a Los Angeles-based civil rights advocacy group, said he was dismayed by comments directed at Driscoll.

“Why would a school district denounce anyone who says physical education is required under the law?” he said. “In my opinion, districts should focus on physical education compliance, rather than criticizing attorneys who enforce the law.”

Whether the proposed law would effectively reduce the number of physical education noncompliance lawsuits is unclear from its language. One sentence in the bill seems to state that the local complaint process will be the solution – it “shall be the adequate remedy at law for allegations of noncompliance.” Another sentence states that a person could file a lawsuit against a district once the local complaint process is completed – “if that party has pursued and exhausted the available administrative remedies.”

“We’ve read the bill and the language is poorly written and garbled,” Garcia said.

The thrust of the bill is to require complaints to proceed through an internal school district process, known as the Uniform Complaint Procedures. The complaint can be a single piece of paper containing a written allegation that a federal or state law has been violated. The school district receives the complaint, investigates and makes a determination, which may be appealed to the California Department of Education.

But in fact this procedure already is used for complaints about physical education.

The City Project, for instance, filed a complaint in 2008 against Los Angeles Unified through the Uniform Complaint Procedures alleging violations in physical education and civil rights. That complaint stated that schools with lower-income students were having the least amount of physical education. The Cal200 v. San Francisco lawsuit used the local complaint procedures to file complaints with the 37 districts.

But whatever the language of the bill, eliminating lawsuits is the goal, said Martha Alvarez, director of government relations for San Diego Unified. “It would be not having to go through litigation. It’s very costly… while the attorney’s making money.”

David Sapp, an attorney with the American Civil Liberties Union of Southern California, expressed concern about efforts that would prohibit parents from taking legal action to have their complaints addressed. “I am very skeptical of attempts to limit access to the courts,” Sapp said. “That is a roundabout way to make it easier to violate the law.”

Garcia, who has worked for years to get Los Angeles Unified to provide the required amount of physical education to children, particularly those who live in neighborhoods without access to parks, said parents and students may need a remedy that goes beyond taking the word of school districts that they are obeying the law.

He cited a study by researchers at UC Berkeley, published in 2011 by the peer-reviewed journal Preventing Chronic Disease, which found that what San Francisco Unified asserted about compliance with physical education minutes at 20 elementary schools did not match the reality.

According to the schools’ master schedules, 83 percent of the elementary schools were providing 100 physical education minutes per week, meaning they were on track to meet the required 200 minutes over 10 days, the study said. But the teachers’ actual schedules indicated that just 20 percent of the elementary schools were meeting the requirement. And when the researchers traveled to the schools to observe physical education classes, they determined that only 5 percent of the schools were providing 100 physical education minutes per week.

Garcia and The City Project have worked with Los Angeles Unified toward voluntary compliance with physical education minutes and persuaded the district to adopt a physical education policy.

But a follow-up study published in 2013 in the peer-reviewed journal Annals of Behavioral Medicine found the district had made slow progress. “There was limited implementation of the PE policy two years after passage,” the study found.

The bill also would change the wording of the instruction requirements in elementary schools to 400 minutes of physical education over 20 days, instead of the current requirement of 200 minutes over 10 days. The wording change will give teachers greater flexibility to make up physical education minutes if a heat wave, for instance, makes it difficult to provide physical education  for a few days, Yee said.

But advocates said that assessing physical education instruction every 20 days, instead of every 10 days, would make it difficult for parents and students to keep track of how often physical education is taught. “It makes it twice as difficult to monitor,” said Keith Johannes, legislative chairman for the California Association of Health, Physical Education, Recreation and Dance, a statewide membership organization.

Research has shown that regular physical education improves health, behavior and academic achievement, Johannes noted.

“Physical education instruction, like every other academic area, needs to have regular opportunities for learning,” said Dianne Wilson-Graham, executive director of the California Physical Education-Health Project, a statewide network to promote standards-based physical education and health instruction. “The current Education Code provides plenty of flexibility to schools to schedule time to best meet their needs,” she said.

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