As schools tout the importance of exercise in an era of childhood obesity, a California parent and his lawyer have agreed to a settlement with dozens of districts across California that will force elementary schools to prove they are providing at least the minimum amount of physical education required by state law.
“We think it’s a huge accomplishment and it’s going to benefit public health in California,” said attorney Donald Driscoll, who represents Alameda parent Marc Babin and the advocacy group Cal200 in a 2013 lawsuit that alleges 37 school districts, including Los Angeles Unified, the largest district in the state, are out of compliance with state physical education law.
The districts, which educate more than one in five elementary students in 1st through 6th grade in the state, have agreed to a settlement that requires elementary school teachers to publicly document how many minutes of physical education students receive, according to lawyers involved in the case. Under the state education code, schools are required to provide 200 minutes of physical education every 10 school days in grades 1 through 6, but physical education classes have sunk to the bottom of the priority list in many schools that focus on preparing students for standardized tests.
“We think it’s a huge accomplishment and it’s going to benefit public health in California,” said attorney Donald Driscoll.
All parties in the lawsuit have asked San Francisco Superior Court Judge Mary Wiss to grant final approval to the settlement, which is expected by late March. Babin is president of Cal200, which advocates for physical education; it takes its name from the 200-minute physical education requirement.
What began as a quest in 2009 by Driscoll to ensure that his 3rd-grade son was receiving state-mandated physical education time at Albany’s Cornell Elementary School has developed into a series of lawsuits filed by Driscoll, Babin and Cal200 to ensure that all elementary school students in the state are receiving the physical education instruction they are entitled to by law.
Public health advocates, physical education teachers and the California Legislature have long urged districts to comply with physical education requirements, but those requirements are “rarely enforced,” according to a 2008 report, “Physical Education Matters,” by researchers at San Diego State University. The California Department of Education includes an evaluation of physical education in its cycle of compliance monitoring of districts, but according to the researchers at San Diego State, “There are no real consequences for failure to comply.”
A key legal turning point occurred during a 2009 lawsuit Driscoll filed against Albany Unified. When the district argued that the Education Code requirement of 200 minutes of physical education every 10 days was a goal and a guideline, not a mandate, a Sacramento Superior Court judge agreed and dismissed the case. But the California Third District Court of Appeals overturned that judgment and ruled that physical education requirements were a mandate, not a suggestion. The appellate court also ruled that a parent could file suit to force a district to comply with the law. Albany Unified asked the California Supreme Court to review the decision, but the court declined.
Strengthened by those legal rulings, Driscoll teamed up with Babin, a retired investigator with the California Department of Insurance and current guitar teacher whose now grown children attended schools in the Alameda Unified School District. Babin declined through Driscoll to be interviewed. But Driscoll said Babin likes the investigative challenge of the cases. “In a sense it’s an extension of the sorts of things he did as an investigator for the state,” he said.
They began to look into physical education instruction compliance in elementary schools across the state.
“I thought it was important to speak up not just for my son’s school but for the schools of other people’s kids,” Driscoll said.
They have no plans to stop.
“He’s just going to keep going after folks,” said Michael Fine, deputy superintendent for the Riverside Unified School District, one of the districts named in the lawsuit, Cal200 and Marc Babin v. San Francisco Unified School District et al. Asked if he was referring to Driscoll or Babin, Fine said, “Both. I think they’re going to pick off groups of districts.”
“He’s just going to keep going after folks,” said Michael Fine, deputy superintendent for the Riverside Unified School District, one of the districts named in the lawsuit.
That appears to be happening already. In November, Babin and Cal200, represented by Driscoll, filed suit in San Francisco Superior Court against Oakland Unified School District et al., alleging that Oakland and other districts, which are to be named at a later date, are not compliant with elementary school physical education requirements.
Risk managers have put school districts on notice. In 2013, the Alliance of Schools for Cooperative Insurance Programs, a public agency that provides insurance to about 100 California school districts, sent out a “risk alert” that Cal200 and Babin “are seeking additional districts” to sue. Districts should be prepared to prove they are providing the required minutes of physical education or that they have an action plan to do so, the alert stated.
Other unified districts that are part of the settlement in the San Francisco Unified case include Alameda, Fremont, Palm Springs, San Bernardino City and West Contra Costa. The settlement requires that the 37 districts split the cost of $1.2 million in attorneys’ fees for Cal200 and Babin, according to Fine.
The disparate districts, large and small, were selected by Cal200 and Babin after they emailed elementary teachers asking if their students received physical education.
“These folks sent out emails to hundreds of teachers across the state asking, ‘Do you comply with this?'” said Fine of Riverside Unified. “Where they got replies, that’s where they focused.”
Cal200 and Babin also submitted public records requests asking districts to provide copies of teachers’ weekly instruction schedules to document that physical education was being provided. In this 2012 public records request to Palo Alto Unified School District, Babin asked for documentation of physical education for all students in grades K through 12. It’s unclear what the result of that inquiry was; Palo Alto Unified was not one of the 37 districts named in the San Francisco Unified lawsuit.
Under the settlement agreement, elementary school teachers in the districts must report the minutes they spend teaching physical education, publish the schedule to parents and be subject to spot checks from principals. If teachers skip scheduled physical education instruction, they will note the reason why and report when those minutes were made up. The schedules will be submitted to local school boards for review.
While no one disputes the value of exercise in children’s development, budget cuts have reduced or eliminated credentialed physical education teaching positions in many elementary schools. As a result, classroom teachers are asked to squeeze in physical education while simultaneously improving academic test scores.
“Schools sacrifice P.E. to satisfy academic pressures” stated researchers at the UC Berkeley Atkins Center for Weight & Health in a 2012 presentation. A study of elementary school physical education in 55 districts from 2004 to 2006 found that half of the districts failed to comply with the California Education Code. An audit of 155 districts from 2004 to 2009 found that half were not in compliance with physical education requirements, according to a report from The City Project, a legal advocacy group in Los Angeles, and the consulting group Samuels & Associates.
To meet the settlement requirements, Riverside Unified is creating an online system that will allow teachers to enter their physical education instruction time, add details such as whether a field trip disrupted the schedule on a certain day, and publish the schedule on the school website, Fine said. Principals will be able to check a box indicating when they did a spot check and add a note about what they found.
“We have tech services building a program right now,” Fine said.
Los Angeles Unified said tracking physical education instruction time would begin once the settlement received final approval from the judge.
In the San Rafael City Schools district, the settlement “didn’t change the way we are doing physical education,” said Christina Perrino, spokeswoman for the district. “It’s just providing more monitoring and documentation.”
In the Alameda Unified School District the settlement has been approved by the board of education but “we don’t have a plan yet about how to roll out the requirements,” said Susan Davis, spokeswoman for the district.
“We’ve developed a standard district schedule and reporting form for all of our elementary and K-8 schools that is already in use,” said Gentle Blythe, spokeswoman for San Francisco Unified. She said the district takes its responsibility for complying with the Education Code “extremely seriously.”