Credit: Jane Meredith Adams/ EdSource Today

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.pe-lawsuit

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.”

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  1. Denise Darval-Chang 2 months ago2 months ago

    Well it’s about time, next lack of Health Education being taught, thus the increase of health issues, suicides, mental & emotional problems….all begins with our youth not learning skills to address life! Hawaii is no different in complying with minutes in HPE.

  2. Law 1 year ago1 year ago

    This isn't for the good of CA students. This is a means to increase wealth for the complainants. If it were about improving the health of students, then the complainant would have used his time and energy to find a way to fund and staff physical education for CA students, rather than file lawsuits. My students get more than 200 minutes, but I would hate to see time and energy wasted on trying to make sure … Read More

    This isn’t for the good of CA students. This is a means to increase wealth for the complainants. If it were about improving the health of students, then the complainant would have used his time and energy to find a way to fund and staff physical education for CA students, rather than file lawsuits.

    My students get more than 200 minutes, but I would hate to see time and energy wasted on trying to make sure that minutes are documented and made up, when a child is pulled out for special services, has a band class, is on a field trip, or attending an assembly.

    I see this as just another attempt to chip away at public education.

  3. Tim Aspinall 2 years ago2 years ago

    As an Elementary PE teacher I obviously found this article to be of interest. It came to me through the SPARK web page from which I receive their monthly web newsletter. One item of note, should teachers begin to log PE hours there is still the issue of the rigor and quality of the PE time. The CDE has a well developed set of standards to help students develop motor skills and … Read More

    As an Elementary PE teacher I obviously found this article to be of interest. It came to me through the SPARK web page from which I receive their monthly web newsletter. One item of note, should teachers begin to log PE hours there is still the issue of the rigor and quality of the PE time. The CDE has a well developed set of standards to help students develop motor skills and fitness in a progressive manner. For example: one of the issues we are finding is today’s children lack the upper body strength of previous generations. If the standards are not followed, we will not be helping the situation even with the approved PE minutes.

  4. Bita Kazemini 2 years ago2 years ago

    Unfortunately my sons elementary school doesn’t even have any PE apparatus or equipment to have that kind of exercise and activity for the kids in place.

  5. JennK 2 years ago2 years ago

    Ask this guy where YOUR tax money he is stealing from children is going. Don't be fooled. He found a legal loophole and is just doing this to make millions (1.5 so far). He is a disgrace. He figured out that if it's a rainy day or if the child is in an English Learner (or any other program) and doesn't get the 200 - he can profit. He does … Read More

    Ask this guy where YOUR tax money he is stealing from children is going. Don’t be fooled. He found a legal loophole and is just doing this to make millions (1.5 so far). He is a disgrace. He figured out that if it’s a rainy day or if the child is in an English Learner (or any other program) and doesn’t get the 200 – he can profit. He does not care about PE he cares about his wallet. Thief.

  6. D. Chang 2 years ago2 years ago

    It’s about time! Same should be happening for the lack of Health Education not being taught in elementary school. Good job Mr. Driscoll.

  7. Paula C Jackson 2 years ago2 years ago

    Big Question: Is this requiring Physical Education be taught by a LICENSED, QUALIFIED PHYSICAL EDUCATION TEACHER or just anyone, as long as it’s deemed “Physical Education time”? Quality vs. Quantity is a HUGE issue when you talk about delivery of Physical Education instruction.

  8. Gary Ravani 2 years ago2 years ago

    A Southern Bay Area school had a decades long tradition of taking promoting 8th graders on a whale watching trip. Then around, 2005, at the height of the NCLB/AYP/CA-API test score driven hysteria the principal at the school cancelled the trip. When asked why, the principal stated simply: "Are whales going to be on the state tests?" Simply, this "thinking" is sad beyond belief. Was PE counted on the AYP/API? Like the whales migrating off, a number … Read More

    A Southern Bay Area school had a decades long tradition of taking promoting 8th graders on a whale watching trip. Then around, 2005, at the height of the NCLB/AYP/CA-API test score driven hysteria the principal at the school cancelled the trip. When asked why, the principal stated simply: “Are whales going to be on the state tests?” Simply, this “thinking” is sad beyond belief.

    Was PE counted on the AYP/API?

    Like the whales migrating off, a number of subjects, art, music, social studies/history, (even) science disappeared over the horizon in the test frenzy to concentrate time for math and ELA instruction. This is why, in its comprehensive analysis, the National Research Council asserted that test based accountability had not contributed to more student (test) achievement and had inhibited learning overall because of the narrowing of the curriculum.

    Then we have CA’s systemic problem of being in the bottom decile of the 50 states in funding per child. Cutting many of the classes necessary for a well rounded education was one way to meet the demands of ever decreasing school budgets.

  9. el 2 years ago2 years ago

    Part of the problem here is that too many people see PE as being in opposition to the academic program. This is incorrect. Plenty of kids learn better when they are active and moving, and there is no reason you cannot integrate academic learning with physical activity. My daughter's gymnastic teacher has a great program where kindergarten age kids are running an activity course where they learn to remember a set of steps, practice counting … Read More

    Part of the problem here is that too many people see PE as being in opposition to the academic program. This is incorrect. Plenty of kids learn better when they are active and moving, and there is no reason you cannot integrate academic learning with physical activity. My daughter’s gymnastic teacher has a great program where kindergarten age kids are running an activity course where they learn to remember a set of steps, practice counting and alphabet skills, reinforce colors, etc. The fine and gross motor skills kids learn in PE is important, and there are plenty of other lessons too. The idea that academic work can only be done with one’s butt planted in a plastic seat – or that that is even always the best way to do it – is just plain wrong.

  10. Stephanie Farland 2 years ago2 years ago

    Does this include public charter schools? Currently, charters are not required to provide PE at all. They are educating almost 10% of kids in CA. Is it time for this to change?

    Replies

    • Jane Meredith Adams 2 years ago2 years ago

      Hi Stephanie.
      How extraordinary that charter schools aren’t required to provide PE. Because charters are exempt from the Ed Code 200 minutes of PE over 10 days, I would imagine they’d be exempt from having to document that they are providing those minutes. But I would think charters would want to be ahead in offering lots of PE, giving the trove of research showing that physical activity improves children’s concentration, memory, impulse control and even test scores.

  11. navigio 2 years ago2 years ago

    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.

    Actually, if they choose against it for budget reasons then they do dispute the value of it.

    Replies

    • Don 2 years ago2 years ago

      Budgetary decisions are not necessarily value decisions. For example, core teachers may be retained strictly as an economic decision to comply with CSRA in order to avoid damaging penalties. Any number of similar prudent choices could be made based upon economic rather than value considerations.

    • Manuel 2 years ago2 years ago

      What I hear through the grapevine is that PE is not given so as to have more time to "teach fundamentals," not because there is no money. OTOH, the only schools that I know that have "coaches" are those that have managed to get some grant to pay for them or have with parents who fund it through their own fund raising efforts. Here's the actual appeal by parents at one particular school: "Almost 60% of the school … Read More

      What I hear through the grapevine is that PE is not given so as to have more time to “teach fundamentals,” not because there is no money.

      OTOH, the only schools that I know that have “coaches” are those that have managed to get some grant to pay for them or have with parents who fund it through their own fund raising efforts.

      Here’s the actual appeal by parents at one particular school:

      “Almost 60% of the school has contributed to the **** Annual Fund! Have you? The suggested donation (based on actual costs) is $1,750 per child grades 1-4, $2,500 per kindergarten child, and $1,000 per 5th grade child. If you cannot contribute at those amounts now, the Annual Fund is flexible to allow you to invest in your child’s education in a way that works for your family. ”

      Those who do not donate do not get to see their name in the list of donors. According to their 990, the income of this parent group for 2012-13 was $837,380 while its year-end assets were $992,692. The 990 states that $448,509 went to pay for “teaching aides, physical education, art, computer science and music specialists” and $385,522 to “purchasing three teachers and one administrative person.” (And, FWIW, their three-year weighted API was 961.)

      BTW, this school had 655 students in 2013-14, 34 of which were classified as English learners. 507 of these students are white, 97 are Asian, 21 are African American, and 24 are Latino.

      This school is definitely in the poor side of town and are not waiting for the state to increase their funding. Plus they get a tax deduction.

      That’s one of the reasons why the kids in this particular school have PE.

      It’s poverty, pure and simple.

      • Manuel 2 years ago2 years ago

        Ooops. Missed a “not” in that ante-penultimate paragraph. It should be:

        “This school is definitely NOT in the poor side of town and are not waiting for the state to increase their funding.”

        Sorry about that…

      • navigio 2 years ago2 years ago

        Odd that they’d choose to pay for teachers. I thought there was no value in that..

        • Manuel 2 years ago2 years ago

          And teacher aides, too.

          Some would say they are glorified baby sitters, there so that those teachers can spend more time on Facebook (’cause they don’t read the newspaper anymore, like Ditto used to).

          What’s the value in that?