Happy physical education teacher talking to her students during a class at elementary school gym.

Physical Education After the Cal200 Litigation

By Jack Becker

Since 2009, Donald Driscoll has been fighting for physical education (P.E.) classes in California’s elementary schools.

The attorney, along with Marc Babin and Cal200, Inc., has filed a series of lawsuits against over 100 school districts claiming that schools do not provide the required allotment of P.E. time under California law.

The benefits of physical activity are well-established. Physical activity is associated with positive health outcomes including building strong bones, improving mental health, and reducing the risk of obesity, heart disease, cancer, and a variety of other medical conditions.

School-based physical activity has also been linked to positive effects on academic performance. And, according to a cost-benefit analysis, every $1 invested in school-based physical activity results in $32 of value (due to benefits like reduced health care costs and labor benefits).

Yet, these programs always seem to be on the chopping block. Whether it’s recess being cut so students can have more time to prepare for standardized testing (turns out this is counterproductive), or athletic programs cut due to budget reductions, opportunities for physical activity are at risk too frequently.

As Driscoll explained to the L.A. Times, “School districts have been routinely ignoring the law… They give lip service to the idea that P.E. is important. That just plain doesn’t work. What that produces is kids who don’t get enough exercise.”

California Education Code § 51210(a)(7) and § 51223(a) require elementary schools to provide at least 200 minutes of P.E. classes for every 10 school days. This is included among requirements for science, social studies, and other subjects.

However, a study found that only around half of sampled school districts complied with the P.E. requirements from 2004–2006. According to a 2008 report, the requirements are “rarely enforced” and lack significant consequences even if they were. And so, Driscoll, Babin, and Cal200 stepped in.

The Cal200 Litigation

The Cal200 litigation has had its ups and downs. After a successful test case by Driscoll, the first large round of lawsuits from 2013 led to a settlement with 37 school districts. The settlement requires teachers to track and publish the amount of time spent on P.E., with oversight from school principals and school boards. This was a huge success.

In September 2015, Cal200 filed additional claims against 88 school districts. There were two roadblocks in this round of litigation. First, the state of California passed legislation to defend itself from these lawsuits. The legislation, passed in October 2015, requires complaints about P.E. time requirements to be settled through California’s Uniform Complaint Procedures instead of by using a private right of action.

Second, several school districts in the litigation requested that the court issue writs of mandamus against them. These writs would require that they follow the state’s P.E. requirements, as the petition asked for, while allowing the school districts to avoid injunctive relief requested by Cal200. The court agreed, and while Cal200 appealed, the appeals court affirmed. The appeals court also emphasized that under the October 2015 legislation, an injunction would be improper and only a writ of mandate would be possible. (In the court’s words, “No private right of action. A writ of mandate. Period.”)

Despite the roadblocks and accusations of a “legal shakedown,” Driscoll, Babin, and Cal200 made serious strides in accomplishing their goal. As Driscoll told SFGATE, “Physical education, more than any other subject, is about the time you spend doing it.” And while the Cal200 litigation shored up the amount of time spent on P.E., effective instruction remains at risk.

Putting the “E” in P.E.

During the COVID-19 pandemic, California teachers have faced significant challenges in providing adequate P.E. First, they contended with the challenge of teaching P.E. to virtual students. Upon reopening, they met a new, but familiar, challenge: in-person program cutbacks.

These cutbacks often mean assigning classroom teachers to teach P.E. or giving P.E. teachers exorbitantly large classes. Instead of losing time for physical activity with the cutbacks, students are losing physical education instruction.

P.E. classes consist of both instruction and activity. The instruction, or physical education component, teaches the building blocks and technique of movement and exercise. These lessons are then applied in physical activity, which is all about the act of moving around and exercising.

The Motivation Factor, a documentary advocating for improved P.E. programs, provides a glimpse into programs from the early 1900s and explains the educational component of P.E. They “helped [] children learn how to move better before they moved more.” This meant teaching students how to run, jump, and even stand properly at a young age. In the physical education context, this is the equivalent of learning basic grammar or multiplication tables before moving on to advanced topics.

California students need physical education to prepare for life, but they also need it to prepare for high school. California regulations for high school P.E. include activities like “team sports,” “gymnastics and tumbling,” and “combatives for boys,” all of which incorporate a range of basic movements.

While classroom teachers can supervise physical activity, they may not have the requisite education, experience, or time to properly teach physical education. And when P.E. teachers are overburdened with large class sizes, it may be difficult to give students the individualized attention and feedback necessary for effective instruction.

The Cal200 litigation helped ensure that California students will get a certain amount of time in P.E., but more work is needed to ensure students receive a proper physical education. And, who knows, maybe a commitment to teaching kids the building blocks of movement and exercise will help bring back the glory days of La Sierra’s legendary P.E. program.

Jack Becker

Jack is a graduate of Harvard Law School and a former student fellow at the Petrie-Flom Center. He thanks you for reading this and hopes you have a great day!

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