Fit to Defend: A Primer on the Physical Education Instructional Minutes Litigation

Lozano Smith Client News Brief
A series of lawsuits against school districts throughout California caught the attention of the State Legislature in 2015, prompting changes in the law designed to keep administrators and teachers out of the courthouse regarding physical education ("P.E.") instructional minutes ("P.E. minutes"). The law, AB 1391, was an urgency measure that took effect as soon as Governor Brown signed the legislation in October 2015. Despite AB 1391, it appears that there are still attorneys and members of the public who desire to litigate over P.E. minutes. As a result, and even with the shield of AB 1391 in place, school districts should be prepared to demonstrate how they comply with Education Code section 51210, which requires schools to provide 200 instructional minutes of physical education every 10 school days to students in grades 1 through 6.

Section 51210 has been the basis for a number of lawsuits initiated by the same parties since 2009. A lawsuit filed in 2009 resulted in a California Court of Appeal decision in Doe v. Albany Unified School District (2010) 190 Cal.App.4th 668, in which the court held:

We conclude section 51210, subdivision (g), imposes a mandatory duty on school districts to include in an adopted course of study for grades one to six physical education for a total period of not less than 200 minutes each 10 schooldays. Although one might reasonably question the wisdom of the Legislature micromanaging the state's education system by mandating that schools throughout the state, regardless of circumstances, provide a minimum physical education requirement, that is nevertheless precisely what the Legislature has done. It is not for this court to second-guess the Legislature in this regard.

(Id. at 678.) The Court of Appeal also ruled that the parent could also seek enforcement of the law based on "an interest as a citizen in seeing" that the law was "properly enforced." (Id. at 685.)

In 2013, the plaintiff's lawyer in Doe v. Albany Unified School District, representing an individual named Marc Babin and a group called Cal200, filed suit against more than 30 school districts across the state, including San Francisco Unified School District and Los Angeles Unified School District, claiming the school districts were failing to provide the 200 minutes of P.E. instruction required under section 51210. The trial court judge in San Francisco County Superior Court allowed the litigation to proceed against all districts, and the Court of Appeal did not intervene. The case settled early in 2015. Under the settlement, the school districts named in the litigation agreed to adopt parental notification requirements, P.E. schedule publications, teacher reporting forms, principal observations, and regular reports to the governing board. While none of these obligations are expressly required under the Education Code or state regulations, they are a means to document that a school district is complying with the law and presumptively negate any allegation of non-compliance.

Marc Babin and Cal200 again filed suit in September 2015, this time against the California Department of Education ("CDE") and approximately 90 school districts. The plaintiffs again allege violation of Education Code section 51210, and seek writ relief from the court compelling the named school districts to comply with the statute and an award of attorneys' fees. This lawsuit is now pending in San Francisco Superior Court.

With this litigation in mind, AB 1391 makes clear that the Legislature never intended the P.E. minutes requirement to constitute a legal basis for an individual or organization to initiate a lawsuit, without first doing more. Rather, as AB 1391 makes clear, the Legislature intended for complaints over a school district's provision of P.E. minutes to be addressed through the administrative remedies required under both a school district's uniform complaint procedure ("UCP") and California law. Only after fully exhausting the UCP administrative remedies (including an appeal to the CDE), and assuming the complainant received an adverse result, did the Legislature envision the ability to seek writ relief in court regarding a complaint about P.E. minutes. School districts should therefore consider how they can best demonstrate their respective compliance with the law on P.E. minutes, given the requirements of section 51210 as explained in the Doe case, the effect of AB 1391, and the prospect of being party to any future round of UCP complaints and resulting litigation on this issue.

Lozano Smith represented several districts in the 2013 P.E. minutes litigation, and currently represents over a dozen school districts in the P.E. minutes lawsuit pending in San Francisco County Superior Court. Should you have any questions regarding this issue, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.
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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.