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Putting Lipstick on a Pig: Recess Versus Physical-Activity Periods

In 2012, when the Pulaski County Special School District (“PCSSD”) replaced paid monitors, who had been supervising the students’ recess, with certified teachers, some teachers vehemently protested the change. They argued that the school district’s actions violated existing Arkansas law that had been enacted to protect teachers from being burdened with wide-ranging duties that extend beyond their primary roles as instructors.

Under Arkansas law, school districts are prohibited from assigning teachers more than 60 minutes a week of “noninstructional duties.” Ark. Code Ann. §6-17-117. Pursuant to the statute, such “noninstructional duties” specifically include the supervision of students before and after the instructional day begins or ends for students. It also includes the general supervision of students during breakfast, lunch, scheduled breaks and recess. A separate Arkansas law, which was passed in 2007, mandates 90 minutes of physical activity per week for children in kindergarten through sixth grade. The 90-minute period can include recess in addition to “physical education instruction” by a certified teacher. Ark. Code Ann. §6-16-132.

Prior to the Fall of 2012, PCSSD utilized paid monitors to supervise students’ recess periods throughout the school day. However, in a purported effort to incorporate “physical education instruction” into the school day to comply with Ark. Code Ann. §6-16-132, PCSSD subsequently issued a new policy that reclassified recess periods as “physical-activity periods” and assigned certified teachers to supervise the periods instead of paid monitors. Despite the reclassification, PCSSD did not make any substantive changes to the activities that occurred during these periods and the teachers did not provide any formal instruction to the students. The only difference between recess periods and physical-activity periods was the presence of a certified teacher.

Teachers objected to this new assignment, arguing that it violated Ark. Code Ann. §6-17-117 and prevented them from utilizing that time to “grade papers, call parents, and plan and prepare for the next class.” In an effort to challenge the new policy, some of the teachers brought suit against PCSSD, asserting that the physical-activity periods, which required no actual instruction, constituted extra “noninstructional duties” that resulted in the teachers being improperly forced to exceed the 60-minute noninstructional duty limitation of Ark. Code Ann. §6-17-117. After evaluating the nature of the activities, the trial court concluded that the policy change violated Ark. Code Ann. §6-17-117. Upholding the trial court’s ruling, the Arkansas Court of Appeals noted that the activity “periods still met the common meaning and practice of the definition of ‘recess’ and hence were ‘noninstructional duties’ under section 6-17-117(b).” Pulaski County Special School District v. Lewis, 2017 Ark. App. 264 (2017).

In other words, recess is recess regardless of the label you put on it. Accordingly, in Arkansas a school district cannot alter its obligations to teachers and avoid statutory requirements by means of semantic gymnastics.

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