Case Summary by APSRC Legal Department
Earlier this year, the Arkansas Court of Appeals ruled that a teacher’s supervision of a student “physical activity” period is a non-instructional duty subject to the weekly 60-minute limit, regardless of whether it is called “recess,” and regardless of whether it is required by state standards.
Janice Lewis and Pam Fitzgiven were certified teachers in the Pulaski County Special School District (PCSSD) who filed suit against the District under Ark. Code Ann. § 6-17-117, a 2003 law that prevents school districts from assigning teachers more than 60 minutes a week of “non-instructional duties.” Non-instructional duties are defined in the statute as “the supervision of students before or after the instructional day begins or ends for students or for the supervision of students during breakfasts, lunches, recesses, or scheduled breaks.”
In 2007, an additional law, § 6-16-132, required kindergarten through sixth grade students to have 90 minutes of physical activity each week, which could include recess, in addition to PE instruction with a certified teacher.
Prior to the 2012-2013 school year, PCSSD scheduled recess periods for K-6 students and used paid classified employees to watch over the students while teachers were permitted to grade papers, call parents, and prepare for upcoming classes. Beginning in 2012, PCSSD changed its policy from having classified employees cover recess breaks to instead requiring teachers to cover “physical-activity” periods. Each period lasted 15 minutes. The only substantive difference between the prior recess period and the new “physical-activity” period was the supervision by certified teachers. Because the District required certified teachers to supervise these “physical-activity” period, the school district was held by Pulaski County Circuit Court to be in violation of the 60 minute non-instructional duty maximum under Ark. Code Ann. § 6-17-117. The teachers were awarded back pay for the time they had already spent in excess of 60 minutes per week of non-instructional duty ($5,840.99 for Lewis and $6,096.98 for Fitzgiven). The District was prevented from continuing this practice in the future.
The District appealed and lost in an April 26, 2017 consolidated appellate ruling on the matter, finding that the Circuit Court properly awarded back pay and issued the injunction on behalf of the teachers. The Court of Appeals ruled that changing the title of this time from “recess” to “physical activity” was “simply a matter of semantics, and the 15-minute periods still met the common meaning and practice of ‘recess’ and hence were ‘non-instructional duties.’”
The case was Pulaski County Special School District v. Janice Lewis and Pam Fitzgiven, 2017 Ark. App. 264. The opinion is available online at: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/362098/Electronic.aspx.