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Decision No. 13,843

Appeal of MICHELLE E. PHILLIPS, on behalf of KYLE PHILLIPS, from action of the Board of Education of the Southampton Union Free School District regarding physical education requirements.

Decision No. 13,843

(October 26, 1997)

Richard S. Fernan, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the provision of physical education services by the Board of Education of the Southampton Union Free School District ("respondent"). The appeal must be sustained.

Petitioner is the parent of an elementary student in respondent’s district who alleges that respondent does not provide the required amount of physical education to its elementary school pupils in violation of 8 NYCRR 135.4(a) and (c). On September 26, 1996, petitioner sent a letter to respondent asking how many days a week kindergarten through grade four children participate in physical education. On September 27, 1996, respondent's elementary school principal informed petitioner that she would need to fill out a "request for an appointment to inspect a school district record." On September 30, 1996, petitioner delivered a copy of that form to the district clerk and requested an appointment to pick up the district's response on October 2, 1996. On that date, petitioner met with respondent’s records management officer who informed petitioner that he did not have the answers to petitioner’s questions and that she needed to speak with the elementary school principal to obtain the information she sought.

On October 7, 1996, respondent's records management officer provided petitioner with a copy of daily and weekly schedules for kindergarten through grade four, which indicated that those classes received one 40 minute period of physical education per week. On that date, petitioner also contacted the State Education Department (SED) and was informed that the State requirements for physical education were 120 minutes per week. On October 8, 1996, petitioner attended a board meeting where respondent’s elementary school principal acknowledged that only one physical education class per week was scheduled. On October 9, 1996, petitioner again asked to review school district records pertaining to a waiver of the State's physical education requirements. On October 12, 1996, respondent’s records management officer responded to petitioner’s request for information indicating that the principal was responsible for establishing the schedule and that kindergarten through grade four received one physical education class a week, in addition to recess and "movement education" in music class. On October 21, 1996, respondent's superintendent informed petitioner that although he had searched the district's archives for its physical education plan submitted to SED in 1983, it could not be located. At respondent board’s meeting on October 22, 1996, petitioner again raised the issue of the physical education requirement. This appeal ensued.

Petitioner alleges that respondent is not meeting State requirements for physical education. Respondent contends that its physical education program satisfies State requirements. Respondent raises two procedural objections, that petitioner fails to state a cause of action and that petitioner fails to request any relief in her petition.

Before reaching the merits, I will address respondent’s procedural objections. Respondent contends that petitioner fails to state a claim upon which relief can be granted. Section 275.10 of the Commissioner's regulations require a petition to contain

a clear and concise statement of petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which a person deems himself entitled. Such statement shall be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

Although perhaps inartfully stated, petitioner’s claim against respondent is evident. She alleges that respondent has failed to provide sufficient physical education as required under 8 NYCRR "135.4. Although the petition does not contain a specific prayer for relief, petitioner clearly alleges that respondent is violating the physical education regulations and seeks the intervention of the Commissioner. Furthermore, I note that petitioner is proceeding prose. Where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondent (Appeal of Loughlin, 35 Ed Dept Rep 432; Appeal of Roxbury Taxpayers Alliance, 34 id. 576; Appeal of Moessinger, 34 id. 246). Petitioner clearly objects to respondent’s failure to provide the appropriate amount of physical education for grades K through four, and respondent has adequately addressed these allegations in its answer. Therefore, I decline to dismiss this appeal for failure to state a claim (Appeal of Priestly, 35 Ed Dept Rep 293).

Turning to the merits, petitioner alleges that respondent does not provide its elementary school students the proper amount of physical education required by the Commissioner's regulations. Section 135.4(a) requires a board of education to "develop and implement school district plans to provide physical education experiences for all pupils…" Section 135.4(c)(2)(i)(a) provides:

(2) Required instruction. (i) elementary instructional program---grades K through 6

  1. all pupils in grades K–3 shall participate in the physical education program on a daily basis. All pupils in grades 4-6 shall participate in the physical education program not less than three times each week. The minimum time devoted to such programs shall be at least 120 minutes in each calendar week, exclusive of any time that may be required for dressing and showering;
  2. as provided in an equivalent program approved by the Commissioner of Education.

Petitioner alleges that during the 1996-97 school year, her son, who was then enrolled in third grade, received physical education only once each week for 40 minutes. In response respondent claims that recess, movement education in music class, and a special program called "Talent Express" held in its elementary school on Friday afternoons, meet the physical education requirements of the regulation.

Respondent contends that its physical education program was approved by SED in 1983, although it is unable to produce a record of that approval and contacted the Department for a copy of that record, which has not yet been located. My review of the Department's records has also failed to reveal evidence that respondent's program was approved. Respondent also contends, in an affidavit by its superintendent, that its physical education program was reviewed in 1990 during the district’s reaccredidation review by the Middle States Association. Respondent further contends that its program, which consists of one 40 minute period of physical education, recess, movement education in music class and its Talent Express program, is sufficient to satisfy the regulation.

Petitioner correctly alleges that the physical education provided to her child during the 1996-97 school year did not comply with the requirements of the Commissioner's regulations. Physical education must be provided by a certified physical education teacher or a classroom teacher under the supervision of a physical education teacher (8 NYCRR 135.4[c][4]). Unstructured play at recess or structured play under the supervision of a lunchroom monitor does not constitute physical education and may not be included as part of a district’s physical education program (Appeal of Williams, 32 Ed Dept Rep 621). The record indicates that only one 40 minute physical education class is scheduled for students in kindergarten through grade 4. Even though the affidavit of the elementary school principal alleges that her students receive an additional 40 minutes of movement in music class every week, that totals only 80 minutes of instruction in physical education. I have reviewed respondent’s exhibit concerning its Talent Express program, and find that while some of the classes offered involved movement, many do not, and in any event the program cannot be used to meet the physical education requirements of the regulation.

I am not persuaded that the Middle States Association's evaluation of the district in 1990 demonstrates compliance with the State regulation since that review was done for reaccredidation purposes and not to ensure the district's compliance with the State's physical education requirements. Furthermore, as discussed above, the record in this matter supports petitioner’s contention that respondent’s physical education activities do not comply with the regulation. Finally, since neither respondent nor SED have been able to locate a copy of the district's physical education plan which was purportedly filed with the Department in 1983, I find there is currently no alternative program in effect which complies with the regulation.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent comply with the requirements of 8 NYCRR 135.4 (a) and 134.5(c)(2)(i)(a) and submit its physical education program to the Department’s Office of Curriculum and Assessment.

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