FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NOS.
60CV-14-3135, 60CV-14-3136] HONORABLE TIMOTHY DAVIS FOX,
Bequette & Billingsley, P.A., by: George J. Bequette,
Jr., and W. Cody Kees, for appellant.
McDaniel, Richardson & Calhoun PLLC, by: Scott P.
Richardson, for amici curiae.
Mitchell, Blackstock, Ivers & Sneddon, PLLC, by: Clayton
Blackstock, for appellees.
KENNETH S. HIXSON, Judge
Pulaski County Special School District (PCSSD) appeals from
the Pulaski County Circuit Court's final judgments in
favor of appellees Janice Lewis and Pam Fitzgiven. On appeal,
appellant contends that the trial court erred when it ruled
that the 15-minute physical-activity period in question was
"noninstructional" duty under Arkansas Code
Annotated section 6-17-117(2)(b) (Repl. 2013). We affirm.
were certified teachers for all relevant time periods in the
PCSSD. Lewis taught second grade, and Fitzgiven taught fifth
grade. In 2003, the Arkansas Legislature passed a law that
precluded school districts from assigning teachers more than
60 minutes a week of "noninstructional duties."
Ark. Code Ann. § 6-17-117. Subsection (b) states that
"'noninstructional duties' means 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." Ark. Code Ann. § 6-17-117(b) (emphasis
added). Then, in 2007, the Arkansas Legislature passed a law
that required kindergarten through sixth grade students to
have 90 minutes of "physical activity" each week,
which could include recess, in addition to another specific
time period of actual "physical education"
instruction with a certified teacher. Ark. Code Ann. §
6-16-132 (Supp. 2015).
to the 2012-2013 school year, PCSSD had "recess"
built into the students' schedules in kindergarten
through sixth grade. During recess, the students were
supervised by paid monitors, not certified teachers. The
teachers were permitted to grade papers, call parents, and
plan and prepare for the next class. Starting in the
2012-2013 school year, PCSSD changed its policy. PCSSD
eliminated the "recess" period and replaced it with
a "physical-activity" period. Each period lasted 15
minutes. The main, if not only, difference between the
previous recess period and the new physical-activity period
was that during this new physical-activity period certified
teachers, instead of the paid monitors, were required to
supervise the children. Certified teachers were assigned on a
rotating basis to supervise students during the
physical-activity period. Because certified teachers were
required to supervise students for an additional 15 minutes
per day, the accumulation of that new supervision time
allegedly ran afoul of and violated the 60-minute
maximum-weekly supervision time as prescribed in section
2014, appellees filed separate but nearly identical
complaints for monetary damages and for injunctive relief.
Appellees alleged that the new physical-activity period was
noninstructional and that because PCSSD required them to
supervise the new physical-activity period, PCSSD was
requiring them to perform more than 60 minutes of
"noninstructional duties" each week in violation of
section 6-17-117. Therefore, appellees requested damages for
the time they had already expended in excess of their
contracts and an injunction precluding PCSSD from assigning
them more than 60 minutes of "noninstructional
duties" per week in the future. Appellant generally
denied the allegations, and a bench trial was held.
Morris testified that he was the director of standards for
the Arkansas Department of Education and was responsible for
ensuring that school districts are in compliance with all the
state standards. He explained that students were required to
have 60 minutes of physical education in addition to 90
minutes of physical activity each week at that time. The
physical-activity periods were included in the students'
"instructional day." Although schools were not
required to have "recess, " a scheduled
"recess" counted toward the 90 minutes of required
physical activity and would be considered part of the
students' 6 hours of minimum-required instructional-time
per day. Lesson plans for the physical-activity period were
Warren, the director of elementary education for PCSSD,
testified that physical-activity periods were considered part
of a students' instructional day. Therefore, she opined
that appellees' claims should fail because PCSSD's
schedule listed the fifteen minutes as a
"physical-activity period"-not "recess."
Warren further explained that she had instituted
physical-activity periods instead of recess in 2012 because
she was under the misunderstanding that recess would not
count toward the required 90 minutes of physical activity per
week, and she wanted to comply with all requirements.
However, she admitted that the only difference between recess
and a physical-activity period was whether a certified
teacher was present with the students.
hearing oral arguments and after the parties filed posttrial
briefs, the trial court found in favor of appellees, awarding
Lewis $5, 840.99 and Fitzgiven $6, 095.98. Appellees filed a
motion for a ruling on their requests for injunctive relief,
and PCSSD filed a motion for findings of fact and conclusions
of law. Subsequently, the trial court entered final
judgments, awarding each teacher additional monetary damages
for time incurred since the previous award and making the
following additional relevant findings:
2. Beginning with the 2012-2013 school year, the Plaintiff
has been assigned to supervise elementary children playing on
the playground at her school for 15 minutes each school day
or 75 minutes each week.
3. This 15-minute daily period of time was after the student
instructional day began and before the student instructional
4. The 15-minute daily period of time was not part of the
students' lunch period.
5. The Plaintiff's role during this time was to watch the
students on the playground to make sure they were safe and
the students were free to do what they wanted on the
6. At the Plaintiff's school, this daily 15-minute period
was "recess" as that term is used in Ark. Code Ann.
7. In the years before 2012-2013, non-certified employees of
PCSSD supervised the students during the 15 minutes of recess
8. Sometime after the start of the 2012-2013 school year,
PCSSD changed the title of this 15-minute period on the
school duty schedules from "recess" to