19 TAC §74.32
The State Board of Education (SBOE) adopts new §74.32,
concerning physical activity programs, with changes to the proposed text as
published in the February 8, 2002, issue of the
Texas Register
(27 TexReg 854). The adopted new section specifies provisions
relating to physical activity programs for elementary school students pursuant
to the Texas Education Code (TEC), §28.002, as amended by Senate Bill
(SB) 19, 77th Texas Legislature, 2001.
In response to comments, the following changes have been made to the section
since published as proposed.
Language in the first sentence was modified to clarify that all students
in full-day, rather than half-day, kindergarten are required to participate
in physical activity. Paragraph (2) was modified to reflect that school districts
must consider, rather than include, health-related needs of the students and
the recommendations of the local health advisory council.
The following comments were received regarding the adoption of the proposed
new rule.
Comment. An individual asked for clarification regarding the rule that
was approved at first reading.
Agency Response. The original recommendation presented to the SBOE in January
2002 for first reading proposed leaving time requirements to the districts.
However, the SBOE amended the original recommendation to include language
that would require elementary school students to participate in physical activity
for a minimum of 30 minutes per day or 135 minutes weekly.
Comment. Several individuals inquired about specifications of the rule
relating to kindergarten and/or half-day kindergarten students. These individuals
wanted to know if the rule means that half-day kindergarten is required to
spend 30 minutes daily in physical education or structured physical activity.
Agency Response. The agency agrees that consideration should be given to
half-day kindergarten and has modified the rule to clarify that it applies
to full-day kindergarten.
Comment. A representative from Cypress-Fairbanks Independent School District
(ISD) inquired about the adverse effects of the proposed new rule on "pull-out"
programs. The individual stated that requiring time for physical education
will take away from TAAS preparation and/or other possibilities for pull-out
sessions.
Agency Response. The agency disagrees. The adopted rule should have no
adverse effects on pull-out programs because districts have the authority
to structure course offerings to meet the needs of their students.
Comment. A representative from Rusk ISD and an individual stated that the
proposed rule and prescribed minutes would cut the time in the school day
available for academic coursework. The individuals also disagreed with the
proposed rule because it does not allow local districts to exercise local
control.
Agency Response. The agency disagrees. The adopted rule for 30 minutes
daily or 135 minutes per week provides local districts the flexibility to
schedule physical activity while considering other academic disciplines.
Comment. An individual from Royal ISD stated that with the current number
of required subjects combined with exposure to liberal arts and foreign language,
the proposed rule will add constraint and suffering of certain subjects.
Agency Response. The agency disagrees. The intent of the new rule is not
to take away from existing programs but to provide a quality physical education
to meet the health needs of the children. School districts have the local
flexibility in scheduling to provide for a well-balanced enriched curriculum
that could support a variety of enrichment and foundational subjects.
Comment. An individual from the Texas Music Educators Conference stated
that the mandated physical education requirements would decrease the instructional
minutes for music. The individual also disagreed with the proposed rule because
it would open the door to minute assignments for all subjects in the required
curriculum.
Agency Response. The agency disagrees. Local districts still have the authority
to create their own campus schedules, while honoring the importance of all
subjects. Also, the specification of time for physical activity would not
necessarily lead to mandated time requirements for other subjects. Rules related
to the amount of time spent in instruction were repealed during the 1995-1996
sunset review of SBOE rules. The adopted new 19 TAC §74.32 reflects the
critical importance emphasized by the 77th Texas Legislature for a minimum
amount of physical activity for elementary school students to prevent obesity
and certain diseases.
Comment. An individual from Dumas ISD expressed concern about having to
give up music time for physical education because of the way the schedule
is built. The individual asked the SBOE to reconsider the proposed rule and
replace it with 25 minutes a day at a minimum.
Agency Response. The agency disagrees. Local administrators will have the
ability to develop their schedules to allow for flexibility and allotted time
for music and other enrichment activities as well.
Comment. Several individuals supported the new proposed rule because it
does not imply that minutes need to be taken out of other enrichment activities
to satisfy the physical education requirements.
Agency Response. The agency agrees. The intent of the new rule is to ensure
that a quality physical education is provided for all students but not at
the risk of other enrichment subject areas.
Comment. The Texas Elementary School Principals Association, the Texas
Music Educators Association, and three individuals disagreed with the proposed
rule because they felt that the unique size of campuses and numbers of course
selections per grades alone already constrains and dictates campus schedules.
The commenters stated that districts will therefore have to sacrifice the
time of other enrichment classes in order to meet the time requirements of
daily physical education.
Agency Response. The agency disagrees. The proposed rule allows local districts
to develop their own campus schedules, while honoring the importance of all
subjects.
Comment. A representative from Sinton ISD and several individuals were
concerned that the proposed new rule will make elementary scheduling very
inflexible by having to rotate noncore subjects in a five-day week with a
limited number of personnel; in addition, the district would have to add new
facilities.
Agency Response. The agency disagrees. Local districts have a variety of
possible scheduling and staffing options to utilize.
Comment. A representative from Wichita Falls ISD and an individual supported
the proposed rule because local control in the past has allowed districts
to emphasize academics to the degree of removing physical education altogether.
Agency Response. The agency agrees that the adopted rule will allow for
a balanced education and will maintain the existence of physical education
in public schools.
Comment. An individual asked the SBOE and commissioner to reconsider the
daily physical education rule for Grades 1-6 by making it a local decision.
The individual stated that the two districts with which they are associated
offer physical education 45 minutes at least three times a week. This individual
also stated that decisions should be left to the local districts to determine
what is best for the students in the district. Furthermore, this individual
stated that the public educational system cannot fix everything wrong with
our society and that we are placing too much responsibility on the schools.
Agency Response. The agency disagrees. The policy for time requirements
in physical education was carefully developed at the state level to address
the statewide problem of fitness in our children. However, the implementation
of such a rule will be determined locally through policies and procedures
developed with the consideration of the local health advisory councils.
Comment. Several individuals supported the new proposed rule, but would
like to see the average minutes done biweekly instead of weekly to accommodate
the flexibility in block schedules that hold recess for 45 minutes every other
day.
Agency Response. The agency disagrees. The policy for the time requirements
in physical education was carefully developed at the state level to address
the statewide problem of fitness in our children. However, the implementation
of such a rule will be determined locally through policies and procedures.
Comment. The Texas Association for Health, Physical Education, Recreation,
and Dance (TAHPERD) and a professor from Southwest Texas State University
supported the proposed rule, but would like to see it amended to mandate 30
minutes daily and include an accountability system to ensure that the time
requirements are being met.
Agency Response. The agency disagrees with these recommended amendments.
The adopted rule allows local districts the flexibility to create their master
schedules in accordance with local needs and state requirements without mandating
one option for physical education time requirements. The SBOE does not have
the authority to mandate a prescribed accountability system for requiring
daily physical activity. Authority for the Public Education Information Management
System (PEIMS) reporting requirements rests with the commissioner of education.
Comment. A board member of Lago Vista ISD expressed concern about the loss
of local control as a result of constant policymaking and unfunded mandates.
The comment stated that the local education experts should make these decisions
and not policymakers. The comment also expressed the concern of having to
hire more teachers and build more facilities under an unfunded mandate.
Agency Response. The agency disagrees. The implementation of the adopted
new rule will allow local districts to determine the policies and procedures
involved in the implementation process. Therefore, local education experts
are able to specify the details of the implementation process within their
districts.
Comment. Representatives from the Austin ISD Health Advisory Council, the
Texas Council on Cardiovascular Disease and Stroke, TAHPERD, Round Rock ISD,
Travis Orthopedics and Sports Specialists, and five individuals commented
in support of daily physical activity as a practice for obesity prevention,
disease prevention, and reducing the risk factor of heart disease. These commenters
encouraged daily physical education in emphasizing that the health, safety,
and nutrition of students is the most important aspect of educating the whole
child.
Agency Response. The agency agrees that daily physical activity improves
the health and nutrition of children.
Comment. A school nurse from Anahuac ISD supported the proposed rule because
it coincides with the state plan for diabetes treatment, education, and training.
Agency Response. The agency agrees and supports diabetes treatment, education,
and training for children.
Comment. Several individuals inquired whether any changes would be proposed
after first reading.
Agency Response. In the March 2002 SBOE agenda, the SBOE was presented
with a version of the rule that reflected what was filed as proposed in January
and another modified version that incorporated clarified language based upon
public comments. Those changes included the following. The rule was reorganized
into subsections (a)-(c). In subsection (a)(1), language was added to emphasize
that schools may choose a physical education class or a combination of a physical
education class and a structured activity during recess. Also, the phrase
"during a school campus' recess" was added to this subsection to provide consistency
with language in Senate Bill 19. Subsection (a)(2) was modified to reflect
that local procedures for providing required physical activity should consider,
rather than require, the inclusion of health-related education needs. This
subsection was also modified to specify that any recommendations of the local
health advisory council be considered in local procedures. Subsection (b)
was added to clarify that schools that do not provide daily physical activity
may provide less than 135 minutes in a week with fewer than five instructional
days. Subsection (c) was added to specify that schools may restrict a student's
participation in required physical activity because of illness or disability.
The addition of subsections (b) and (c) addressed concerns and inquiries raised
by SBOE members during deliberation of this item at the January meeting.
During deliberation of this item during their March 2002 meeting, the SBOE
took action that adopted the version of the rule that was filed as proposed
in January, with slight modifications to specify the inclusion of full- day
kindergarten and to allow schools to consider, rather than require inclusion
of, health-related education needs and recommendations of the local health
advisory council.
Comment. The Texas Academy of Family Physicians, TAHPERD, and two individuals
supported the proposed rule because it is in line with research that shows
increased physical activity improves the overall health and learning capabilities
of children. There was concern, however, that allowing the option of recess
would allow districts to ignore the requirement of TEKS-based instruction.
Agency Response. The SBOE recognizes the alignment of the rule with research
on this matter. Concerning the second part of this comment, the adopted rule
does not specify the option to use recess as time to administer TEKS- based
structured activity. The adopted rule specifies that participation must be
in a TEKS-based physical education class or a TEKS-based structured activity.
Local districts have the flexibility in scheduling classes to meet the needs
of their children.
Comment. The Texas Classroom Teachers Association supported the proposed
rule, but asked the SBOE to consider certain aspects which include the following:
(1) physical education should be a separate activity from recess because they
feel it is important for recess to remain an unstructured activity to young
children; (2) the possibility could exist of exceedingly large sizes of physical
education classes as a result of the new rule; (3) and there could be a need
for a teacher certified in physical education to teach all related structured
activity and physical education classes.
Agency Response. The agency agrees and disagrees in part. The rule, as
adopted, does not specify the option to use recess as time to administer TEKS-based
structured activity; however, it does allow local districts the flexibility
in scheduling classes and hiring personnel to meet the needs of their children.
Comment. The Texas Association of School Boards, the Texas Association
of School Administrators, and the Texas School Alliance strongly urged the
State Board of Education to reconsider the following provisions that had been
included in the modified version of the proposed rule: (1) remove the requirement
for a minimum number of daily or weekly minutes; (2) consider the impact on
other subject areas; (3) remove the requirement that structured activity during
recess be TEKS-based; (4) address the needs of students with illness or disability;
(5) address half- day kindergarten; and (6) remove the requirement that school
districts' procedures must include recommendations of the local health advisory
council to establish rules and procedures for daily physical education.
Agency Response. The agency agrees and disagrees in part, as follows: (1)
the adopted rule maintains the requirement for a minimum number of minutes
daily or weekly because SB 19 authorizes the SBOE to determine the amount
of time to implement physical education; (2) consideration was given to the
impact the proposed rule may have on other subject areas, but it has been
determined that the local control that school districts possess in establishing
procedures, rules, and scheduling will accommodate these considerations; (3)
the adopted rule specifies that participation must be in a TEKS-based physical
education class or a TEKS-based structured activity. Local districts have
the flexibility in scheduling classes to meet the needs of their children;
(4) it is not necessary for the adopted rule to address the needs of students
with illness and disability, since health classifications for physical education
are specified in 19 TAC §74.32; (5) the agency agrees with the need to
address the issue of half-day kindergarten and modified the rule to specify
that it applies to full-day kindergarten; and (6) the agency agrees with the
recommendation regarding the local health advisory councils and has modified
the rule to reflect that school districts must consider, rather than include,
health-related needs of the students and the recommendations of the local
health advisory council.
The new section is adopted under the Texas Education Code (TEC), §28.002(l),
which authorizes the State Board of Education, after consulting with educators,
parents, and medical professionals, to require by rule that a student enrolled
in kindergarten or a grade level below grade seven in an elementary school
setting participate in daily physical activity as part of a school district's
physical education curriculum or through structured activity during a school
campus's daily recess.
§74.32.Physical Activity Programs for Elementary School Students.
In accordance with Texas Education Code, §28.002, all students
enrolled in full-day kindergarten or Grades 1-6 in an elementary school setting
are required to participate in physical activity for a minimum of either 30
minutes daily or 135 minutes weekly under the following conditions:
(1)
participation must be in a Texas Essential Knowledge and
Skills (TEKS)-based physical education class or a TEKS-based structured activity;
and
(2)
each school district shall establish procedures for providing
the required physical activity that must consider the health-related education
needs of the student and the recommendations of the local health advisory
council.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on April 22, 2002.
TRD-200202483
Cristina De La Fuente-Valadez
Manager, Policy Planning
Texas Education Agency
Effective date: September 1, 2002
Proposal publication date: February 8, 2002
For further information, please call: (512) 463-9701