Do teacher-led activity programs like GoNoodle satisfy Tennessee's K-6 'non-structured physical activity' requirement?

Plain-English summary

Tennessee law requires local education agencies to give K-6 students a certain amount of "non-structured physical activity" during the school day. The Tennessee Department of Education sent out memos in June 2016 telling districts that any classroom activity break, including teacher-led programs like GoNoodle, Play 60 Classroom Activity Breaks, Energizing Brain Breaks, Chair Yoga, and Action Based Learning Labs, would count. A state senator asked whether that guidance squared with the statute. The AG said it did not.

The statutory definition of "non-structured physical activity" is broad enough on its face to swallow almost any physical activity. But the statute uses the term "non-structured," and a court interpreting it would have to give that adjective meaning. The AG read it to mean activity without a definite pattern of organization, free play, recess. Programs that involve teachers directing children through coordinated exercises tied to academic content are "structured," and to the extent the Department's guidance treated them as satisfying the K-6 statute, the guidance was wrong. (Grades 7-12 have a parallel statute that only requires "physical activity," with no "non-structured" qualifier, so structured PE classes are fine there.)

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does Tenn. Code Ann. § 49-6-1021 actually require?
A: At the time of the opinion, it required LEAs to integrate set amounts of "non-structured physical activity" into the school day for K-6 students, and separately required at least 90 minutes per week of "physical activity" for grades 7-12. The 7-12 requirement is not qualified by "non-structured," so structured PE counts at that level.

Q: Why isn't GoNoodle good enough for K-6?
A: The AG concluded GoNoodle is teacher-led, coordinated, and often integrated with academic content. That makes it "structured" in the ordinary sense of the word. Subsection (a)(1)-(2) of the statute requires "non-structured" activity for K-6, and the AG read that as a real limit, not a label.

Q: But the statutory definition of "non-structured physical activity" sounds broad. How did the AG narrow it?
A: The definition reads as "a temporary withdrawal or cessation from usual school work or sedentary activities during which an opportunity for rigorous physical activity is provided." Read in isolation, it could mean any rigorous activity. The AG applied canons of construction: every word in a statute should have meaning, and a reading that erases the word "non-structured" is impermissible. The AG harmonized the two parts by reading "usual school work" to mean organized, structured instruction, so a "cessation from usual school work" is a cessation from organized activity, that is, non-structured time.

Q: What does a complying activity look like?
A: Old-fashioned recess. Children are released from instruction and given an opportunity for vigorous play, without a teacher leading them through a routine. The AG cited pediatric literature on the differences between non-structured recess (promotes communication, negotiation, problem solving, social skills) and structured activity (better suited to physical conditioning).

Q: Are the Department's listed programs banned in Tennessee classrooms?
A: No. The opinion said only that structured programs do not satisfy the § 49-6-1021 K-6 requirement. Districts may still use them in addition to non-structured time, and they may use them at all to satisfy the 7-12 "physical activity" requirement.

Background and statutory framework

Section 49-6-1021 was Tennessee's school physical-activity mandate. It set different bars for different grade bands: K-6 students must be given a defined amount of "non-structured" physical activity integrated into the school day; grades 7-12 must be given at least 90 minutes per week of "physical activity" (no adjective). The Tennessee Department of Education issued implementation memos in June 2016 that the AG found read the statute too broadly for K-6 by treating teacher-led programs as compliant.

The AG's analysis relied on standard tools of statutory construction: every word matters, courts avoid readings that produce absurd or self-defeating results, and apparent conflicts within a statute should be harmonized. Where one part of a statute (the term "non-structured") appears to conflict with another (the broad definition), the harmonizing reading is the one that gives both parts work to do.

Citations

• Tenn. Code Ann. § 49-6-1021 (physical activity requirement for K-12 students)
• State v. Dycus, 456 S.W.3d 918 (Tenn. 2015); State v. Marshall, 319 S.W.3d 558 (Tenn. 2010); Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496 (Tenn. 2010) (canons of statutory construction)
• State v. Flemming, 19 S.W.3d 195 (Tenn. 2000) (avoiding absurd results)
• Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1955) (harmonizing statutory tensions)
• Robert Murray & Catherine Ramstetter, The Crucial Role of Recess in School, 131 Am. Acad. of Pediatrics 184-85 (Jan. 2013)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2016/op16-034.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 30, 2016
Opinion No. 16-34

Non-Structured Physical Activity for Students

Question
Do the guidelines for "classroom activity breaks" in the Tennessee Department of Education's June 8, 2016, and June 23, 2016 memoranda comply with the requirements of Tenn. Code Ann. § 49-6-1021?

Opinion
To the extent that the guidelines authorize physical activities for "classroom activity breaks" that are structured, the guidelines do not comply with the "non-structured physical activity" requirements of Tenn. Code Ann. § 49-6-1021.

ANALYSIS

Tenn. Code Ann. § 49-6-1021 requires local educational agencies ("LEAs") to "integrate" certain amounts of "non-structured physical activity" into school days for students in grades K-6. Tenn. Code Ann. § 49-6-1021(a)(1)-(2). "Non-structured physical activity" is defined as a "temporary withdrawal or cessation from usual school work or sedentary activities during which an opportunity for rigorous physical activity is provided." Tenn. Code Ann. § 49-6-1021(b).

The Tennessee Department of Education ("Department") issued memoranda on June 8, 2016, and June 23, 2016, that set forth "guidelines for implementation" of Tenn. Code Ann. § 49-6-1021. According to these memoranda, the requirement to integrate "non-structured physical activity" may be satisfied by "any type of classroom physical activity breaks, such as Go Noodle, Fit Wizard, Take 10!, SPARK, Energizing Brain Breaks, Chair Yoga, Fuel up to Play 60 Classroom Activity Breaks, Action for Health [sic] Kids Brain Breaks, Active Academics, Adventure to Fitness, Move to Learn, Take a Break!, Brain and Body Boost, Minds in Bloom, Read and Ride programs, Action Based Learning Labs, bike desks, etc." (June 8, 2016, and June 23, 2016 Memoranda). The Department concludes that these physical activity breaks are sufficient "as long as the activity provides the opportunity for rigorous activity and meets the number of minutes required for physical activity breaks." (June 23, 2016 Memorandum.)

Whether the programs identified by the Department comply with Tenn. Code Ann. § 49-6-1021 depends on the meaning of the phrase "non-structured physical activity" and on the nature of the specified programs. By its plain language the statute requires that the prescribed amount of physical activity be "non-structured," but the statutory definition of "non-structured physical activity" appears at first blush to include any physical activity, whether structured or non-structured. See Tenn. Code Ann. § 49-6-1021(b) (defining "non-structured physical activity" as "a temporary withdrawal or cessation from usual school work or sedentary activities during which an opportunity for rigorous physical activity is provided.").

Thus, the statutory definition is arguably in tension with the statutory phrase that it defines. And, indeed, in issuing its guidelines, the Department appears to have focused on the definition and to have read that definition broadly to include both non-structured and structured physical activity. But when read in light of the applicable rules of statutory construction, the definition cannot reasonably be interpreted to include structured physical activity.

When interpreting a statute, courts will "assign a statute the full effect of the legislative intent without restricting or expanding the intended scope of the statute." State v. Dycus, 456 S.W.3d 918, 924 (Tenn. 2015) (citations omitted). Although legislative intent is generally ascertained by the plain language of a statute, a court is not constrained to apply a statute in a manner that would violate the "obvious intent" of the legislature. State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010). Courts "are required to interpret all statutes in a way that makes sense rather than nonsense." Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 508 (Tenn. 2010) (citations omitted). A court "will not apply a particular interpretation to a statute if that interpretation would yield an absurd result." State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000) (citing State v. Legg, 9 S.W.3d 111, 116 (Tenn. 1999)). If statutes or parts of a statute appear to be in tension, a court will adopt a reasonable construction that avoids statutory conflict and provides for harmonious operation of the law. Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1955). Every word in a statute has meaning and purpose, and each word should be given its full effect, and dictionary definitions may be referenced and relied upon when a word is not defined by the statute. See, e.g., State v. White, 362 S.W.3d 559, 566 (Tenn. 2012); State v. Clark, 355 S.W.3d 590, 593 (Tenn. Crim. App. 2011).

Applying these rules of statutory construction, we must assume that the Legislature used the word "non-structured" intentionally and we must give that word meaning and effect within the context of the statute. The ordinary meaning of "non" is the "absence of," and the ordinary meaning of "structured" is "the quality of being organized." New Oxford American Dictionary, 3rd ed. (2010). Accordingly, the adjective "non-structured" in the context of the statute limits the noun it modifies, "activity," to activity that is not organized activity. Thus, "non-structured physical activity" means physical activity that takes place in the absence of a definite pattern of organization.

An interpretation that reads the statutory definition to allow for organized physical activity as well as physical activity without a pattern of organization effectively and impermissibly reads "non-structured" out of the statute. It fails to give the word "non-structured" any meaning or purpose, ignores the legislative intent, reads the two parts of the statute to result in a conflict, and produces a nonsensical result, namely that a statute requiring non-structured physical activity simultaneously wipes out that requirement. But the two portions of the statute can be read in harmony to avoid that absurd result. The statutory definition of "non-structured physical activity" refers to "a temporary withdrawal or cessation from usual school work." "Usual school work" is commonly understood to mean an organized, structured program of instruction or activity. Thus, a temporary withdrawal or cessation from school work means a break from organized, structured activity, i.e., non-structured activity.

This reading of the statute is buttressed by the distinction Tenn. Code Ann. § 49-6-1021 draws between "non-structured physical activity" and "physical activity." Tennessee Code Annotated § 49-6-1021(a)(3) directs each LEA to integrate for students in grades 7-12 a minimum of 90 minutes of "physical activity" each week. That "physical activity" is not circumscribed by any adjective. Consequently, students in grades 7-12, unlike those in grades K-6, may be directed to engage in structured physical activity.

Finally, it appears from the professional literature that "structured" and "non-structured" physical activities are distinct pedagogical concepts, each thought to advance a different objective. For example, non-structured recess is thought to promote communication, negotiation, problem solving, and social skills, while periods of structured physical activity are thought to enhance physical well-being and to be especially helpful to students combating obesity. Robert Murray & Catherine Ramstetter, The Crucial Role of Recess in School, 131 Am. Acad. of Pediatrics 184-85 (Jan. 2013). It stands to reason that, in light of these different approaches and their perceived goals, the Legislature intended grade K-6 students to engage in physical activity, and thereby to achieve objectives, different from that of grade 7-12 students.

While this Office is not in a position to evaluate the intricacies or actual implementation of each program included in the Department's guidelines, to the extent that a program involves organized, regulated, adult-controlled activity, that program would not constitute "non-structured physical activity." Based solely on a cursory look, it appears that the classroom physical activity breaks recommended by the Department may not all meet the statutory requirement for "non-structured physical activity." For example, Play 60 Classroom Activity Breaks suggests that teachers instruct and lead students in certain coordinated exercises, such as "sit[ting] up straight, keeping their ankles together to do leg lifts by extending their legs to a 180-degree angle for 20 repetitions." See https://www.fueluptoplay60.com/playbooks/current-seasons-playbook/in-class-physical-activity-breaks. GoNoodle likewise appears to be a program of structured, teacher-led or teacher-coached physical activity, some of which may be tied to, or integrated with, core academic instruction (as opposed to a cessation of normal school work). See https://www.gonoodle.com/plus-for-schools/.

In sum, students in grades K-6 should be afforded an opportunity to engage in physical activities that are non-structured, i.e., activities that do not follow a definite pattern of organization. To the extent that the programs suggested by the Department are structured rather than non-structured, they do not satisfy the requirements of Tenn. Code Ann. § 49-6-1021.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JAY BALLARD
Deputy Attorney General

Requested by:
The Honorable Janice Bowling
State Senator
310A War Memorial Building
Nashville, Tennessee 37243