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“M” Is For “Mandatory Recess”
August 28, 2018
“M” Is For “Mandatory Recess”

*UPDATE: On September 10, 2018, the Department of Education sent a guidance document to all school districts regarding the recently enacted mandatory recess law that we discussed below. While all other provisions of the law remain the same, even though the actual language of the law states that it “shall take effect immediately," the Office of the Attorney General has provided an opinion that the law does not go into effect until the 2019-2020 school year:

For many kids, recess and lunch often top the list of their favorite classes of the day. Disappointed faces and groans can be heard almost any time that recess is cancelled or shortened.

Those kids may now have something to cheer for -- with Governor Murphy’s recent signing of S.847, school districts are required to provide a daily recess period to all students in kindergarten through fifth grade.

The daily recess period must be, at a minimum, twenty minutes long and must be held outdoors “if feasible.” The recess period does not count towards the district’s obligation to provide the health, safety and physical education courses required by N.J.S.A. 18A:35-5; however, recess doesn’t have to be provided on school days that are “substantially shortened” by a delayed opening or early dismissal.

Most districts are already providing daily recess periods, so the new law probably will not dramatically affect their operations. But for educators who have viewed the denial of recess as a relatively minimal, but still effective, disciplinary tool, that tool will no longer be as widely available.

Under the new mandatory recess law, students may not be denied recess for any reason “except as a consequence of a violation of the district’s code of student conduct, including a harassment,   intimidation, or bullying investigation.”

Districts should keep in mind that students cannot be denied recess for disciplinary reasons more than twice in one week, and those students must be provided with restorative justice activities during the recess period.

“Restorative justice activities” is defined by the act to mean “activities designed to improve the socioemotional and behavioral responses of students through the use of more appropriate, and less punitive, interventions thereby establishing a more supportive and inclusive school culture.”

However, districts can deny recess to students on the advice of a medical professional and/or the school nurse, or based upon provisions in a disabled student’s 504 plan. The mandatory recess law does not require those students to be provided with restorative justice activities.

In light of this recent law, which begins with the start of the 2018-2019 school year*, public school districts should take care that staff is not denying recess to students for conduct that doesn’t constitute a violation of the student code of conduct. School administrators may also want to review what happens with students who are denied recess, to ensure that those students are being provided with restorative justice activities (instead of, say, merely sitting in the lunchroom and staring longingly at their friends outside). You may want to review your district’s disciplinary policy and process to include the denial of recess as among the disciplinary remedies that can be imposed.

There are no provisions in the mandatory recess law that specifically provide for a parental remedy, should a district fail to provide the required daily recess period and/or fail to meet the disciplinary requirements -- but in an increasingly litigious environment, school districts would be well advised to take certain precautions and perhaps also consult with their board attorneys.

For more information and guidance on this topic, please contact the attorneys in Parker McCay’s Public Schools and Education Department.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.

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