Lessons from Maine’s defeat of pro-PE, anti-obesity legislation

In Praise of Participation, Blog 10

by Lance Tapley
The Anti-Fan Blogger

In mid-June a bill was shot down in the Maine Legislature — after school officials opposed it — that required kindergarten-to-grade-five schoolchildren to participate in at least 30 minutes of daily “physical activity.” The activity could include recess or classroom activities as well as PE class.

The debate over the bill should be instructive for advocates in other states who are considering anti-obesity legislation and to advocates of federal measures to boost kids’ physical fitness (such as the Revolutionary PE proposal promoted in previous blogs in this series).

Passage in Maine of Legislative Document 1160 was a long shot because the state’s Constitution requires a two-thirds majority for bills imposing “unfunded mandates” on municipalities; and because Maine’s veto-prone governor, Republican Paul LePage, is a Tea Party conservative philosophically skeptical of government action and zealous to hold down government spending. The bill’s fiscal memo said the impact on school systems would be “moderate.” No dollar figure was given.

Democratic Senator Rebecca Millett, of South Portland, the Education Committee chairwoman who’s serving her first legislative term, sponsored the bill, “An Act to Reduce Obesity Among Schoolchildren” — the first bill of her legislative career.

A working group of anti-obesity advocates led by the Maine Public Health Association (MPHA) had interested her in sponsoring it. The group includes the American Heart Association’s branch in Maine and the Maine Medical Association.

Millett was approached, says Tina Pettingill, the MPHA director, not only because she was chairwoman of the committee that would hear the legislation, but also because of her “strong reputation” promoting children’s health when she was on the school board in the town of Cape Elizabeth, another suburb of Portland, Maine’s biggest city.

Millett, 50, a consultant to nonprofit organizations, has twin 14-year-olds, her son a skier and her daughter a dancer and field hockey and lacrosse player. She herself exercises by walking outdoors or working out on exercise machines.

The working group had been inspired by the Portland public schools’ progressive wellness policy. LD 1160 incorporated language from the policy, including the 30-minutes-a-day requirement, Pettingill says.

Kids’ and schools’ habits

In an interview, Millet comes across as having the motivation, foremost, of a mom. She says she wants to get kids started “on healthy habits.” She also wants to promote different habits for the schools. An important part of LD 1160, she says, was a provision “not allowing recess to be withheld as punishment” — a longtime schoolteacher practice.

Originally, the bill prohibited another historical practice: food (including, of course, sweets) used as a reward or punishment for a student’s behavior or performance. That prohibition would have applied right up to the twelfth grade.

But when the bill came out of her committee — which was divided on whether it should be passed — an amendment allowed food to be used as reward or punishment “if such use is consistent with the student’s individual education plan.” In a later floor amendment, the reference to food was struck entirely.

“We were not real hip” on the legislative compromises made, Pettingill says. She saw the bill as far from radical. Possibly 60 percent of Maine school systems already require at least 30 minutes a day of activity for kids, she says. Another compromise made was a change of the 30-minutes number to an average instead of a requirement for each day.

The state superintendents’ and principals’ associations told legislators they were concerned about the state putting another burden on schools. In Maine as elsewhere in the country, schools are grappling with tight budgets and increasing emphasis on student test results in core subjects.

Pettingill says she was disappointed that the bill was officially — and, she believes, incorrectly — pegged as an unfunded mandate requiring the two-thirds vote. Schools wouldn’t need to spend more money, just “be creative,” she says, such as have kids run or do jumping jacks in classrooms.

Supporters of LD 1160 at the public hearing included the MPHA, the heart association, doctors’ groups, and the Portland school system. Becky Smith, the state’s heart association lobbyist, drew the committee’s attention to the importance of school physical education, not just physical activity. Although the bill only required activity, it “is not a substitute for quality PE,” the group argued.

In Maine, as in the rest of the country, PE hours decline as kids get older. Smith noted that in Maine “only 38 percent of high school students had PE once or more a week” in 2009, a study showed, and PE time had dropped significantly even from 2007. Thus, “We are headed in the wrong direction.”

In her testimony, Millet pointed out that Maine is a high-obesity state. In 2012 the Trust for America’s Health and the Robert Wood Johnson Foundation predicted, she said, that by 2030 more than half of Maine’s population would be obese.

By then, the state was expected to be first in new cancer and high-blood-pressure patients, second in new heart disease and stroke cases, and third in new diabetes cases. (Another factor in these numbers: Maine has the population with the oldest median age in the country.)

Millett told the committee, “Education is not exclusively how to read, write, add, and subtract,” and the MPHA’s Pettingill provided evidence that reading, writing, and arithmetic could improve with physical activity in the schools: “Students who are physically active and do not engage in unhealthy dietary behaviors receive higher grades.”

The Maine Medical Association supported this “modest” bill as “an important step in the right direction. . . . getting us at least halfway to the 60 minutes per day that physicians and the U.S. Department of Health and Human Services recommend.”

Reflexively against mandates

Officially, the state Department of Education, the Maine Principals’ Association, and the school superintendents’ group testified at the public hearing “neither for nor against” the bill. And they all expressed variations of “the goals of the bill are to be recommended,” as the principals’ testimony stated.

But in reality they were opposed. They complained of “putting yet another mandate on schools,” as the superintendents’ spokesperson said. That argument weighs heavily with legislators, especially Republicans.

The Maine Principals’ Association testimony provided an historical perspective: “At one time elementary schools often had opportunities for students to gain physical activity within a morning recess, at lunch time, and/or an afternoon recess. In some cases this opportunity was expanded to before and after school, depending on bus schedules. Additionally, physical education classes were usually provided multiple days of the week.”

The principals’ statement continued: “As federal and state mandates have added to the curriculum . . . academic time has been increased, usually to the detriment of time for informal or formal exercise. As local school districts have had to cut budgets, elementary physical education has been decreased or even eliminated in some cases.”

The Maine School Boards Association directly opposed the bill: “We believe what is needed more than this mandate is to raise awareness so children make physical exercise part of their day, in and out of school.”

Despite the heavyweight opposition, the Senate voted overwhelming for the bill, a result credited by advocates to Millett’s hard work among her colleagues. In the key vote, 24 of her seatmates were in favor — on a bipartisan basis, Millet said — and 10 senators were opposed, though no formal roll calls were recorded.

While that vote constituted a two-thirds majority in the Senate, the going was much tougher in the House, where the bill was defeated 82 to 62 in the final vote. With exceptions, the vote was Republicans against, Democrats for. Both of Maine’s legislative bodies are controlled by Democrats, but the gap is narrower in the House.

Lessons learned

Next year’s second session of the Maine Legislature is not allowed to take up bills defeated in the first session, and it’s supposed to be largely devoted to “emergency” bills, though in practice that definition has become broad.

Senator Millett says she’s unsure if she will be involved in pressing for a comparable bill in future sessions. But Pettingill says, “We’re going to have to come back with it again” at some point. She plans to continue talking with Millett. Pettingill says she would prefer a more comprehensive bill.

In fact, a stronger bill might garner more enthusiasm among advocates. The heart association’s Becky Smith, who chairs the obesity working group, says that while her organization testified in favor of LD 1160, “in the end we had to withdraw our support” because the bill had been so weakened during the legislative process.

“The Legislature needs to take a stronger stand and require our schools to meet nationally recognized standards for PE” and physical activity, she says.

None of the Maine advocates mentioned the possibility of state funding for more physical education in the schools, a provision that would dispense with the two-thirds-passage requirement. As long as states and the federal government generally see themselves as holding the line on taxes and spending at whatever non-financial cost, special PE appropriations seem remote, at least for the immediate future. (See previous blogs in this series for a discussion of this topic on the federal level.)

The MPHA’s Pettingill was not aware of similar bills considered in other state legislatures, and she believes Maine “would be a leader” if a bill like LD 1160 were to become law. In Washington D.C., Donald Hoppert, the American Public Health Association’s chief lobbyist, says he doesn’t know of comparable legislative efforts in other states.

Reflecting on the Maine legislative battle, Pettingill thinks advocates “still have a ways to go about educating people on the strong link between physical activity and test scores and between physical activity and behavior.” Research shows that physical activity also positively impacts children’s behavior.

Pettingill thinks advocates should “work harder partnering” with superintendents, principals, and others who have misgivings about this kind of bill. In addition, she thought more could be done with public education. News stories are “something we should have worked harder on.”

A rule of thumb in Maine’s State House is that no reform ever gets passed the first time around. The fact that LD 1160 garnered strong, bipartisan support in the Senate in its first appearance is, despite the significant obstacles remaining to passage, a promising sign for the future.

Lance Tapley is a guest blogger for League of Fans and a freelance writer based in Maine.