In a Tennessee K-8 school, who counts as an 'elementary school student' for the 40-minutes-a-day physical activity rule, and can a school take recess away as punishment?

Plain-English summary

Tennessee Attorney General Jonathan Skrmetti answered three questions from State Representative Clay Doggett about how Tenn. Code Ann. § 49-6-1021, the public-school physical activity statute, applies to K-8 schools and to school discipline.

The statute requires LEAs to integrate physical activity into the school day at two different levels: 40 minutes per full school day for elementary school students, and 90 minutes per full school week for middle and high school students. The catch is that "elementary school" is not defined in § 49-6-1021 itself. The AG concluded that a court would borrow the definitional framework from Tenn. Code Ann. § 49-6-301, which defines "elementary schools" as schools serving any combination of K-6 and "middle schools" as those serving grades 5-8.

For a K-8 school, that means:
- K-4 students are clearly "elementary school students," entitled to 40 minutes of daily physical activity.
- Fifth-grade students sit in the overlap: they can be classified as elementary or middle, depending on how the local school board characterizes them. The choice is the local board's.
- Sixth through eighth graders fall on the middle school side of the line.

On discipline, the AG was unequivocal: a school may not withhold unstructured recess as punishment, and may not replace it with a "disciplinary walking activity." The statute itself explicitly bars withholding physical activity as a form of punishment, and the elementary requirement specifically calls for "unstructured play outside" unless weather prevents it. Replacing free play with structured discipline-walking does not satisfy the statute and runs afoul of the no-punishment rule.

What this means for you

If you are a Tennessee principal or elementary teacher

Recess is not a privilege you can pull when a student misbehaves. State law treats unstructured outdoor play as a curricular requirement, and § 49-6-1021(b)(2)(B) forbids withholding physical activity as punishment. If you have policies that take recess away for behavior issues, or substitute "walking laps" for free play, those policies need to change. Find another consequence, and document that you are providing the daily 40 minutes of physical activity (which must include unstructured outdoor play unless weather makes it unsafe).

If you are a parent of a Tennessee K-8 student

Your child in grades K-4 has a clear right to 40 minutes of daily physical activity, including unstructured outdoor play. If the school is taking recess away from your child as punishment, the practice violates state law. Raise it with the principal, the LEA's central office, and (if needed) the school board. For a fifth grader in a K-8 school, the school board's classification decides whether the daily 40-minute floor or the weekly 90-minute floor applies. Ask the LEA in writing how it has classified fifth grade in your child's school.

If you serve on a Tennessee school board for a district with K-8 schools

You have a real decision to make. Section 49-6-301 lets you classify fifth grade either as elementary (K-6) or middle (5-8). The classification controls your district's obligation under § 49-6-1021. Make the decision deliberately, document it, and apply it consistently across schools. Don't leave individual principals to guess.

If you are a school district policy lawyer

The opinion confirms two practical points. First, an LEA's discretion to classify fifth grade in a K-8 school is real but bounded: K-4 must be elementary, 6-8 must be middle. Second, the no-punishment rule in § 49-6-1021(b)(2)(B) applies only to elementary school students by its own terms, but the unstructured outdoor play requirement also applies only to elementary school students. Middle and high school students do not have those protections, but they do have the 90-minute-weekly minimum. Districts that conflate the two regimes risk under-providing for elementary students and over-promising at the secondary level.

Common questions

Q: How much physical activity does Tennessee law require for elementary school students?
A: Forty minutes per full school day, under Tenn. Code Ann. § 49-6-1021(a)(1).

Q: How much for middle and high school students?
A: Ninety minutes per full school week, under Tenn. Code Ann. § 49-6-1021(a)(2).

Q: Is fifth grade automatically "elementary" in a K-8 school?
A: No. The local school board decides. Fifth grade falls within both definitions in Tenn. Code Ann. § 49-6-301 (K-6 elementary, 5-8 middle), so the LEA's classification controls.

Q: Can a Tennessee elementary school take away recess as punishment?
A: No. Tenn. Code Ann. § 49-6-1021(b)(2)(B) prohibits withholding physical activity as a form of punishment for elementary school students.

Q: Can the school replace recess with structured walking laps as a discipline measure?
A: Not for elementary students, and not in a way that takes away the unstructured outdoor play the statute requires. The elementary requirement is specifically for "unstructured play outside" unless weather prevents it.

Q: Does the no-punishment rule apply to middle and high school students?
A: Not under § 49-6-1021. The provisions in § 49-6-1021(b)(2)(A) (unstructured outdoor play) and (b)(2)(B) (no withholding as punishment) apply only to elementary school students.

Q: What counts as "physical activity" under the statute?
A: Section 49-6-1021(b)(1) gives examples: walking, jumping rope, playing volleyball, or other forms of physical activity that promote fitness and well-being. For elementary students it must include unstructured outdoor play unless weather negatively impacts the ability to do so.

Background and statutory framework

Tennessee enacted physical activity requirements for public schools and amended them several times over the past decade. A 2016 enactment imposed requirements based on grade level. A 2017 amendment shifted to "elementary," "middle," and "high" school classifications. According to legislative history quoted in the opinion, lawmakers made that shift partly because Tennessee schools have varied compositions, with some K-5, some K-6, and some K-8 buildings, and the grade-level framework was not flexible enough.

Section 49-6-301 carries the operative definitions. "Elementary schools" are those that serve any combination of kindergarten through grade six. "Middle schools" are those designed to serve grades five through eight, or any combination within five-through-eight. Fifth grade overlaps. Section 49-6-301(a) also notes that for federal funding purposes, "elementary schools" extend down to pre-kindergarten through grade six.

The AG's analysis applies the standard Tennessee canon that statutes addressing the same subject (here, both regulating public education) should be read together. Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn. 1997). The "harmonious operation of the laws" canon does the work of importing § 49-6-301 definitions into § 49-6-1021. Falls v. Goins, 673 S.W.3d 173, 181 (Tenn. 2023), gives courts "rather broad discretion" in deciding whether two statutes share enough subject matter to be read together.

The opinion also flags an earlier framework: before a 2012 amendment redefined "elementary schools," that term covered K-8. Districts that retained K-8 building configurations as a holdover from that era now sit at the seam of the current definitional split.

Citations and references

Statutes:
- Tenn. Code Ann. § 49-6-1021 (physical-activity requirements)
- Tenn. Code Ann. § 49-6-301 (definitions of elementary and middle schools)

Cases:
- Carver v. Citizen Utils. Co., 954 S.W.2d 34 (Tenn. 1997) (harmonious construction)
- Falls v. Goins, 673 S.W.3d 173 (Tenn. 2023) (broad discretion to read related statutes together)

Other:
- Tennessee State Board of Education "Middle Grades Policy" No. 2.102 (treating grades 5-8 as middle grades, or any combination as determined by the local school board)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2026/op26-03.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
March 10, 2026
Opinion No. 26-003
Interpretation of the Physical-Activity Requirements from Tenn. Code Ann. § 49-6-1021
Question 1
Does the term "elementary school students" in Tenn. Code Ann. § 49-6-1021 include
students in grades K-5 when those grades are housed within the same building, even if the building
also hosts higher grade levels such as in a K-8 school?
Opinion 1
It depends. Although Tenn. Code Ann. § 49-6-1021 does not define what constitutes an
elementary school student for purposes of its substantive requirements, we think a court facing this
issue would likely rely on the definitional framework within Tenn. Code. Ann. § 49-6-301. Under
that statute, "elementary schools" serve "any combination of kindergarten through grade six,"
Tenn. Code Ann. § 49-6-301(a), whereas "middle schools" are "designed to serve grades five
through eight (5-8) only, or any combination of grades five through eight." Tenn. Code Ann. §
49-6-301(b). When applying these definitional concepts to the context of a K-8 school, we think
students in grades K-4 would clearly be considered elementary school students, whereas the
classification of fifth-grade students would depend on how the local school board classified them.
Thus, although fifth-grade students in a K-8 school might be considered elementary school
students for purposes of Tenn. Code Ann. § 49-6-1021 in certain situations, we do not think that
conclusion is always mandated absent further direction from the General Assembly.
Question 2
For purposes of compliance with Tenn. Code Ann. § 49-6-1021, how should "elementary
school" be defined or determined?
Opinion 2
See response to Question 1.
Question 3
With respect to the physical-activity requirements for elementary school students in Tenn.
Code Ann. § 49-6-1021, may a school withhold unstructured recess as punishment or replace it
with a disciplinary walking activity?
Under Tenn. Code Ann. § 49-6-1021, the General Assembly has mandated that each local
education agency ("LEA") integrate "physical activity" requirements into public education. For
"elementary school students," each LEA is required to integrate "a minimum of forty (40) minutes
of physical activity per full school day." Tenn. Code Ann. § 49-6-1021(a)(1). But for "middle
and high school students," the statute mandates only "a minimum of ninety (90) minutes of
physical activity per full school week." Tenn. Code Ann. § 49-6-1021(a)(2).
1-2. The first two questions seek guidance on the meaning of "elementary school" under
Tenn. Code Ann. § 49-6-1021, including how students in grades K-5 should be classified when
they are housed in a building that also hosts higher grade levels, such as in a K-8 school.
As to the broader issue of how "elementary school" should be understood in this context,
the text of Tenn. Code Ann. § 49-6-1021 does not itself provide an answer. The statute simply
indicates that an LEA's responsibility toward elementary school students differs from its
obligation to middle and high school students; it does not directly define what constitutes an
elementary school student. In another portion of Title 49, however, the General Assembly has
provided that "elementary schools" are schools that serve "any combination of kindergarten
schools" as schools "designed to serve grades five through eight (5-8) only, or any combination of
grades five through eight." Tenn. Code Ann. § 49-6-301(b). In our view, a court interpreting
Tenn. Code Ann. § 49-6-1021 would likely rely on this definitional framework from Tenn. Code
Ann. § 49-6-301 to guide its analysis. After all, to provide for a harmonious operation of the laws,
courts will construe statutes relating to the same subject or sharing a common purpose together.
Carver V. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn. 1997). And here, Tenn. Code Ann. §§ 49-
6-301 and -1021 both concern the regulation of public education. See generally Falls v. Goins,
673 S.W.3d 173, 181 (Tenn. 2023) (noting that courts have "rather broad discretion" in
determining what is required for statutes to relate to the same subject matter).
The flexibility of the term "elementary schools" under Tenn. Code Ann. § 49-6-301 is
consistent with the legislative history associated with Tenn. Code Ann. § 49-6-1021 as it relates to
grade level composition. Namely, although the General Assembly had acted in 2016 to impose
requirements under Tenn. Code Ann. § 49-6-1021 based on grade level, see 2016 Tenn. Pub. Acts,
ch. 669, the shift to the present-day "elementary," "middle," and "high" school classifications the
following year, see 2017 Tenn. Pub. Acts, ch. 99, appears to have been animated by the lack of
uniformity in school composition. As one legislator noted on this subject, some schools have K-
6 grades, some have K-5, and some middle schools "go down to fifth grade." House Subcomm.
on Educ. Instruction & Programs, 110th Gen. Assem. (Feb. 15, 2017) (statements of Rep. Kane).
1 The same provision also provides that, "[f]or purposes of federal funding," elementary schools are "schools serving
any combination of pre-kindergarten through grade six." Tenn. Code Ann. § 49-6-301(a).
2
Opinion 3
No.
ANALYSIS
Under Tenn. Code Ann. § 49-6-1021, the General Assembly has mandated that each local
education agency ("LEA") integrate "physical activity" requirements into public education. For
"elementary school students," each LEA is required to integrate "a minimum of forty (40) minutes
of physical activity per full school day." Tenn. Code Ann. § 49-6-1021(a)(1). But for "middle
and high school students," the statute mandates only "a minimum of ninety (90) minutes of
physical activity per full school week." Tenn. Code Ann. § 49-6-1021(a)(2).
1-2. The first two questions seek guidance on the meaning of "elementary school" under
Tenn. Code Ann. § 49-6-1021, including how students in grades K-5 should be classified when
they are housed in a building that also hosts higher grade levels, such as in a K-8 school.
As to the broader issue of how "elementary school" should be understood in this context,
the text of Tenn. Code Ann. § 49-6-1021 does not itself provide an answer. The statute simply
indicates that an LEA's responsibility toward elementary school students differs from its
obligation to middle and high school students; it does not directly define what constitutes an
elementary school student. In another portion of Title 49, however, the General Assembly has
provided that "elementary schools" are schools that serve "any combination of kindergarten
through grade six." Tenn. Code Ann. § 49-6-301(a).1
And in turn, it has further defined "middle
schools" as schools "designed to serve grades five through eight (5-8) only, or any combination of
grades five through eight." Tenn. Code Ann. § 49-6-301(b). In our view, a court interpreting
Tenn. Code Ann. § 49-6-1021 would likely rely on this definitional framework from Tenn. Code
Ann. § 49-6-301 to guide its analysis. After all, to provide for a harmonious operation of the laws,
courts will construe statutes relating to the same subject or sharing a common purpose together.
Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn. 1997). And here, Tenn. Code Ann. §§ 49-
6-301 and -1021 both concern the regulation of public education. See generally Falls v. Goins,
673 S.W.3d 173, 181 (Tenn. 2023) (noting that courts have "rather broad discretion" in
determining what is required for statutes to relate to the same subject matter).
The flexibility of the term "elementary schools" under Tenn. Code Ann. § 49-6-301 is
consistent with the legislative history associated with Tenn. Code Ann. § 49-6-1021 as it relates to
grade level composition. Namely, although the General Assembly had acted in 2016 to impose
requirements under Tenn. Code Ann. § 49-6-1021 based on grade level, see 2016 Tenn. Pub. Acts,
ch. 669, the shift to the present-day "elementary," "middle," and "high" school classifications the
following year, see 2017 Tenn. Pub. Acts, ch. 99, appears to have been animated by the lack of
uniformity in school composition. As one legislator noted on this subject, some schools have K-
6 grades, some have K-5, and some middle schools "go down to fifth grade." House Subcomm.
on Educ. Instruction & Programs, 110th Gen. Assem. (Feb. 15, 2017) (statements of Rep. Kane).
1
The same provision also provides that, "[f]or purposes of federal funding," elementary schools are "schools serving
any combination of pre-kindergarten through grade six." Tenn. Code Ann. § 49-6-301(a).
The same representative stated that the General Assembly "probably should've caught this last
year," and in reference to the 2017 proposal, he indicated that whether a fifth-grade class is in a
further added, "Most middle schools don't have playground areas. It's not designed for that." Id.
To be sure, these direct remarks appeared to contemplate that a given school's grade
composition could lend itself to a single characterization for the school at large: that is, all grades
in a school could be considered "elementary" or all grades could be considered "middle." And the
operation of a K-8 school presents a different wrinkle when juxtaposed against the framework of
"elementary school student" for purposes of Tenn. Code Ann. § 49-6-1021 is not, at least in all
And although a K-8 school, as an entity, escapes singular characterization as an
"elementary" or "middle" school when measured against Tenn. Code Ann. § 49-6-301's
definitions, we still think a court would rely on those definitional concepts in determining who is
an "elementary school student" within a K-8 school for purposes of Tenn. Code Ann. § 49-6-
1021's requirements. Mapping those concepts onto the context of a K-8 school in relation to the
specific question raised, then, we think students in grades K-4 would clearly be considered
elementary school students. But for fifth-grade students in a K-8 school, we think their
classification status under Tenn. Code Ann. § 49-6-1021 would ultimately depend on how the local
either be in "elementary" or "middle" school. See Tenn. Code Ann. § 49-6-301. And so, while
fifth-grade students in a K-8 school might be considered elementary school students for purposes
of Tenn. Code Ann. § 49-6-1021, we do not think that conclusion is always mandated absent
3. In view of the physical-activity requirements pertaining to elementary school students
contained in Tenn. Code Ann. § 49-6-1021, the request's final question asks whether a school may
Under the statute, physical activity "may include walking, jumping rope, playing
volleyball, or other forms of physical activity that promote fitness and well-being." Tenn. Code
Ann. § 49-6-1021(b)(1). The statute contains several qualifications pertaining to what is necessary
to satisfy the physical-activity requirements for elementary school students. Among other things,
physical activity for these students "[m]ust include unstructured play outside, unless weather
conditions negatively impact reasonable execution of physical activity outside." Tenn. Code Ann.
2 Although not all the grades in a K-8 school cleanly fit within the concept of an "elementary school" as currently
defined in Tenn. Code Ann. § 49-6-301, this has not always been the case. In fact, before a 2012 legislative amendment
redefined the meaning of "elementary schools," see 2012 Tenn. Pub. Acts, ch. 551, "elementary schools" were
understood to serve any combination of kindergarten through grade eight.
3 In connection with our thought on this, we note that the Tennessee State Board of Education's "Middle Grades
Policy," No. 2.102, states that middle grades "include grades five through eight (5-8) or any combination of grades
five through eight (5-8) as determined by the local school board."
3
The same representative stated that the General Assembly "probably should've caught this last
year," and in reference to the 2017 proposal, he indicated that whether a fifth-grade class is in a
middle or elementary school will affect statutory obligations. Id. (statements of Rep. Kane). He
further added, "Most middle schools don't have playground areas. It's not designed for that." Id.
(statement of Rep. Kane).
To be sure, these direct remarks appeared to contemplate that a given school's grade
composition could lend itself to a single characterization for the school at large: that is, all grades
in a school could be considered "elementary" or all grades could be considered "middle." And the
operation of a K-8 school presents a different wrinkle when juxtaposed against the framework of
Tenn. Code Ann. § 49-6-301.2
Still, these remarks reveal an intent that the identity of an
"elementary school student" for purposes of Tenn. Code Ann. § 49-6-1021 is not, at least in all
instances, to be rigidly determined by grade level alone.
And although a K-8 school, as an entity, escapes singular characterization as an
"elementary" or "middle" school when measured against Tenn. Code Ann. § 49-6-301's
definitions, we still think a court would rely on those definitional concepts in determining who is
an "elementary school student" within a K-8 school for purposes of Tenn. Code Ann. § 49-6-
1021's requirements. Mapping those concepts onto the context of a K-8 school in relation to the
specific question raised, then, we think students in grades K-4 would clearly be considered
elementary school students. But for fifth-grade students in a K-8 school, we think their
classification status under Tenn. Code Ann. § 49-6-1021 would ultimately depend on how the local
school board classified them.3
After all, Tennessee law recognizes that a fifth-grade student can
either be in "elementary" or "middle" school. See Tenn. Code Ann. § 49-6-301. And so, while
fifth-grade students in a K-8 school might be considered elementary school students for purposes
of Tenn. Code Ann. § 49-6-1021, we do not think that conclusion is always mandated absent
further direction from the General Assembly.
3. In view of the physical-activity requirements pertaining to elementary school students
contained in Tenn. Code Ann. § 49-6-1021, the request's final question asks whether a school may
withhold unstructured recess as punishment or replace it with a disciplinary walking activity. Put
simply, it may not.
Under the statute, physical activity "may include walking, jumping rope, playing
volleyball, or other forms of physical activity that promote fitness and well-being." Tenn. Code
Ann. § 49-6-1021(b)(1). The statute contains several qualifications pertaining to what is necessary
to satisfy the physical-activity requirements for elementary school students. Among other things,
physical activity for these students "[m]ust include unstructured play outside, unless weather
conditions negatively impact reasonable execution of physical activity outside." Tenn. Code Ann.
2
Although not all the grades in a K-8 school cleanly fit within the concept of an "elementary school" as currently
defined in Tenn. Code Ann. § 49-6-301, this has not always been the case. In fact, before a 2012 legislative amendment
redefined the meaning of "elementary schools," see 2012 Tenn. Pub. Acts, ch. 551, "elementary schools" were
understood to serve any combination of kindergarten through grade eight.
3
In connection with our thought on this, we note that the Tennessee State Board of Education's "Middle Grades
Policy," No. 2.102, states that middle grades "include grades five through eight (5-8) or any combination of grades
five through eight (5-8) as determined by the local school board."
§ 49-6-1021(b)(2)(A). And of further relevance here, the statute specifically states that these
students "shall not be withheld from participating in physical activity as a form of punishment."
Tenn. Code Ann. § 49-6-1021(b)(2)(B). This latter prohibition alone would clearly be violated if
unstructured play for elementary school students was withheld as punishment or otherwise
redirected into disciplinary walking activity. And with that understanding in view, we are
425 Rep. John Lewis Way North
4 As we understand it, the request's final question is narrowly interested in the use of discipline with respect to
elementary school students. But to the extent the question's focus is in fact broader, we note for the sake of
completeness that the "unstructured play outside" requirement of Tenn. Code Ann. § 49-6-1021(b)(2)(A) does not
apply to middle and high school students. Nor does the prohibition in Tenn. Code Ann. § 49-6-1021(b)(2)(B).
4
§ 49-6-1021(b)(2)(A). And of further relevance here, the statute specifically states that these
students "shall not be withheld from participating in physical activity as a form of punishment."
Tenn. Code Ann. § 49-6-1021(b)(2)(B). This latter prohibition alone would clearly be violated if
unstructured play for elementary school students was withheld as punishment or otherwise
redirected into disciplinary walking activity. And with that understanding in view, we are
compelled to answer the question posed in the negative.4
JONATHAN SKRMETTI
Attorney General and Reporter
JAMES P. URBAN
Senior Deputy Attorney General
MATTHEW KERNODLE
Assistant Attorney General
Requested by:
The Honorable Clay Doggett
State Representative
425 Rep. John Lewis Way North
Nashville, Tennessee 37243