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6
Using the Law to Increase
Physical Activity
Key Presenter Messages
• Policy options that can increase physical activity among chil-
dren include comprehensive plans with health-related compo-
nents, “complete” streets, safe routes to school, and joint-use
agreements.
• Local governments have the authority to, and are expected
to, intervene rationally in constituents’ lives to protect their
health, safety, and welfare, especially in the context of public
health problems.
• Racial and ethnic disparities in obesity rates raise the possibil-
ity of using civil rights law to overcome these disparities.
• Civil rights arguments have helped create parks and playing
fields, expand physical education, and foster more equitable
transportation systems.
Two speakers at the workshop considered how legal approaches could
be used to help increase physical activity among children and adolescents.
One strategy is to use legal and policy tools to affect state and local laws,
regulations, and agreements; for example, land use, transportation, and
education policies all can influence physical activity. Another strategy is to
41
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42 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION
use civil rights law to promote the construction of parks and playgrounds
and enforce physical education standards in schools.
LEGAL APPROACHES TO INCREASE PHYSICAL
ACTIVITY IN COMMUNITIES
Public Health Law and Policy is a nonprofit organization that works to
improve community health by building the capacity of public health leaders
to use legal and policy tools in their everyday practice. The organization
consists of a multidisciplinary team of lawyers, urban planners, and policy
analysts, many of whom also have advanced training in public health. “We
are very much a behind-the-scenes group, doing legal analysis and policy
development,” said Marice Ashe, the organization’s executive director. “We
then train local leaders, whether they are public health leaders, elected offi-
cials, or municipal attorneys, so that they can take these materials and adapt
them to the best use in their communities.”
Ashe focused on the organization’s work on physical activity, although it
also addresses many other topics. Increasing the amount of physical activity
among children is a complex and difficult task, she said. It depends on such
varied policy dimensions as land use zoning, transportation planning, and
educational initiatives. For example, the zoning of local communities has a
marked influence on the foods that are available to residents. Research shows
that low-income communities have four times more access to unhealthy than
to healthy food options. Food outlets that lack access to fresh foods such
as fruits and vegetables are abundant in low-income communities and com-
munities of color, said Ashe, where the childhood obesity epidemic is most
prevalent.
Transportation offerings also can influence health. Investing in freeways
rather than biking and walking trails and mass transit is likely to contribute
significantly to obesity. These are political decisions that are made at the
highest levels of government and flow down to the regional and local levels,
said Ashe.
Finally, the use of public spaces can have an influence on health. For
example, in many communities, playgrounds are locked up once school
ends, even though playgrounds often are the safest place to play in those
communities. Ashe argued that these are public resources that school officials
have decided to close off to community use, and this is a situation that can
be changed. Already, said Ashe, more than half of children do not meet the
national standard of 60 minutes of moderate to vigorous physical activity per
day, and a growing body of evidence indicates that this lack of physical activ-
ity affects cognition and academic performance as well as obesity. Schools
have instituted standards for academic performance, but many have dropped
recess and provide much less physical education so they can devote more
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USING THE LAW TO INCREASE PHYSICAL ACTIVITY
time to reading and other academic pursuits. Yet children need to engage in
physical activity to focus in the classroom, Ashe said.
State and local governments have the authority to create policy through
what is called “police power.” This power does not refer to police officers
or traditional law enforcement, but to the authorities given state and local
governments to protect the health, safety, and welfare of the community. The
police power allows governments to regulate private rights as necessary and
constitutional to promote and protect the public interest. A classic use of
police power is a regulation that permits the government to quarantine an
individual with an infectious disease to keep that person from infecting oth-
ers. Such laws can create a tension that needs to be balanced between the
rights of individuals and the public good, said Ashe. Other examples of the
police power in the context of chronic disease prevention include banning
cigarette giveaways near schools, creating farmers’ markets through zoning
provisions, and instituting menu labeling requirements.
As broad as police power is to protect the public health, it is subject to
constitutional limits. First, laws cannot be arbitrary and oppressive; rather,
they must be rationally related to the public health protections they seek
to effect. Further, they must be reasonably designed to correct a condition
adversely affecting the public health. Finally, they cannot violate state and
federal constitutions. Ashe discussed four local strategies based on police
power designed to increase physical activity in communities: comprehensive
plans, “complete” streets, safe routes to school, and joint-use agreements.
Comprehensive Plans
Comprehensive plans are land use planning tools that serve as the
blueprint for future development, laying out how land can be used. They
are broadly stated, long-term policy guides for the physical, economic, and
environmental use of an area. These plans can be powerful, said Ashe,
because changes to the use of land must comply with them. However, they
do not necessarily change current uses. Instead, licenses may not be renewed
over a long term, or a business may not be able to expand or change hands.
Because the current uses of land have taken a long time to develop, changes
in those uses also will take a long time. The comprehensive plan is the start-
ing point for change, said Ashe.
In California, for example, comprehensive plans traditionally have
been required to include a “health and safety element.” Ironically, that
element has had nothing to do with public health outcomes under the pur-
view of a local health department, but rather involved the deployment of
police, fire, and ambulance services. Within the past decade, local health
departments have been becoming involved in the writing of comprehensive
plans and have been inserting outcomes related to the prevention of com-
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44 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION
municable and chronic diseases, as well as access to medical care. These
health-oriented concepts provide a foundation for later policies, plans,
and implementation strategies. For example, if access to fresh fruits and
vegetables is an outcome sought by a local health department, the com-
prehensive plan can promote this goal by setting standards for commercial
retail establishments, community gardens, and farmers’ markets in or near
residential centers.
Ashe emphasized the importance of using specific, quantifiable terms
when crafting language for comprehensive plans intended to improve health.
An example of language that could be incorporated into a plan is: “Promote
opportunities for regular physical activity by locating residential develop-
ments near services.” An even better example, said Ashe, would be: “Set
a walkability standard (for example, ¼ to ½ mile) for residents’ access to
daily retail needs and nearest transit stops.” Another example is: “Encour-
age the development of community gardens to increase residents’ access
to healthy foods.” Excellent language that has been incorporated into the
planning of Seattle is: “Establish one community garden for every 2,500
households in an urban village and urban center.”
Strong health-oriented elements of a comprehensive plan reflect a com-
munity vision, are based on locally relevant health data, can be implemented,
provide a means of gauging the success of the policy, and make progress
toward eliminating health disparities. With regard to implementation, for
example, Ashe cited physical education standards in California, which spec-
ify how much physical education should occur in schools each day at the
elementary, middle, and high school levels. But because the standards are not
enforced, more than half of schools ignore them without consequence.
Complete Streets
A “complete” street is a street that is safe, comfortable, and convenient
for all users—pedestrians, bicyclists, public transportation riders, people
with disabilities, and people of all ages. It includes such features as traffic
calming devices, the use of mass transit as well as cars, curb cuts for elderly
and disabled pedestrians, and mixed-use development. “You can contrast this
with your typical strip mall, [which has] no sidewalks and no housing. You
have to drive to get there, and it is a visual nightmare, and a public health
nightmare, too,” said Ashe.
The complete streets approach is flexible and forward looking. No one
solution fits all communities, and not all streets need to look the same to
meet the needs of their users. New communities can be designed using this
approach from the beginning, but most communities are already in place
and must be retrofitted to make them more bikeable, walkable, accessible,
and useful for mass transportation.
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USING THE LAW TO INCREASE PHYSICAL ACTIVITY
Many local factors must be considered in moving toward complete
streets, which is why communities need technical assistance and why top-
down, federal edicts are insufficient. As an example, Ashe noted that fire
departments want streets wide enough to turn ladder trucks around, but
wide streets are not as safe, as bikeable, or as walkable as narrower streets.
Funds spent on transportation, economic development, and community
redevelopment all have an influence on street design. Ashe emphasized that
land use decisions are essentially local, and “local land use decisions are
some of the most controversial . . . decisions [made in] local communities.”
Safe Routes to Schools
The Safe Routes to School program, created in 2005 as part of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act, enables and
encourages children, including those with disabilities, to walk and bike to
school, thereby promoting an active and healthy lifestyle from an early age.
It is a myth, said Ashe, that walking or biking to school is dangerous. The
reality is that children are much more likely to be injured or killed when rid-
ing in a car than when walking. It also is a myth that schools are responsible
for students from the door of their home to the door of their school. The
reality is that districts generally are not responsible for this travel, although
they may have authority over misbehavior on the route to and from school.
It is the job of parents and the community to make it safe for students to
walk or bike to school.
In the case of the Safe Routes to School program, there is no known
case of a school having been sued. Under federal law, the Volunteer Protec-
tion Act, which applies in all states other than New Hampshire, protects
volunteers from liability in activities involved in walking or taking the bus
to school, and some states go further. The idea of the Safe Routes to School
program is to identify and mitigate risks. “If you behave reasonably, you
do volunteer training, you mitigate the known risks, which are the essence
of a Safe Routes to School program, then the liability is extremely low,”
said Ashe.
Joint-Use Agreements
A joint-use agreement is a legally binding contract between two entities
laying out the terms and conditions for shared use of public property or
facilities. The concept applies much more broadly than just to schools. For
example, the Civic Center Act in California encourages any government
resource to be used for multiple purposes. Cities benefit through increased
recreational capacity, the potential for more programming, and community
cohesion, while facilities benefit by sharing costs of maintenance, security,
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46 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION
wear and tear, repairs, and improvements. Shared use represents smart
government in an era of dwindling fiscal resources, said Ashe.
There are many types of joint-use agreements. Applied to schools, they
may simply open up playgrounds for people to use. They may also allow
boys and girls clubs, YMCAs, sports leagues, ballet classes, and the like
to use school facilities. Costs are shared by the community, the parks and
recreation department, or an appropriate entity.
The greatest institutional barrier to the joint use of schools is the fear
of liability, but as with the Safe Routes to School program, the liability risks
are greatly exaggerated, said Ashe. “Fear of liability ought not to be an
issue [for] anything that we are talking about, but it comes up repeatedly
. . . as a major barrier to increasing physical activity.” Based on a 50-state
analysis done by Public Health Law and Policy, the risk of tort liability is
no greater for after-school use of school facilities than during the school
day. There are limits on the amount of damages that school districts and
other governments can pay. Furthermore, schools can minimize risks by
identifying and mitigating them—sharing the liability risks when possible,
understanding the government immunity statutes, and recognizing the vol-
unteer protection statutes that exist in almost every state.
PHYSICAL ACTIVITY AS A CIVIL RIGHTS ISSUE
The Civil Rights Act of 1964 and its regulations prohibited intentional
discrimination and discriminatory impacts based on race, color, or national
origin and guaranteed equal access to public resources funded with tax-
payers’ dollars. Yet the obesity epidemic exhibits clear racial and ethnic
disparities, said Robert Garcia, executive director and counsel of The City
Project in Los Angeles. For Latino males aged 6 to 19, the obesity level is
27 percent, compared with 18 percent for non-Hispanic males. For black
females aged 6 to 19, it is 26 percent, compared with 16 percent for non-
Hispanic white females. “As civil rights attorneys, we live, eat, and breathe
equal justice,” said Garcia. “When we see disparities like that, we right
away start investigating why those racial disparities and ethnic disparities
[are] there, and how [to] overcome them.”
One reason these disparities exist is because children of color and
low-income children often have no place to play in schools and parks. In
a survey called A Child’s Day, the Census Bureau found that 87 percent
of non-Hispanics feel that there are safe places for children to play in
their neighborhoods, compared with only 68 percent of Hispanics. Garcia
explained that in inner-city areas, 48 percent of Hispanics under 18 are
kept inside as much as possible because there is no safe place to play in
their neighborhood, compared with just 25 percent of non-Hispanic white
children. Non-Hispanic white children also are most likely to take part in
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USING THE LAW TO INCREASE PHYSICAL ACTIVITY
sports after school, while Hispanic children and children in poverty are
least likely to do so.
Through its work in parks and schools, the goal of The City Project
is to help students move more, eat well, stay healthy, and do their best in
school and in life. One way the project pursues this goal in schools is by
advocating for playing fields. Before 2005, no new high school had been
built in Los Angeles in 30 years. Since then, billions of dollars have gone
toward school construction and modernization, yet the lack of enforce-
ment of physical education requirements has constrained the installation
of playing fields in those schools. Los Angeles law requires 20 minutes of
physical education per day on average in elementary school and 40 minutes
per day in middle and high school. Yet without enforcement of those laws,
many new schools are being built without playing fields. At the same time,
children of color living in poverty with no access to a car have the worst
access to parks and the worst access to schools with five acres or more of
playing fields among all children in California, and they suffer from the
highest levels of childhood obesity. “That is a civil rights violation, pure
and simple,” said Garcia.
To address this issue, The City Project has worked with teachers,
students, and parents to emphasize the importance of physical education.
It filed an administrative complaint with the Los Angeles Unified Schools
District, a procedure that is not litigation but a way of informing schools
that a problem exists and needs to be fixed. The project helped pass a
school board resolution requiring the school district to enforce both physi-
cal education and civil rights laws because of unfair disparities based on
race, color, and national origin. Garcia further explained how the project
worked with school officials to develop an implementation plan with the
district to enforce these laws. The project is now monitoring compliance
and evaluating the success of that campaign.
With regard to parks, The City Project, working with the Green Info
Network, has mapped the entire state of California at the census tract level
for areas that are park poor, income poor, and disproportionately populated
by people of color. The bottom line, said Garcia, is that there are virtually
no parks where low-income people of color live, and where there are parks
there are virtually no low-income people of color.
The City Project believes there is a civil rights solution to this dispar-
ity. The project worked on state legislation that defines “park poor” as
less than 3 acres of parks per 1,000 residents and “income poor” as below
$47,331 in median household income. That legislation is important not
just in California but throughout the United States because it establishes
standards against which to measure progress and equity and to hold public
officials accountable. “Before when we used to say there are not enough
parks in low-income communities of color, you could quibble about what is
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48 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION
enough parks and what is low income and what are communities of color.
Now we have measurable numerical standards,” said Garcia.
The City Project also has sought to create parks in low-income com-
munities. An example is the Los Angeles State Historic Park at the Corn-
field. At a 32-acre site in downtown Los Angeles—and in one of the most
park poor and income poor communities of color in the state—a wealthy
developer wanted to build 32 acres of warehouses. The project organized
a campaign to persuade the state to buy the land for a park, a success the
Los Angeles Times called “a heroic monument” and “a symbol of hope,”
Garcia recalled. The project has since extended this success to additional
parks in Los Angeles.
Finally, The City Project has been working on transportation justice.
As an example, it recently stopped the building of a toll road with federal
funding that would have destroyed San Onofre State Beach in San Diego
and the Native American sacred site of Panhe that is located there. The
mainstream environmental community had been focusing on such issues
as endangered species and polluted water runoff. Representatives of The
City Project talked to local members of the Native American community
who told them about a 9,000-year-old village, burial ground, and current
ceremonial site. The loss of that site is a civil rights issue, Garcia said, and
the arguments from the Native American community were decisive in stop-
ping construction of the road.
Another example in the area of transportation involves the Obama
Administration’s plans to support high-speed rail projects. Such projects
threaten parks throughout California, including the Los Angeles State His-
toric Park at the Cornfield. The City Project has worked against these plans
through a combination of community organizing; media campaigns; advo-
cacy; and multidisciplinary research on obesity, race, ethnicity, income, and
the history of discrimination. The project also has pursued its cause through
civil rights laws, but Garcia said, “We don’t call it litigation; instead, we
call it access to justice through the courts.”
During the 1990s, Garcia worked on a Los Angeles County Metro-
politan Transportation Authority (MTA) case that resulted in $2.5 billion
being invested to improve the bus system in Los Angeles. At the time, there
were separate and unequal bus and rail systems that discriminated against
low-income people of color because the MTA overinvested in rail that dis-
proportionately served white riders while systematically underfunding the
bus system. After 2 years, mediation resulted in an agreement under which
the MTA ultimately invested more than $2.5 billion to improve bus service
and keep fares low, resulting in a 12 percent increase in transit ridership
and the creation of green jobs and green buses. As soon as the 10-year
term of the consent decree expired, however, the MTA raised fares and cut
routes as transit ridership dropped. There remains a great need to invest
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USING THE LAW TO INCREASE PHYSICAL ACTIVITY
in bus service rather than building toll roads and high-speed rail through
state parks, Garcia stated.
Physical education in schools, access to parks, and transportation all
involve equal access to public resources, said Garcia. Lessons drawn from
tobacco and firearms legislation may be applicable to the regulation of food,
but they are less applicable to questions of equal access to public resources.
Better paradigms are Brown v. Board of Education and the environmental
justice movement. Communities of color and low-income communities suf-
fer disproportionately from environmental degradation; they lack public
goods, such as parks and school playing fields; they lack information about
the impact of decisions on their lives; and they are systematically denied full
and fair public participation in the decision-making process.
Garcia concluded by saying that working on parks and school playing
fields for low-income children is the most difficult work he has ever done
“because there is no support for children of color living in poverty, suffering
from childhood obesity. There is no funding for it. We represent unpopular
people and unpopular causes.” Each of the issues he works on is not just
an issue of public health, poverty, or land use. “It is front and center an
equal justice issue,” he said.
DISCUSSION
During the discussion period, a workshop participant observed that
restricting sedentary activity such as television watching, videogame play-
ing, and use of the computer is more effective than promoting physical
activity in preventing and treating obesity. The question thus arises of
whether legal action should focus on decreasing sedentary activity by, for
example, raising taxes on cable companies or limiting television use in
schools or other public places.
A lack of public places to play is one reason why promoting physical
activity has less effect than desired, said Ashe. But legal policies such as
taxing cable television or removing televisions from schools are “absolutely
possible,” she said. Schools, in particular, have the authority to take actions
that will further their educational mission. In contrast, behavior in homes
is more difficult to regulate. “If parents want their kids to watch TV rather
than jump rope outside, the government doesn’t have the wherewithal to
regulate that,” said Ashe.
Shiriki Kumanyika of the IOM Standing Committee on Childhood
Obesity Prevention observed that civil rights arguments may not work as
well for food because many food companies established relationships with
communities of color in response to a demand for fair treatment in the
marketplace. Garcia pointed out that civil rights laws take effect whenever
federal or state financial assistance is involved, which is not the case with
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50 LEGAL STRATEGIES IN CHILDHOOD OBESITY PREVENTION
the establishment of a restaurant or supermarket. Nevertheless, there are
policy arguments to make to city councils and state legislators regarding
zoning and general plan requirements that, for example, limit how many
fast food restaurants can exist in a community. An example is the move to
limit liquor stores in South Central Los Angeles two decades ago, which
spawned a community coalition that had a significant impact.
In response to a question about whether the community involved in
obesity issues has worked with the architecture and design communities
responsible for the Leadership in Energy and Environmental Design (LEED)
program, Ashe observed that the 2009 strategic plan for the Department of
Housing and Urban Development referred specifically to “healthy housing”
that would, for example, reduce the occurrence of asthma and injuries. A
new frontier is to move public health standards into the home in creating
an environmentally sustainable community.
Russell Pate, who moderated the session on physical activity as a mem-
ber of the Standing Committee on Childhood Obesity Prevention, said that
the failure of schools and districts to comply with state mandates on physi-
cal education is a national phenomenon. It is difficult to monitor both the
quantity and quality of physical education, and even schools that emphasize
physical education can fall short by, for example, releasing students for
advanced placement courses.
Garcia observed that one reason schools give short shrift to physical
education is that they are drilling students to perform well on mandated
tests. One response would be to mandate and enforce physical educa-
tion standards. For example, physical education could be a standard that
schools would have to meet to receive federal funding. Garcia’s group also
is analyzing data from 200 schools that have been audited in the past 5
years, 100 of which do not enforce physical education requirements, look-
ing for patterns of noncompliance and racial discrimination. In addition, if
the federal government were to help enforce physical education standards in
the worst schools, there would be a trickle-up effect, Garcia said, as other
schools realized that physically fit students do better academically.
Kelly Brownell of the Standing Committee on Childhood Obesity Pre-
vention, asked whether data exist showing that physical activity increases
as people have greater access to open space, which would buttress the civil
rights argument. Garcia responded that The Robert Wood Johnson Foun-
dation released a report in April 2010 on access to parks and increases in
physical activity. Guidelines issued by the Centers for Disease Control and
Prevention and the IOM provide additional information on the links among
healthy food, physical activity, and obesity prevention.
