Legal Strategies in Childhood Obesity Prevention: Workshop Summary (2011)

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Using the Law to Increase Physical Activity

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

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 officials, 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 communities 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 activity 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

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 others. 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 starting 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 purview 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-

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 comprehensive 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 developments 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: “Encourage 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 community 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 specify 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.

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 riding 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 Protection 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,

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 volunteer 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 taxpayers’ 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

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 enforcement 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 physical 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 disparity. 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

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 communities. An example is the Los Angeles State Historic Park at the Cornfield. 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 stopping 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 Historic Park at the Cornfield. The City Project has worked against these plans through a combination of community organizing; media campaigns; advocacy; 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 Metropolitan 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 disproportionately 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

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 suffer 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 playing, 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

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 member of the Standing Committee on Childhood Obesity Prevention, said that the failure of schools and districts to comply with state mandates on physical 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 education 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, looking 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 Prevention, 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 Foundation 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.