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Law As a Tool to Improve the Health of Children and Adolescents in Schools

Posted on: Wednesday, 7 February 2007, 03:00 CST

By Hodge, James G Jr

At every level of education in the United States, schools are actively involved in protecting the health of populations, particularly children and adolescents.1 Schools offer or host health programs, provide direct health services through nurses and clinicians, instruct students on safe and healthy behaviors, and create healthy environments. They also collaborate with other governmental and private sector partners to assure communal health. Federal, tribal, state, and local public health, environment, law enforcement, and social service authorities rely on educational agencies to help monitor and improve child and adolescent health. Private sector health care entities (eg, physicians, nurses, psychologists, counselors, and nutritionists) provide vaccinations, mental health, and other essential health services to facilitate children and adolescents in their educational pursuits. Underlying each of these interrelated components are public health laws and policies.

Laws protecting the public's health (ie, public health laws) are essential in improving the health of school populations. Constitutional, statutory, regulatory, and judicial laws ( 1 ) authorize and fund governmental and private sector entities to take action to promote health, (2) establish nondelegable duties in educational agencies and their partners to assure child and adolescent health, and (3) require relationships among all levels of government and across multiple disciplines (eg, education, public health, medicine, and sociology) to collaborate in the mission to improve the health of school populations.

However, laws can also impose barriers to effective health outcomes. Federal and state constitutions limit the inherent powers of governmental authorities to act in the best interests of improving child and adolescent health. Respect for individual privacy and beliefs (under constitutional principles of liberty and freedom of religion) may, for example, interfere with school vaccination requirements. Restrictive statutory and regulatory laws may bind educational agencies to pursue certain health objectives, regardless of the specific needs within their communities. The process of enacting and enforcing laws can lead to inefficient silos of activities among varied entities that do not understand or appreciate the need to work together. Political and economic influences can further shape laws in ways that may detract from the school's healthy environment.

Despite its limits, law, like other tools (eg, public health sciences, medical practices, and behavioral interventions), can be used to improve the health of children and adolescents in schools.2 The quintessential question is how? The purpose of this article is not to comprehensively explain the myriad of laws and policies that are motivated toward promoting the health of students. Rather the goal is to succinctly frame the ways that public and private actors can wield the law to accomplish public health objectives in school settings. This exploration begins with a definition and an analysis of the scope of public health law. Considerable analysis is then devoted to assessing the role of law as a tool for improving the health of school children and adolescents.

THE SCOPE OF PUBLIC HEALTH LAW IN SCHOOL SETTINGS

Incorporating the concept of public health enunciated by the Institute of Medicine in its "Future of Public Health" report,3 public health law can be defined as those laws (eg, constitutional, statutory, regulatory, judicial, and policy) or legal processes at every level of government (eg, federal, tribal, state, and local) that are primarily designed to assure the conditions for people to be healthy." This language envisions the broad and active use of law in multiple doctrinal areas (eg, public health, education, transportation, labor, and criminal) to protect and promote healthy populations in schools (and elsewhere). Yet, this is only one part of the definition of public health law. While laws bestow affirmative rights and obligations on government to improve the public's health, they simultaneously curtail these powers. Thus, public health law includes structural and rights-based limitations on the powers of government to act in the interests of communal health. Structural limits include, for example, constitutional principles of separation of powers (that delineates responsibilities among the 3 branches of government to create, enforce, and interpret laws) and federalism (that supports meaningful distinctions between federal and state governmental authorities).5 Rights-based limits, inherent in constitutional principles and other laws, include affirmative norms such as individual rights to free expression, freedom of religion, bodily integrity, health information privacy, equal protection, due process, and avoidance of unlawful governmental searches.

As a cohesive definition, public health laws thus include the panoply of laws that enable and limit government and private sectors in their efforts to protect the public's health. Their application in school settings supports 2 core observations. First, government (particularly at the state and local levels) has an affirmative obligation to protect the health of children and adolescents in school environments. Principles of federalism sustain the state's use of its police powers (ie, the sovereign authority of government to protect the health, safety, and general welfare of populations6) and parens patriae powers (government's responsibility to protect vulnerable, nonautonomous persons, such as children7) to achieve public health goals. Children and adolescents must rely on government, acting in loco parentis (ie, "in place of the parent"),8 to protect their health in school settings.

Of course, government cannot take every action to promote students' health in schools. It can develop programs, create incentives, and employ interventions, but it cannot infringe students' constitutional or civil rights to accomplish public health ends. For example, school administrators may deem it necessary to routinely test all school staff for human immunodeficiency virus/ acquired immunodeficiency syndrome (HIV/AIDS) on the misguided premise that this information will help protect children's and adolescents' health. Such governmental measures, however, infringe the Fourth Amendment rights of individuals against unreasonable searches (eg, in this context, the unwarranted drawing and testing of staff's blood or tissue samples).9 Unless there is compelling justification for such need for intrusive acts, public health measures like mandatory testing for HIV/AIDS among school staff are unlawful.

Second, the responsibility of promoting health in schools through law is not limited to educational authorities. Virtually any legal intervention to protect the public's health involves multiple governmental and private actors. Departments of education collaborate with public health agencies, law enforcement, and social service agencies at all levels of government. Private sector actors (eg, health care workers, nongovernmental organizations, and families) play important roles as well. In various areas at the intersection of schools and public health,10 the use of law demonstrates dynamic interventions among multiple governmental and private actors to accomplish public health goals and objectives. For example, laws underlying healthy school environments (eg, "[t]he physical and aesthetic surroundings and the psychosocial climate and culture of the school")" involve departments of education, environment, law enforcement, public health, transportation, and zoning, among others.

USING LAW TO IMPROVE STUDENT HEALTH IN SCHOOLS

Law is an indispensable component of many health initiatives in schools. Too often, however, school health officials may view law as an impediment, instead of a means, to accomplish their objectives. Laws can sometimes place educational and public health officials in irreconcilable positions. For example, state public health reporting requirements mandate the sharing of child immunization records with public health authorities.12 State and local education agencies may have access to these data (because written proof of immunization is commonly required for admission to elementary school). Educational agencies understand the need to share these data with their public health colleagues. However, when public health officials (in some jurisdictions) request these data to conduct surveillance activities, educational agencies may refuse to share them out of concern for violating student privacy provisions pursuant to the federal Family Education Rights and Privacy Act.13 School health and public health authorities may understandably be frustrated by conflicting legal interests that may thwart legitimate public health goals. Ultimately, they may avoid working together on multiple fronts because of a lack of understanding of how law can be used to improve child and adolescent health in schools.

An alternative vision rejects the conception of law principally as a barrier. Rath\er, it focuses on the potential of law as a positive tool for improving the health of children and adolescents in schools. Public health and education authorities are empowered by laws to accomplish these improvements in several ways. Laws can (1) define the mission for protecting the health of children and adolescents in school environments, (2) provide meaningful incentives for healthy behaviors, (3) create affirmative protections from unhealthy influences, (4) authorize specific programs and services to encourage healthy outcomes, and (5) help build positive relationships among public and private sectors. Each of these themes (and some relevant examples) is explained below.

Mission for Protecting the Health of Students in Schools

As observed by the Centers for Disease Control and Prevention (CDC) and many additional national, regional, and other educational and public health agencies, improving the health of school students comprises a comprehensive series of objectives. No single entity in the United States is responsible for these objectives. This goal requires collaborative, affirmative acts of multiple public and private sector partners (as discussed above). As a tool for positive intervention, public health law can guide government and private sector entities by broadly setting the mission for protecting the health of children and adolescents in school environments. Public health mission statements may derive from multiple sources of law. The Commonwealth of Virginia, for example, has statutorily enacted a comprehensive mission statement regarding the protection of the health and safety of its citizens:

[T]he protection, improvement and preservation of the public health and of the environment are essential to the general welfare of the citizens of the Commonwealth. For this reason, the State Board of Health and the State Health Commissioner, assisted by the State Department of Health, shall administer and provide a comprehensive program of preventive, curative, restorative and environmental health services, educate the citizenry in health and environmental matters, develop and implement health resource plans, collect and preserve vital records and health statistics, assist in research, and abate hazards and nuisances to the health and to the environment, both emergency and otherwise, thereby improving the quality of life in the Commonwealth.14

Through this broad mission, the Virginia General Assembly declares public health to be a fundamental, governmental responsibility15,16 and has subsequently enacted an array of statutes creating and authorizing various state and local governmental agencies, including educational agencies, to regulate and carry out public health functions. As a result of this statutory authority, for example, the Newport News Public School District in southeast Virginia has created school-based health centers with the mission "to improve children's health and promote successful learning by reducing the number of days missed from school." The health centers provide an array of health services to all public school students and their siblings.17

Beyond providing lofty language for public health goals in educational (and other) settings, mission statements encapsulated in law (1) raise awareness among the public and its elected or appointed leaders that protection of child and adolescent health is an essential priority, (2) encourage collaboration across multiple sectors, (3) support additional specific legal measures to sustain the mission, and (4) provide an impetus for funding health initiatives in schools among competing claims for limited resources.

Incentives for Healthy Behaviors

One way that laws further the mission of public health is by providing incentives for healthy behaviors in school settings. At the federal and state levels, these incentives are often packaged in the form of legal requirements (and accompanying funds) for local school districts to develop programs or curricula that help students make healthy choices. Most states legally require, for example, some level of health education in classrooms that is tailored to state- specific goals.18 The federal government provides additional resources for national health education programs. For example, the US Department of Agriculture funds state educational agencies to establish "team nutrition networks" to promote nutrition education and active lifestyles.19 Through federal guidance, states may use program funding to develop model elementary and secondary education curricula based on a comprehensive, coordinated nutrition and physical fitness awareness and obesity prevention program.20 Underlying these and other interventions is the premise that educating children and adolescents about their personal and communal health allows them to make healthier choices as minors and later as adults.

Affirmative Protections From Unhealthy Influences

Encouraging healthy choices is an important legal intervention, but some unhealthy influences on children and adolescents require a more affirmative approach. Illicit drugs, guns, alcohol, tobacco products, junk foods, and soft drinks are just a few of the products that minors may have access to within and outside school environments. Risky behaviors such as unprotected sex, driving under the influence of alcohol or drugs, school-based bullying or pranks, and pedestrian violations significantly impact the health of children and adolescents each year. Laws cannot completely eliminate these risks, but they can decrease them. Typical legal interventions include federal, state, or local measures to (1) increase criminal penalties for use, possession, or distribution of illegal drugs in or around schools; (2) authorize searches of student lockers for drugs or paraphernalia; (3) require metal detectors to limit the ability of individuals to carry guns or other dangerous weapons to schools; (4) suspend school privileges for children or adolescents who ingest alcohol or use tobacco products on school premises or during school events; (5) limit access to junk foods or soft drinks on school grounds; and (6) impose sanctions for dangerous pranks or intentional bullying by students.10

Laws can directly address nearly any health threat to students in school environments provided that the legal intervention is consistent with constitutional principles and societal norms. Laws can be used indirectly as well. For example, school health authorities may legally require healthier meals to be served in schools, only to see their students choose unhealthy foods through numerous fast-food outlets within walking distance of the school. A recent Chicago-based study found that fast-food restaurants clustered in areas close to city schools at 3-4 times the density than would have been expected if the restaurants had distributed throughout the city for reasons other than school location.21 Students attending half of the city's schools could get to a fast- food restaurant with a 5-minute walk. An indirect solution to encourage students to eat healthier meals in school is to limit their access to fast food or other less healthy options outside of school. Regulating the free market choices of businesses and consumers to locate and visit fast-food establishments outside the school environs is complicated, but restrictive zoning laws can help children and adolescents make better choices.22 Some localities have recently taken measures to restrict how close a fast-food restaurant can be located to a school. Detroit's zoning laws require fast-food restaurants (and other food outlets) to respect a 500-ft boundary around elementary, junior high, or high schools.23

Producing Healthy Outcomes Through Programs and Services

Laws impact the health outcomes of school students through direct programmatic and service efforts. Many state and local jurisdictions implement health, nutrition, and physical education requirements and wellness policies through statutes, regulations, and school district- level laws. Laws authorize and fund schools to provide direct health services (eg, vaccinations, nursing, and mental health counseling) to students, subject to parental consent in many cases.24 Schools routinely gather and use student health data to monitor health conditions through public health surveillance techniques authorized by law. Student drug testing may be used to gauge student health as a condition of participation in school-sponsored athletic events.25 The scope and limits of these and other affirmative programs and services motivated toward ensuring the health of children and adolescents in schools are supported by law.10

Building Relationships Among Public and Private sectors

Though education authorities and public health agencies in government and the private sector consistently agree on the need to protect students' health, they are not always apt to work closely or efficiently toward this goal. A primary reason for this failure is the competing priorities of these entities. Educational agencies have as their principal obligation the education of the populace. Public health agencies must work to improve the health of all populations, not just school populations. Private sector entities may be driven by their own special interests, profit seeking, or other motivations. Divergent priorities and a resulting lack of understanding of various roles can be alleviated through enhanced knowledge and improved relationships. Laws can foster better relationships between public and private school and public health authorities by (1) requiring routine, ongoing dialogue among school and public health leaders; (2) encouraging collaboration among departments of education and public health and others on specific health objectives through affirmative mission statements (see above), cooperative projects, and joint reports on health outcomes; and (3) facilitating planning and coordination of health activit\ies in schools through governmental commissions, advisory boards, or councils.

Many states require school systems to create school health councils. In Texas, for example, school health councils provide input on numerous health services and include diverse representation among public and private sectors.26 Local school health advisory committees in Florida are heavily involved in the development of school health services programs.27 Maryland coordinates local school health councils through a state-level council.28 These are just a few of the examples of how legal requirements for the creation of local-based school health entities can bring together various actors to reach consensus on health objectives and build positive relationships in the process.

CONCLUSIONS

Schools face many challenges to improving the health of children and adolescents in school environments.29 Shifting priorities, variations in funding, endemic societal problems, emerging risks, and a host of external factors (eg, parental choices, access to health care, and competing influences) test the ability of public health and education authorities and their partners in government and the private sector to enhance the health of school students. Yet, the means to assure the public's health are numerous as well. Law is one of the essential tools for improving the health of children and adolescents because it underlies virtually all programs, interventions, initiatives, and efforts undertaken by government and the private sector to craft healthy schools. Subject to limits inherent in the definition of public health law, school health authorities must be able to visualize the role of law as a positive instrument for reaching their objectives. This may require enhanced knowledge of the legal environment for protecting the health of children and adolescents in schools. In addition, school and public health authorities must be organized and ready to collaborate in their use of the law affirmatively to accomplish their goals. As school health objectives are identified and prioritized, legal paths must be fashioned to lead to desired ends. Legal modes may include refining the mission, motivating people to choose healthy behaviors, guarding against unhealthy influences, taking direct action through specific programs and services, and/or relationship building. The value of expressing law as a tool for improving students' health lies in its potential to be wielded to accomplish these legitimate ends.

References

1. Centers for Disease Prevention and Control, National Center for Chronic Disease Prevention and Health Promotion. Healthy youth! Coordinated School Health Program. http://www.cdc.gov/HealthyYouth/ CSHP. Accessed May 15, 2006.

2. Hodge JG, Gostin LO, Gebbie K, Erickson DL. Transforming public health law: the Turning Point Model State Public Health Act. J Law Med Ethics. 2006;34:77-84.

3. Institute of Medicine (IOM). The Future of the Public's Health in the Twenty-First Century. Washington, DC: National Academies of Science and Medicine; 2002.

4. Gostin LO, Hodge JG. State Public Health Law: an assessment. Turning Point Public Health Statute Modernization Collaborative, April 2002. Available at: http://www.publichealthlaw.net/Resources/ ResourcesPDFs/ PHL_Assess_Rep.pdf. Accessed May 15, 2006.

5. Hodge JG. Implementing modern public health goals: an examination of new federalism and public health law. J Contemp Health Law Policy. 1998; 14:93-126.

6. Hodge JG. The role of new federalism and public health law. J Law Health. 1998; 12:309-357.

7. Alexander K, Alexander MD. American Public School Law. 5th ed. Belmont, Calif: Wadsworth Publishing Company; 2001.

8. Richardson v Braham, 125 Neb 142, 249 NW 557 (1933).

9. Chandler v Miller, 520 US 305 (1997).

10. Hodge JG, Mair JS, Gable LA. A Review of School Laws and Policies Concerning Child and Adolescent Health (draft as of June 2006) Available at: http://www.publichealthlaw.net/Research/ Affprojects.htnrfSchools. Accessed September 10, 2006.

11. Bogden JF. How Schools Work and How to Work With Schools. Alexandria Va.: National Association of State Boards of Education; 2003.

12. Hodge JG. School vaccination requirements: legal and social perspectives. NCSL State Legislative Rep. 2002;27:1-14.

13. 20 USCA 1232G.

14. VA CODE ANN 32.1-2(Michie 1999).

15. Roanoke Mem. Hasps, v Kenley, 352 SE2d 525 (Va. 1987).

16. Lohr v Larsen, 431 SE2d 642 (Va. 1993).

17. Newport News Public Schools. School-based health centers. Available at: http://www.sbo.nn.k12.va.us/healthservices/ healthcenters.htm. Accessed May 15, 2006.

18. Kann L, Brener ND, Allensworth DD. Health education: results from the School Health Policies and Programs Study 2000. J Sch Health. 2001;71:266-278.

19. 42 USCS 1788(c)(1).

20. 42 USCS 1788(g)(2).

21. Austin SB, Melly SJ, Sanches BN, Patel A, Buka S, Gortmaker SL. Clustering of fast-food restaurants around schools: a novel application of spatial statistics to the study of food environments. Am J Public Health. 2005;95:1575-1581.

22. Mair JS, Pierce MW, Teret SP. The use of zoning to restrict fast food outlets: a potential strategy to combat obesity. Baltimore, Md: Center for Law and the Public's Health, October 2005. Available at: http://www.publichealthlaw.net/Research/ Affprojects.htm#Zoning. Accessed May 15, 2006.

23. Sections 92.0379A(j), B(j) & C(j) and 94.0379D(i), City of Detroit, Official Zoning Ordinance, http://www.municode.com/ resources/code_list.asp?stateID=22. Accessed May 15, 2006.

24. Brener, ND, Burstein GR, Dushaw ML, Vernon ME, Wheeler L, Robinson J. Health services: results from the school health policies and programs study 2000. J Sch Health. 2001;71(7):294.

25. Vemonia School District 47j v Acton, 515 US 646 (1995).

26. Texas Education Code 28.004 (2005).

27. Fla Stat 381.0056 (2005).

28. COMAR 13A.05.05.13 (2005).

29. O'Rourke TA. Promoting school health-an expanded paradigm. J Sch Health. 2005;75(3):112-114.

James G, Hodge, Jr., JD, LLM, Associate Professor

Copyright American School Health Association Nov 2006

(c) 2006 Journal of School Health, The. Provided by ProQuest Information and Learning. All rights Reserved.

Source: Journal of School Health, The

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