Decline of Mandatory Physical Education in Grade Schools Resulted in the Current Childhood Obesity Crisis and Consequently an Unsustainable Rise in Health Care Spending, The


THE DECLINE OF MANDATORY PHYSICAL

EDUCATION IN GRADE SCHOOLS RESULTED IN THE

CURRENT CHILDHOOD OBESITY CRISIS AND
CONSEQUENTLY AN UNSUSTAINABLE RISE IN

HEALTH CARE SPENDING

Frandy St. Louis*

I. INTRODUCTION ............................ ........ 629
A. The Issue ............................... ...... 631

II. THE SUCCESS OF FEDERALLY MANDATED PHYSICAL
EDUCATION FOLLOWING WORLD WAR I..............633

III. DECLINE OF MANDATORY PHYSICAL EDUCATION IN PUBLIC
SCHOOLS AND THE SUBSEQUENT RISE IN CHILDHOOD
OBESITY THROUGH A CHANGING LANDSCAPE ... ..... 636

IV. PROLIFERATION OF JUNK FOODS ................... 639
V. THE REAL COST OF OBESITY AS REFLECTED IN INCREASED

HEALTH CARE SPENDING .............................................. 640
A. The Scope of the Problem and Its Undeniable
Gravity .................................... ..... 641

VI. THE CURRENT STATUS OF STATE LAWS AND THEIR
DOCUMENTED FAILURES SUPPORT A FEDERAL
MANDATE .................................. ........ 643

VII. A FEDERAL MANDATE WILL WITHSTAND A

CONSTITUTIONAL CHALLENGE. ..................... 650
VIII. SOLUTIONS TO THE PROBLEMS OF CHILDHOOD

OBESITY........................................ 658
A . P rincipal...................................................................... 658
B. Alternative Solution ................................................... 660

IX, CONCLUSION. ............................ ........ 661

I. INTRODUCTION

The empirically-minded, father of the field of logic, and
pioneer of Greek philosophy, Aristotle (writing in politics-

* J.D., Indiana University Robert H. McKinney School of Law,
2013; B.A., Georgia State University, 2010.



INDIANA HEALTH LAW REVIEW

350 BCE), recognized more than two thousand years ago
that "Education" (including physical education) is a function
of the State.1 He further elaborated that education should
be guided by legislation to make it correspond with the
results of psychological analysis, and follow the gradual
development of the physical and mental faculties of the
individual.2 For Aristotle education-both traditional and
physical-was a proper matter to be legislated. Given the
pre-eminence of Greek philosophy and politics in the
development of our modern society and political democracy,
the theoretical construct of legislating physical education
through a federal mandate can be said to have its roots in
established political principles. 3 This note will argue for a
federal mandate requiring public schools to offer-as part of
their curriculum-specific standards of physical education
at all grade levels as a solution to the childhood obesity
crisis and to reverse the long-running upward trend in
healthcare related expenditures.

But why is this question of physical education even
relevant to the issue of childhood obesity and health care
expenditures? After years of manifest neglect, the crisis of
childhood obesity and the debate surrounding it have moved
to the forefront of the nation's consciousness. 4 While this

1 Charles Hummel, Aristotle (384-322 B.C.), 23 PROSPECTS 39
(1993), available at http://www.ibe.unesco.org/publications/ThinkersPdf/
aristote.pdf ("No one can doubt that it is the legislator's very special
duty to regulate the education of youth . . wle conclude, therefore, that
education must be regulated by law, and that it must be controlled by
the state.").

2 Id.
3 Wordology, Rise of Western Culture & Philosophy (Classical

Greece), http://www.worldology.com/Europe/EuropeArticles/riseof_
westernculture.htm (last visited Jan. 15, 2013) (declaring that
"western thought and culture traces its roots to Classical Greece
philosophy, which is based upon reason and inquiry pertaining to a
variety of disciplines, including science, technology, literature, law,
politics, economics, psychology, ethics, art, etc").

4 Don Lemon, The Debate over Childhood Obesity, CNN (Feb.15,
2010, 11:20 AM), http://newsroom.blogs.cnn.com/2010/02/15/the-debate-
over-childhood-obesity/ ("First lady Michelle Obama states that 1-in-3
American children is overweight; 1-in-2 among minorities. Now she has
launched Let's Move, a national program to get rid of junk food in public
schools and educate children about proper diet and exercise. President

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

crisis has become severe and pervasive, its cause is
arguably well understood and there are steps that can and
must be taken to confront it.5

A. The Issue

Over the past few years, the majority of citizens and
politicians alike have come to recognize that the nation is
facing a childhood obesity crisis that is having an alarming
impact on overall health and, as a consequence, an
unsustainable rise in health care related expenditures.6 A
recent study by the Fortanasce-Barton Neurology Center
shows that children today are four to five times more likely
to be obese (and as much as eight times more likely to be
overweight) than in the 1960s and 70s.7 As a result of the
rise in childhood obesity, the prevalence of preventable
diseases (such as Type II diabetes, high blood pressure,
certain heart conditions, and even premature death) among

Obama backed her up by establishing a federal task force to tackle the
issue and come up with a plan of action in ninety days.").

5 Thomas R. Frieden et al., Reducing Childhood Obesity Through
Policy Change: Acting Now To Prevent Obesity, 29 HEALTH AFF. 357
(2010), available at http://www.banpac.org/pdfs/sfs/2010/reducchild
obes_11_04_10.pdf ("Childhood obesity is an epidemic in the United
States, and is expected to increase the rates of many chronic diseases.
Increasing physical activity and improving nutrition are keys to obesity
prevention and control. But changing individual behavior is difficult. A
comprehensive, coordinated strategy is needed. Policy interventions
that make healthy dietary and activity choices easier are likely to
achieve the greatest benefits. There is emerging evidence on how to
address childhood obesity, but we must take action now to begin to
reverse the epidemic.").

6 A. Must et al., Long-Term Morbidity and Mortality of
Overweight Adolescents (A Follow-Up of The Harvard Growth Study of
1922 to 1935), 327 NEW ENG. J. MED. 1350 (1992), available at
http://www.ncbi.nlm.nih.gov/pubmed/1406836; Preventing Chronic
Diseases: Investing Wisely in Health, CDC, http://www.cdc.gov/
nccdphp/publications/factsheets/prevention/pdf/obesity.pdf (hereinafter
Preventing Chronic Diseases).

7 Fortanasce-Barton Neurology Center, A New Year for a Vital
Child, http://fortanasceclinic.com/a-new-year-for-a-vital-new-child.html
(last visited Jan. 15, 2013).

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children has become all too common.8 Given the magnitude
of this crisis, it is important to explore its genesis in an
attempt to first understand its anatomy, and ultimately
adopt a plan that would provide a solution without undue
delay.9

In exploring the childhood obesity crisis, it is important
to understand that while its effects have already taken a
tremendous toll on the nation, its making has been rather
incremental and gradual.10 It is the unintended
consequences of decisions that could plainly be said to have
been shortsighted and improvident. 1 As a result of these
decisions, the United States is now at a point in history
where it faces an exigency that-if not swiftly, fully and
comprehensibly dealt with-will continue to cause
tremendous damages to the nation's social infrastructures.
To address this crisis, it is critical that there be a national

8 A. Must, supra note 6; Preventing Chronic Diseases, supra
note 6.

9 See VICTORIA L. BRESCOLL ET AL., THE ANNALS OF THE AMERICAN
ACADEMY OF POLITICAL AND SOCIAL SCIENCE 178-79 (2008), available at
http://ann.sagepub.com/content/615/1l178.full.pdf+html (emphasizing
that "more than 17% of American children and adolescents are
overweight or obese, with certain subgroups, such as African American
youth, having even higher prevalence rates (18% to 26%), leading to
increased incidences of hypertension, diabetes, and even heart attacks
among obese children").

10 JEFFREY P. KOPLAN ET AL., PREVENTING CHILDHOOD OBESITY:
HEALTH IN THE BALANCE, available at http://www.banpac.org/pdfs/sfs/
2010/reduc childobes_11_04-10.pdf (discussing the toll already paid for
the obesity crisis).

11 Ted Vilaire, Decline of Physical Activity, http://prorev.com/
bigpage.htm (last visited Jan. 30, 2013) (Vilaire notes that "once
customary for children at nearly every grade level, gym class has been
steadily scaled back in recent years. Just during the past decade, the
number of U.S. high school students attending daily physical education
classes dropped from 42% to 29%. According to the National Association
for Sport and Physical Education (NASPE), the nation's largest
organization for physical education teachers, currently, nearly half of all
students and 75% of high school students do not attend any physical
education classes. Judith Young, executive director of NASPE,
maintains that schools cut gym classes for lack of funding, but more
often cuts result from time constraints that develop with the addition of
new curriculum. Standards-based reform has been detrimental to
physical education.").

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

federal mandate requiring all public schools to incorporate
specific minimum standards of physical education in their
curriculum at all grade levels.

To further elaborate on the imperative and need of a
federal mandate requiring public schools to incorporate
minimum standards of physical education in their
curriculum, this note emphasizes solutions proposed by the
American Heart Association Task Force on Physical
Activity, and expands upon them for a more thorough
approach. In order to facilitate a better understanding of
the problem, and lay the groundwork for resolving it,
section II sets forth the general background of physical
education through a historical perspective, and focuses on
its effects on the nation's childhood obesity rate. Section III
follows the decline of mandatory physical education and
underlines the subsequent rise in the childhood obesity rate.
Section IV covers the proliferation of the junk food industry
and its role in contributing to the problem. Section V
explains the rise in health care expenditures in relation to
the rise in the childhood obesity rate. Following this
discussion, section VI introduces different state laws and
analyzes their effects on the childhood obesity rate. Section
VII addresses potential constitutional challenges to a
federal mandate designed to tackle the problem. And lastly,
section VIII proposes comprehensive solutions that should
be adopted as part of a federal program mandating physical
education at all grade levels for students attending public
schools.

II. THE SUCCESS OF FEDERALLY MANDATED PHYSICAL

EDUCATION FOLLOWING WORLD WAR I

According to Lance C. Dalleck and Len Kravitz, "in the
United States, the early educational process [principally]
focused on intellectual matters."12 "Schools concentrated on
teaching traditional subjects including reading, writing,

12 Lance C. Dalleck & Len Kravitz, History of Physical Education,
http://www.unm.edulkravitzArticle%20folder/history.html (last visited
Mar. 9, 2013).

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arithmetic, and religious matters."13 "Physical education
remained missing from the public education system for the
better part of the nineteenth century" until Dr. J.C.
Warren-a medical professor at Harvard University and
strong proponent of physical activity-developed credible
evidence that showed the proper functioning of the body and
mind necessitated regular exercise.14

Dalleck and Kravitz noted that "[olne of the most
important events [in the history of physical education] in
the United States was the Industrial Revolution."
Advancement in industrial and mechanical technologies
changed the way people lived and worked. 15 The cost of
industrialization became conspicuously apparent in the
mid-20th century as people started to develop-never before
prevalent-diseases including, but not limited to,
hypokinetic diseases, cardiovascular disease, cancer, and
Type II diabetes.16

After World War I was fought and won, the federal
government released statistics from the draft that revealed
that one out of every three draftees "was unfit for combat
and many of those drafted were highly unfit prior to
military training." 7 To address the problem, "the
government and many of the states passed legislation that
ordered the improvement of physical education programs in

13 Id. (explaining that "in the United States, the early educational
process focused primarily on intellectual matters and was not concerned
with physical education").

14 Id.
15 Id. ("[Aldvancement in industrial and mechanical technologies

replaced labor-intensive jobs. Rural life changed to an urban lifestyle.
The new city life generally required less movement and work compared
to rural life, consequently decreasing levels of physical activity.").

16 Id. ("[Aln epidemic of hypokinetic diseases including
cardiovascular disease, cancer, and Type II diabetes, never before
prevalent, began to be recognized as the leading causes of disease and
death. The lifestyle improvements brought in part by the Industrial
Revolution had apparently come with an unwanted and alarming cost to
health.").

17 Id.

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

public schools that resulted in improved health for the
overall population."18

However, "[t]he gains that physical education programs
made through the passage of legislation following World
War I were short-lived" as the nation's attention shifted to
the reality of the Great Depression and subsequent
developments in Europe. 19 The United States unwillingly
was drawn into "World War II with the bombing of Pearl
Harbor on December 7, 1941."20 "With the War came the
need to once again draft military personnel".21 And again,
during the draft, it became clear that many of the draftees
were not physically fit for battle. 22 "When the War was over,
it was reported that nearly half of all draftees [were]
rejected or were given non-combat positions due to being
overweight." 23

These alarming statistics once more attracted the
attention of the country "with regards to the importance of
[physical education]," and the government would once again
try to re-introduce more stringent and pronounced physical
education programs in the nation's public school system.24

At the heart of this renewed focus on physical education
was the Presidential Council on Youth Fitness whose role
was to advise the President-through the Secretary of
Health and Human Services-about physical activity,
fitness, and sports, and put forth programs to promote

18 Id. (The article notes that national Park Service legislation
designed to promote both physical and traditional education was passed
in 1920. Among them were: the American Physical Education
Association, the American Association for Health and Physical
Education, the Playground and Recreation Association, National Code of
Standards for Physical Education and more.).

19 Id. (explaining that "funding for these programs became limited
and eventually was exhausted as emphasis in the poor economy was
forced to shift elsewhere").

20 Id.
21 Id
22 Id
23 Id.
24 Id.

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INDIANA HEALTH LAW REVIEW

regular physical activity for the health of all Americans. 25

Since the establishment of the Council, many changes in
technologies, priorities and politics have continued to affect
the development of physical education in the nation's public
school system. These changes and their consequences are
explored below.

III. DECLINE OF MANDATORY PHYSICAL EDUCATION IN PUBLIC
SCHOOLS AND THE SUBSEQUENT RISE IN CHILDHOOD OBESITY

THROUGH A CHANGING LANDSCAPE

The atmosphere that created the renewed focus on
physical education after World War II once again did not
endure. Greater and accelerated technological advances, the
need to expand public schools curriculum, and budget crisis
that began in the 1970s (and lasted through the 80s)
brought to the forefront different priorities that would
eventually bring an ensuing and protracted decline in
mandatory physical education. 26 As mandatory physical
education continued to decline and technology continued to
facilitate a more sedentary lifestyle, the rise in childhood
obesity gradually and progressively took hold.2 7 The

25 Our History, PCFSN, http://www.fitness.gov/about-pcfsn/our-
history/ (last visited Jan. 30, 2012) (presenting the history of the
Presidential Council on Youth Fitness).

26 Emma Murray, History of Physical Education in Schools,
EHow.Com, http://www.ehow.com/about_6521673_history-physical-
education-schools.html#ixzz lYuwWeCtZ (last visited Jan. 30, 2012)
("[I]n 1955, the President's Council on Physical Fitness and Sports was
created to promote fitness among youth through PE programs in schools
and other organizations, such as the YMCA. In 1976, it reported that
fewer than 40 percent of students in the public schools took part in daily
PE activities. The daily requirements for PE in high schools that were
stipulated by many states declined as a result of the addition of other
elective subjects. Moreover, recessions during the 1970s and 1980s
resulted in cuts to several education programs in schools, including
physical education.").

27 Cynthia L. Ogden et al., The Epidemiology of Obesity, 132
GASTROENTEROLOGY 2087 (2007), available at http://www.gastrojournal.
org/article/S0016-5085(07)00579-3/abstract (last visited Mar. 19, 2013);
see also Prevalence of Sedentary Lifestyle - Behavioral Risk Factor
Surveillance System, United States, 1991, CDC, http://www.cdc.gov/
mmwr/preview/mmwrhtml/ 00021313.htm (last visited Jan. 30, 2013)

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

following graph, compiled from data collected by the CDC,
demonstrates the impact of declining levels of physical
education on the prevalence of childhood obesity in the last
quarter of the 20th century 28:

F
Figure 1. Trends in obesity among children and adolescents:
United States, 1963-2008

40 -

30 -

20

Ci. 
6-11 Yeaes

10
10-12-19 years~-

2-5 years

1963- 1971-1974 1976-1980 1988-1994 1999- 2003-1 2007-
1965 2000 I 2004 I 2008

1966- 2001- 2005-
1970 Year 2002 2006

NOTE Obesity is defined as body mass index (BMI) greater than or equal to sex- and age-specific 95th percentile from the 2000
CDC Growth Chats
SOURCES CDCNCHS, National Health Examnation Surveys II (ages 6-11), ill (ages 12-17), and National Health and Numition
Examination Surveys (NHANES) I-1ll, and NHANES 1999-2000, 2001-2002, 2003-2004. 2005-2006, and 2007-2008,

As the graph shows, when physical education was in the
national consciousness (in the years following World War II
and prior to the financial crisis of the 1970s), childhood
obesity had for the most part stabilized. 29 In fact, among
twelve to nineteen year-olds, the already substantially low

(defining sedentary lifestyle as "a medical term used to denote a type of
lifestyle with no or irregular physical activity, and commonly
characterized by sitting, reading, watching television and computer use
for much of the day with little or no vigorous physical exercise").

28 CDC Grand Rounds: Childhood Obesity in the United States,
CDC (Jan. 21, 2011), http://www.cdc.gov/mmwr/preview/mmwrhtml/
mm6002a2.htm (last visited Mar. 19, 2013) (The article describes "the
prevalence of obesity among children and adolescents, by age group, in
the United States during 1963-2008. In the United States, childhood
obesity affects approximately 12.5 million children and teens - 17% of
that population. Changes in obesity prevalence from the 1960s show a
rapid increase in the 1980s and 1990s, when obesity prevalence among
children and teens tripled from nearly 5% to approximately 15%.").

29 Id.

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INDIANA HEALTH LAW REVIEW

level of childhood obesity actually saw a decline from 1972
to 1978.30

However, as national requirements started to give way
to a more local/state base deferential system, the positive
trend ended, and since, the childhood obesity rate has
steadily and doggedly increased. 31 Hence, the correlative
rise in childhood obesity is shown on the graph. 32 This
correlation, though debatable, cannot merely be discounted.
Such a sharp rise after what is manifestly a notable period
of stability deserves profound scrutiny as the totality of this
crisis within the framework of its effect on the nation's
overall health and its associated costs is examined.

In keeping with the concept of totality, it is necessary to
ask whether there are other factors that might have
contributed to, or might be responsible for the childhood
obesity crisis. Though the answer to this question may
require a more comprehensive study, it should be noted that
that during the 1970s televisions became a staple in
American households, and that such a development could
have contributed to the increase in the childhood obesity
rate as both parents and children took to watching TV as
opposed to taking a stroll at the neighborhood park. 33 While
this historical development is important, its consequences
were rather minimal-thereby making its contribution to
the childhood obesity crisis negligible. 34 Such a finding

30 Id. at 43.
31 Id. at 44.
32 Id. at 46.
33 LYNN SPIGEL, MAKE ROOM FOR TV: TELEVISION AND THE FAMILY

IDEAL IN POSTWAR AMERICA 57 (1992).
34 William H. Dietz, Jr. & Steven L. Gortmaker, Do We Fatten Our

Children at the Television Set? Obesity and Television Viewing in
Children and Adolescents, 75 AM. ACAD. PEDIATRICS 807 (1985),
available at http://www.ncbi.nlm.nih.gov/pubmed/3873060 (last visited
Mar. 19, 2013) ("[T]he association of television viewing and obesity in
data collected during cycles II and III of the National Health
Examination Survey were examined. Cycle II examined 6,965 children
aged 6 to 11 years and cycle III examined 6,671 children aged 12 to 17
years. Included in the cycle III sample were 2,153 subjects previously
studied during cycle II. These surveys, therefore, provided two cross-
sectional samples and one prospective sample. In all three samples,
significant associations of the time spent watching television and the

638 Vol. 10:2



THE DECLINE OF MANDATORY PHYSICAL EDUCATION

further highlights the effects of the decline of mandatory
physical education and the subsequent epidemical rise in
childhood obesity that followed. Reintroducing mandatory
physical education standards at all grade levels in the
public school system is the right and proper step to
resolving this devastating crisis.

IV. PROLIFERATION OF JUNK FOODS

It is significant to recognize that the decline of
mandatory physical education coincided with an
unprecedented proliferation of the junk food industry. 35 The
1960s, 70s and 80s saw the industry reach a critical level of
pervasiveness, and the trend continues today.36 It should
also be noted that there have been some proposals, and (in
some cases) actual regulations targeting the junk food
industry. 37 The effects of these proposals/regulations,

prevalence of obesity were observed. In 12- to 17-year-old adolescents,
the prevalence of obesity increased by 2% for each additional hour of
television viewed. The associations persisted when controlled for prior
obesity, region, season, population density, race, socioeconomic class,
and a variety of other family variables. The consistency, temporal
sequence, strength, and specificity of the associations suggest that
television viewing may cause obesity in at least some children and
adolescents. The potential effects of obesity on activity and the
consumption of calorically dense foods are consistent with this
hypothesis."); see also A Growing Problem, CDC, http://www.cdc.gov/
obesity/childhood/problem.html (last visited Jan. 30, 2013) ("[Clhildren
8-18 years of age spend an average of 7.5 hours a day using
entertainment media, including TV, computers, video games, cell
phones, and movies. Of those 7.5 hours, about 4.5 hours is dedicated to
viewing TV. Eighty-three percent of children from 6 months to less than
6 years of age view TV or videos about 1 hour and 57 minutes a day. TV
viewing is a contributing factor to childhood obesity because it may take
away from the time children spend in physical activities.").

35 ERIC SCHLOSSER, FAST FOOD NATION: THE DARK SIDE OF THE
ALL-AMERICAN MEAL 3-8 (2007) (noting that "while the junk food
industry was created in the early 20th century, it had not grown before
like it did during the period in question").

36 Id. at 4.
3 Rudd Center Releases Unprecedented Report on Fast Food

Nutrition and Marketing to Youth, YALE RUDD CENTER (Nov. 2010),
http://www.yaleruddcenter.org/newsletter/issue.aspx?id=27 (last visited

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INDIANA HEALTH LAW REVIEW

however, have proven so far to be inconclusive. 38 Based on
currently available evidence, while junk foods can be said to
be a contributing factor to the childhood obesity crisis,
physical education arguably has been and remains the
greater factor. 39 And historically, given that physical
education was once embraced nationally as a way to curb
the country's obesity problem, it is likely to be politically
more palatable-making it easier to be federally legislated.

V. THE REAL COST OF OBESITY AS REFLECTED IN INCREASED

HEALTH CARE SPENDING

The high and growing cost of health care is a critical
issue for businesses, workers, government and citizens
alike.40 Spending on health care for 2009 accounted for
17.6% of GDP which amounted to a record of $2.5 trillion.41

Mar. 19, 2013) ("A struggle is occurring in San Francisco about a
proposed requirement for fast food meals to meet nutrient standards in
order to include toys. Sponsored by Supervisor Eric Mar and approved
by the Board of Supervisors, the proposal was vetoed by Mayor Gavin
Newsom. The Board's eight of 11 votes in support of the proposal will
allow it to override Mayor Newsom's veto.").

38 EILEEN SALINSKY, EFFECTS OF FOOD MARKETING TO KIDS: I'M
LOVIN' IT? (2006), available at http://www.nhpf.org/1ibrarylissue-
briefs/IB814_FoodMarketing_08-15-06.pdf.

39 Id.
40 NEERAJ SOOD ET AL., THE EFFECT OF HEALTH CARE COST

GROWTH ON THE U.S. ECONOMY (2007), available at
http://aspe.hhs.gov/health/reports/08/healthcarecost/report.html (last
visited Mar. 19, 2013) ("Rising health care costs have generated
concerns that continued growth could adversely affect the nation's
economy, as well as pose problems for particular sectors of the economy,
such as employers and households. This report evaluated how increased
spending on health care affected aggregate economic indicators and
individual sectors. As a basis for this investigation, a thorough and
detailed review of the literature was conducted that included anecdotal
evidence, survey findings and the peer reviewed literature. The
literature review highlighted the economic effects of health care cost
growth, and identified possible mechanisms through which cost growth
could affect the aggregate economy, as well as government, households
and business.").

41 National Health Expenditure Data, CMS (Apr. 11, 2012),
https://www.cms.gov/nationalhealthexpenddata/02_nationalhealthaccou
ntshistorical.asp (last visited Mar. 19, 2013).

640 Vol. 10:2



THE DECLINE OF MANDATORY PHYSICAL EDUCATION

In 1970, the U.S spent about $75 billion on health care, or
$356 per resident-which accounted for only 7.2% of GDP.4 2

As if the staggering increase over the past four decades is
not alarming enough, the Henry J. Kaiser Family
Foundation projects that by 2016 health care spending will
be over $4.1 trillion, or $12,782 per resident, and account
for 19.6% of GDP.43 This is what the United States faces if it
fails to act to put a stop to run-away health care costs.
Promisingly, multiple studies have shown that addressing
childhood obesity could significantly and meaningfully
reduce these run-away costs and pre-empt further
worsening of this crisis.44 Based on the historical
background, a federal mandate requiring minimum
standards of physical education at all grade levels in the
nation's public school system is an effective way to address
the childhood obesity crisis while at the same time
reversing the ever rising trend of health care expenditures.

A. The Scope of the Problem and Its Undeniable Gravity

Over the past four decades, the number of overweight
children and adolescents has risen, and these increases cut
across all racial and ethnic groups, and both genders. 45

Studies have shown that overweight and obese children are
at substantial risk of illness from high blood pressure, high

42 Id.
43 KAISER FAMILY FOUNDATION, TRENDS IN HEALTH CARE COSTS

AND SPENDING (2007), available at http://www.kff.org/insurance/upload/
7692.pdf.

44 Youfa Wang et al., Will All Americans Become Overweight or
Obese? Estimating the Progression and Cost of the US Obesity
Epidemic, 16 OBESITY 2323 (2008), available at http://www.
readcube.com/articles/10.1038/oby.2008.351 (last visited Mar. 19, 2013)
(predicting that "the prevalence of overweight children will nearly
double by 2030 and that total health care costs attributable to obesity
will double every decade to $860.7-956.9 billion by 2030").

45 Obesity-' Halting the Epidemic by Making Health Easier, CDC
(May 26, 2011), http://www.cdc.gov/chronicdisease/resources/publications/
aag/obesity.htm (last visited Mar. 19, 2013).

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cholesterol, Type II diabetes, heart disease and stroke.46

Because of the likelihood of diseases among obese children
who most often grow up to be obese adults, there are
enormous economic costs that are associated with this
epidemic. 47 A recent study examining the impact of obesity
on rising medical spending found that the increase in
obesity contributed to inordinate spending increases for the
three medical conditions examined (diabetes,
hyperlipidemia, and heart disease).48 Between 1987 and
2001, growth in obesity and spending on obese people
accounted for 27% of the growth in inflation-adjusted per
capita health care spending.49

Furthermore, former United States Surgeon General
Richard Carmona recently stated that childhood obesity
impacts not only children's personal health, but also society
as a whole.50 It has been proven that the problem of
childhood obesity goes beyond excess weight and disabling
diseases to include negative impact on mental health and

46 Id. ("Obesity increases the risk of many health conditions,
including the following: coronary heart disease, stroke, and high blood
pressure, Type II diabetes, cancers, such as endometrial, breast, and
colon cancer, high total cholesterol or high levels of triglycerides, liver
and gallbladder disease, sleep apnea and respiratory problems,
degeneration of cartilage and underlying bone within a joint
(osteoarthritis), reproductive health complications such as infertility,
and mental health conditions.").

47 Id. ("In 2008, overall medical care costs related to obesity for
U.S. adults were estimated to be as high as $147 billion. People who
were obese had medical costs that were $1,429 higher than the cost for
people of normal body weight. Obesity also has been linked with
reduced worker productivity and chronic absence from work.").

48 Kenneth E. Thorpe et al., Trends: The Impact of Obesity on
Rising Medical Spending, HEALTHAFFAIRS (Oct. 20, 2004), http://
content.healthaffairs.org/content/suppl/2004/10/15/hlthaff.w4.480.DC1
(last visited Mar. 21, 2013).

49 Id.

50 The Growing Epidemic of Childhood Obesity.' Testimony Before
the Subcommittee on Competition, Infrastructure, and Foreign
Commerce, Committee on Commerce, Science, and Transportation,
109th Cong. (2004) (statement of Richard H. Carmona, Surgeon
General), available at http://www.surgeongeneral.gov/news/testimony/
childobesity03022004.html (last visited Mar. 21, 2013).

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

school performance. 51 There is growing evidence
documenting the association between obesity and poor
mental health.52 Researchers in the Adult and Community
Health Division of the CDC analyzed 2006 "data and found
that depression and anxiety are associated with obesity."53

As a result, they advised that "public health intervention [1
address mental and physical health as a combined entity,
and that programs to simultaneously improve mental
health and physical health should be developed and
implemented."54 Given the primacy of children to the
nation's future, childhood obesity should be considered-as
indicated by former Surgeon General of the United States,
Dr. Richard Carmona-a "dire" threat to our society.55

Considering the role of physical education in the history of
obesity following World War I and II, a federal program
mandating minimum standards of physical education in the
public school system is a demonstrated and established way
to address this "dire" threat.

VI. THE CURRENT STATUS OF STATE LAWS AND THEIR

DOCUMENTED FAILURES SUPPORT A FEDERAL MANDATE

According to the CDC, "federal law does not prescribe
minimum standards for physical education in schools." 56

The federal government instead "relies on grant programs
administered by the Departments of Education and
Transportation to create incentives that promote [(not

51 Mental Health, Stress and Obesity, TRUST FOR AMERICA'S
HEALTH, http://healthyamericans.org/pages/?id=253 (last visited Jan.
30, 2013).

52 Id.
5s Id.
54 Id.
55 Lovett Anyachebelu, The Obese Epidemic Threat to the Nation's

Security, FORT GORDON SIGNAL (April 1, 2011), http:lwww.
fortgordonsignal.com/news/2011-04-O1/NewsUpdate/Theobese-epidemic
threattotheNations security.html (last visited Mar. 21, 2013).

56 Physical Activity for School Age Children, CDC (Apr. 13, 2012),
http://www.cdc.gov/phlp/winnable/school activity.html (last visited Mar.
21, 2013).

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INDIANA HEALTH LAW REVIEW

mandate)] physical activities in the school setting."57

Without a federal mandate, "state and local jurisdictions
have passed a variety of laws and policy "recommendations"
that define minimum standards for time requirements and
the quality of physical education and recess."5 8

Below are examples of physical education laws and
policy considerations for the state of Oregon, Arkansas, and
Tennessee. The Oregon physical education requirements
statute reads as follows:

Every public school student in kindergarten
through grade [eight (8)] shall participate in
physical education for the entire school year.
Students in kindergarten through grade [five
(5)] shall participate in physical education for
at least 150 minutes during each school week.
Students in grades [six (6)] through [eight (8)]
shall participate in physical education for at
least 225 minutes during each school week. 59

According to the National Association of State Boards of
Education in Arkansas:

Act 317 (2007) requires [sixty 601 minutes per
calendar week of physical education training
and instruction for students in grades [five (5)
through eight (8)] for schools organized to
teach these grades. The statute requires
[ninety (90)] minutes of additional physical
activity per week for grades K-6, which may
include physical education in addition to the
previous requirement, daily recess, or
intramural sports. Code 20-7-135 (2003) calls
on the State Board of Education to promulgate

57 Id.
58 Id. ("State and local quantitative policies vary ranging from no

time requirement to an established minimum number of minutes
students must participate in physical activity each week. Qualitative
standards also vary among jurisdictions . . ).

59 Oregon Educational Act for the 21st Century, OR. REV. STAT. §
329.496(1) (2012).

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

rules and regulations to ensure physical
activity standards are implemented to provide
students with the skills, opportunity, and
encouragement to adopt healthy lifestyles. The
Rules Governing Nutrition and Physical
Activity Standards and Body Mass Index for
Age Assessment Protocols in Arkansas Public
Schools include the time requirements of Act
317 (2007), and allow local districts to require
physical education or activity in excess of these
requirements.60

In Tennessee, a policy task force, in response to its
position on the importance of physical education, has
published the following recommendations:

Children need opportunities to be physically
active and have access to healthful foods in
order to grow, learn, and thrive. Physical
activity needs to be balanced with good
nutrition in order to create a healthy learning
environment. Physical activity has substantial
health benefits for students including favorable
effects on body weight, blood pressure,
endurance capacity and physical strength to
promote healthy lifelong learning. Physical
activity has been shown to promote good
academic outcomes and to reduce barriers to
learning. Good health fosters student
attendance in education and helps to increase
a student's capacity for learning. Community
participation is essential to the development
and implementation of school policies that

60 State School Healthy Policy Database, NAT'L AsS'N OF STATE
BDS. OF EDUC., http://nasbe.org/healthy schools/hs/bytopics.php?topicid
=1110&catExpand=acdnbtm_catA (last visited Jan. 26, 2013).

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support and promote physical activity and good
nutrition in the school setting.61

These types of laws and policy positions have been
considered to varying degrees and, on occasions, adopted in
several states.62 However, without federal minimum
standards, local communities are often left to decide
whether to include any physical education at all in their
curriculum.63

In the face of budget restraints, and the fungibility of
money (not to mention differing political approaches based
on ideology), physical education expense is often the first
school expense to be eliminated.64 Despite a pronounced
recognition of the importance of physical education in the
school setting-as evidence by the many debates, policy
consideration and attempts to pass legislation in this area-
many of the measures that have so far emerged have
contributed to more of a conceptual framework of physical
education rather than explicit requirements (which are
essential to implementing a successful physical education
program in the public school system).65

To illustrate this point, in California, although physical
education is required, a 2006 audit of the state's "public

61 Physical Activity Policy, TENN. STATE BD. OF EDUC. (Apr. 15,
2005), http://www.tn.gov/education/schoolhealth/physed/doc/IIICPhysical
ActivityPolicy.pdf.

62 State Legislative and Regulatory Action to Prevent Obesity and
Improve Nutrition and Physical Activity, CDC, http://www.cdc.gov/ncedphp/
dnpaoldocs/chronic-disease-state-policy-traclkng-system-methodology-report-508.pdf.

63 Id.
64 Betsy Hurd, Physical Education too Valuable to Sacrifice to

Budget Cuts, MLIVE (Feb. 6, 2010, 5:03 AM), http://www.mlive.com/
opinion/saginaw/index.ssfl2010/02/physical education too valuabl.htm
(last visited Mar. 21, 2013).

65 Melinda Bossenmeyer, Case Study Could Shape Physical
Education Landscape Across Nation, PEACEFUL PLAYGOURNDS,
http://www.peacefulplaygrounds.com/physical-education-case-study.htm
(last visited Jan. 30, 2013) ("[Physical education] is required, but it is
not taught. According to the latest School Health Policies and Program
Study report (2006)[il only 13.7% of elementary schools, 15.2% of middle
schools and astonishingly, only 3% of high schools provided physical
education at least 3 days per week or its equivalent for the entire school
year for students in all grades in the school.").

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

elementary schools found that less than 36% of the students
were receiving elementary school physical education." 66 This
phenomenon is not unique to California. The New York
Department of Education recently released results of an
audit that "found limited evidence that any of the sampled
schools were in compliance with the physical education
requirements." 67  This current state of affairs is
unacceptable given that a great number of studies over the
past decade have shown that physical activity is extremely
important and positively correlated to a child's proper
development (both mental and physical).68

Against the background of current state laws that deals
with physical education in the public school system, it is
necessary to point out that physical inactivity, together with
a poor diet have been said to account for at least 400
thousand deaths each year in the United States. 69 Should
this number be close to reality, obesity-related death would
be second only to tobacco use as the leading cause of
preventable death in the United States. 70 In the face of such

66 Id.
67 JOHN C. LIu, AUDIT REPORT ON THE DEPARTMENT OF

EDUCATION'S COMPLIANCE WITH THE PHYSICAL EDUCATION REGULATIONS
IN ELEMENTARY SCHOOLS (2011), available at http://www.
comptroller.nyc.gov/bureaus/audit/PDFFILES_2011/MD11_083A.pdf.

68 Hurd, supra note 64 ("When Dr. David Satcher, the former
surgeon general, gave the Martin Luther King Jr. address at Saginaw
Valley State University in January, he emphasized the importance of
physical education for every child. Ironically, that same month, the
Buena Vista School District cut physical education classes for all
students in the district, from preschool through eighth grade. Of course,
schools need to focus on academics, but educators also need to focus on
the whole individual - including their physical and psychological well-
being. Physical education classes improve motor skills and hand-eye
coordination, encourage cooperative learning and the team concept,
reduce stress and anxiety and increase self-esteem. With the pressure of
standardized testing in the classroom, students are challenged to learn
more and more. This creates stress, which often erupts negatively.
Physical education classes provide an outlet for children to let off pent-
up energy in positive ways.").

69 Katherine M. Flegal et al., Excess Deaths Associated With
Underweight, Overweight, and Obesity, 293 JAMA 1861 (2005).

70 J. Michael McGinnis & William H. Foege, Actual Causes of
Death in the United States, 270 JAMA 2207 (1993).

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INDIANA HEALTH LAW REVIEW

dire statistics and inordinate costs, not having a national
program for implementing physical education in the public
school system is irresponsible and reckless. Because of the
gravity of the problem and to reverse the current trend, it is
critical that there be uniform federal minimum standards of
physical education programs that could be incorporated into
public schools curriculum. To the extent a particular state
chooses to exceed the federal standards, it should be free to
implement its own program. However, the federal standards
would pre-empt any state law that falls short of its
requirements.

To understand why federal legislation is necessary, it is
important to look at some of the states where standards are
either completely lacking, fall short of anything reasonable,
or are wholly conceptual in nature. For example the ten
states with the highest childhood obesity rates as of 2008
have no physical activity requirement laws.71 These states
are: Kentucky, Arkansas, Texas, Alabama, Tennessee,
South Carolina, West Virginia, Missouri, Mississippi, and
Michigan. 72 On the other hand, some of the states with the
lowest childhood obesity rates, such as Colorado and
Oregon, have some of the strictest requirements for physical
education. 73 This is not likely a simple coincidence, even

71 F as in Fat: How Obesity Threatens America's Future 2011,
TRUST FOR AMERICA'S HEALTH (July 2011), http://healthyamericans.
org/report/88/; Childhood Obesity - 2008 Update and Legislative of
Policy Options, NATIONAL CONFERENCE OF STATE LEGISLATURES,
http://www.ncsl.org/Default.aspx?Tabld=13883 (last visited Mar. 21,
2013).

72 Id.
73 Colorado's Children's wellness physical activity requirement

statute declares that:

(3)(a) Each school district board of education shall
adopt a physical activity policy that incorporates into
the schedule of each student attending an elementary
school the opportunity for the student to engage in.

(I) A minimum of six hundred minutes of physical
activity per month if the classes at the school meet five
days per week and the student attends school for a full
day;

(II) A minimum of three hundred minutes of
physical activity per month if the classes at the school

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

with the existence of outliers such as Montana, where there
are no strict requirements, and yet the childhood obesity
rate is relatively low. Montana is in stark contrast to a state
like Georgia where there are no physical education
requirements and the childhood obesity rate is critically
high.74

meet five days per week and the student attends school
for a half day;

(III) A minimum of thirty minutes of physical
activity per day if the classes at the school meet fewer
than five days per week and the student attends school
for a full day; and

(IV) A minimum of fifteen minutes of physical
activity per day if the classes at the school meet fewer
than five days per week and the student attends school
for a half day.

(b) The physical activity policy may include an
exception for any month that includes a planned or
unplanned full-day or half-day school closure.

COLO. REV. STAT. § 22-32-136.5 (2012); Oregon's Physical
education participation; minimum requirements, exceptions,
professional development statute declares that:

(1) . . . Students in kindergarten through grade 5
shall participate in physical eduction for at least 150
minutes during each school week. Students in grades 6
through 8 shall participate in physical education for at
least 225 minutes during each school week.

(2) . . . The instruction shall be a sequential,
developmentally appropriate curriculum that is
designed, implemented, and evaluated to help students
develop the knowledge, motor skills, self-management
skills, attitudes and confidence needed to adopt and
maintain physical activity throughout their lives.

(3) School districts and public charter schools shall
devote at least 50 percent of physical education class
time to actual physical activity in each school week, with
as much time as possible spent in moderate physical
activity.

OR. REV. STAT. § 329.496 (2012) (effective July 1, 2017).
74 How Obesity Threatens America's Future 2011, supra note 71;

2008 Update and Overview of Policy Options, supra note 71.

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While recognizing that a federal mandate requiring
minimum standards of physical education be incorporated
in the nation's public schools curriculum at all grade levels
is necessary and imperative to address the childhood obesity
crisis, it is important to acknowledge that childhood obesity
has a direct impact on states, and that each state could
arguably have good reasons to design specific or unique
individual programs. However, while a state by state
solution may seem theoretically more appropriate, federal
minimum standards will not defeat state initiatives as
states should be allowed to go above and beyond federal
standards.

In states that have no standards or their standards fall
short of the federal minimum requirements, the federal
standards will prevail. For example, in a state like Indiana
where the law-with respect to childhood obesity-is almost
wholly conceptual (no established state task force, no BMI
screening mandate, no physical activity requirements), and
the legislature has not been able to amass enough political
support to advance any new legislation that could make a
meaningful difference in the state's childhood obesity rate
(29.9% as of 2007), federal standards will prevail provided
such standards can withstand potential constitutional
challenges.75

VII. A FEDERAL MANDATE WILL WITHSTAND A
CONSTITUTIONAL CHALLENGE

The greatest handicap facing any federal mandate
designed to incorporate minimum standards of physical
education into the public school system is a constitutional
challenge. It could be argued that Congress's enumerated
powers described in Articles 1 through 8 of the Constitution
do not expand into regulating the shapes and sizes of

75 The Henry J. Kaiser Family Foundation, Indiana: State Laws
Addressing Childhood Obesity, 2011, STATEHEALTHFACTS.ORG,
http://www.statehealthfacts.org/profileind.jsp?rgn=16&ind=52&cat=2
(last visited Jan. 14, 2013); Issues and Research: Childhood Overweight
and Obesity Trends, NATIONAL CONFERENCE OF STATE LEGISLATURES,
http://www.ncsl.org/?tabid=13877 (last visited Jan. 14, 2013).

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

children of the United States.76 It could also be argued that
the Tenth Amendment implicitly places such regulation
within the domain of state power. 77 In addition, within the
context of the state police power to regulate health, safety,
welfare and morals,78 it could be argued that the federal
government will over-extend its power by trying to regulate
an area that is traditionally governed by state laws. 79

Notwithstanding, the U.S Supreme Court, in United
States v. Darby, concluded that the Tenth Amendment will
not stand in the way of the federal government.80 The

76 U.S. CONST. art. I, § 8:

Congress shall have Power To lay and collect Taxes,
Duties, Imports and Excises, to pay the Debts and
provide for the common Defence and general Welfare of
the United States; . . . To borrow Money on the credit of
the United States; To regulate Commerce . . .; To
establish a uniform Rule of Naturalization, and . . .
Bankruptcies . . .; To coin Money . . .; To establish Post
Offices . . .; To promote the Progress of Science and
useful Arts . . .; To constitute Tribunals inferior to the
supreme Court; To define and punish Piracies and
Felonies committed on the high Seas . . ; To declare War

.; To raise and support Armies . . .; To provide and
maintain a Navy.

77 U.S. CONST. amend. X (specifying that "[t]he powers not
delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people").

78 Jorge E. Galva et al., Public Health Strategy and the Police
Powers of the State, 120 PUB. HEALTH REP. 20 (2005), available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2569983/ (last visited
Jan. 14, 2013).

79 Solid Waste v. US Army Corps of Engineers, 531 U.S. 159
(2001) (striking down a federal land use regulation by concluding that
local land use regulation is expressly reserved to the states by the Tenth
Amendment).

80 United States v. Darby, 312 U.S. 100, 124 (1941) (holding that
"the 10th Amendment states but a truism that all is retained which has
not been surrendered"). The Court in Darby further said that "there is
nothing in the history of its adoption to suggest that it was more than
declaratory of the relationship between the national and state
governments as it had been established by the Constitution before the
amendment or that its purpose was other than to allay fears that the

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Supreme Court rarely declares laws unconstitutional for
violating the Tenth Amendment.81 For example, in New
York v. United States, the Court ruled that the Tenth
Amendment is violated in cases where the federal
government compels the states to enforce federal statutes. 82

Notwithstanding, despite finding that the federal
government had overreached in its powers, Justice
O'Connor, writing for the majority, explicitly stated that the
federal government can impose on the states certain
regulations through the spending power (e.g. by attaching
conditions to the receipt of federal funds).83 Such probative
federal jurisprudential precedents make it more difficult to
argue that federal minimum standards for physical
education will not withstand a constitutional challenge.

Furthermore, the school setting is one of the most
appropriate places to apply the model announced in New
York v. United States (and also South Dakota v. Dole)
because the federal government currently provides
substantial funding to the states for school related

new national government might seek to exercise powers not granted,
and that the states might not be able to exercise fully their reserved
powers."

81 See generally New York v. United States, 505 U.S. 144, 149
(1992) (recognizing for only the second time within a fifty-five year span
that the Court invalidated a portion of a federal law for violating the
Tenth Amendment).

82 See generally id. (illustrating when the Supreme Court would
invalidate a federal law for violating the Tenth Amendment). New York
v. United States involved a challenge to a portion of the Low-Level
Radioactive Waste Policy Amendments Act of 1985. The Act stipulated
three incentives for states to comply with congressional statutory
obligations to accommodate the disposal of low-level radioactive waste.
The first two incentives were pecuniary. The third, which brought about
the constitutional challenge, obligated states to take title to any waste
within their borders that was not disposed of prior to January 1, 1996,
and made each state liable for all damages directly related to the waste.
The Court ruled that the imposition of that obligation on the states
violated the Tenth Amendment. Justice Sandra Day O'Connor indicted
that the federal government can encourage the states to adopt certain
regulations through the spending power (e.g. by attaching conditions to
the receipt of federal funds). See also South Dakota v. Dole, 483 U.S.
203 (1987).

83 Dole, 483 U.S at 206 (concluding that Congress may attach
reasonable conditions to funds disbursed to the states).

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

expenditures. 84 States have often consented to federal
requirements in order to access federal grants and other
resources. 85 For example, states cannot receive federal
highway funding unless they implement federally-approved
speed limits and drinking ages.86 Universities cannot
receive federal research funding if they do not provide
gender parity in athletic offerings.87 Historically, states
must offer a prescribed curriculum (including science) in
order to receive federal grants for higher education.88 Also,
in the mid-1960s federal grants were used to influence
southern school boards to adopt extremely unpopular
conditions-desegregating students and teachers in public
schools.89

More recently, according to Elizabeth Cascio (cited
above), the threat of withdrawal of federal education funds
"has been used to encourage states and districts to comply
with the accountability requirements under the No Child
Left Behind Act."90 It is well established that the federal
government can use its constitutional spending power to
affect state and local policies.91 A federal mandate requiring
minimum standards of physical education in grade
schools-under the threat of withholding federal funds-is
no different than any of the above mentioned laws that have

84 Summary of Discretionary Funds, FY2009 Request, U.S. DEPT.
OF EDUC. (Jan. 31, 2008), http://www2.ed.gov/about/overview/budget/
budget09/summary/appendixl.pdf (last visited Jan. 14, 2013).

85 ROBERT JAY DILGER, CONG. RESEARCH SERV., R 40431,
FEDERALISM ISSUES IN SURFACE TRANSPORTATION POLICY: PAST AND
PRESENT (2011), available at http://assets.opencrs.com/rpts/R40431-
20110420.pdf.

86 Dole, 483 U.S. at 205.
87 See generally Favia v. Indiana University of Pennsylvania, 7

F.3d 332 (3rd Cir. 1993).
88 See generally Elizabeth Cascio et al., Paying for Progress.

Conditional Grants and the Desegregation of Southern Schools, 125
Q.J.ECON. 445 (2010), available at http://l1.ccpr.ucla.edu/papers/QJE-
P4P.pdf.

89 Id.
90 Id. at 445.
91 Dole, 483 U.S. at 204 (ruling that Congress could use its taxing

and spending clauses to pressure states to comply with national
drinking-age standards).

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INDIANA HEALTH LAW REVIEW

been found to be constitutional. Therefore, such a mandate
is likely to be ruled constitutional as well.

For those who think the federal government cannot be
the solution, it should not be forgotten that regulations that
are now taken completely for granted sparked fierce
controversy in their time (Clean Air Act, Clean Water
Act).92 Many often characterized legislation such as the
Clean Air Act and the Clean Water Act as being
paternalistic and as power grabs by the government. 93 Few,
today, will argue the nation has not benefited from these
legislations.

In a more recent example, the first reports
recommending that government be involved in regulating
the tobacco industry were controversial. 9 4 Some, defending
smokers' rights, denounced a tobacco tax and potential
advertising bans as an assault on liberty, and as health
education propaganda. 95 While the debate might not be fully
settled today, benefits that continue to flow from regulating
the tobacco industry are quite measurable. 96 It is critical to

92 Edmund S. Muskie, The Clean Air Act: A Commitment to Public
Health http://www.cleanairtrust.org/nepa2cercla.html (last visited Mar.
9, 2013); see also Levin Statement in Opposition to the Clean Water
Cooperative Federalism Act, http://levin.house.gov/levin-statement-
opposition-clean-water-cooperative-federalism-act (last visited Mar. 9,
2013).

93 Id.
94 Joanna E Cohen et. Al, Political Ideology and Tobacco Control

http://tobaccocontrol.bmj.com/content/9/3/263.full (last visited Mar. 9,
2013).

95 Id.
96 Lorenzo Richiardi et al., Cardiovascular Benefits of Smoking

Regulations: The Effect of Decreased Exposure to Passive Smoking, 48
PREVENTIVE MED. 167 (2009), available at http://www.sciencedirect.com/
science/article/pii/S0091743508006294:

Studies conducted in the USA and Europe have shown a
reduction in the number of hospital admissions for acute
myocardial infarction (AMI) in the months following the
introduction of regulations banning smoking in public
places. ([Sargent et al., 2004], [Barone-Adesi et al.,
20061, [Bartecchi et al., 20061, [Cronin et al., 20071,
[Juster et al., 2007], [Khuder et al., 20071, [Seo and
Torabi, 20071, [Cesaroni et al., 20081, [Lemstra et al.,
2008], [Pell et al., 20081). . . . The decreases observed

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THE DECLINE OF MANDATORY PHYSICAL EDUCATION

understand that these regulations govern broad social
issues with national effects that can be better categorized as
infrastructure issues that are outside the scope of one
individual, but from which each can benefit. Their goals
(regulations) are to promote the nation's general welfare-
Congress' primary duty under the Constitution.97 Critics
may respond to government intervention in relation to
individual lifestyle and behavioral choices with rousing
cries for personal liberty, and claim that such
micromanagement of the individual is a manifestation of
authoritarianism. 98 However, dismissing government
intervention as authoritarianism, or the emergence of
absolutism limits debate about the possible benefits of such
intervention.99 Any government that wants to change the
behavior of companies or the public in response to a
perceived or actual health risk (such as the one presented
by the childhood obesity crisis) must be willing to take bold
steps for the greater good. A federal program mandating
minimum standards of physical education in the nation's
public schools is a bold step for the greater good and the
nation's general welfare.

It could debatably be said that almost every government
intervention in the public arena, at one time or another,
have been criticized as a sign of tyranny, "nanny-statism",
or the end of individual freedom. Yet the subsequent
evidence often unmasks the appreciable individual and
public health benefits of once-highly opposed
interventions.100 These results arguably mitigate the

ranged from a 40% decrease found in Helena, Montana,
USA (Sargent et al., 2004) to an 8% reduction seen in
the State of New York. (Juster et al., 2007). Smoking
regulations decrease exposure to passive smoking and
may indirectly decrease active smoking.

97 U.S. CONST. art. I, § 8. ("Congress shall . . . provide for the
common Defense and general Welfare of the United States.").

98 [d.

99 J. Hoek, Public Health, Regulation and the Nanny State
Fallacy, http://ro.uow.edu. au/cgi/viewcontent.cgi?article=100 1&context=
insm08 (last visited Mar. 9, 2013).

100 EPA, Benefit and Costs of the Clean Air Act, http://www.epa.
gov/air/sect812/economy.html (last visited Mar. 9, 2013).

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INDIANA HEALTH LAW REVIEW

negative effects from limitations on individual freedom and
choice. As opposed to blanket criticism of unwarranted
government interference, one must look at such government
necessitated intervention as "stewardship" to understand
the justification and impact. Stewardship implies that
government has a responsibility for protecting national
health, and to serving in the public interest and for the
public good.101 While the concept of free market, state rights
and freedom of choice are noble and must be defended,
anchoring critical choices for the nation's well-being to a
distinct political ideology advances neither free market, nor
state rights, or freedom. The solution to the childhood
obesity crisis should not be required to first worship at the
foothill of political dogma.

Some political theorists take the position that such
government intervention is not in conflict with individual
freedom. Sunstein and Thaler, for example, propound that
public policy helps to eliminate obviously bad choices and
encourages more positive ones to promote individual and
general well-being.102 Certainly, most would like to see
childhood obesity become a thing of the past. If government
intervention can make it easier to accomplish such an
important goal, then it is quite intransigent to argue that
requiring physical education in public schools is an affront
on individual liberty.

Overweight children and obesity-related expenses affect
everyone. The social stigma and the increased health care
expenses associated with childhood obesity necessitate and
reflect the urgency of a comprehensive undertaking of the
national government. Given that up to 80% of the nation's
children attend public schools, a government intervention
through the public school system would effectively reach the

101 See generally Richard B. Saltman & Odile Ferroussier-Davis,
The Concept of Stewardshup in Health Policy, 78 BULL. WORLD HEALTH
ORG. 732 (2000), available at http://www.scielosp.org/pdf/bwho/v78n6/
v78n6a05.pdf.

102 See generally Cass R. Sunstein & Richard H. Thaler,
Libertarian Paternalism is not an Oxymoron, 70 U. CHI.L. REV. 1159
(2003).

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targeted audience. 103 A recent position statement issued by
the American Heart Association supports this assertion,
concluding that "schools could become the central element
in a system that ensures that students participate in
enough physical activity to develop healthy lifestyles." 10 4

Currently, most states require some form of physical
education in schools-though many are conceptual and with
great disparity. 05 To address both the conceptual and the
disparity problems, a comprehensive federal mandate, with
specific standards, requiring the incorporation of physical
education into the nation's public school curriculum is the
solution.

Given the challenges that the United States faces as a
nation, it must come together to defeat this crisis. While
some might question the constitutional power of the
government to require minimum standards of physical
activity at all grade levels in all public schools, these types
of questions, as indicated above, permeated the regulation
of the Tobacco Industry during the 1980s and 90s. As it has
become less and less debatable that the childhood obesity
crisis is a national problem, it should be addressed at the
national level, and the role of the federal government should
be recognized and accepted.106 Besides, the judicial

103 Inst. of Educ. and Science, Fast Facts, NATIONAL CENTER FOR
EDUCATION STATISTICS, http://nces.ed.gov/fastfacts/display.asp?id=6
(last visited Jan. 14, 2013).

104 Russell R. Pate, et al., Promoting Physical Activity in Children
and Youth, 114 CIRCULATION: Am. HEART Assoc. 1214 (2006), available
at http://circ.ahajournals.org/content/114/11/1214.full (arguing that "[iit
appears the time has come to consider a markedly expanded role for
schools in providing physical activity to our children and youth. Schools
could become the central element in a . . . system that ensures that
students participate in enough physical activity to develop healthy
lifestyles").

105 F as in Fat: How Obesity Threatens America's Future 2010,
TRUST FOR AMERICA'S HEALTH (June 2010), http://healthyamericans.
org/reports/obesity2010/ (stating that "[elvery state has some form of
physical education requirement for schools, but these requirements are
often limited, not enforced or do not meet adequate quality standards").

106 President Barack Obama, Presidential Proclamation--National
Childhood Obesity Awareness Month, WHITEHOUSE.GOV (September 01,
2010),http://www.whitehouse.gov/the-press-office/2010/09/01/ presidential-

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precedents make it likely that federally mandated minimum
standards enforced through the government spending power
will likely sustain any potential constitutional challenge. 107

VIII. SOLUTIONS TO THE PROBLEMS OF CHILDHOOD OBESITY

A. Principal

In August 1994, the American Heart Association's
Children's Heart Health Conference met to identify
strategies for promoting healthier children. At the end of
the conference, the organization's "recommendations
regarding children's physical activity were developed to
conform to the goals of Healthy People 2000 as well as the
recommendations from the American Heart Association
Task Force on Physical Activity."108 Its guidelines for
physical education programs are outlined below and are
built upon to provide a more comprehensive approach to
resolving this crisis:

proclamation-national-childhood-obesity-awareness-month (last visited Jan.
14, 2013). President Barack Obama established that September is
National Childhood Obesity Awareness Month, proclaiming that:

One of the greatest responsibilities we have as a Nation
is to safeguard the health and well-being of our children.
We now face a national childhood obesity crisis, with
nearly one in every three of America's children being
overweight or obese. There are concrete steps we can
take right away as concerned parents, caregivers,
educators, loved ones, and a Nation to ensure that our
children are able to live full and active lives. During
National Childhood Obesity Awareness Month, I urge all
Americans to take action to meet our national goal of
solving the problem of childhood obesity within a
generation.

107 South Dakota v. Dole, 483 U.S. 203, 206-07 (1987); see also New
York v. United States, 505 U.S. 144, 171-73 (1992).

108 Samuel S. Gidding et al., Improving Children's Heart Health: A
Report from the American Heart Association's Children's Heart Health
Conference, 65 J. SCH. HEALTH 129 (1995), available at http://
onlinelibrary.wiley.com/doi/10.1111/j.1746-1561.1995.tb06215.x/abstract.

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a. "Provide enjoyable experiences that enhance
students' confidence in their ability to engage in physical
activity."109

This can be expanded upon by developing a national
strategic plan to increase physical activity. Such can be
accomplished (in part) by earmarking transportation
funding to increase physical activity (e.g., bike and walking
paths, buses with bike racks, traffic calming), and by
designing activity-friendly communities.

b. "Provide a significant percentage of students'
recommended weekly amount of physical activity."110

Current laws in states like Colorado and Oregon-where
the legislatures unequivocally mandate the amount of
physical activities that students must be exposed to as part
of the overall curriculum-is a "starting point" for a federal
mandate.11 ' "Starting point" is emphasized because federal
standards do not have to mirror these laws; rather they
could be adjusted, or be built upon for a more complete
approach.

c. "Develop participation competence in
developmentally appropriate physical activities."112

This is to say that physical activity is not a one size fits
all; therefore, activities need to be tailored to a child's
appropriate age and condition(s).

d. "Impart knowledge about the health benefits of
physical activity."113

This can be done by supporting programs that teach both
parents and children about the benefit of physical activity.
Such programs can be funded through conditional federal
grants.

e. "Promote mastery of behavioral skills needed for
maintenance of an active lifestyle."114

109 Id.
110 Id
111 COLO. REV. STAT. § 22-32-136.5 (2012); OR. REV. STAT. §

329.496-2 (2012).
112 Gidding, supra note 108, at 129.
113 Id.
114 Id.

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It is important to recognize that winning the fight
against childhood obesity should not be seasonal or cyclical.
Children need to be taught that maintaining an active
lifestyle does not end beyond the school walls, and that it
should be part of everything they do.

f. "Promote students' participation in physical activity
in school, community, and home settings."115

These can be done by promoting walking and biking to
school; enhancing physical education; offering incentives for
physical activity, striving to decrease sedentary behaviors;
and encouraging celebrities to help promote physical
activity and healthy eating.116

Taken together, these are all activities that can and
should be implemented through a federally mandated
program. Based on the Supreme Court precedents, it is well
within the federal government authority to establish such a
mandate using the spending power.117

B. Alternative Solution

The federal government could simply provide the
necessary funding while allowing states to fashion programs
and choose how these programs are implemented. Such an
approach would seek to strengthen existing requirements
that are working-such as those in Oregon and Colorado, to
incentivize states with no requirements whatsoever to take
the first step, and to hasten potential initiatives that may

115 Id.
116 Marion Nestle, Food Marketing and Childhood Obesity - A

Matter of Policy, NEW ENGL. J. MED. 2527 (2006), available at
http://www.nejm.org/doilfull/10.1056/NEJMp068014. Nestle discusses
whether food marketing is responsible: "[t]he [Institute of Medicine
("1OM")] analyzes the results of 123 published, peer-reviewed studies
addressing links between food marketing and children's preferences,
requests, consumption, and adiposity. Despite Talmudic parsing of the
limitations of the research, the IOM finds that the preponderance of the
evidence supports the links" that food marketing is a contributing factor
as it promotes unhealthy eating. Unhealthy eating is, at least
minimally, a contributing factor to the childhood obesity crisis.

117 See generally South Dakota v. Dole, 483 U.S. 203 (1987); New
York v. United States, 505 U.S. 144, 167-68 (1992).

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be hobbling along due to financial strain.118 However, given
the experiences of the past decades, which unequivocally
highlight the states' failures in addressing the childhood
obesity crisis, there ought to be tremendous reservation to
letting the states once again take almost complete charge of
any attempt at a solution to the childhood obesity crisis. 1 19

IX. CONCLUSION

Childhood obesity is a national problem that has so far
contributed tremendously to the amount of money the
nation spends on health care. This crisis demands a
national solution. While it is in the interest of our system of
federalism to respect and preserve states' power to police
health, safety, morals and welfare of their own citizens, it is
important to understand that a changing environment has
caused the childhood obesity epidemic, and that the
environment, as it is today, is an appropriate place for
federal intervention.

Addressing this problem has been difficult (as evidenced
by the historical records of obesity in general and childhood
obesity in particular) and remains costly; thus prevention
must be a national priority. Justice Silberman (of the
District of Columbia Circuit), in upholding the Affordable
Care Act in 2011, reminded us that almost half a century
ago, the Supreme Court declared in Heart ofAtlanta Motel
v. United States that "the right to be free from federal

118 See generally COLO. REV. STAT. § 22-32-136.5 (2012); OR. REV.
STAT. § 329.496 (2012).

119 Public Health Law: Winnable Battles, Physical Activity for School
Age Children, CENTERS FOR DISEASE CONTROL AND PREVENTION,
http://www.cdc.gov/phlp/winnable/school-activity.html (last visited Jan.
14, 2013). According to the CDC, "federal law does not prescribe
minimum standards for physical education in schools; instead, the
federal government relies on grant programs administered by the
Departments of Education and Transportation to create incentives that
promote [(not mandate)] physical activity in the school setting."

Those incentives have not been successful in pushing states to adopt
meaningful physical education laws as evidenced by many states that
either have adopted a conceptual framework of physical education
without actual requirement.

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regulation is not absolute, and yields to the imperative that
Congress be free to forge national solutions to national
problems, no matter how local-or seemingly passive-their
individual origins."120 Given the documented failures of the
states to resolve this issue of childhood obesity, 121 a federal
mandate requiring all public schools to incorporate specific
standards of physical education in their curriculum is
necessary to bring about uniform compliance that would
ensure a comprehensive approach to this exigency.

120 See Susan Seven-Sky v. Eric Holder, No. 1:10-cv-00950 (2011);
see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-59
(1964).

121 How Obesity Threatens America's Future 2010, supra note 105.

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