AGO 1977 No. 10 - Apr 28 1977
DISTRICTS ‑- SCHOOLS ‑- STUDENTS ‑- SPORTS ‑- PHYSICAL EXAMINATIONS FOR STUDENTS PARTICIPATING IN INTERSCHOLASTIC ATHLETICS
A school district may require all students desiring to participate in interscholastic athletic activities to undergo, and pass, a physical examination conducted by a qualified medical practitioner, either at school district expense or at the expense of the students involved and/or their parents, before being allowed to compete.
- - - - - - - - - - - - -
April 28, 1977
Honorable Gordon L. Walgren
State Senator, 23rd District
Olympia, Washington 98504
Cite as: AGO 1977 No. 10
By letter previously acknowledged you have requested our opinion on a question which we divide and paraphrase as follows:
(1) May a school district require all students desiring to participate in interscholastic athletic activities to undergo, and pass, a physical examination conducted by a qualified medical practitioner before being allowed to compete?
(2) If question (1) is answered in the affirmative may the district, in lieu of conducting the examination through its own personnel, require it to be obtained by the students involved and/or their parents at their own expense?
We answer both questions in the affirmative for the reasons stated in our analysis.
Initially we must note the basic rule governing the authority of school districts. Such districts are municipal corporations and, accordingly, they may exercise only those powers expressly granted them by the legislature or [[Orig. Op. Page 2]] those which are necessarily or fairly implied from or incident to the powers thus granted or are essential to the declared objectives and purposes for which they have been created. Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930); and Juntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P.2d 78 (1934). Equally pertinent to the questions you pose is the principle that the words "necessary" and "essential," as used in that portion of the foregoing rule enunciating the doctrine of implied powers, refer to legal rather than to practical necessity. State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 283, 146 Pac. 630 (1915). To amplify upon this point, implied powers are those which must be presumed to have been within the intention of the legislative grant. City of Madison v. Daley, 58 Fed. 751 (D.Ind. 1893). If there is a fair or reasonable doubt as to whether or not a particular power has been granted it must be denied. Griggs v. Port of Tacoma, 150 Wash. 402, 273 Pac. 521 (1928).
With these principles in mind we turn to your questions.
Whatever doubts may at one time have existed with regard to the question, it is now clear that school districts in our state have the legal authority to engage in interschool athletic activities. Accord, RCW 28A.58.125, codifying § 1, chapter 32, Laws of 1975-76, 2nd Ex. Sess., and see also, AGO 1974 No. 21 [[to Robert V. Graham, State Auditor, on October 23, 1974]], and AGO 1973 No. 22 [[to Elmer W. Stanley, Executive Director, Washington State School Directors' Association, on October 30, 1973]], copies enclosed.
In the course of exercising that authority it is also beyond question that school districts have the concurrent duty to take reasonable precautions to the end that the physical well-being of participating students is not impaired. See, e.g.,Morris v. Union High School District, 160 Wash. 121, 294 Pac. 998 (1931). In fact, as indicated by that case, it is entirely possible for a school district to be found civilly liable in connection with injuries sustained by a student in the course of an interscholastic athletic endeavor where the responsible officials of the district knew, or should reasonably have known, that the injured student was physically unfit for the particular activity in question.
Largely because of such considerations it is common practice for school districts to require their student athletes to obtain, and pass, a physical examination from a qualified medical practitioner as a condition to their being allowed to turn out for interscholastic sports. In fact, at the present time such an examination is required by rules promulgated by the Washington Interscholastic Activities Association, a [[Orig. Op. Page 3]] voluntary nonprofit association in which most school districts participate in accordance with so much of RCW 28A.58.125,supra, as provides that:
". . . A board of directors may delegate control, supervision and regulation of any such [athletic] activity to the Washington Interscholastic Activities Association or any other voluntary nonprofit entity and compensate such entity for services provided . . ."
See, 1976-77 Handbook, Washington Interscholastic Athletic Association, page 43, wherein the following regulation is set forth:
"Every student who participates in interschool athletics must have passed a physical examination from a licensed medical physician or surgeon during the 12-month period prior to participation."
We have no doubt, based upon the foregoing discussion, that a school district may legally impose such a requirement. Simply stated, it seems to us undeniable that interscholastic athletic activities may, with reasonable foreseeability, jeopardize a particular student's physical well-being as a result of bodily stresses which a given participant's body cannot safely withstand. Furthermore, the particular physical weakness or tolerance level of a given individual may involve internal conditions or otherwise be discernible only upon examination by a trained professional. Therefore, there would appear to us to be an ample basis for concluding that a school district, in the exercise of implied authority in connection with its conduct of interscholastic activities, may condition a student's participation upon his successful passage of a physical examination by a qualified medical practitioner.
There remains, however, an additional issue to be explored; i.e., whether it likewise follows that a school district may lawfully require the physical examination to be obtained at the expense of the student and/or his parents rather than being provided and paid for by the district itself.
Admittedly this is a somewhat closer question than that of whether a school district may require physical examinations for prospective student athletes in the first place. As you [[Orig. Op. Page 4]] have pointed out in your letter, it is quite true that there is no statutory provision which may be said specifically to authorize such a practice. On the other hand, there likewise is no such specific authorization for the expenses of such examinations to be incurred by the school district either. Yet, in AGO 57-58 No. 138 [[to John Panesko, Prosecuting Attorney of Lewis County, on December 5, 1957]], copy enclosed, this office had little difficulty in finding a legal basis for something quite similar to the subject of your question.
In that opinion we were asked, inter alia, whether a school district could require, and itself pay for the costs of, physical examinations for students participating in physical education courses. We responded as follows:
". . . The duty to provide physical education is set forth in RCW 28.05.040. There is little doubt that the directors owe a duty of care, in providing these courses, not to endanger unreasonably the lives and health of the participating students, and that for a breach of this duty the school district could be held liable. SeeRead v. School District No. 211 of Lewis County, 7 Wn. (2d) 502.
"It is conceivable that a case might arise wherein an element of this duty of care would be to ascertain by examination the physical condition of a student participating in a physical education course, and that a jury might find in such a case negligence in failing to take that precaution. It follows that the directors of a school district must have, among their implied powers, the power to exercise some discretion in this matter, in order to protect their school district from potential liability.
"We conclude that a school district may employ one or more physicians for the purpose of making physical examinations of students participating in physical education courses when, in the discretion of the board of directors, such examinations are reasonably necessary as a precaution against potential liability on the part of the school district. We further conclude that the expense of such examinations may be borne by the school district as a necessary expenditure in the performance of duties imposed by law. See our attached opinion to the superintendent of public instruction on October 23, 1935; also Hallett v. Post Printing & Pub. Co. (Colo.), 192 Pac. 658."
[[Orig. Op. Page 5]]
We did not, however, purport to say in that opinion that a school district would berequired to provide such examinations at its own expense ‑ as opposed to that of the participating students or their parents. Since then, moreover, we have issued two other opinions which, although they did not deal with the particular subject, are supportive of just such an alternative policy. Accordingly, based thereon our answer to the second part of your question is also in the affirmative.
The subsequent opinions to which we refer are AGO 65-66 No. 113 [[to Frank B. Brouillet, State Representative, on October 13, 1966]]and AGO 1973 No. 11 [[to Lorraine Wojahn, State Representative, on May 10, 1973]], copies of which you will also find enclosed for immediate reference. For the most part, we were there concerned with the legal authority of school districts to charge tuition or fees of one kind or another; i.e., a general tuition fee,1/ a special fee for certain courses2/ or charges for the use of school buses.3/ In addition, however, we were also asked several questions involving the ability of such districts, in lieu of themselves providing free use of textbooks or other classroom materials, etc., to require students and/or their parents to purchase and provide such items at their own expense and we responded by saying, for the most part, that this could legally be done. The only exception involved those first class school districts which have been directed by their voters to provide free textbooks in accordance with RCW 28A.59.180(9).4/
In thus concluding we relied, first, upon another statute, RCW 28A.58.103,5/ which authorized but did not require school districts, generally, to provide free textbooks, supplies and other instructional materials. On the basis of that statute we said at p. 5 of AGO 65-66 No. 113:
"Accordingly, we conclude that all classes of school districts have authority to loan [[Orig. Op. Page 6]] textbooks and supplies to students when, in the best judgment of the governing board of directors,
"'. . . the best interests of the district will be subserved thereby, . . .' RCW 28.58.100(7), supra.
"In the case of a first class district this permissive authority may become mandatory pursuant to a vote of the electors under RCW 28.62.180(10),supra. However, where the district (not having been directed to the contrary by its electors, in the case of a first class district) determines not to 'loan' textbooks and supplies to its students it follows, in our opinion, that the district, under authority of RCW 28.58.100(8),supra, may require that the students provide the same for their own use through purchase from such bookstores or other commercial retail outlets as carry the books and materials in question."
Then, secondly, we cited and indicated agreement with an Illinois supreme court decision inSegar v. Board of Education of the School Dist. of the City of Rockford, 317 Ill. 418, 148 N.E. 289 (1925), from which we quoted as follows:
"'. . . A system of schools, which permits all persons of school age residing in the district to attend classes and receive instruction in the subjects taught, without a tuition charge, provides free schools, and the fact that the parents of pupils financially able to do so are required to provide their children with text-books, writing materials, and other supplies required for the personal use of such pupils does not change the character of the school.' (Emphasis supplied.)"6/
Likewise, in AGO 1973 No. 11,supra, we said much the same thing with respect to textbooks and classroom supplies, generally.
[[Orig. Op. Page 7]]
Then, in addition, we there went on to apply the same rationale to the acquisition of such things as magazines or other periodicals used in class, class pictures, yearbooks and finally, graduation caps and gowns. Of these various items we said, at p. 18 of AGO 1973 No. 11:
"First to be dealt with are such things as magazines or newspapers to which a student may be required to subscribe as part, for example, of a current events study undertaken as a part of a social studies course. We think the analysis to be applied here is precisely the same as that which we earlier applied to textbooks and classroom materials. Unless it is a first class school district which has been ordered by its electors to provide these materials without charge to the students under RCW 28A.59.180(9),supra, a school district may either do so in the exercise of its sound discretion under RCW 28A.58.103 when, in the judgment of the board,
"'. . . the best interests of the district will be subserved thereby . . .'
"or it may require them to be provided by the students through their resources or those of their parents. And, again, a first class district under its special statute may provide these materials without charge to the children of indigent parents even though it does not do so, generally, for all of its students.
"As for optional items as class pictures, year-books, or graduation cap and gown rentals, we turn to another prior opinion of this office, AGO 61-62 No. 48 [[to Herbert H. Davis, Prosecuting Attorney of Benton County, on July 21, 1961]], copy enclosed. Relying onValentine v. Independent School Dist., 191 Iowa 1100, 183 N.W. 434 (1921), we there concluded that although a school district could not withhold the diploma of a student who refused to obtain (rent or purchase) and wear a cap and gown in a high school graduation ceremony, it could deny such student the privilege of participating in that ceremony.
"Similarly, although a school district may not require any of its students to purchase either individual or class pictures taken by a private, commercial photographer, it may exclude those students who do not do so from having their pictures in its school yearbook where this book [[Orig. Op. Page 8]] is made up (in pertinent part) of individual or class pictures thus taken. And likewise, although no students may be required to purchase a yearbook, those that want such a book may be required to pay for it through purchase from the publisher.
In brief summary, what we thus said in both AGO 65-66 No. 113 and AGO 1973 No. 11 is that school districts, although authorized to provide various materials and services for their students at public expense, are not required to finance all personal costs incident to school attendance or participation in school activities. And while fees may not be charged for services or materials provided by a school district in the absence of statutory authority, it is not unlawful for such fees to be imposed for services or materials provided to students by others; e.g., in the instant case, a private physician performing a required physical examination.
Although a school district may not require any of its students to turn out for interscholastic sports, such a district, as we have earlier concluded, may exclude students from doing so who are unable to establish their physical fitness and well-being, in relation to the demands of such athletic activities, by means of passing a physical examination. And though such examinationsmay be given at the expense of the school district, as indicated in AGO 57-58 No. 138,supra, that is not required. Therefore, in accordance with the reasoning of AGO 65-66 No. 113 and AGO 1973 No. 11,supra, it is permissible for a district to require them to be provided, instead, at the expense of the students and/or that of their parents.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/No, except as provided for in RCW 28A.58.240 relating to certain adults and nonresident children and in RCW 28A.58.080 (since enacted) relating to summer school.
2/No, except for traffic safety education under RCW 46.81.080; see, also, RCW 28A.58.113 (since enacted) authorizing fees for option noncredit extracurricular events.
3/No, except for extracurricular activities.
4/Then RCW 28.62.180(10).
5/Then RCW 28.58.100(7).
6/We then said, however, that while a district which retains discretionary authority in this area of textbooks and supplies could require its students to obtain these materials through outside purchase, ". . . the district cannot require students to purchase the same from the district" ‑ citing another prior opinion, AGO 51-53 No. 494 [[to J.C. Merkel, Prosecuting Attorney of Kitsap County, on March 12, 1953]].