72-9733

ARNOLD, Donald Eugene, 1937-

LEGAL BASIS OF PHYSICAL EDUCATION IN
SELECTED STATES.

Indiana University, P.E.D., 1971

Education, physical

University Microfilms, A XEROX C om pany, Ann Arbor, Michigan

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IE © 1971

DONALD EUGENE ARNOLD

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ALL RIGHTS RESERVED

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nTQSERTATTON HAS BEEN MICROFILMED EXACTLY AS RECEIVED

LEGAL BASIS OP PHYSICAL EDUCATION IN SELECTED STATES

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BY
IE DONALD EUGENE ARNOLD
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Submitted in partial fulfillment of the requirements

for the Doctor of Physical Education degree
in the School of Health, Physical
Education, and Recreation
Indiana University
February, 1971
 Accepted by the faculty of the School of Health,
Physical Education, and Recreation, Indiana University, in
partial fulfillment of the requirements for the Doctor of
Physical Education degree.

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Q / v£ L R> _________________
Director of Thesis'*

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Doctoral Committee: P ^ * Chairman
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 ACKNOWLEDGMENT

Appreciation is expressed to the Wheaton Public

Schools, District 95? for the sabbatical leave which made
graduate work infinitely more enjoyable than it would have
been otherwise.
Appreciation is also expressed to Dr. John Daugherty,
Dr. Otto Ryser, and Dr. Forbis Jordan for their guidance and
direction as the author proceeded along the trail leading to

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the doctoral degree.
A special word of thanks is extended to Dr. John B.
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Daugherty for his direction of this thesis, and to Dr.
Lowell Rose, for nurturing the writer's interest in school
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law, and for his assistance in the preparation of this
thesis; also, to colleagues, teachers, and friends who
helped in ways perhaps unknown to them, and finally to my
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wife Kathy, and our children Paul, Julie, and John for their
sacrifices, patient understanding, encouragement, and sup­
port.

D.E.A
 DEDICATION

This thesis is dedicated to my parents.

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 TABLE OP CONTENTS

Chapter Page

I. INTRODUCTION ................................ 1
Statement of the P r o b l e m .................... 1
Need for the S t u d y .......................... 2
Purposes of the S t u d y ........................ 8
Value of the S t u d y .......................... 9
Scope of the S t u d y .......................... 10
Delimitations................................ 12
Definitions.................................. 13

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II. REVIEW OF RELATED L I T E R A T U R E ................ 17
Review of Literature Contributing Background
Information................................ 17
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School L a w ................................ 17
Physical Education L e g i s l a t i o n ............ 19
Governmental Immunity...................... 22
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Present Status of Governmental Immunity . . . 25
Save Harmless L a w s ........................ 28
Exceptions to the Immunity D o ctrine........ 29
Future of Governmental Immunity............ 31
Tort Immunity of Teachers.................. 31
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N e g l i g e n c e ................................ 33
Defenses Against Negligence ................ 39
Summary of Background Information.......... 42
Articles Related in Content .................. 44
Textbooks Related in C o n t e n t ................ 51
Theses Related in Content and M e t h o d ........ 5^
III. P R O C E D U R E S .................................. 61
Compilation of Statutes...................... 61
Analyzing the Statutes ...................... 63
Compilation of the List of Court Cases . . . . 65
Briefing the C a s e s .......................... 65
Analyzing the Cards Containing Points of
L a w ........................................ 71

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Chapter Page

IV.PRINCIPLES OF SCHOOL DISTRICT LIABILITIES . . . 74-

Tort Liability of School Districts
Generally.................................... 74-
Negligence and N u isance........................ 83
Specific Tort Liability of School Districts,
Their Officers and E m p l o y e e s ................ 95
Summary........................................ 103
V. ANALYSIS OF STATUTES RELATED TO PHYSICAL
EDUCATION IN ILLINOIS, INDIANA, KENTUCKY,
MISSOURI, IOWA, AND WISCONSIN................ 108
Nature and Extent of Each State's

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Legislation.................................. 108
Summary........................................ 119
VI. ANALYSIS OF COLLECTIVE COURT CASES ANDPOINTS
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OF LAW DRAWN FROM INDIVIDUAL COURT CASES . . 125
Analyses of Collective Court Cases .......... 125
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The School Districts' Liability for
Supervision.................................. 136
Determining the Adequacy of Supervision. . . . 146
Judicial Views of Instruction.................. 150
First Aid and Other Medical A s p e c t s ............ 170
Physical Education Areas, Facilities, and
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Equipment.................................... 175
Keeping Facilities and Equipment in Safe
Condition.................................... 186
Liability for Injuries to Spectators
Attending Co-Curricular Activities ........ 205
Accounting for Athletic Receipts and
E x p e n d i t u r e s ................................ 214
The Courts and Interscholastic Athletic
Eligibility Rules .......................... 219
The School District's Power to Grant
Exclusive Rights to Broadcast Athletic
C o n t e s t s .................................... 242
Summary........................................ 244
VII. FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS . . 246
Findings Based on an Analysis of Related
Chapter Page

Findings Related to Liability, Immunity,

and N e g l i g e n c e .............................. 248
Findings Based on an Analysis of State
S t a t u t e s .................................... 251
Findings Based on an Analysis of the
Collective Court Cases .................... 253
Findings Based on an Analysis of Points of
L a w .......................................... 254
Conclusions.................................... 262
Recommendations................................ 263
Recommendations for Further S t u d y .............. 264
B I B L I O G R A P H Y .................................. 265

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Legal R e f e r e n c e s .............................. 271
A P P E N D I X ...................................... 273
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Appendix A: Table of C a s e s .................... 274
Appendix B: A Form for Analysis of
Physical Education
Legislation .............. 289
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 LIST OF TABLES

Table Page

1. The Number of Physical Education Related

Cases for Each Five-Year Period Beginning in
1910 126
2. Number and Direction of Decisions in Cases
Tried From 1950Through 1 9 6 9 ...................... 128
3 . Number of Physical Education Related Cases
Tried in EachStateThrough 1969 ................ 130

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4. Physical Education Issues and Frequency of
Their Occurrence in Cases Which Originated in
the Interscholastic Athletic and Basic
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Instruction Phases of the Physical Education
P r o g r a m ......................................133
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 1

CHAPTER I
INTRODUCTION

Statement of the Problem

The central problem in this study was the determina­

tion of the legal base for administering and teaching physi­
cal education in the public elementary and secondary schools.
State statutes and court decisions dealing with the activi­

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ties and practices of physical educators were the primary
sources which contained the data from which the legal base
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of physical education was determined. Since the statutes of
only the states of Illinois, Indiana, Kentucky, Missouri,
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Iowa, and Wisconsin were compiled, analyzed, and compared,
special emphasis was placed on the bases which are particu­
larly applicable to those states. Court decisions rendered
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in courts of record throughout the United States in which

the subject matter was related to some aspect of the physical
education program were compiled and studied.
Secondary sources contributed to the interpretation
of the statutes and provided opinions concerning answers to
questions which were not answered in the statutes or by court
decisions. Textbooks and professional journals from the
fields of school law and physical education were the second­
ary sources searched.
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The sub-problems associated with this study included:

(1) compilation by state of those statutes within the school
codes of Illinois, Indiana, Kentucky, Missouri, Iowa, and
Wisconsin which were concerned with the school physical edu­
cation program; (2) analyzation of the statutes for each of
the six states, and a comparison of these statutes; (3)
compilation of decisions rendered in courts of record in
cases related to some aspect of the physical education pro­
gram; (4) analyzation of these decisions; and (5) examination

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of secondary sources of law to supplement points of law drawn
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from the primary sources, and to obtain opinions on questions
the courts have not ruled upon and to which statutes have not
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provided answers.

Need for the Study

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Scholars in the field of school law have long recog­

nized the impact statutes, court decisions, and rules and
regulations related to education have upon the operation of
the schools. During the past decade this awareness of the
vital importance of school law has rapidly spread to teachers
and administrators in public and private schools and col­
leges. This growing interest in all areas of school law is
manifest in the increasing amount of literature dealing with
this body of law. One prominent reason for the increased
attention given to school law is the increase in the amount
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of litigation related to the schools. "Estimates of school-

involved lawsuits give the number as being higher than 8,000
per year."'*'
Among the factors contributing to the increase in
litigation is the fact that schools have been consolidated
and people within the district feel less personal identifi­
cation with the school, and therefore find it is easier to
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institute litigation against the school. The amount of
damages awarded in many cases has been quite large, and the

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size of such awards has encouraged people with a possible
basis for legal action to see what they could get.
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individuals were further encouraged by the knowledge that
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most, if not all, school districts subject to suit have lia­
bility insurance. Guley noted an increasing willingness on
the part of the public to bring suits for damages and at­
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tributed this to the ever extending and expanding insurance

business. He observed that the courts tend to award larger
amounts in cases in which an insurance company is named with
other defendants.^ Another reason why there is more litiga­
tion involving aspects of the school program is because the
doctrine of governmental immunity is slowly but rather

^Gauerke, W. E . , What Educators Should Know About

School Law, p. 9-
p
Grieve, Andrew, The Legal Aspects of Athletics,
p. 159.
^Guley, Marc, The Legal Aspects of Injuries in
Physical Education and Athletics, p. 1.
steadily being modified. More and more exceptions to this
doctrine are being recognized.
A basic knowledge of school law is essential to the
"personal security and professional confidence" of every
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member of the school community. Board members, administra­
tors, purchasing agents, teachers, coaches, sports officials,
athletic trainers, school physicians and nurses, Bchool law­
yers, and transportation directors should be alert to the
legal rights, duties, privileges, and responsibilities en­

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tailed in their educational efforts. Grieve states, "It is
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only realistic for an individual, or group of individuals,
responsible for particular activities to be familiar with
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the legal restrictions and obligations associated with such
activities.
Physical educators must be particularly cognizant of
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the legal framework within which they operate. Their appre­

ciation of the importance of such knowledge is reflected in
numerous articles contained in professional periodicals.
The past decade has seen a great expansion in physical edu­
cation curriculums from the elementary schools to the col­
leges. The development of new equipment has made participa­
tion possible in many new activities, and the emphasis on
fitness has contributed to the fact that more students of all

^rury, R. L., and Ray, K. C., Essentials of School

Law, p. iii.
^Grieve, o p . cit., p. 15.
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ages are now served by physical education programs than ever

before. However, the extension of the program, the acquisi­
tion of new equipment, areas, and facilities, and the large
number of participants have been accompanied by an increase
in the number of pupils injured in physical education pro­
grams. The number of injuries per participant may not be
greater, but they are more numerous, and this is one reason
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injuries are receiving more attention.
i Playfields, swimming pools, gymnasiums, and field-

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houses are fertile areas for accidents, and more school
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accidents occur in physical education activities than in any
other phase of general education. Accidents too often occur
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as a result of negligence. It is a principle of law, at
least where individuals are concerned, that liability follows
negligence.
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A full understanding of legal liability benefits the

student, the teacher, and the school district. When an in­
jury occurs and a lawsuit follows, the student at the least
suffers pain, and at the worst, permanent disability or
death. Litigation at best causes the teacher to suffer an
emotional drain and professional embarrassment, and at the
worst he may suffer a crippling financial loss. The school
district at best receives poor publicity and at the worst

van der Smissen, Betty, Legal Liability of Cities

and Schools for Injuries in Recreauron and Parks, p. iii.
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financial disaster, unless such loss is covered by insurance.

Despite the vital importance of school law, the inclusion of
school law is not yet an integral phase of the curriculum of
schools preparing teachers. Consequently, the majority of
teachers now in service, including those in physical educa­
tion, have had no formal education in school law; their
knowledge of the legal implications for carrying out an in­
structional program is gained by reading articles in profes­
sional Journals.''7

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Guley wrote in 1952, "One of the worst failures in
training teachers and coaches for the profession is the com­
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plete disregard of the rules and regulations which legally
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govern them." Despite this and other exhortations, the
legal base of physical education has received little atten­
tion in administrative texts, and often only limited atten­
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tion in professional courses. Professional Journals have

dealt mainly with the liability for injuries due to the neg­
ligence, or alleged negligence, of the teacher. Although
negligence is one of the more important areas of school law,
it is only one segment of the legal basis of physical educa­
tion.
There are several reasons why professional courses,
textbooks, and periodicals seldom contain a comprehensive

^Shroyer, G. F., "Personal Liabilities of a Secondary

School Physical Educator," Physical Educator 21:55i May* .1964-
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Guley, op. cit., p. 16.
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treatment of the legal "basis of physical education. State

statutes affecting the physical education program are very
dissimilar, some being permissive and some mandatory. This
makes state statutes a difficult subject to cover in a course
or text designed to assist in the preparation of teachers
for positions in a wide geographic area.
Certainly there cannot be a statute covering every
situation, and understandably it is sometimes difficult to

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interpret those which we have. Therefore, court decisions
and attorneys general's opinions must be relied upon to fill
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gaps in the law and to construe the statutes.
The law is constantly changing as it evolves from
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statutes and court decisions. This is not to say the law iB
not stable; however, a competent presentation of the legal
basis of physical education does require periodic examina­
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tion of the latest annotated copy of the state statutes, and

a thorough study of the most recent court decisions related
to physical education. Such a study will require proficiency
in the use of legal methodology and vocabulary.
The law is both stable and dynamic, and it is also
quite complex. One can best appreciate the complexities of
the law by observing that the United States Supreme Court
frequently fails to reach unanimous agreement on important
issues and this body is composed of some of the country's
best legal minds. And superior courts have often reversed
the decisions of lower courts. Primarily for these reasons,
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the legal base of physical education is not given the em­

phasis it deserves in textbooks and professional courses.

Purposes of the Study

It has been pointed out that all persons associated

with the school physical education program need to have an
understanding of the legal base of this program. This legal
base provides guidelines and direction for the many activi­

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ties involved in the planning and implementation of the
physical education program.
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the initial preparation of the physical educator often gives
him an inadequate concept of these legal basis, and even
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where this initial concept has been adequate, there is a
periodic need for up-dating one's knowledge because of the
dynamic nature of the law.
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A personal study of the legal base of physical educa­

tion requires a knowledge of legal terminology, skill in the
use of legal methodology, and access to several sources of
information. With an awareness of these difficulties in
mind, the following purposes were selected for this study:
1. To provide a compilation of all statutes re­
lated to physical education in each of the
states of Illinois, Indiana, Kentucky,
Missouri, Iowa, and Wisconsin
2. To show the present status of that legisla­
tion, and to the extent possible, point out
the general nature and provisions of such
legislation
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3. To show how the legislation of each of the

six states compares with the other states
4. To provide a compilation of cases related to
the physical education program tried in
courts of record
5. To extract principles of law from the court
decisions and reasons for the decisions in
these cases
6. To introduce the physical educator to legal
concepts, legal terminology, and legal
methodology needed to review periodically
the recent statutes and cases related to
physical education.

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Value of the Study
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This study is a valuable personal reference for physi­
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cal educators, and an excellent reference for physical educa­
tion courses in administration and methods. Every effort was
made to present a complex subject in a comparatively simple
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manner without the use of a large number of technical terms.

It was hoped that this thesis would be interesting, as well
as enlightening reading for physical educators.
An attempt was made to brief all cases related to
physical education tried in courts of record. However, no
claim is advanced that it is an exhaustive listing. It was
assumed that the list of cases briefed was extensive enough
that the decisions in those cases not located would not have
materially affected the findings in this study.
While the findings, conclusions, and recommendations
of this study will be of greatest interest to physical
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educators, the information r e g a r d i n g the doctrine of immu­

nity, the theory of negligence, and the principles of law
drawn from the court decisions is valuable to school person­
nel in all areas.

Scope of the Study

The central problem of this study was the determina­

tion of the legal base for the physical education program

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including its basic instruction, intramural, and interscho­
lastic levels of participation.
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decisions related to physical education are the primary
sources of data which form the legal base of physical educa­
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tion.
To compile and analyze the statutes of all the states
and to compile, brief, and analyze an extensive list of
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cases in the same study would have required an exhorbitant

amount of time, and would have resulted in a publication
which was not in harmony with the purposes and goals set for
this study. Therefore, the decision was made to analyze the
statutes in only six states, but to analyze decisions ren­
dered in courts of record throughout the United States.
The rationale for limiting the analyzation of statutes
instead of limiting the analyzation of court cases was as
follows. State statutes vary greatly from state to state,
and apply only in those jurisdictions which enact them. On
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the other hand, appellate court decisions have the force of

law in the jurisdiction of the court rendering the decision
until overruled by a higher court or the legislature and are
persuasive outside the jurisdiction. The degree to which
they are persuasive depends upon the level of the court
making the decision. And as previously stated, the legisla­
ture cannot enact laws covering every situation, and court
decisions are needed to fill gaps in the law and to construe
the statutes.

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The selection of Illinois was based upon the author's
past teaching experience and because his future position was
also to be in Illinois.
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The decision to include those states
which are contiguous to Illinois was a rather arbitrary one;
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however, one of the goals of this study was to provide a

source of information which would be helpful in preparing
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teachers in Illinois and the surrounding states, and also

informative to those members of the profession already in
the field in this same geographic area.
‘The statutes of the states of Illinois, Indiana,
Kentucky, Missouri, Iowa, and Wisconsin in effect Februaiy
1, 1970, were examined. Court decisions rendered prior to
February 1, 1970, in courts of record throughout the United
States were compiled and studied.
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Delimitations

The following delimitations were made in this study:

1. In compiling the statutes for purposes of analyza­
tion and comparison, only the states of Illinois, Indiana,
Kentucky, Missouri, Iowa, and Wisconsin were considered.
2. School health and safety programs and community
recreation programs were mentioned in this study only when
physical education statutes and court cases were related to

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these programs.
3 . Statutes and court cases related to driver educa­
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tion and outdoor education were not a part of this study.
4. No attempt was made to see how closely current
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practice conforms to state statutes and regulations, or how
accurately current statutes and regulations reflect the
"best that we know” in physical education, or to otherwise
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pass judgment on the adequacy of current statutes and regu­

lations. To do so would he a separate study.
5. The compilation of cases contains only those
cases which were tried in courts of record in the United
States. Litigations which were settled out of court, or
decisions rendered in courts of original jurisdiction were
not included in this study.
6 . Statutes and cases relating to corporal punish­
ment, the hiring or dismissal of personnel (with one excep­
tion) , and cases arising from criminal acts, contract
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obligations, or teacher dress and appearance were not a part

of this study. Statutes, cases, and board policies covering
these areas are numerous, but they are concerned with prob­
lems or situations which are neither unique nor particularly
important to the physical education program.
7* * Statutes and cases related to physical education
but directed specifically toward institutions of higher
education were not a part of this study unless the decision

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in such a case was the best source of law on a point which
was an important part of the legal basis of physical educa­
tion.
8.
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Cases arising from incidents and situations on
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school playgrounds before or after school, during the noon
break or during recess periods (as opposed to physical edu­
cation classes) were included only when the points of law
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taken from the decisions in these cases were equally appli­

cable to the physical education program.

Definitions

Where it has been possible to do so, the legal terms,

and those terms having special meaning as they are used in
this paper are defined at the point in the study at which
they are used. The development of a fundamental legal
vocabulary will assist the reader in getting a better
understanding of this study and serve him in the future as
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he makes necessary revisions in the legal base which guides

and directs his activities.
The following words or phrases are defined as they
apply to this study:
Appellate court— a higher court which hears an appeal
of a case, tried in a lower court.
Code— a collection of laws dealing with one subject
such as the building code, or as in this thesis, the school

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code.
Common law— that body of legal principles derived from
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usage and custom, or from court decisions affirming such
usages and custom, or from the acts of Parliament in force
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at the time of the American Revolution; such law is distin­
guished from statutes enacted by American legislatures.
Civil action— arises from the infringement of a per­
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son's individual rights.

Criminal action— arises from an illegal act against
society.
Damages— are awarded to the plaintiff by the court as
compensation for injury actually received by him from the
defendant.
Defendant— the party against whom the suit is brought.
Dissenting opinion— the opinion of one or more mem­
bers of the court disagreeing with the opinion of the major­
ity.
Ex rel.— legal action on behalf of another.
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Governmental function— the performance of a function

directly related to the organization's purpose for existing,
or functions imposed or required of government agencies for
the protection of the general public.
Immunity— freedom or protection from legal action.
Injunction— a formal order issued by a court re­
quiring performance of a specific act or prohibiting perform­
ance of a specific act.
Litigation— a contest between two or more parties in

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court.
Mandatory legislation— laws which require certain
actions.
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Permissive legislation— laws which are passed to allow
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certain actions by specific groups; such legislation does

not require action.
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Plaintiff— the party who brings the action; he may

file a complaint seeking due performance of a legal obliga­
tion, cessation of a continuing act or financial compensation
for injuries caused by the defendant.
Precedent— the review of a previous court decision as
an example or as authority in rendering a decision in a later
case in which the legal question at bar is similar.
Proprietary function— the performance of a function
not directly related to an organization's purpose for
existing; in the case of a school, the performance of a