Fatties Flunk - New College Obesity Policy is Legal // It May Encourage Other Universities to Adopt Similar Ones

2009-11-22 20:12:27 - A new policy which prevents college students who are obese from graduating unless they lose weight or complete a special course is legal, and may encourage healthier weight in several ways, says public interest law professor John Banzhaf, an obesity-litigation expert, who predicts that other universities may soon adopt it.

A report about the requirement in the Chronicle of Higher Education entitled "Lincoln U. Requires Its Students to Step on the Scale" described him as: "A professor of public-interest law at George Washington University, he has been dubbed 'The Man Who Is Taking Fat to Court' for his use of legal action to fight obesity"
chronicle.com/article/Lincoln-U-Requires-Its/49223/?utm_source=f ..(The+Chronicle%3A+Top+Stories)

Lincoln University's policy which requires students

who are obese -- as indicated by a Body Mass Index [BMI] of 30 or more, or by another measure of body fat -- to either lose weight or to take an exercise course is being criticized by several so-called experts, but Prof. Banzhaf suggests the criticisms lack validity.

Physical fitness requirements, which were once common on many campuses, still remain at our nation's military academies, as well as universities such as VMI and The Citadel, so they obviously are neither illegal nor unprecedented, notes Banzhaf.

Some colleges require students to perform public service, to live with the poor for a period of time, etc., while others prohibit activities like dancing. While many might argue with the wisdom of any particular policy, colleges are free to impose them, and students who come knowing of the policy are bound by it.

But Law Professor Laura Rothstein of Louisville University, described as a leading expert on disability discrimination, "speculated that a student could challenge Lincoln's requirement under the federal Americans With Disabilities Act."

But Professor Banzhaf notes that the ADA applies only to people who have a "physical or mental impairment" so severe that it "substantially limits one or more major life activities" such as "caring for oneself, performing manual tasks," or working, or which substantially limits a major bodily function.

Since most obese college students are able to function normally, the ADA would be applicable only in the most extreme cases -- and even there its applicability might be limited because the university requires only that the student take a course, not actually lose weight.

As Banzhaf is quoted in the Chronicle of Higher Education: The law here is not completely settled, but it seems to apply only in cases of extreme obesity,' Mr. Banzhaf said of disability protections. 'In order to be considered disabled, it must be to the point where someone suffers severe limitations in performing everyday activities. Among college students, it would be hard to find a kid who is that obese"

Peter F. Lake., director of the Center for Excellence in Higher Education Law and Policy at Stetson University, "wrote in an e-mail message that the BMI could be construed as legally protected medical information."
But Banzhaf notes that the BMI information is disclosed only to the individual student.

"The fact that the student may then enroll in an exercise or sports course is no more a unlawful disclosure of medical information than a student having to repeat a course is an unlawful disclosure of medical information," he argues.

Lake also questioned whether such a course would make students healthier. But, notes Banzhaf, physical fitness requirements at our nation's military academies, as well as at VMI and The Citadel, have certainly been effective by forcing students to become more fit. He suggests such requirements work in two ways.

First, many students will be strongly encouraged to become healthier by the threat of otherwise having to attend an additional course. Second, those who attend the course will receive information and encouragement about exercise, a valuable tool to help lose weight, he notes.

J. Eric Oliver, a political-science professor at the University of Chicago, suggests that BMI may be a poor measure of obesity, in part since some people may have a higher BMI because they are very muscular, rather than because they have an excessive amount of body fat.

But Prof. Banzhaf suggests that those rare individuals can demonstrate that they are not obese by a more precise measurement of body fat using a simple impedance device (e.g., a scale or hand-held gadget), skin calipers, etc. Indeed, Banzhaf notes, Lincoln University apparently already permits this.

Also, any particular measure of physical fitness -- e.g., the time to run two miles, the ability to perform sit ups, a treadmill test, etc. -- can be criticized, but colleges have virtually unlimited leeway to adopt whatever policies and criteria they believe are appropriate without second guessing by judges.

Law Professor John Banzhaf, who has been called the lawyer "Who's Leading the Battle Against Big Fat," developed and promoted the concept of using legal action as a weapon against obesity, just as he previously used it so successfully against smoking. So far, ten out of ten fat law suits have been successful.
banzhaf.net/suefat.html

Banzhaf also helped inspire, and then star in, the award-winning movie "Super Size Me."

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor
FELLOW, World Technology Network
2013 H Street, NW, Washington, DC 20006, USA
(202) 659-4312 // (703) 527-8418
banzhaf.net // ash.org