SCHOOLS ‑- FINANCE ‑- PURPOSES FOR WHICH MONEY MAY BE EXPENDED -- PHYSICAL EXAMINATIONS OF SCHOOL BUS DRIVERS ‑- PHYSICAL EXAMINATIONS OF STUDENTS PARTICIPATING IN PHYSICAL EDUCATION COURSES

SCHOOLS ‑- FINANCE ‑- PURPOSES FOR WHICH MONEY MAY BE EXPENDED -- PHYSICAL EXAMINATIONS OF SCHOOL BUS DRIVERS ‑- PHYSICAL EXAMINATIONS OF STUDENTS PARTICIPATING IN PHYSICAL EDUCATION COURSES --SCHOOL DISTRICTS ‑- EXPENDITURES

A school district may lawfully cause physical examinations to be made of its school bus drivers and pay the cost thereof.  Where necessary to protect itself from potential liability, in the discretion of the board of directors, a school district may also cause and pay for physical examinations of students participating in physical education courses.

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                                                                December 5, 1957

Honorable John Panesko
Prosecuting Attorney
Lewis County
Chehalis, Washington                                                                                                              Cite as:  AGO 57-58 No. 138

Dear Sir:

            You have requested the opinion of this office upon a question which we paraphrase as follows:

            May the county auditor pay vouchers submitted for the cost of:

            (1) Physical examinations of school bus drivers ordered by the board of directors of a school district?

             [[Orig. Op. Page 2]]

            (2) Physical examinations of students in the physical education classes also ordered by the board of directors?

            We answer both questions in the affirmative.

                                                                     ANALYSIS

            School districts have such powers as are expressly granted and those necessarily implied in or incident to the powers expressly granted.  They also have such powers as are essential to the declared objects and purposes of the district.  McGilvra v. Seattle School District No. 1, 113 Wash. 619.

            A school district operating a bus for conveying children to and from school is required to exercise the highest degree of care consistent with practical operation of the bus.  Phillips v. Hardgrove, 161 Wash. 121; Leach v. School District No. 322 of Thurston County, 197 Wash. 384.  A jury in a given case might well find that the failure to take steps to ascertain the physical condition of bus drivers employed by the school district constituted a failure to perform this duty of care.  Therefore, we think that it can be fairly stated that a physical examination may be reasonably necessary to protect the school district from possible liability, and that, for its own protection, the school district may secure these examinations itself, through a physician appointed or designated by the board of directors.  In the carrying out of these duties, it must follow as a necessary conclusion that the expenses may be borne by the district so long as the school itself selects and pays the physicians.

            Similar reasoning supports a conclusion that the district may make expenditures in certain cases for the examination of students who participate in physical education courses.  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  [[Orig. Op. Page 3]] 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 [[1935-36 OAG 59]]; alsoHallett v. Post Printing & Pub. Co. (Colo.), 192 Pac. 658.

            Parenthetically we might add that the propriety of such expenditures could be questioned only upon a clear showing that the board of directors had abused its discretion.

            We trust that this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General