2011-01-04 22:03:40 by admin

  • Criminal and Civil Liability

“I don’t think parents are aware of what their kids are being asked to navigate, particularly when they go to college.” These words were spoken by Leslie Lanahan, mother of Gordie Bailey, a University of Colorado student who died in September 2004 as a result of alcohol poisoning after a fraternity Hazing ritual. Gordie was a freshman pledge in Chi Psi fraternity. Several months following Bailey’s death, the university’s chapter of the fraternity was shut down. Furthermore, the university’s interfraternity council lost its affiliation with the university after its leaders refused to agree to a series of reforms demanded by institutional administrators. Among the disputed reforms was a delay in recruitment until the spring semester and a requirement that each fraternity and sorority have a live-in adviser. Lanahan filed suit against the fraternity and some of its members, alleging negligence in the death of her son. In March 2009, the parties reached an out-of-court settlement (Lanahan v. Chi Psi Fraternity, 2008). The settlement acknowledged that the Chi Psi fraternity brothers hazed Bailey up until his death. The Lanahans then formed the Gordie Foundation, which is designed to raise awareness and raise funds for antiHazing activities and initiatives. Subsequently, the foundation joined documentary filmmaker Pete Schuermann and produced the 2008 film Haze to bring further attention to Gordie’s story and others of a similar nature. This entry examines scope of Hazing and the legal issues surrounding it.
According to the antiHazing group StopHazing.org, Hazing is defined as “any activity expected of someone joining a group (or to maintain full status in a group) that humiliates, degrades or risks emotional and/or physical harm, regardless of the person’s willingness to participate.” The nature and effects of Hazing vary greatly. Examples of subtle Hazing include deception, assigning demerits, silence periods or other social isolation, deprivation of privileges, and assigning tasks to newcomers that are not assigned to others. More harassing forms of Hazing include verbal abuse, threats of abuse, sleep deprivation, requiring new members to wear embarrassing or humiliating attire, obligating them to perform skits or stunts, and mandating that they perform tasks for veteran members. According to StopHazing.org, the most serious and violent Hazing activities includes sexual misconduct, public nudity, forced or coerced drug and alcohol consumption, branding, paddling or other physical assault, burning, and engaging in illegal activity. While Hazing activities are most commonly connected with fraternities, sororities, and athletics teams, Hazing does occur elsewhere, including in performing arts, academics, and other activities. Moreover, today, Hazing and its effects have spread to cyberspace, where Hazing activities themselves, like harassment and threats, occur online, and where photographs and videos of those activities are posted to social networking sites and to YouTube.

Criminal and Civil Liability

According to StopHazing.org, 44 states have enacted antiHazing laws that apply to K–12 schools as well as colleges and universities. For example, Ohio’s law defines Hazing as “doing any act or coercing another, including the victim, to do any act of initiation into any student or other organization that causes or creates a substantial risk of causing mental or physical harm to any person” (Ohio Rev. Code Ann. § 2903.31; see also Ohio Rev. Code Ann. § 2307.44). Ohio’s law, like the antiHazing laws of many other states, imposes both criminal and civil liability on offenders, who are most often other students, and it is important to note that liability is imposed on administrators, staff members, and faculty members who permit such Hazing to occur, either recklessly or negligently by failing to prevent it from happening.
Criminal penalties against those who commit Hazing or permit it to take place range from lowdegree misdemeanors to felonies. It is likely more common that the students who directly participate in Hazing activities would be the ones criminally charged. However, in at least one recent case, a dean of students and a director of Greek life were also indicted in a Hazing incident that led to the death of a student, although charges against the administrators were later dismissed.
Civil liability, most often in the form of substantial monetary damages, can attach to colleges or universities as a whole, the local and national fraternities or other associated organizations with which they are affiliated, and to the individuals involved, both students who engaged in Hazing and employees. Such a situation arose in Louisiana, where a student and his parents successfully filed suit to recover for the injuries that he sustained as a result of being hazed by fraternity members (Morrison v. Kappa Alpha Psi, 1999). For an example of a civil liability standard from state statutory law, consider the following:
If the Hazing involves students in a primary, secondary, or post-secondary school, university, college, or any other educational institution, an action may also be brought against any administrator, employee, or faculty member of the school, university, college, or other educational institution who knew or reasonably should have known of the Hazing and who did not make reasonable attempts to prevent it and against the school, university, college, or other educational institution. If an administrator, employee, or faculty member is found liable in a civil action for Hazing, then . . . the school, university, college, or other educational institution that employed the administrator, employee, or faculty member may also be held liable. (Ohio Rev. Code Ann. § 2307.44)
The prospect of civil and criminal liability against colleges and universities along with individual officials ought to act as an incentive for institutions to enact and enforce strong in institutional antiHazing policies. In fact, the best defense that college or university officials can offer against claims for civil liability in Hazing incidents is that administrators were actively enforcing policies against Hazing when incidents transpired. Furthermore, enforcement must not be arbitrary, capricious, or against the weight of the offenses. In other words, punishments, often including the closing of fraternity chapters, the denial of recognition of student organizations or athletics teams, and suspension and expulsion of student participants, must fit the severity of the alleged infractions. At the same time, it is important that university officials follow all internal procedural requirements. For instance, if a college or university has a student judicial panel that is designated to hear such cases, then officials must ensure that all procedures associated with such hearings are followed.
When students or others who have been injured file suit, their negligence or consent is rarely a viable defense, even though most victims of Hazing in institutions of higher education are, legally, adults. Additionally, while the existence of antiHazing policies is a powerful tool for colleges and universities, their existence is useful for plaintiffs in liability suits insofar as they can assert the policies in their arguments that defendants had duties of care to keep students safe.
A leading case making this point with regard to liability is Furek v. University of Delaware (1991). In Furek, pledges to the Sigma Phi Epsilon fraternity were expected to undergo a series of initiation rituals, the culmination of which was a secret ritual known as Hell Night. As part of Hell Night, Jeffrey Furek, a pledge in the fraternity, was escorted while blindfolded into the kitchen of the fraternity house. Fraternity members then proceeded to pour pancake batter, ketchup, and other food onto the heads of the pledges. One member also poured a lye-based liquid on the back of the plaintiff’s neck, causing him to suffer from first and second degree burns. The plaintiff was permanently scarred and subsequently withdrew from the university, forfeiting his athletic scholarship. The national fraternity withdrew the local chapter’s registration. The plaintiff filed suit against the university, both the local and national chapters of the fraternity, and individual members of the local chapter.
The jury in Furek awarded the plaintiff $30,000 in damages, apportioning 93% of the liability to the university and 7% to the upperclass fraternity member who poured the chemicals on the plaintiff. On further review of the university’s appeal, its lawyers argued that its officials did not owe a duty of care to supervise the actions of adult students living in fraternity houses even though the land was owned by the university and the building was owned and operated by the fraternity. The Supreme Court of Delaware disagreed with the university’s arguments. In its analysis, the court cited the university’s own antiHazing policy as evidence. To this end, the court was of the opinion that the existence of the policy, which defined Hazing and gave university officials the authority to deny recognition and registration to any student groups that engaged in such activities, helped establish a special relationship between the institution and its students that gave rise to the duty of care.
Although university officials did not regulate the day-to-day living conditions in the fraternity house, the house was located within the campus boundaries and was subject to the university’s security department and disciplinary provisions. The court acknowledged that the students involved in the activities were legal adults and that the university would not be liable on an application of the In Loco Parentis doctrine as if its officials were acting “in place of the parents.” The court added that the university, through its officials, did have a duty to regulate and supervise the foreseeable and dangerous activities of its students on campus.
The Supreme Court of Delaware ultimately upheld the dismissal of the local fraternity for procedural reasons while sustaining the jury’s findings in favor of the national fraternity, because its officials exercised reasonable care in controlling the local chapter’s activities. With respect to the university, the court engaged in a detailed discussion of the duty of care that officials owed in such circumstances, ultimately concluding that institutional administrators were liable, because they had assumed such a duty. The court thus remanded the dispute for a trial on the amount of damages that the university would owe the injured student.
In response to the incidents in Furek and other Hazing cases, the national fraternity adopted the “Balanced Man Program” in 1993. This is an intensive four-year experience that shifts fraternity life from “beer-soaked blowouts” to healthy living, self-respect, and academic and professional development.
The court in Furek noted the importance of the existence of a university antiHazing policy in the establishment of a duty of care. Yet liability often depends not merely on the duty of care but on how university officials react to knowledge of Hazing incidents. For example, university officials who act with deliberate indifference to known and reported acts of Hazing would likely be found liable, at least in part, for the damages suffered by the victims. On the other hand, if university officials have no knowledge of the incidents, and the victims deny that they ever occurred, then liability may not be imputed to the university or its leaders (Alton v. Texas A&M University, 1999). As stated earlier, the best defense for universities and their leaders to Hazing claims is actively enforced antiHazing policies and cultures that encourage healthy, professional group activity and prevent Hazing from occurring in the first place. Readers are strongly encouraged to consult their local laws and university policies for antiHazing provisions and other initiatives designed to eliminate Hazing as well as its dangerous effects on the wide array of stakeholders who are engaged in day-to-day activities in institutions of higher learning.
Patrick D. Pauken

See also Disciplinary Sanctions and Due Process Rights; Extracurricular Activities, Law, and Policy; hate crimes; Sexual Harassment, Peer-to-Peer; Sexual Harassment, Quid Pro Quo; Sexual Harassment, Same-Sex; Student Suicides
Further Readings
Anas, B. (2009, March 17). Lawsuit over Gordie Bailey’s death in CU frat settled. Boulder Daily Camera [Electronic version]. Retrieved June 21, 2009, from http://www.dailycamera.com/news/2009/mar/17/ lawsuit-over-gordie-baileys-death-cu-frat-settled
Coughlan, A. (2008, December 17). Hazing death sentence: No booze for frat prez. The Trentonian [Electronic version]. Retrieved June 23, 2009, from http://www.trentonian.com/articles/2008/12/17/news/ doc4948af457d301602765230.txt
Goldwert, L. (2007, August 28). Charges dropped in college drinking death. CBS News. Retrieved June 23, 2009, from http://www.cbsnews.com/stories/2007/08/28/national/main3213819.shtml
Johnson, J., & Holman, M. (Eds.). (2004). Making the team: Inside the world of sport initiations and Hazing. Toronto, ON: Canadian Scholars’ Press.
Lanahan, M., Lanahan, L., & Watt, R. (Producers), & Schuermann, P. (Director). (2008). Haze [Motion picture]. United States: Pete Schuermann in association with the Gordie Foundation. Available at http://www.hazethemovie.com
Lipka, S. (2008, March 21). Student-affairs meeting: Hazing extends beyond fraternities. Chronicle of Higher Education, 54(28), A21.
Mullan, E. (2007, September). Administrators indicted after student death. Retrieved June 21, 2009, from http://www.thefreelibrary.com/Administrators+indicted+after+student+death.-a0169088123
O’Toole, T. (2006, May 19). Internet revives Hazing issue. USA Today, p. 9C.
StopHazing.org: Educating to eliminate Hazing. http://www.stopHazing.org
Thornburgh, N., & Sanders, E. (2006, February 20). Taming the toga. Time, 167(8), 52.
Legal Citations
Alton v. Texas A&M University, 168 F.3d 196 (5th Cir. 1999).
Furek v. University of Delaware, 594 A.2d 506 (Del. 1991).
Lanahan v. Chi Psi Fraternity, 175 P.3d (Colo. 2008).
Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105 (La. Ct. App. 1999).
Ohio Rev. Code Ann. §§ 2307.44, 2903.31.