Running Head: is it worth the risk?



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Running Head: IS IT WORTH THE RISK?

Is it Worth the Risk?

Legal Issues with Hazing in Fraternities

Katey Cheplick

Legal Issues in Higher Education

Mercy Roberg

Fall 2015



Introduction

Fraternities used to be the idealization of college life. Being in a fraternity elevated you to a civilized society of academia, professionalism, and brotherhood which seems like a recipe for success. However, almost as soon as fraternities infiltrated colleges, they started to accumulate a negative stigma revolving around partying, sexual misconduct, and debauchery. Most recently, hazing cases have become a major issue within fraternities in higher education. The questions that are important to ask are: Do the benefits of fraternities outweigh the costs? Is it work the risk to higher education institutions to expose themselves to liability cases involving hazing in fraternities? With hazing on the rise and court cases delivering contradicting opinions, examining legal issues within fraternity hazing is more important now than ever.



Purpose: The purpose of this paper is to uncover the positives and negatives of having the presence of Greek life in higher education institutions. This paper will make the argument that Greek life causes problems that outweigh the intended benefits. The history of hazing and Greek life in higher education, the benefits (or purpose) of Greek life in higher education, the issues with Greek life in higher education, and legal terms of hazing will all be covered. In order to show some of the legal issues with hazing in fraternities, I will be doing a case study of a current court case, Yost v Wabash.

History of Greek Life in Higher Education

The birth of college fraternities began in November of 1825 at Union College with five members who had all been a part of the same military company beforehand and were looking to fill the void of no longer belonging to a group. This secret society of men became known as the Kappa Alpha society. Union College later added two other secret societies known as Sigma Phi and Delta Phi. By 1832, Hamilton College founded the first fraternity outside of Union College, Alpha Delta Phi and by 1850 fraternities had landed on virtually every college campus in New England and the mid-Atlantic region (Syrett 13). By the time the Civil War began in 1861, 22 different national chapters had 299 local chapters at 71 colleges (Syrett 26). The purpose of fraternities was to embody the ideals of ancient Greek culture that was responsible for the founding of Western Civilization. That is, members were expected to subscribe to notions of self-improvement through literature, oratory, and camaraderie (Syrett 25). The earliest fraternities were often referred to as “literary societies” because their members maintained extensive libraries that rivaled the college’s library. Through these literary societies, members held debates and participated in extensive essay writing which they felt suited them better than college classwork (Syrett 17). Another reason why fraternities were so appealing was because they offered their members a social network that mirrored familial relationships which helped them to not feel homesick while they were away at school (Syrett 14). These societies helped to distinguish members from non-members in an exclusive way that gave the members an elevated status (Syrett 25).

Although “frat houses” did not come until the late nineteenth century, hazing practices are as old as fraternities themselves (Syrett 30). Rivalries between freshman and sophomore members paired with the practice of “Freshman Laws” adopted by many colleges in the seventeenth and eighteenth centuries created a precedent for sophomore members to “teach” freshmen members the ways of college life. These teachings often manifested themselves in the form of hazing. In order for freshman to display their inferior status to the upperclassmen, they were expected to avert their eyes and step off the path if an upperclassman was approaching and act as servants to the upperclassmen, among other things (Syrett 18). Freshmen were also kidnapped, stripped, tarred, bound, gagged, left in cemeteries, and forcibly had their hair cut all in the name of displaying their low status in the hierarchy of the fraternity (Syrett 19). Towards the end of the nineteenth century, new members were known as pledges rather than freshmen (because sometimes they did not have freshman standing) and pledging rituals had evolved. Pledging rituals might include feeding pledges nauseating things, torturing, beating, and/or painting the body of the victim (Syrett 151). The rationale for such actions was that the fraternity brothers needed to transform the pledge from a boy to a man and these rituals continued because they were considered a form of tradition within the fraternity (Syrett 150).

The first case of hazing that was brought into the national spotlight was the death of Mortimer Leggett, a Kappa Alpha pledge at Cornell University in 1873, who fell into the gorge to his death because he was wearing a blindfold as a fraternity ritual (Syrett 151). By 1874, Congress passed the first statute to prevent hazing at the Naval Academy in Annapolis, Maryland (Somers 657). In 1894, as a result of many incidents that made hazing commonplace in fraternities, Phi Kappa Psi was the first Greek organization to publicly go on record at the national fraternity convention condemning the practice of hazing (Syrett 152). However, by this time fraternities had established so much prestige that pledges were willing endure anything in order to be a member of a fraternity; even if it meant humiliation and torture (Syrett 153).



Hazing in Legal Terms

Using Penn State as an example, hazing is defined as “any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student or that willfully destroys or removes public or private property for the purpose of initiation or admission into or affiliation with, or as a condition for continued membership in, any registered student organization” (Penn State Student Affairs). Penn State includes these actions under the term hazing:



  • Any brutality of a physical nature, such as whipping, beating, branding, forced calisthenics, exposure to the elements, forced consumption of any food, liquor, drug, or other substance

  • Any other forced physical activity that could adversely affect the physical health and safety of the individual to extreme mental stress, such as sleep deprivation, forced exclusion from social contact, forced conduct that could result in extreme embarrassment

  • Any other forced activity that could adversely affect the mental health or dignity of the individual

  • Any willful destruction or removal of public or private property (Penn State Student Affairs).

Continuing with the example, Penn State clearly states their definition of hazing, what hazing may include, Pennsylvania’s definition of hazing, the consequences of hazing, how to report hazing, and links to other helpful websites. Many universities have adopted the practice of clearly stating their condemnation of hazing through anti-hazing policies. In fact, by Pennsylvania State law, all public and private institutions are required to adopt a written anti-hazing policy. Their rules “shall adopt rules prohibiting students or other persons associated with any organization operating under the sanction of or recognized as an organization by the institution from engaging in any activity which can be described as hazing” (Penn State Student Affairs). In addition to any penalties imposed by the State of Pennsylvania, higher education institutions are expected to impose their own penalties which include but are not limited to: fines, withholding degrees, suspension, dismissal, sanctions on the organization, or rescission of the organization’s permission to operate on campus (Penn State Student Affairs).

It is important to note that 44 out of 50 states in the United States have adopted anti-hazing laws (StopHazing.org). However, each state has very different definitions, statutes, and consequences when it comes to hazing conduct. Therefore, consistency between different court decisions involving similar hazing cases is hard to find and often confusing (Kendrick 407). For example, many states apply various degrees of misdemeanor statutes on hazing; however states like Kentucky and Tennessee, for example, require colleges and universities to adopt and enforce anti-hazing policies on their own (Williams). Most states qualify hazing as a misdemeanor whereas Utah defines some acts of hazing under the category of a felony (Somers 658). Other states such as California and Connecticut treat hazing as a violation and will only impose fines to the individual and/or organization (Williams).

Something else that becomes problematic and complicated is that when a student or representative of the student pursue legal actions in hazing cases, they may try to place the blame on more than one party. That is, a student may pursue legal action against the university, the local fraternity chapter, the national fraternity organization, and/or any of the individual members of the fraternity. The student or the student’s representative may also accuse the defendants of any combination of liabilities such as: duty to warn, duty to protect, assumed duty to care, vicarious liability, negligence, wrongful death, and the list goes on.

Yost v Wabash

Yost v Wabash is a case that has received a lot of attention within the past year involving hazing and it is a good example of how a student can (and will) pursue legal action against multiple parties with multiple accusations. Brian Yost was a college freshman at Wabash College in 2007 when he decided to rush for the fraternity, Phi Kappa Psi. Yost was a pledge at the fraternity when a celebratory tradition went awry. A traditional hazing activity known as “creeking” was performed on a couple of fraternity members including the college freshman, Yost. The fraternity members proceeded to throw Yost into the shower where he sustained some injuries that allegedly caused him to withdraw from college. Yost decided to pursue a variety of liability charges against Wabash College, the local chapter of Phi Kappa Psi, the national organization of Phi Kappa Psi, and Nathan Craven, a member of the fraternity (Yost v Wabash).

Yost believes that Wabash College is liable for three things: 1. Negligence as owner and landlord of the Phi Kappa Psi house by failure to protect Yost during the criminal (or negligent) act committed by Cravens (aka premises liability), 2. Negligent breach of assumed duty to supervise and regulate activities and behavior of fraternities on its campus, and 3. Vicarious liability for the negligence of the local fraternity and its members. For the ruling regarding Wabash College, the Supreme Court of Indiana looked mostly at the landlord-tenant relationship between fraternity members and Wabash College. Wabash College owned the house that Phi Kappa Psi members lived in but had a limited right of entry to the premises. The exclusive possessors of control in that house were the fraternity members and for this reason, the court found that Wabash had no duty to protect Yost from those unforeseen events. Yost believed that since Wabash College had created policies condemning hazing and had punished students for hazing in the past, they had an assumed duty to protect Yost from hazing incidents. The Supreme Court of Indiana ruled that Wabash College did not have an assumed duty to protect Yost because there was no special relationship between the student and the college. Furthermore, the court accentuated the importance of colleges making their own policies and creating their own educational programs condemning hazing without being liable for the assumed duty to protect every individual student. Finally, the Supreme Court of Indiana ruled that Wabash College was not responsible for the fraternity because they had relinquished control of its actions, therefore Wabash was not vicariously liable (Yost v Wabash).

Yost accused the national fraternity organization of the same three liability charges as they did with Wabash College. As a result, the Supreme Court of Indiana held the same decisions with the national fraternity organization as they did with Wabash. The national fraternity organization could not be negligent because they did not have any oversight in the local fraternity’s day-to-day activities. The national fraternity did not have an assumed duty to Yost that would warrant him to claim liability for damages. Finally, the national fraternity organization is not vicariously liable because there is not an agency relationship between the national organization and Yost (Yost v Wabash).

When it came to the local fraternity chapter, the Supreme Court of Indiana had a different opinion. The local chapter of the fraternity can be liable because the fraternity members had authority over the pledges. The authority over pledges may have led to injuries sustained by Yost. By failing to exercise reasonable care for Yost, the local fraternity may have increased the risk of harm to him. The Supreme Court of Indiana decided that Yost is allowed to continue legal action against the local fraternity (Yost v Wabash).

For now, this is where Yost v Wabash stands but there are some important things to take away from this case as it pertains to past and future hazing liability cases. First, the court looked at previous hazing cases such as Furek v University of Delaware and L.W. v Western Golf Association. In Furek v University of Delaware, the Delaware Supreme Court ruled that the school and fraternity could be held liable for the injuries sustained by a student as a result of an act of hazing. In L.W. v Western Golf Association, the fraternity was not liable for a sexual assault case because there had been no prior instances of sexual assault at that fraternity house (Flora 3). After considering these cases, the Indiana Supreme Court ultimately ruled that this case was an isolated event that only a few people participated in. The Supreme Court of Indiana went against the Furek decision which shows the vast inconsistencies between court decisions regarding hazing.

This case is important because the court looked to the landlord-tenant relationship between Wabash College and Yost to find whether or not the college was liable for Yost’s damages. It also illustrates how hazing liability cases can try to hold multiple parties responsible for multiple charges. Most importantly, this case shows that rulings in hazing cases differ dramatically because although the court looked at prior hazing cases, they decided not to apply those decisions to their cases. Instead, they found their own reasoning and decisions.



Benefits of Greek Life in Higher Education

As it was stated before, the initial goals of Greek life organizations were to promote literature, oratory, and camaraderie. Many people who are in favor of fraternities argue that fraternities continue to accomplish their initial goals in the current era. Georgianna Morgan’s (et al.) study set out to prove that first-year college students who are involved in Greek life have higher levels of leadership qualities than students who are not involved in Greek life (268). According to Morgan, when a student joins a Greek life organization they are encouraged to join other groups such as student government or community service organizations (268). The results of their study showed that Greek life members do score higher in leadership qualities. Therefore, membership in a fraternity may influence a student’s development of socially responsible leadership in their first year of college (Morgan 278).

Another attractive aspect of fraternities is that they provide a student with prestige or an elevated status. Syrett explains that the earliest fraternity brothers were trying to gain “social capital” (4). The same is true for today; being a member of a fraternity sets you apart from other fraternity brothers and non-members. Not to mention, they help to build family-like relationships for students who may have trouble adjusting to college life; this is still true today. Those relationships that have been built can lead to professional networks outside of college and life-long friendships.

Issues with Greek Life in Higher Education

“…In the world of fraternity life, reckless and wanton behavior is often far from a rarity. In a sexually charged environment fueled by rampant alcohol and recreational drug use without the slightest semblance of direct adult supervision, one must wonder how many horrible cases must come to pass before the cost of association between schools and the Greek system outweighs the benefits.” – Colin Flora

In Flora’s blog post, he asks the question, “Should universities expose themselves and taxpayers to the prospect of high liability for the actions of rowdy college boys through direct involvement with fraternities?” (Flora 2). One should consider the facts: Fraternities facilitate underage and binge drinking and they have traditions that can be dangerous or harmful to its members. At least one student has died as a result of fraternity hazing every year since 1970 (Feirberg). At Cornell University, hazing incidents increased from 15 in 2006 to 31 in 2009 (Feirberg). Finally, fraternities and sororities were ranked by the National Association of Insurance Commissioners as the sixth-worst risk for insurance companies which is just behind hazardous-waste-disposal companies and asbestos contractors (Feirberg). These examples are just a fraction of all the cases and incidents revolving around fraternity hazing, sexual misconduct, underage drinking, and other criminal activities. The dangers and risks of joining a fraternity are explicit yet students continue to put themselves at risk by joining. Therefore, higher education institutions should not continue to put themselves at risk of being liable for hazing incidents and as a result, they will not allow students to continue putting themselves in dangerous situations. That is, colleges and universities should not allow Greek life organizations to rent out the institution’s buildings, they should not advocate for such organizations, and they should clearly state the risks involved with joining Greek life organizations (they should clearly report all incidents that have happened relevant to the Greek life community on their respective campus).

Personal Opinion: Future of Hazing Liability

Long gone are the days of in loco parentis where universities stood “in place of parents.” Colleges and universities have moved towards limiting their exposure to liability for incidents that happen on campus especially in regards to Greek life. Today, colleges and universities have adopted the “no duty” rule which states that the institution is under no obligation or duty to control or govern the students’ behavior (Somers 660). Although there are exceptions to the “no duty” rule, colleges and universities have clearly tried to move away from any association that could hold them liable for students’ actions or behaviors outside of their direct control. Since higher education institutions cannot always be present at every fraternity party in every fraternity house, it is smart that they have removed themselves from direct day-to-day association with such organizations. However, as stated before, colleges and universities are not completely free from liability as seen in Furek v Delaware.

Although there are anti-hazing policies implemented in the majority of higher education institutions, hazing incidents still continue and have, in some cases, increased. What is even more troubling is that even though college students know the dangers of hazing, they continue to rush for Greek organizations. Another issue is that there are too many inconsistencies between state laws and hazing definitions. Those inconsistencies lead to contradicting court decisions in hazing cases which causes confusion in other courts, litigation, policy-making, university protocol, and just in general. There needs to be some kind of reform to create uniformity between state laws.

Reverting back to Colin Flora’s quote; is exposing a university to liability worth the risk? Greek life has drifted away from their initial goals of literature, oratory, and camaraderie. Many people can argue that Greek life still provides those three things -- I believe that to some extent they can too. However, those three goals have been overshadowed by a focus on partying, sex, and debauchery which all have dangerous consequences. There are plenty of Greek organizations that do not have issues hazing or criminal activity which is the reason why my answer to the previous question is not a resounding “no.” However, collectively, the benefits of Greek life do not make up for the costs. For this reason, I believe that it is within the best interest of higher education institutions to continue to remove themselves from associating with Greek life organizations by not letting them rent out university-owned houses on campus and refusing to advocate for organizations that cause so many problems.



Conclusion

With hazing incidents on the rise and anti-hazing efforts having an underwhelming influence on activities in fraternities, one must ask themselves: Is it worth it? Should higher education institutions continue to expose themselves to liability cases involving hazing incidents? Although it is unwise to generalize all fraternities and the outcomes that they produce, it is also unwise to neglect the cases in which students have been harmed or have died as a result of fraternity hazing. Somewhere along the history of Greek life, the intentions of fraternities changed from developing prominent members of society to facilitating student misconduct. Fraternities went from being the idealization of college life to a college’s nightmare. The fact of the matter is that the benefits do not outweigh the costs when it comes to Greek life on campus. There are many legal issues when it comes to hazing especially regarding the inconsistencies between court decisions and legal definitions. Even still, colleges and universities expose themselves to liability charges and expose their students to danger by allowing Greek life organizations to rent out their buildings and operate on campus. With all things considered, it would be in a college or university’s best interest to cut ties with Greek life organizations in order to avoid hazing incidents and exposure to liability.



References

Anti-Hazing Laws. (n.d.). StopHazing.org. Retrieved from: http://www.stophazing.org/university-college-policies/states-with-anti-hazing-laws/

C. Flora. (2012, October 5). Fraternity and University Hazing Liability and Other Acts. Hoosier Litigation Blog from Pavlack Law, LLC. [Law Blog]. Retrieved from: http://www.jdsupra.com/legalnews/fraternity-university-liability-for-ha-49590/

Feirberg, D. (2012, April 29). To end fraternity hazing, end boozing first. The Chronicle of Higher Education. Retrieved from: http://search.proquest.com.ezaccess.libraries.psu.edu/docview/1011934256?pq-origsite=summon&accountid=13158

Hazing Information. (n.d.). Penn State Student Affairs. Retrieved from: http://studentaffairs.psu.edu/hub/greeks/hazing.shtml

Kendrick, C. (Fall 2000). Ex parte Barran: In search of standard legislation for fraternity hazing liability. American Journal of Trial Advocacy, 24(2). 407-440. Retrieved from: http://heinonline.org.ezaccess.libraries.psu.edu/HOL/Page?handle=hein.journals/amjtrad24&div=28&start_page=407&collection=journals&set_as_cursor=0&men_tab=srchresults



Martin, G., Hevel, M., & Pascarella, E. (2012, August 22). Do fraternities and sororities enhance socially responsible leadership? Journal of Student Affairs Research and Practice, 49(3), 267-284. Retrieved from: http://dx.doi.org/10.1515/jsarp-2012-6245

Somers, N. (2007). College and university liability for the dangerous yet time-honored tradition of hazing in fraternities and student athletics. Journal of College and University Law, 33(3). 653-680. Retrieved from: http://heinonline.org.ezaccess.libraries.psu.edu/HOL/Page?handle=hein.journals/jcolunly33&div=30&start_page=653&collection=journals&set_as_cursor=1&men_tab=srchresults

Stafford, D. (2014, February 26). Campus fraternity chapter may be liable for alleged hazing injury. The Indiana Lawyer. Retrieved from: http://www.theindianalawyer.com/campus-fraternity-chapter-may-be-liable-for-alleged-hazing-injury/PARAMS/article/33533

Syrett, N. (2009) The company he keeps: A history of white college fraternities. Chapel Hill: The University of North Carolina Press.



Williams, J. (2012) Anti-hazing statutes. c.ymcdn.com/.../resource/resmgr/docs/state_hazing_laws.pdf

Yost v Wabash. 3 N.E.3d 509. (2014). Retrieved from: http://scholar.google.com/scholar_case?case=17570690977230973936&q=yost+hazing&hl=en&as_sdt=6,33


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