Hazing and Higher Education: State Laws, Liability, and Institutional Implications

Jacinda Boucher

Introduction and Objective:

During recent years, colleges and universities nationwide have witnessed a steady rise in hazing-related deaths and injuries, spawning a myriad of complex legal issues and considerations. Although hazing activities commonly occur in a variety of clubs and athletic teams, much of the existing case law pertains to Greek-letter organizations. Therefore, hazing within fraternities and sororities was the focus of research for this paper. While once dismissed as a few isolated cases caused by overzealous Greek members, hazing has developed into a disturbing trend, as more and more initially harmless pranks become potential lawsuits: “While fraternity misadventures comprise many a humorous tale, they may also leave multimillion dollar judgments, humiliation, disfigurement, crippling injury, and death in their wake” (Paine, 1994, p.191). But how much legal responsibility lies with the postsecondary institution involved and what duty does it have to protect its adult students from harm under these circumstances? This paper will explore institutional liability regarding hazing. By examining key foundational cases, it will demonstrate how the university’s legal stance has shifted from the in loco parentis doctrine to a “no duty” rationale in matters such as alcohol and hazing. Furthermore, it will consider the parallels and implications of state hazing statutes on institutional regulations, and offer suggestions for increasing compliance with hazing policies, subsequently minimizing the risk for potential institutional liability.

What is hazing?

Within the context of fraternities and sororities, the term ‘hazing’ often invokes images of paddling, drinking games, and other “Animal House” antics. However, in reality it encompasses an extensive range of behaviors and activities, ranging from seemingly innocuous activities such as blindfolding and scavenger hunts, to more dangerous and extreme physical punishments, including sleep deprivation and excessive exercise. Currently, no singularly collective definition of hazing exists, and state laws differ with regard to what is considered criminal hazing. Nuwer (1999) defines hazing as “an activity that a high-status member orders other members to engage in or suggests that they engage in that in some way humbles a newcomer who lacks the power to resist, because he or she wants to gain admission into a group” (p.xxv). Most traditionally-aged college students want to feel as if they belong to a group. Many regard hazing as an unpleasant but necessary task that must be endured in order to earn their membership: “For years…hazing has been viewed as a rite of passage – an initiation ceremony designed to determine one’s worthiness as a prospective ‘brother’” (Curry, 1989, p. 93). “Fitting in” is still quite salient at this stage of development, and courts have acknowledged the peer pressure element inherent in the pledging process (MacLachlan, 2000). Most students entering college and pledging Greek-letter organizations have reached the legal age of adulthood, yet their lack of emotional maturity may make them more susceptible to hazing or other potentially harmful activities. Therefore, to what extent should the college or university act as guardian or is it absolved of this duty altogether? In order to adequately address this question, it is essential to examine the evolution of institutional liability, particularly within the realm of the in loco parentis doctrine.

The Rise and Fall of the In Loco Parentis Doctrine:

Historically, colleges and universities were looked upon as “parental supervisors” to the students they enrolled: “Universities could control every facet of a student’s life…the courts did not question the authority of colleges over their students” (MacLachlan, p.514). This line of reasoning - the basis of the in loco parentis doctrine - survived until the turbulent 1960s-1970s era, when societal attitudes and the relationships between students and colleges began changing. The demise of in loco parentis was partly due to the student rights litigation of the 1960s (MacLachlan, 2000), yet a procession of cases beginning with Bradshaw v. Rawlings (1975) unofficially put an end to the doctrine.

Bradshaw v. Rawlings and the Origin of the “No Duty” Rule:

In Bradshaw v. Rawlings (1975), two Delaware Valley College students attended a sophomore class picnic sponsored by the school. There was alcohol served and Rawlings became intoxicated. On the way back to campus, Bradshaw was a passenger in Rawling’s vehicle. Rawling subsequently lost control of the car, struck a parked vehicle, rendering Bradshaw a quadriplegic. Bradshaw later sued the college - among others - claiming that it had breached its duty to protect him from unreasonable risk of harm. The fact that the students were “under age” was not enough to convince the court that they were entitled to supervision by the college. On appeal, the Third Circuit reversed the district court’s judgment which had stated that the college should be held liable. The Third Circuit directed that a judgment in favor of the college be granted. Perhaps the Bradshaw decision is better put into context when one considers that it “was rendered at the same time that eighteen-year old college students were accepted as adult members of society” (MacLachlan, p. 516). The Third Circuit determined that since the students were no longer minors, there was no special relationship existing between the institution and the students that would constitute a duty on the part of the institution to control the conduct of a third party and to prevent him from harming another (Bradshaw v. Rawlings, 1975, as cited in Maclachlan, 2000).

The “No Duty” Trend Continues – Rabel v. Illinois Wesleyan University:

For several years, colleges and universities successfully utilized the Bradshaw decision as the precedent to escape liability for injuries to students during hazing-related rituals and activities (MacLachlan, 2000). Rabel v. Illinois Wesleyan University is another example of this “no duty” movement. In this case, a female student (Rabel) suffered a basilar skull fracture and concussion after being forcibly grabbed, picked up, and accidentally dropped on the ground by a member of Phi Gamma Delta fraternity. Ms. Rabel filed a complaint against the university, alleging liability based on a landlord-tenant relationship. The university filed a motion for summary judgment, which was later granted by the trial court. Ms. Rabel appealed the dismissal, claiming that the “policies, regulations, and handbook created a special relationship with its students and a corresponding duty to protect its students against the alleged misconduct of a fellow student.” (Rabel v. Illinois Wesleyan University, as cited in MacLachlan, 2000). The Appellate Court stated:

Both of these rulings - combined with similar judgments in cases such as University of Denver v. Whitlock (1987) and Beach v. University of Utah (1986) - illustrate that institutions were unlikely to be held legally accountable for the actions and injuries of their students. The Bradshaw decision clearly established a “no-duty” model, in which courts concluded that “a custodial, supervisory relationship between a university and its students was inconsistent with modern educational objectives” (MacLachlan, p. 521). However, ensuing case law would establish that – in certain circumstances – there is an assumed duty on the part of the institution.

Furek v. University of Delaware and the “No Duty” Exception:

After Bradshaw and its progeny of cases, attempts by plaintiffs to hold an institution liable for injuries sustained during hazing activities were mostly met with failure. However, the Furek (1991) decision demonstrated that courts were willing to impose liability on the university in “certain factual situations” (MacLachlan, p. 522). Although not entirely a revival of the in loco parentis doctrine, Furek signaled the demise of the absoluteness of the “no duty” movement.

In Furek v. University of Delaware, the plaintiff, a fraternity pledge, suffered first- and second-degree burns after a fraternity member poured oven cleaner over his head and back as part of Hell night high jinks. Attendance at the secret Hell night ceremony was mandatory for pledges in order to be accepted into the Sigma Phi Epsilon fraternity. The events took place in the chapter house, which was located on premises leased from the University of Delaware by the organization’s alumni corporation. In addition, the university had an established policy prohibiting hazing. Ultimately, the Delaware Supreme Court found a duty on behalf of the university to protect its students from the hazards of hazing. “The adoption of a policy against hazing convinced the court that the university thereby exposed itself to liability for hazing-related injuries” (Furek v. University of Delaware, as cited in Paine, 1994). The court determined that the university’s “pervasive” regulation of hazing amounted to an undertaking to protect its students from the dangers of hazing as well as a “correlative obligation to exercise appropriate restraint over [fraternity] members’ conduct” (Kaplin and Lee, p. 421). Although the university did not control the day-to-day activities of the chapter, it had an obligation to promote general campus safety and security.

Although most of the case law indicates that the Bradshaw line of reasoning is still a frequent and justifiable defense, the Furek decision is a landmark example of how the “no duty” principle is not applicable in every situation, particularly when hazing-related injuries are involved.

The contradictory elements of the in loco parentis and “no duty” arguments contribute profusely to the paradoxical relationship between universities and their students. On one hand, students want to be regarded as capable adults, trusted to make their own decisions. They participate in hazing activities, many of which go unreported. However, when someone is injured or harmed, they suddenly contend that the institution owed them a duty of protection: “The irony lies in the student plaintiff’s assertion that he was not an adult capable of appreciating or avoiding the danger encountered” (Paine, p. 192). Perhaps Paine (1994) raises a valid question: “Why is a university liable for the violation of its anti-hazing policy when hazing generally occurs behind closed doors and beyond the view of the university?” (p.202).

What Does the Case Law Say About Hazing & Institutional Liability?

There is little debate that a duty must be found on the part of the institution in order for it to be held liable for death or injuries sustained from hazing. However, it becomes a muddier issue when attempting to prove that a duty existed. Furthermore, even if a duty is found, an institution still may not be found negligent unless the plaintiff is able to prove that “the institution’s breach of duty was the proximate cause of the injury” (Kaplin and Lee, p. 97). Research of hazing case law indicates that when a duty has been found, the courts have generally concluded that although the institution may have a responsibility to regulate the conduct of the organization, it is not required to monitor the behavior of individual students. In addition, being enrolled as a student at the institution does not necessarily constitute a “special relationship.” University of Denver v. Whitlock (1987) is an example of this reasoning. “The university did not have a special relationship based merely on the fact that Whitlock was a student” (Kaplin and Lee, p. 94).

Forseeability is the determining factor in whether duty applies (MacLachlan, 2000). This is often evident when the institution has previously attempted to prohibit or control hazing activities (i.e., establishing anti-hazing policies, being aware of prior hazing incidents, etc.). Furek v. University of Delaware, discussed above, illustrates the importance of forseeability. Knoll v. Board of Regents of the University of Nebraska (1999) is a further example. In this case, the plaintiff (Knoll, a fraternity pledge) was forcibly taken by active members from his residence hall to the fraternity house. The members forced him to a third floor bathroom and handcuffed him to a toilet. He was later able to break away from the toilet, and attempted to climb down an outside drainpipe, from which he fell and sustained serious injury. Knoll sued the university – among others – for negligence in protecting him from this danger. The university, in fact, had a policy prohibiting “pledge sneaks” unless they were registered in advance, and it had some awareness of various kinds of recent criminal behaviors in other fraternities on campus (particularly within this fraternity), including some instances of restraining individuals and forcing them to consume alcohol. Therefore, the Appellate Court ultimately reversed the District Court’s earlier decision, concluding that:

Kaplin and Lee (1997) conclude that the presence of duty is a matter of state common law. Indeed, understanding states’ hazing statutes and their pertinence to institutional liability adds another piece to the legal puzzle that is hazing.

State Hazing Statutes – Similarities & Differences:

The expanding body of case law pertaining to hazing points to the inescapable conclusion that these activities show little sign of diminishing. This inevitability has prompted an onslaught of legislative efforts to regulate hazing behaviors: “The states’ rush to adopt anti-hazing legislation reflects the shift in society’s view of hazing” (Curry, p. 116). Currently, 43 states have enacted statutes outlawing hazing or hazing-related actions, with Alaska, Hawaii, Montana, Michigan, New Mexico, South Dakota, and Wyoming being the exceptions (http://www.stophazing.org/laws.html). The similarities between states outweigh the differences with regard to what constitutes hazing. The definition of hazing varies only slightly, with some states offering broader definitions and others specifically designating hazing as an “initiation process.” (http://www.thegreekshop.com/hazing.html). When examining the state laws collectively, common themes emerge. For example, the research indicates that in many states, “without bodily harm, there is no hazing” (Nuwer, p. 168). Most states define hazing as any activity endangering the physical health of the student. However, some states – including Alabama, Ohio, Oklahoma, and Rhode Island - recognize the mental as well as the physical aspects of hazing (http://www.thegreekshop.com/hazing.html). In most states, hazing is considered a misdemeanor, with fines ranging from $100 to $5000 (Manley, et al., 2000). In Illinois, Idaho, Missouri, Texas, Virginia, and Wisconsin, hazing resulting in death or “great bodily harm” is categorized as a felony (http://www.thegreekshop.com/hazing.html). Perhaps one of the more progressive states in the area of hazing law, Florida has enacted three separate statutes governing state universities, community colleges, and public and private universities (Manley, et al., 2000). The New Hampshire law is also particularly aggressive, stating that institutions may also be charged with a misdemeanor for “knowingly condoning hazing or negligently failing to take adequate measures to prevent student hazing” (http://www.thegreekshop.com/hazing.html).

Many states contain stipulations outlining stiff punishment for those aiding or assisting in hazing activities. It is also evident that lawmakers acknowledge the significance of the peer pressure and coercion components of hazing: “In the vast majority of states, consent by the pledge or new member is not a defense to hazing” (http://www.thegreekshop.com/hazing.html).

Some states place the burden of enacting and enforcing anti-hazing regulations on the college or university. For example, Delaware, Pennsylvania, and Tennessee require all institutions to adopt a written anti-hazing policy. Florida and Kentucky take this a step further by requiring all institutions to also establish penalties for those violating anti-hazing rules. Furthermore, most of the state laws mandate the suspension or expulsion of students found guilty of hazing behavior. Indiana offers immunity for the “good faith reporting of hazing or participation in a judicial proceeding” (http://www.greekshop.com/hazing.html).

The most apparent similarities in these state laws involve their definitions of hazing as a physical crime and the classification of hazing as a misdemeanor. Some of the language in the statutes is rather vague and ambiguous, thereby granting an easier defense for the accused. For example, Louisiana and Kansas’s statutes prohibit behavior that could “reasonably be expected to result in great bodily harm” (Manley, et al., 2000). The wording in these states’ laws makes it probable that hazing would be more challenging to concretely prove. Many students who are being charged with hazing crimes are increasingly relying on this defense. Nonetheless, courts are overwhelmingly apt to find that the phrasing in the laws is sufficiently clear and understandable, as demonstrated by State v. Allen (1995). Allen was charged with five counts of hazing after he was accused of physically abusing five Kappa Alpha Psi pledges. One of those pledges died as a result of the beatings that were administered by Allen. Allen was convicted on all five counts. He later appealed his conviction to the Missouri Supreme Court arguing that “the [Missouri] hazing statutes were vague and overbroad” (Allen, 1995, as cited in MacLachlan, 2000). The Supreme Court subsequently resolved that the statute “clearly delineates its reach in words of common understanding. The statute is, therefore, not vague” (Allen, 1995, as cited in MacLachlan, 2000).

Undoubtedly, legislation has come a long way during the last decade to combat hazing behavior. However, after examining the laws, it is evident that more progress must be made in the way of providing more specific and inclusive definitions of hazing, as well as imposing heavier punishments for hazing offenses. Nuwer (1999) asserts that states must be more consistent with their hazing laws, and present a more united front: “Unless that happens, the same activity that designates a hazer in one state as a criminal…is going to result in no criminal liability whatsoever in another state” (p.175).

Institutional Implications of State Hazing Statutes – To Regulate or Not to Regulate?

Now more than ever, colleges and universities are faced with the complex dilemma of how to monitor the conduct and behavior of their Greek organizations: “Two diametrically opposed strategies present themselves to administrators: (1) exercising very strict control over fraternities; or (2) exercising no control whatsoever” (Curry, p. 111). As mentioned above, many state laws now place a heavy burden upon the institution, particularly with regard to adopting explicit anti-hazing policies. Yet at what point do state laws and institutional policies intersect? Case law precedent designates that the more tightly an institution attempts to control its Greek organizations, the more legal responsibility it ultimately assumes. Thus, colleges and universities are faced with choosing between two extremes: “strict policing or disassociation” (Curry, p. 111). In order to escape potential liability, many institutions are opting for “recognition statements” for Greek organizations (similar to those used to recognize other student organizations) in place of extensive regulation. However, as Kaplin and Lee note, “[Although] this minimal approach may defeat a claim that the institution has an assumed duty…it may limit the institution’s authority to regulate the activities of the organization” (p. 421).

Recognition by an institution is often significant to the local success of national Greek organizations. Furthermore, the conditions under which the college awards recognition is especially important “because they may determine, or enhance, the college’s power to regulate the conduct of the organization or its members” (Kaplin and Lee, p. 420). This has particular relevance when applied to hazing, as an increasing number of institutions are banning fraternities altogether (i.e., Colby College), while others (i.e., Middlebury, Bowdoin, and Trinity Colleges) have reasoned that hazing and binge-drinking would be halted by requiring fraternities and sororities to admit members of both sexes into their memberships (Kaplin and Lee, 1997).

The question of whether an institution is public or private adds another element to consider, particularly when the university seeks to outlaw fraternities and sororities. For example, public institutions face constitutional barriers, “including the First Amendment’s guarantee of the right to associate” (Kaplin and Lee, p. 421). Issues regarding due process may also come into play when a private institution attempts to discontinue a Greek organization. A case in point is Mu Chapter of Delta Kappa Epsilon v. Colgate University (1992). The dean of Colgate University, a private university, suspended the chapter for one year and placed it on probation for another year after it was revealed that the members had engaged in hazing activities that violated the school’s policy (Rutledge, 1998). This specified that the fraternity could not pledge any new member or sponsor or co-sponsor any social event for two years (Mu Chapter, 1992, as cited in Rutledge, 1998). The alumni corporation of the chapter appealed to the New York Supreme Court on the grounds that it should receive the full due process queue. In addition, they sought to have the incident removed from university records. The court disagreed, ruling that private universities were less restricted to constitutional parameters than their state-supported counterparts: “The university is not bound, unlike public universities, by the Fourteenth Amendment, and need only ‘substantially comply’ with its published guidelines…regarding procedures in a disciplinary proceeding” (Mu Chapter, 1992, as cited in Rutledge, 1998).

Despite the criminalizing of hazing in a vast majority of states, university officials at public as well as private institutions still grapple with hazing regulation on their respective campuses. State laws impose civil punishment on the individual perpetrators of hazing, yet overall, do little to address possible consequences for the chapter as a whole. This appears to be the crux of the regulation dichotomy for institutions, and it is a legal catch-22: Too much regulation of Greek organizations may constitute an implied duty; yet not enough will invoke institutional liability according to state law. The fact that many state laws require institutions to adopt anti-hazing policies is indicative that the trend is gradually moving toward a more comprehensive approach to hazing liability. State laws appear to be sending the message that not only should the individual students involved in hazing be punished, their institutions must also assume at least partial responsibility for not adequately monitoring and regulating hazing more closely. Therefore, with regard to the regulation/no regulation debate, Curry (1989) asserts that university administrators must strike a delicate balance between stringent regulation and passive detachment.

Minimizing Liability Risk:

College and university administrators are gradually realizing that it is not enough to merely establish anti-hazing policies and procedures. Consistently enforcing these regulations via risk education is the logical next step toward diminishing the likelihood of potential hazing occurrences, or – at the very least – demonstrating that the institution is committed to addressing the severity of hazing: “A good risk management program will decrease lawsuits which will inevitably threaten an institution’s reputation and financial stability” (Davis, 2002). According to Davis (2002), an essential component of an effective risk management program is the question of risk control. With regard to managing hazing risk, institutions must address three essential components:

Summary and Conclusion:

Hazing litigation involving colleges and universities has increased significantly over the last few decades. Research for this paper has demonstrated that while landmark cases such as Bradshaw v. Rawlings provide ample precedent for the “no duty” defense, recent hazing case law predicts that the trend toward institutional liability with regard to hazing will continue.

The majority of states have enacted fairly uniform laws prohibiting hazing, yet state law in this area is still in its nascent stages, as legislators struggle with arriving at clear, comprehensive definitions of hazing. In addition, more states are now recognizing the legal role of institutions by requiring them to establish anti-hazing policies that are more integrative and encompassing in nature.

Institutional regulation of hazing is a complex and twofold issue. Undeniably, some control is expected as well as necessary, yet the institution’s extent of involvement may open the door to subsequent liability. Furthermore, public and private institutions face varying obstacles when attempting to regulate the behavior of their student organizations.

Effectively reducing hazing incidents and potential institutional liability involves a consistent combination of risk management programs and proactive strategies. Research indicates that risk management programs are more successful when Greek organizations and university administrators address hazing collectively rather than separately.

This paper sought to examine hazing liability from an institutional perspective. Yet this only begins to address the myriad of layers comprising hazing litigation. Indeed, case law has illustrated that the issue is not as black-and-white as one might initially perceive. The question of duty comes into focus in most hazing cases involving colleges and universities. However, the extent of that duty appears to be the determining factor regarding institutional liability. Above all, until hazing liability encompasses a multi-dimensional scope involving institutions, local and national Greek organizations, and individual chapter members, college students will continue to incur serious injury or death as a result of these senseless rituals.

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