HazingPrevention.Org
Prevention in Focus
Greetings!

 

Happy New Year!  The editorial board for HazingPrevention.Org is excited to offer this first edition of Prevention in Focus.  In addition to the traditional newsletter the 2012 editorial board will provide an array of articles covering a broad range of prevention-related topics to help us better understand the phenomenon of hazing and to develop strategies to prevent it on our campuses and within our organizations. Every other month, we will offer a Prevention in Focus feature article, and in the off months, will develop a more traditional "newsletter." Our hope is to continue providing the announcements and other information found in the traditional newsletter, but to provide some more depth to our coverage of hazing prevention.

If you have suggestions of future topics for Prevention in Focus, or would like to contribute to our publications, please contact me.

Thank you, enjoy the article, and have a healthy and happy 2012.

Gentry McCreary
Editor
Forging Legal Allies in Your Hazing Prevention Efforts

 

Paul Kittle
Director of Greek Affairs
Auburn University 

Introduction
Tragic events related to hazing, such as the death of Samuel Mason at Radford University in October 2010, or the recent death of FAMU drum major, Robert Champion, highlight the need for hazing education and awareness efforts. Sadly, these incidents reinforce the often cited statistics that, with the exception of 2010, a hazing death has occurred each year on a college campus since 1970 (Nuwer, 2011) and 55% of college students involved in clubs, teams, and organizations experience hazing (Allan & Madden, 2008). As colleagues in the ongoing effort to prevent hazing, we are all too familiar with these statistics, whether anecdotally or through experience.

A suggested strategy for hazing prevention is building a coalition of constituents focused on hazing. Coalitions have been utilized to address alcohol related problems and are recommended by the Higher Education Center for Alcohol and Other Drug Abuse and Violence Prevention and the National Collaborative for Hazing Research and Prevention as a process that can be part of an effort to reduce hazing. When building a hazing prevention coalition the areas noted in the National Hazing Study (2008) as prime for hazing activities, and often invited to participate, include fraternity and sorority life, athletics, marching bands, intramurals, and the ROTC cadre. An office that is often overlooked in these coalitions is the General Counsel's office.

Whether it is because few in student affairs or on national organization staffs hold a juris doctorate or the fact that legal counsel is rarely sought for student affairs programs, the opinion and input of staff counsel is not often sought. That said, and in the spirit of disclaimers, this editorial board is not claiming to be legal experts nor qualified to render legal advice. The intent of this article is to provide some baseline information on legal decisions, from the practitioners' perspective, that could impact hazing prevention efforts. The hope is that once armed with this knowledge, a student affairs professional, who does not hold a legal education, will be comfortable using terms and case references to engage legal counsel for their opinion and thoughts on hazing education and prevention efforts.

This article will cover the following areas and describe how they can relate to hazing prevention efforts: in loco parentis, landowner-invitee theory, and special relationships. According to Crow & Rosner (2002), when deciding the liability of universities for the hazing injuries of their students, courts often apply these theories.

In loco parentis
Prior to 1970, institutions of higher education operated under a model of in loco parentis which is Latin for in place of a parent. Under this doctrine, colleges owed a duty of care to students, as a parent would, and could impose sanctions without due process. Decisions in two landmark cases, Dixon v. Alabama State Board of Education (1961) and Bradshaw v. Rawlings (1979), set the foundation for ending the in loco parentis doctrine and altered the university-student relationship (Hall, 2009).

The end of in loco parentis came to be known as the no duty rule. On the surface, for practitioners who actively educate students about the perils of hazing, yet do not want to be held liable for the decisions and actions of undergraduates, the no duty rule seems like a win-win. Tread lightly, in the opinion of Pearson and Beckham, "Since the landmark decision in Bradshaw v. Rawlings (1979), the question of how and to what extent institutions of higher education could be held liable for negligence involving student injuries has preoccupied the courts" (2005, pp. 460-461).

Further, the diminishing practice of in loco parentis has not absolved institutions of higher education from being named as defendants in injury or death cases as a result of hazing on campus. Crow and Rosner state, "The courts, however, have not reinstated the doctrine of in loco parentis to establish a duty of care. Instead, they are relying on traditional tort law to treat college and university defendants the same as landlords, i.e., with a duty to act reasonably" (2002, p. 93). The relationship between in loco parentis and hazing prevention efforts becomes an issue if the efforts to address hazing place an unnecessary or unintended duty of care on the institution or organization, hence a fair question for your legal counsel's office.

Landowner-Invitee
While colleges and universities are not normally regarded as the insurers of a student's well being, judges have imposed institutional liability for breach of a duty of care associated with the role of the institution as a landlord responsible for the safety of campus residents and invitees (Pearson & Beckham, 2005, p. 461). Furek v. University of Delaware (1991) and Knoll v. Board of Regents (1999) are two landmark cases that establish the precedent for the university to be charged as negligent under the landowner-invitee theory. Under this theory, a landowner who knows or should know of an unreasonably dangerous condition or use of his property has a duty to invitees to safeguard the invitee against such hazards including the conduct of third parties (MacLachlan, 1991, citing the opinion in Furek).

The courts in the Furek and Knoll cases cited specific conditions that necessitated the imposition of liability on the institutions: the presumption that the university had a degree of control over its premises, including fraternity houses; the institution's regulation of fraternity life; the university's prior knowledge of hazing incidents involving fraternities; the university's knowledge of past infractions involving the fraternity members; the proximity of the fraternity house to university property; and the consideration of the fraternity house as student housing by the University's Code of Conduct. It was determined that this control, combined with the cumulative evidence that the incident was foreseeable, created a duty to protect the student from harm (Pearson and Beckham, 2005, p. 466).

According to Crow and Rosner, "The implication of this decision is that when hazing is foreseeable in a given situation, the school and administrators can be held responsible for not taking steps to prevent it regardless of whether the harmful incident occurs on or off campus" (2002, p. 95). Questions to ask yourself about your hazing awareness efforts would include, what does the institution know; i.e. from past occurrences, and how does the institution interact with its fraternal or other communities with housing? Depending on your campus climate, the landowner-invitee theory, coupled with an opinion from the legal counsel's office, may assist in the implementation of hazing education and awareness efforts that challenge existing campus norms.

Special relationship
"A basic tenet of tort law is that no duty of care exists between two parties unless they have a special relationship" (Crow, 2002, p. 96). While institutions of higher education actively market their services and recruit students to campus, the courts do not view them as custodial institutions. Colleges are viewed as educational institutions and students as adults who can fend for themselves (Crow & Rosner, 2002). That said, given the right set of circumstances, universities have been found negligent for failure to meet the standard of care arising from a special relationship with students. Notable cases that establish precedent for the special relationship between a college and its students are Mullins v. Pine Manor College (1983) and Brueckner v. Norwich University (1999).

In deciding these cases, the courts noted the following conditions that create a special relationship: the steps that the college had taken to ensure the safety of its students; a duty arising from the "existing social values and customs" as well as from the student-university relationship; failure to control and supervise staff; and failure to respond to foreseeable risk. According to Pearson and Beckham (2005), "Emphasis on the foreseeable risk in hazing cases represents an extension of institutional liability based on an expanded special duty relationship between student and institution" (p. 467).

"As student affairs professionals expand programs and services to meet the educational needs of students, they must anticipate that judges will recognize a special duty predicated on a foreseeable risk of injury and a judicially imposed duty of reasonable care applicable to institutions of higher education when the institution's agents exercise a heightened level of control over student activities" (Pearson and Beckham, 2005, p. 461).

Conclusion
Attempting to affect positive cultural change as it relates to embedded and ongoing hazing practices on campus or within an organization can be daunting for many reasons. One of those reasons is the politics associated with change. In working to develop and implement a multifaceted hazing prevention program, student affairs professionals may face opposition to the perceived attempt to change what is not broken. A relationship with the legal counsel's office can prove invaluable in this situation. If, in explaining a hazing awareness and prevention campaign, you can demonstrate how the effort will reduce the institution's liability, while increasing student health, wellness and safety, a legal office is likely to endorse such a plan, thereby eliminating some of the hidden political land mines.

Be sure to consider including a representative from the legal counsel's office on your hazing coalition or at least seeking their input on initiatives. This may prove to be valuable in many ways. It is rare that a student affairs division has an attorney at their disposal that specializes in higher education law, specifically as it relates to awareness and prevention efforts and liability. Your base knowledge and subsequently aligned questions may assist your legal counsel in providing you timely and practical advice.

Paul Kittle is the Director of Greek Life at Auburn University, and is past national president of his fraternity, Phi Mu Delta.  He is currently completing a dissertation towards the completion of his Ph.D. in Higher Education Administration at Auburn University.  His study examines how definition type affects a student's ability to identify hazing activities. The goal of his study is to determine if analytical definitions define hazing in a manner that students can understand and apply. This new definition will extend the research of Ellsworth (2004) and is intended for use with current college students. His study is a pragmatic effort to move past the noted barrier of the existing definition of hazing and develop a student-centric description of hazing which aids students in being able to step back from past practices or anticipated norms and assess events with a critical eye. 

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