Last month, in a 5-4 decision, the Washington Supreme Court ruled that Washington State University can be held legally liable for a student’s fraternity hazing death, establishing that the university’s oversight of campus fraternities creates a "special relationship" and a subsequent legal duty of care.
The ruling stems from the 2019 death of Sam Martinez, who
was pledging Alpha Tau Omega fraternity and died from acute alcohol poisoning
after consuming alcohol during and after a “big/little” ritual. Martinez’s
family filed a wrongful death lawsuit, arguing that the university failed to
protect their son from known dangers within that chapter. In a filing for
summary judgment, the university had argued that they were not responsible for
regulating the behavior of adult students at off-campus fraternity houses that
operate independently. The court’s ruling rejected that argument, holding that
the formal and regulatory nature of the university’s relationship with campus
fraternities triggered a special relationship to protect students from
foreseeable harm. While the ruling is only binding in the State of Washington,
it is likely to be considered a landmark decision with ripple effects across
the country, as so few of these cases ever make it to trial.
Hands-on vs. Hands-off
In my risk management consulting work with college campuses,
I often find myself in conversations with attorneys in offices of counsel about
the “hands-on” vs. “hands-off” continuum when discussing their relationship
with campus fraternities and sororities. The mistake that I find most campuses
make is being somewhere awkwardly in the middle of that continuum; hands-on
enough to be connected to and aware of the dangers in their fraternity/sorority
communities, but not hands-on enough to be doing anything about it. In other words,
knowledgeable enough about fraternity misdeeds to be exposed from a liability standpoint
but not doing nearly enough to satisfy the “reasonable person” standard for
preventing foreseeable harm. Historically, I have advised that campuses just
needed to pick one end of the continuum – fully commit to being hands-on, or
fully commit to being hands-off, and then tailored my recommendations to
whichever path they chose.
The court’s ruling in the Martinez case has me concerned
that the “hands-off” approach is no longer a viable option for most college
campuses.
As far as Washington State was concerned, they were about as
“hands-off” as an institution can be. The university went to great lengths to
establish distance between themselves and the fraternity houses scattered
around the perimeter of campus. Their arguments in court relied heavily on the
university’s recognition agreement, which explicitly stated that Greek
organizations operate as legally independent entities separated from the
University. The court rejected this argument, ruling in part that the very
existence of the complex recognition agreements proved that a special
relationship existed.
From a practical standpoint, the ruling establishes that if
a university wants to be hands-off, they must be completely disconnected from
and have no relationship at all with fraternity chapters: no recognition of
chapters; no dedicated staff supporting those chapters; no ability for those
chapters to recruit new members on campus; no oversight of their activities. In
other words, to absolve themselves of a special relationship, campuses must
treat fraternities and sororities as they would treat local Masonic lodges or
Junior Leagues interested in recruiting students as members while having no
relationship at all with the institution. For many campuses, this would be a
recipe for disaster.
Managing Risk vs. Managing Safety
If a university decides to take the “hands-off” approach in
the wake of the Martinez case, it must do so with an understanding of the
tradeoff involved. This tradeoff involves prioritizing the university’s
exposure to potential liability over the safety of students. Public (and many
private) institutions can withdraw their recognition of campus fraternities and
sororities, but they cannot deny their ability to exist. Withdrawing
recognition of fraternity chapters on a campus does not mean those chapters
will go away; it just means those chapters will be operating around the edges
of campus with very little, if any, oversight. Common sense would lead any
observer to see the error of this approach. Creating a wild-west scenario in
which fraternity and sorority chapters operate with no oversight, no safeguards
and no support from the institution would create a student safety nightmare.
The subsequent chaos would cause problems not only for student safety, but for
public relations, town and gown relationships, and relationships with Greek
alumni. Institutions that have tried this approach before have almost all come
to regret it at one point or another, having learned that once Pandora is out
of the box, there’s no putting her back in. Once freed from the shackles of
university oversight, convincing fraternities to come back into the fold has
shown to be a nearly impossible task. Many Universities will simply not be
willing to accept the cascading series of challenges that come from the
decision to go “hands-off” in this new environment.
Further complicating matters for those campuses who would pursue the “hands-off” approach are the requirements in the Stop Campus Hazing Act. The requirement that campuses educate students about hazing and disclose incidents of hazing publicly creates an oversight paradox for those campuses who would prefer to take the hands-off approach. By engaging in federal compliance, institutions are forced to engage with fraternities and high-risk behaviors in ways that directly contribute to the foreseeability issues at the heart of the Martinez case.
Legal blogs and analysts laying out strategies for campuses
to utilize in creating further distance between themselves and their fraternities
(registration but not recognition, mandated indemnification, etc.) in response
to this case are missing the forest for the trees. Institutional liability
cannot be the only lens through which colleges and universities view this
problem. There are several other factors to consider – student safety being
foremost among them. Creating environments that are considerably less safe for
students is not a good risk management strategy, no matter how much distance
you build in the process.
Compliance ≠ Protection
I have talked to a number of fraternity/sorority industry
leaders and campus fraternity/sorority professionals since this opinion landed
last month, and based on those conversations the prevailing sentiment is not
that most campuses will try to take a more hands-off approach, but that they
will double-down on largely symbolic and ultimately ineffective compliance
measures. Check this box. Complete this online hazing prevention module. Sign
this form acknowledging that we reviewed the hazing policy with you. These
compliance measures help university attorneys sleep better at night, but they
often do little to address student safety or change problematic cultures in
meaningful ways. Remember, our “special duty” is to protect students from
foreseeable harm. A reasonable person understands that simply requiring
students to sign policy acknowledgements and click through online modules is
not enough to meet that duty.
What Should Hands-On Look Like?
For institutions looking to move beyond symbolic gestures
towards a more hands-on approach to addressing foreseeable harm in a reasonable
way, I recommend the following:
Properly Staffed Fraternity/Sorority Life Offices –
most campuses that I work with suffer from chronically understaffed
fraternity/sorority life operations. These offices often consist of 1-2
underpaid, entry-level professionals nested within larger student life/student
leadership departments. This model is problematic for a few of reasons. Burnout
for these professionals is a challenge, and turnover is extremely high. The
more understaffed an office is, the higher the burnout rate. These young staff
members may do excellent work for a year or two before burning out and moving
to greener pastures. Because they were an office of one, when they leave, many
of the initiatives they started leave with them. A lengthy vacancy and search
process later, another new professional comes in and starts all over, making
long-term change initiatives related to health and safety nearly impossible to
sustain over an extended period. Campuses would be wise to build
fraternity/sorority life offices as independent units with a mid-level director
and an appropriate number of entry-level support staff (one additional staff
member for every 8-10 chapters is a good rule of thumb) in order to sustain
change over time and properly support their communities.
Data-Driven Chapter Coaching – The most promising
practice in the fraternity/sorority industry in the last decade has been the
transition to chapter coaching models. In these models, staff members take on a
portfolio of fraternity/sorority chapters and work with them to address chapter-specific
goals and challenges. This relationship-building takes time – but as chapter
leaders become increasingly comfortable with their coaches, their willingness
to be transparent about their challenges increases, giving staff the
opportunity to create meaningful and tailored interventions. The ability to use
data to drive these coaching relationships has rapidly increased in recent
years. The Center for Fraternity and Sorority Organizational Wellness at
Florida State University is the gold standard in higher education for utilizing
both institutional and survey data to drive chapter coaching and interventions.
Trained Hazing Investigators – Colleges and
universities have spent a small fortune in the last 15 years ensuring that
Title IX investigators are properly trained, while spending practically nothing
to train those charged with investigating hazing. The inevitable result of this
is that lots of reported cases of hazing result in no findings of
responsibility. This challenge is now exacerbated by the reporting requirements
of the Stop Campus Hazing Act, as colleges now publicly disclose both the
reported cases of hazing as well as the groups found responsible for hazing. If
there is a large discrepancy between those two numbers, that could lead to some
embarrassing questions from a judge or plaintiff’s attorney. Campuses need to
get better at investigating these cases and holding groups accountable before
hazing behaviors reach dangerous levels.
Meaningful (but not Draconian) Interventions for Minor
Infractions – One of the sticking points in the Martinez case was the long
paper trail of minor infractions that ATO had sustained in the years leading up
to Sam Martinez’s death. Campuses need to be able to demonstrate that they are
taking reasonable steps to prevent harm when chapters are found responsible for
minor policy violations. This is not to suggest that they become Draconian and
begin enforcing zero-tolerance policies, which could push hazing and other
problematic behaviors farther away from campus and further underground.
Instead, campuses should lean on chapter coaches, local advisors and students
themselves to craft meaningful interventions that change behavior and address
cultural problems. These interventions should be tailored to the unique needs
of the offending group (avoid one-size-fits-all sanctioning rubrics) and then
closely monitored by chapter coaches. Because of the standard established in Martinez,
groups with a lengthy rap sheet of even minor violations should be subject to
more scrutiny and more in-depth interventions.
Courts have not asked and do not expect colleges and
universities to guarantee student safety or eliminate all risks. What they have
established in Martinez is an expectation that institutions exercise an
appropriate standard of care in enforcing their own policies and preventing
foreseeable harm. In a world where a “hands-off” defense may no longer be a
viable strategy, taking proactive steps to get “hands-on” in meaningful ways is
the best path forward.
Gentry McCreary, Ph.D. is the CEO and managing partner of Dyad Strategies, an applied research and consulting firm that provides college campuses with data-driven strategies for supporting thriving, healthy fraternity/sorority communities.
