What the Washington State/Martinez Case Means for Higher Education

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.