Caitlin Flanagan’s “The Dark Power of Fraternities” at The Atlantic, an exposé of the “endemic, lurid, and sometimes tragic problems” that plague fraternities and how they avoid liability, is a fascinating and essential read. It’s one of the most thorough reports in recent memory of how powerful, wealthy interests insulate themselves from accountability for the harm they cause to individuals.
Before we get to the substance, the manner of Flanagan’s reporting deserves special mention. Rarely do press reports about the civil justice system give it this type of realistic, balanced treatment. Most reports treat the civil justice system as a spectacle that sometimes involves large sums of money, like a television game show, with trial lawyers filing lawsuits at random, corporate defendants who always acted in good faith paying to avoid jackpot justice, and a jury making up an answer based on junk science and sympathy. Surely we can’t take anything from the civil justice system seriously to inform our views on important issues of the day.*
Flanagan, however, appropriately portrays the civil justice system as the way our society determines responsibility for harms. It’s often the best way – sometimes the only way – to discover systemic threats to people’s safety. Civil liability is also typically the primary incentive corporations, associations, and vested interests have to reduce the risk of harm to others.
What Flanagan found when she looked at lawsuits brought by undergraduates for injuries while at school should cause any parent and future college student to think twice about the true meaning of campus safety:
I have spent most of the past year looking deeply into the questions posed by these lawsuits, and more generally into the particular nature of fraternity life on the modern American campus. Much of what I found challenged my beliefs about the system, assumptions that I came to see as grossly outdated, not because the nature of fraternity life has changed so much, but rather because life at the contemporary university has gone through such a profound transformation in the past quarter century.
[I]t’s impossible to examine particular types of campus calamity and not find that a large number of them cluster at fraternity houses. Surely they have cornered the market in injuries to the buttocks. The number of lawsuits that involve paddling gone wrong, or branding that necessitated skin grafts, or a particular variety of sexual torture reserved for hazing and best not described in the gentle pages of this magazine, is astounding. To say nothing of the University of Tennessee frat boy who got dropped off, insensate, at the university hospital’s emergency room and was originally assumed to be the victim of a sexual assault, and only later turned out to have damaged his rectum by allegedly pumping wine into it through an enema hose, as had his pals.
And that’s just what happens at fraternities to their own members. Outside of fraternity members seriously injuring each other in appalling hazing incidents, fraternities — particularly, drinking at fraternities — give rise to thousands of annual claims relating to assault and battery, sexual assault, drunk driving accidents, falls from a height, and other catastrophic injuries every year.
It’s not like this is a wholly intractable problem. The solution is quite simple:
Everyone knows exactly what they need to do because there have been very careful case studies on this. If you take alcohol out of the fraternity house, the number of claims drops by 85 percent and the severity of those claims, the dollar amount of those claims, drops by 95 percent. Any other industry that would have a chance to drop the number of claims by 85 percent and the severity by 95 percent by making a single change, show me any other industry that wouldn’t make that change.
So why haven’t the national fraternities — the true beneficiaries of this system — taken that step? Why are American universities typically surrounded by crime-ridden properties used to profit from serving alcohol to minors?
Flanagan identifies are variety of reasons, one of which deserves special discussion here, i.e., the extraordinary efforts undertaken by fraternities to insulate themselves from any responsibility for what happens to their members or to people hurt by their members’ actions:
For fraternities to survive [the insurance industry waking up in the late 1980s to the extraordinary liabilities created by fraternities], they needed to do four separate but related things: take the task of acquiring insurance out of the hands of the local chapters and place it in the hands of the vast national organizations; develop procedures and policies that would transfer as much of their liability as possible to outside parties; find new and creative means of protecting their massive assets from juries; and—perhaps most important of all—find a way of indemnifying the national and local organizations from the dangerous and illegal behavior of some of their undergraduate members. The way fraternities accomplished all of this is the underlying story in the lawsuits they face, and it is something that few members—and, I would wager, even fewer parents of members—grasp completely, comprising a set of realities you should absolutely understand in detail if your son ever decides to join a fraternity.
I suppose we shouldn’t be surprised that the national fraternities responded to a serious issue with fratboy logic: better to dodge responsibility than to be responsible.
On the one hand, much of what Flanagan reports is simply incredible: are fraternities really able to convince courts that their policies strictly prohibit drinking by minors and limit the volume of alcohol that can be present at the frat house? Surely a nationwide organization can’t just write down some baloney alcohol policy that it knows no one follows and then absolve itself of any responsibility?
The answer depends upon which state the fraternity is in. There is indeed considerable case law holding that claims against the national fraternities cannot even be presented to a jury. See, e.g., Alumni Ass’n. v. Sullivan, 572 A.2d 1209 (Pa. 1990); Foster v. Purdue University, 567 N.E.2d 865 (Ind. App. 1991); Ex parte Barran, 730 So. 2d 203 (Ala. 1998); and Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 706 So. 2d 525 (La. App. 1997). Two weeks ago, the Indiana Supreme Court decided this exact issue in exactly the wrong way:
The national fraternity lacked any direct oversight and control of the individual fraternity members. It did not have any employees present in the fraternity house, and the day-to-day management of the house was the responsibility of the local fraternity, not the national fraternity. Despite the national fraternity’s efforts to establish aspirational objectives and to promote their fulfillment, the relationship between the national fraternity and the individual student members was remote and tenuous. Public policy concerns likewise do not favor recognition of a specific duty of care toward Yost by the national fraternity. As we noted above with respect to Wabash, the national organization—with which local fraternities and sororities affiliate—should be encouraged, not disincentivized, to undertake programs to promote safe and positive behavior and to discourage hazing and other personally and socially undesirable conduct. In sum, we conclude that the national fraternity had no general duty to Yost upon which this negligence action may be based.
Yost v. Wabash College, 2014 Ind. LEXIS 133, 25-26 (Ind. Feb. 13, 2014). The Court has the issue exactly backwards: the only way to “encourage” national fraternities “to undertake programs to promote safe and positive behavior and to discourage hazing and other personally and socially undesirable conduct” is to hold them liable when they fail to take reasonable steps to discourage dangerous conduct. Giving them a free pass just maintains the status quo.
Thankfully, there are cases to the contrary, like Ballou v. Sigma Nu General Fraternity, 352 S.E.2d 488 (S.C. App. 1986 1986)(holding that where pledges were forced to drink alcohol as part of local chapter’s initiation “hell night” activities and national fraternity benefited from initiation of new members, national fraternity was liable under apparent authority for pledge’s death due to excessive alcohol consumption); Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105 (La. App. 1999)(affirming liability where fraternity president physically beat a freshman student during a fraternity membership interest meeting held in the president’s dorm room); Oja v. Grand Chapter of Theta Chi Fraternity Inc., 255 A.D.2d 781, 680 N.Y.S.2d 277 (1998) (affirming denial of landowner/house corporation’s motion to dismiss action stemming from death of pledge from forced excessive alcohol consumption as part of hazing ritual where house corporation knew of recurring dangerous activities, had sufficient right to control such activities, and failed to do so).
A year ago, an intermediate appellate court in Tennessee saw through the nonsense peddled by Alpha Tau Omega — the same frat that appears multiple times in Flanagan’s article — and held that a national fraternity can’t just absolve itself of responsibility by mere say-so:
Although both parties place great emphasis on National ATO’s bylaws, we are not convinced that resolution of this case is predicated upon a consideration of them. As stated above, “in order for the duty to control a third party’s conduct to arise, the actor must have the means and ability to control the third party.”Newton, 970 S.W.2d at 492 (citing Carroll, 1988 Tenn. App. LEXIS 159, 1988 WL 22833, at *3). Even if National ATO is correct that the bylaws do not grant National ATO authority to control its local chapters or those chapters’ members, it does not necessarily follow that such authority could not be derived elsewhere. Additionally, that National ATO undisputedly does not supervise the day-to-day operations of its local chapters does not equate to a finding that it could not exercise such supervision if it desired to do so or that it should not exercise such supervision based upon public policy considerations.
Mann v. Alpha Tau Omega Fraternity, Inc., 2013 Tenn. App. LEXIS 198, 20, 2013 WL 1188954 (Tenn. Ct. App. 2013).
In the Mann case, a fraternity member got drunk at a fraternity event, hopped in his car, then ran head-on into a couple going the opposite direction. The shocking part here is how common that situation and situations like it are; there are so many stories of drunk fraternity members falling out of a window, or of freshmen being sexually assaulted in the first semester at school after a fraternity party, or of drunk fraternity members driving at 2x or 3x of the legal limit that we all know several personally, and they all blend together.
None of this will change until the national fraternities are held responsible for their actions and for their willful failures to act — because we all know they’re not going to be responsible on their own.
* That mindset is what must have lead ProPublica, for example, to spend two years and over $750,000 to come up with a story that reiterates the same facts about Tylenol that trial lawyers have known and have discussed publicly for years. Next time they want to look into something big that trial lawyers have been developing for years, why not just give Caitlin Flanagan the money?