Transcript

Host: Hello, and welcome to Prevention and Protection, the United Educators Risk Management podcast. Today, UE’s Melanie Bennett and Hillary Pettegrew will speak with Peter Lake, Professor of Law, Charles A. Dana Chair, and Director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. A reminder to listeners that you can find other UE podcasts, as well as UE risk management resources, on our website, ue.org.

Our podcasts are also available on Apple Podcasts and Spotify. Now here’s Melanie.

Melanie Bennett: Thank you. I’m pleased to have Peter Lake on the podcast. Welcome, Peter.

Peter Lake: I’m so pleased to be here. Thanks for having me today.

Bennett: My colleague Hillary Pettegrew will also be sharing some lessons from UE claims. Hello, Hillary.

Hillary Pettegrew: Hi, Melanie, and hello, Peter, as well. I’m really happy to be here today with both of you.

Bennett: Today we’re talking about hazing trends and prevention. We’re focusing on practical ideas schools can implement. It has been over a year since the Stop Campus Hazing Act was first implemented. We’ve done a webinar on this, and Hillary and Peter have both participated in a webinar with CriticalArc earlier this year. Peter, I’d like to start with you. Can you talk about how the Stop Campus Hazing Act came to be and why hazing is such a big issue at institutions?

Lake: Sure. I’ll take No. 1 up first. It’s been a long road to national legislation on anti-hazing. I remember conversations back in the ‘90s hoping that someday the federal government might adopt some kind of national hazing legislation. There were several attempts over the years to try to get bills through Congress that could be passed. But we finally came and congealed about a year ago, roughly that, to the current bill that we have.

Unfortunately, as with so many things that are related to the Clery Act, another tragedy essentially had to take place to motivate Congress to really again focus on this issue, to get to where we are today. I think through essentially heroic lobbying efforts, not simply by organized groups like the Clery Center, but by one family in particular that lost a son to hazing, you saw finally some movement to get a national hazing bill.

It’s been a long time coming. I think there were some of us that have been in this business 30-plus years and wondered if such a thing would ever happen, as we’ve seen the idea out there. But we have arrived at a new horizon.

I think what this has done is drawn attention to a persistent, very difficult-to-root-out problem, particularly on college campuses, that often results in death or extremely serious injury to individuals. Beneath the waves, there are a number of people who are impacted negatively by hazing who don’t end up in the hospital or aren’t killed in the process somehow, and it has served to degrade the academic environment to have the persistence of this phenomenon. It’s really a good thing that this has risen to national legislative attention. I think colleges will put even more emphasis on hazing prevention and intervention going forward.

Bennett: Looking at claims data can be really helpful when we’re thinking about hazing prevention. Hillary, what types of hazing patterns have you seen in UE claims?

Pettegrew: In the broadest possible terms, three patterns immediately stuck out. The first one is negligence, where plaintiffs claim that institutions failed to prevent or respond properly to hazing incidents. That was probably the most common broad theme in the claims.

Next was assault, where plaintiffs contended that institutions, as well as the individual perpetrators, were responsible for certain hazing elements like physical abuse and forced alcohol consumption, as well as the resulting emotional distress.

And finally, failure to protect. Here, plaintiffs accused institutions of failing to protect them from hazing, although the plaintiffs claimed the schools either had prior knowledge of similar incidents or should have known about them.

Bennett: Let’s keep talking about hazing trends and patterns. Peter, are you aware of other hazing trends you think campuses should watch? And have you seen patterns that didn’t show up in the claims?

Lake: I’m sure some of this may have been detected in UE claims, but the one thing I would jump to immediately is club sports seem to be an area where we’re seeing a number of activities that are connected to hazing. I know it’s often, I think, in the public eye people tend to focus, and there’s a historical reason for that, on Greek-letter organizations, particularly male Greek-letter organizations and intercollegiate athletics.

But we are seeing activity in club sports. Beyond that, there’s really no student organization or group that’s truly immune from potential hazing issues. The public perception may really focus on signature incidents, which are often more visible in the newspapers, etc., that focus on Greek-letter organizations and intercollegiate athletics. But no institution should turn a blind eye to what’s happening in club sports, and really, student organizations generally.

Bennett: Speaking of club sports and Greek-letter organizations, their hazing can often be more hidden and harder to get reports on what’s happening. How can schools in general prevent hazing from going further underground?

Lake: Melanie, the great challenge with hazing is that we often see that students involved in the behavior hide what they’re doing and, in fact, deliberately obfuscate or try to keep it out of the eyes of administrators. I’ve seen some pretty remarkable efforts to try to stay off the radar of an institution.

Connected with that is the fact that if an institution were to not recognize a group, it’s not uncommon for groups to reform themselves outside student organization structures of the institution and continue to operate in the community, often using the same identifiers that they used on the campus. Then the behavior becomes even more difficult to detect because it’s off campus, underground, and again, featuring this deliberate attempt to keep it away from administrators.

This is an unusual problem. Hillary illustrated some of the claim trends. When you’re talking, for example, about a negligence or duty to protect argument, it’s awfully hard to find what’s going on if people are hiding it. It’s tough to protect people who are deliberately seeking not to be protected by the institution at the same time.

A background trend that’s going on is some states are beginning to toy with the idea that the college-student relationship is legally special, which some folks interpret as accelerating potential responsibility. But special or not, it is an incredible challenge when people are deliberately hiding information and affirmatively choosing not to integrate university resources into a response or prevention effort.

The more notable instances, of course, the really heinous ones, are the ones where someone is literally in the active process of dying and either teammates or fellow Greek-letter organization members essentially choose not to intervene on behalf of the individual who needs the help of community resources or the institution. This is one of the toughest nuts to crack in student safety. It mirrors some of the challenges with student suicide, where sometimes we see that same pattern of a deliberate attempt to mislead an institution about what’s going on.

Bennett: This next question is for both of you, if you have an answer here. What actions should campus leadership take to prevent hazing?

Pettegrew: I’ll go first, if that’s OK with Peter. There are a couple of things that surfaced repeatedly in the claims as problematic, and I think this is where campus leadership could really have a beneficial effect.

First was inconsistent enforcement. For example, schools might have had very strong anti-hazing policies on paper, but enforcement either didn’t exist or was uneven at best.

The second issue is lack of documentation. This one really sticks out to me first as an employment lawyer, because it’s been a perennial problem in many different types of UE claims, and we are seeing it in the hazing arena, too. For example, there’s a scanty or even nonexistent written record of how a school responded to a hazing allegation, which tends to mean there’s no viable defense if litigation follows.

So I think in those two areas, campus leadership should really take the lead and emphasize the importance of enforcement as well as the importance of documentation. That’s in all areas, not just responding to hazing, but other areas as well, including training.

Lake: Hillary, I would echo everything you said. It’s absolutely true that both things you pointed out are essential. I think it’s important to have strong policies and to make sure that those policies are enforced along with strong, articulated policies. It’s tricky because state law varies significantly, and some campuses will try to mimic state law, but in other cases, they’re really on their own. There are a few states, for example, that have no anti-hazing legislation. So having a good policy and then absolutely consistently enforcing it is important.

The documentation point really strikes a chord with me because, I’ll amplify this a little bit, it is eminently possible that the institution is responding to something, but it might not necessarily get documented or even dealt with properly as a hazing situation.

I’m sure we’re going to explore this a little bit more. But often when an incident matriculates up to decision-makers on campus, they may see it through a particular lens, like a housing issue or an athletic policy violation. Without proper documentation, without eyes on what’s going on, you could have information that later becomes pretty obvious when put together that something was building toward a hazing incident, but it wasn’t really being addressed that way until perhaps, as some people would argue, too late. Hence, this is where I think some of the negligence claims come in.

I’ll reinforce, as I said before, that it’s awfully difficult to know that you’ve got a hazing problem if people are deliberately hiding it. There’s one case I was familiar with where a student ended up in the hospital repeatedly with serious injuries and kept lying to medical professionals and the institution about what the cause of the injuries was. Finally, at one point, the student broke down and admitted that it had been hazing all along. Boy, that’s a tough thing to catch.

I suppose I’d throw because, of that one extra thing, into the equation: I think you really do have to do sort of active consideration of information that comes to you, that you have to look beyond what you’re seeing on its face and be willing to dig a little deeper to make sure there isn’t something going on that is hazing-related, that’s generating the immediate issue you have, whether it’s a classroom performance issue or tardiness or showing up in the hospital with an injury.

It’s good to ask that extra question, to try to see what might be going on. Of course, as Hillary’s pointed out, documentation, particularly in light of the new Campus Hazing Act, is going to be essential. You can be assured the Department of Education will not be pleased if they can’t follow the trail of an incident and the way it’s been reported.

Bennett: Hillary, let’s go back to the UE claims for a minute. Which groups or activities produced the most UE hazing claims?

Pettegrew: I think this is interesting in light of some of Peter’s comments early on. In descending order, there are sort of five contexts, I guess you could call them, in which we saw the most hazing claims.

The first was fraternity initiations. Those matters tended to involve quite a bit of alleged physical abuse, such as beatings and brandings, as well as forced alcohol consumption, things like sleep deprivation, sexualized hazing, including nudity and inappropriate touching, as well as, not surprisingly, psychological abuse and intimidation.

Following that up was athletic team hazing. Here, there were again allegations, quite a few of them, of forced drinking and sexual abuse. The hazing was alleged to have been committed by a variety of teams, including wrestling, lacrosse, cheerleading, baseball, hockey, and swim teams.

In third place, Peter mentioned club sports, and that’s where I think these would fall: student clubs and leadership activities was third among the five. That covers quite a wide swath, I think, of potential student activities.

Fourth place was off-campus parties and retreats. Again, a fairly general category that could encompass a fairly wide range of activities.

The fifth one I think is interesting, and I really want to flag this, because this involved high school and summer camp programs on a higher education institution’s campus. I think, at least for now, this may still be flying under the radar for many schools, but especially when the alleged victims, and often the perpetrators as well, are minors, that adds a whole other layer of complication to this area.

Some specific allegations in this group of claims involve victims who said they were duct taped and others who said they were force-fed dog food. I just think this is something that institutions that are hosting summer camps, who have minors on their campus for other reasons, should really keep an eye on.

Bennett: As Hillary was saying, sometimes multiple risk issues can intersect in a single incident. Peter, how does hazing intersect with other issues such as Title IX or behavioral issues? And what should schools do to better identify how hazing might intersect with other types of reports?

Lake: Thanks, Melanie. It is not unusual at all, and Hillary just drew attention to this, to have multiple metrics triggered by the same incident. One that often stands out, but it’s not alone, is Title IX. Title VI can also come into play. Obviously, codes, discipline codes, etc., can come into play, but I’ll focus a little bit on Title IX just because of the way the law has evolved and the way response has evolved.

If something presents itself as a Title IX issue, Title IX systems are often given a certain amount of primacy, and they tend to be somewhat, I would say, jealous systems. In other words, we go first, and this is a Title IX incident, so we’ll handle it that way. I think people are doing that because there are hard federal regulations and very strong articulations from federal courts in particular about institutional Title IX response requirements.

But that same Title IX issue could also be a hazing issue. It’s very important for the institution to be cross-talking from residence halls, organizational management, discipline code, Title IX, and Title VI, and to realize that simply because something has triggered, for example, a federal civil rights metric, doesn’t mean that handling it as a Title IX matter alone is sufficient to manage the situation.

That’s the trick on modern campuses today. I do fear that a number of things end up being handled by an institution, but may not ultimately be characterized as a hazing issue per se. For example, suppose students are driving home from a hazing incident and they’ve been drinking and they’re in an accident. Perhaps they’ve been on campus. That may be handled through an alcohol policy, but you’re going to have to trace back to the hazing incident to make sure that the institution is responding to that, as well as any behavioral issue, for example, with alcohol or reckless driving.

I do see this a lot, sadly. Hillary’s pointed this out. We see a number of sexualized situations that are involving hazing or at least allegedly involved hazing. That is one of the more prominent forms of abuse that can occur. But it also can be related to things that Title VI covers: race, national origin, and color. We see that as well. There’s quite a bit of overlap and institutional response.

I think the message today is particularly in light of the new federal hazing law, institutions need to be really careful about making sure to categorize things that are hazing into a hazing category and prevent and respond accordingly under the new legal mandates.

Bennett: Peter and Hillary, I’ve heard you both speak about the importance of training. So this next question is going to go to both of you. What are your thoughts on training and how schools are doing it well and how schools are doing it not so well?

Lake: Melanie, this is a really good question. You will see that training is essentially ubiquitous for certain groups or activities on campus. Intercollegiate athletes and Greek-letter organizations often go through training, sometimes extensive training.

Where the training gaps can occur is a little farther down the food chain. For example, Hillary pointed out, dual-enrollment, dual-activity situations raise hazing challenges, but you might see less intentionality directed toward training related to those types of issues, even potentially with clubs and organizations. Club sports, you may see a little drop off. I think it’s important to extend training broadly to the community and again, to target the areas that we know are consistent challenges related to hazing.

But the other thing that I see that’s problematic is that a lot of folks are exposed to training. They’ll even admit that they were trained, but then they go ahead and behave in a way that’s hazing behavior. They engage in it despite the training, and they’ll even admit, you know, even in depositions, that yes, I was trained; yes, I went to this program; and I still did this anyway.

One of the things I think that’s really critical is to not just provide information to people, but I think we’re going to have to be a little more active in assessment to see that people are actually acquiring the information and internalizing it so that they’ll behave accordingly. It’s a little too easy sometimes with population-wide training for people just to tap and go, sign a form, watch a video, move on, sit in a room for a while, listen to someone present on hazing. But what have they actually internalized? What we’re looking at here is training is simply more than information provision, but must include more assessment.

I’ve noticed that some of the more modern approaches to training are interactive and experiential, so that groups of people are brought in and having to work through situations or even scenarios with trainers to get a better sense of what they will be expected to do and what may come down the road.

I would warn every institution that as we train against hazing, there are individuals out there that are training people to do hazing, and in some cases it starts from alumni or even in the high schools where people develop expectations about what will be on campus. We are competing for the hearts and minds of the people who may be vulnerable to hazing incidents on campus.

Then for administrators, I’m a big believer in making sure that people are trained on active listening and coordinating information from whatever silo they might be focused on. Getting to those residence hall directors, even the RAs, to train them on keeping a watchful eye for hazing and being aware of when to report it and to whom becomes mandatory. When you’re in a culture where the people committing the wrongs are going out of their way to hide those things from the police and the campus, it takes a little extra effort to see what’s going on and be able to put the pieces together and get in front of something before it’s a tragedy.

Pettegrew: I have a couple of thoughts that sort of play off those. First is that I would agree, from what I saw in the claims and some of UE’s experience in very different contexts. Here I’m thinking, for example, of tenure evaluation, which does not, at first blush, seem like it would have much to do with hazing. But as we, I think, learned there, training of certain populations tends to be most effective when it’s proactive, comprehensive, and it tends to be best when it’s in person and interactive, I believe you said. So, for example, small groups where participants can work through scenarios and you can tailor that for the particular needs of your campus.

If you’ve noticed hazing reports, for example, in club sports or something, you might want to think about customizing that for certain groups. But in contrast, you did mention someone sitting and watching a video and that was it. We did have a few claims where, for example, the training consisted of showing students a PowerPoint, and that was deemed inadequate by courts. So definitely keep that in mind.

I think another thing that you would want to incorporate into training is really emphasizing the potential real-world legal consequences of violations. For example, if you’re a student, possibly being suspended or expelled.

Another thing to do, Peter mentioned training administrators. I would say in general, training for employees in this context is important because we did have a number of claims where, for example, club advisers, coaches, and other people like that were either actually present when alleged hazing violations occurred or, you know, they were very nearby. They knew there was a pattern of this type of thing happening, and they did nothing to stop it.

In those cases, I think training should emphasize potential termination is a possibility. I think some people who engage in or witness or hear about hazing don’t really think through what it could mean for them if they fail to report it. I think those are definitely some training things to keep in mind.

Bennett: Peter, do you have anything to add before we reach the final question?

Lake: I do, Melanie. I think it’s important for presidents and administrators to realize that you may go a very long time before you have a serious hazing incident on campus, a death or a serious injury, and it could lull you into a sense of complacency to think that this isn’t a priority problem on campus. But the reality is it’s an actuarial certainty that sooner or later, a serious incident will occur. You can’t turn your back on this.

Information I’ve received is really harrowing. We have a large number of students who report having been impacted by hazing, even if they’re not participating in it or injured by it. Honestly, we just see the tip of the iceberg. I think the kind of work that Hillary and I do, we work in the emergency room. We see the worst crashes and the worst incidents. But underneath that, there are a lot of fender benders that are impacting student well-being, student retention, thriving, and even alumni relations down the road.

This is something that every institution, whether they’re very large and having hazing incidents more regularly reported, whether they’re very small and not having a lot of hazing coming to their attention, it’s happening and it’s impacting your environment. Not here, not now? Well, it can be anywhere, at any time.

Bennett: As we reach the end of our time together, I’ll ask you to each provide one final thought. Hillary, would you start us off?

Pettegrew: Sure. I probably sound like a bit of a broken record here, but I do think documentation is critical, and it really can’t be overstated. I certainly agree with Peter that it can be difficult when some of these things are underground, and administrators [are] looking at a complaint, it might not be clear that it’s a hazing complaint.

But I think documenting, for example, everything you hear, what was the source, where did you hear it from, and what is the institution doing to try to respond to that, I think that can go a long way to helping mitigate ultimate responsibility.

We did have a few claims where, for example, it was an allegation against an athletic team, and the coach said, “Oh, well, I talked to them.” Well, there’s no documentation of that. That’s just one specific example of why I think documentation is really critically important here.

Lake: Hillary, you know, as lawyers, we always say if you don’t write it down, it probably didn’t happen.

Pettegrew: Yes.

Lake: For purposes of proof.

Pettegrew: Exactly.

Lake: That’s a hard lesson for people who aren’t used to being in litigation to understand. I suppose my final point going out the door, I think one thing that we obviously want to do is protect ourselves from hazing litigation when, in fact, the institution itself has been victimized in some cases by the behavior of the students.

Again, when you have deliberate, often coordinated efforts to hide risk from an institution, there’s something particularly cruel about the institution being sued, when, in fact, the institution was essentially impacted by this just as much as many individuals were. Hazing has been proven to be very difficult to root out. Strong policies, criminal punishment, and more institutional emphasis have not eradicated the problem.

I think it’s obviously all things that we need to do to meet the challenge of hazing, but I did want to throw one idea out there. It’s mine, and it might be a little farfetched, but I don’t really think it is. It’s been my experience that I’ve noticed a pattern that hazing, unlike bullying, tends to have a certain age signature to it. They start seeing it crop up in their early to mid-teens, tends to die out by the late 20s. Bullying goes on well beyond. I live in Florida in a condo community, so I can certainly attest to that.

But organized hazing is another story, and it seems to be very connected to a period of prefrontal cortex development. I’m wondering if the future of hazing will include not only punishment, strong policies, and strong institutional response, but efforts by education institutions to understand what might be happening developmentally that we might want to intervene with.

I almost wonder if hazing is going to take a turn, something like alcoholism did at one point. Alcoholism was once thought wrong, a moral failure of some kind, and now we think of it as potentially a disability that we would treat. I wonder if some students are more inclined to hazing during this developmental period, and if we could identify what it is about their developmental stage that picks it out.

I’ve noticed, Hillary, that most students aren’t involved in hazing. Many are impacted by it, but there’s usually a pretty identifiable group of people who tend to recidivate and return to hazing. I just wonder if there’s a developmental and education issue here that we might begin to focus on beyond some of the responses that we’ve seen today. It’s my hope to see this eradicated at some point in the 21st century, or at least managed to a level where we just don’t have to have tragedy response be the motivator for the next set of activities on campus.

Pettegrew: I think those are excellent points, Peter. Again, I’ll just go back to what I mentioned about, I think it’s sort of an increasing trend that we are seeing in some of our claims. What is happening with, as I mentioned, summer camps and high school-age students who are on your campus for one reason or another, that’s probably not the first place that officials and administrators think of when they’re wondering about their policies on hazing.

But I think that’s important because that does sort of capture, as you were saying, that it’s starting probably somewhere in the teens. So that may be a way to at least make a small effort to try to get a handle on it.

Bennett: That’s it for today’s podcast. Thank you, Hillary and Peter, for joining me today.

Pettegrew: Thanks, Melanie.

Lake: Thanks, Melanie, and thanks, Hillary. Great to be with you today.

Host: From United Educators Insurance, this is the Prevention and Protection podcast. For additional episodes and other risk management resources, please visit our website at ue.org.