Legal Issues of Hazing

As the number of reported incidents of hazing activities continues to grow, Crow and
Rosner (2002) suggested that legal issues of hazing are becoming more important for
institutions of higher education across the nation. Crow and Rosner reported that
recently student athletes have been prosecuted more often for hazing activities, and
colleges and universities have been held responsible more and more. One of the
difficulties is that there are a number of different definitions of hazing, and some people
consider some activities 17 hazing while others do not. Crow and Rosner said that,
although traditional hazing activities included acts of personal servitude, more recently
hazing activities have included illegal and potentially dangerous acts, which have
increased the number of student athletes who have been charged with criminal hazing.
According to Crow and Rosner (2002), although the doctrine of in loco parentis appears
to be no longer relevant with regard to hazing, colleges and universities may be liable
for hazing activities because of the landowner-invitee theory and as a result of the
special relationship between student athletes and institutions of higher education.
Courts have held colleges and universities accountable as landowners because of their
ownership of campus buildings. For example, in Furek v. University of Delaware (1991),
the Delaware Supreme Court held that a hazing activity, which had occurred on the
university’s property, was foreseeable because the university knew of past and
continuing hazing activities in fraternities and had previously tried to regulate such
activities. Likewise, in Knoll v. Board of Regents of the University of Nebraska (1999),
the court held the university responsible, even though the fraternity building was off
campus and privately owned. Crow and Rosner argue that, although the two cases above
involved fraternities, student athletes could file suit against colleges and universities for
similar reasons, because student athletes often use university facilities for their hazing
activities. In The Fraternal Law, Manley (2003) said, in a recent six-year period, the law
books recorded 10 reported cases of hazing that were complete and featured a formal
written legal opinion. In 2000, a member of Kappa Alpha Psi Fraternity, Inc., challenged
the constitutionality of the State of Maryland’s statute against hazing. The statute
defined hazing as, “doing any act or creating any situation for the purpose of initiating
into a student 18 organization that could recklessly or intentionally subject a student
to the risk of serious bodily injury” (McKenzie v. State of Maryland, 2000, 4). The court
upheld the statute, and said it did not infringe upon free speech, was not vague, and
did not infringe upon freedom of assembly or freedom of association. The court noted
that similar statutes in Colorado, Illinois, Missouri, and New York had survived
challenges that they were unconstitutional. The court also remarked that the State of
Maryland had the power to regulate conduct, even if authorities have viewed such
conduct as “grand old traditions and turned a blind eye in the past” (McKenzie v. State
of Maryland, 2000, 29). Finally, it should be noted that, in this way, the court compared
hazing to lynching, date rape, and domestic abuse.