Hazing isn’t isolated to fraternities and sororities. The practice is demonstrated in athletics, marching bands and the military, as well. However, the recent spate of fraternity-related hazing deaths begs the question: “What more do fraternities and sororities owe; what more should be expected of these organizations?” For years, much of my research has focused on African American fraternities and sororities. Within these groups, the typical refrain when it comes to hazing has been something akin to: “We’ve done everything we can to stop hazing within our ranks.” Across the nine, major African-American fraternities and sororities, their approaches to addressing hazing are not unique or significantly distinguishable. They all have very similar tactics, and none are particularly innovative. I suspect the same could be said of historically and predominantly white — and Asian and Latino — fraternities and sororities.
Within the area of tort—a noncriminal harm—law, there may be both legal as well as practical instruction to fraternities and sororities about what should be expected of them in the context of hazing. There may be some indicia as to next steps in the effort to meaningfully address hazing. For example, a fraternity or sorority may argue that they have made their best effort to reduce hazing within their ranks. They may indicate that that their approach has been consistent and on par with other similarly-situated organizations in their industry. In essence, fraternities and sororities may defend their risk management and hazing reduction practices by noting that they have employed the “state of the art” or customary practices in the “Greek” community. However, this argument may, and should, be unavailing.
A party that has a tort claim brought against it in court may defend itself by providing evidence as to the state of the art in its industry and conformity to such practices. Such “evidence … is properly admissible to establish that a product is not defective and unreasonably dangerous because of a failure to warn ... of dangers that were ... [not] known to [the manufacturer] or knowable in light of the generally recognized and prevailing scientific and technical knowledge available at the time of the manufacture and distribution.” Fireboard Corp. v. Fenton, 845 P.2d 1168 (Colo. 1993). However, admission of such evidence must be weighed in light of the standard of knowledge attributable to a manufacturer which is that of an “expert in [the] field ... [who has] a duty ‘to keep abreast of scientific knowledge, discoveries and advances and ... ‘[is] under a duty to make tests to ascertain the nature of [its] product[s]. In this scientific age the manufacturer undoubtedly has or should have superior knowledge of his product.’” George v. Celotex Corp., 914 F.2d 26 (2d Cir. 1990). Indeed, while a court may “not, naturally, dismiss a manufacturer’s compliance with industry standards, [it] must also remember that those standards may sometimes merely reflect an industry’s laxness, inefficiency, or inattention to innovation.” Elliott v. Brunswick Corporation, 903 F.2d 1505 (11th Cir. 1990).
“In fulfilling its duty, a manufacturer may not rest content with industry practice.” George v. Celotex Corp. For one, to allow it to do so “would permit the industry to set its own standard of care.” Witt v. Chrysler Corp., 15 Mich. App. 576 (1969). Also, “the industry may be lagging behind in its knowledge about a product, or in what, with the exercise of reasonable care, is knowable about a product ... ’a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages.” George v. Celotex Corp., quoting Judge Learned Hand in T.J. Hooper, 60 F.2d 737(2d Cir. 1932). In short, courts have found that custom and state of the art in an industry may be an artificially low bar. See, e.g., Townsend v. Kiracoff, 545 F.Supp. 465 (D. Colo. 1982) (even if hospital acted in accordance with community standard of care, plaintiff still entitled to prove at trial that entire community standard is negligent); Favalora v. Aetna Casualty & Surety Co., 144 So.2d 544 (La. App. 1962) (holding that medical practitioner may not avoid liability simply by adhering to the custom or procedure of similar practitioners when such practice is found to be negligent).
Regarding hazing, fraternities and sororities have reached a point—and probably did so long ago—when what is expected of them should be heightened. No longer should they be able to say that they’ve done their best or that their approaches are consistent with others in their industry. At its most basic level, what should be expected of fraternities and sororities is that they have harnessed, internalized, and employed the totality of research on hazing. They must also engage with hazing researchers and consultants who employ hazing research and hazing prevention best-practices. You can’t say that you’ve adequately attempted to address hazing and are grossly ignorant of the research on the topic and haven’t engaged with those grappling with the issue.
Given the fact that there is a limited body of scholarly research on hazing, fraternities and sororities should be expected to do something more than utilize it. As the Brunswick Corporation case implied, they should be expected to innovate. Either as individual organizations or groups of organizations, we might imagine them as creating research and development divisions. Those entities should be responsible for searching for answers in places anti-hazing advocates and researchers just haven’t looked—e.g., behavioral economics, economics, decision theory, organizational behavior. They should be responsible for funding a new generation of hazing research. Collectively, fraternities and sororities have the financial, human, and intellectual capital to move the needle on hazing. We must all expect more from them; they owe their communities that.
Gregory S. Parks is currently working on a book about hazing in African American fraternities and sororities, tentatively titled Death March.