This interview should be read in conjunction with the excerpt on p. 741 from the Alabama Supreme Court opinion in Jones v. Kappa Alpha (holding that a fraternity pledge "assumed the risk" of hazing, and could not pursue a cause of action against a fraternity or its members for the hazing they inflicted on him). -Editor

SYNTHESIS: You've represented plaintiffs in hazing cases. How do you react to the Jones case? Was it wrongly decided?

FIERBERG: I cannot say that it was wrongly decided, particularly since there were very unique, troubling facts in that case. For example, the Court was correctly concerned with the fact that Mr. Jones knew before the pledge process began that the fraternity hazed pledges; voluntarily entered yet never withdrew at any time from the pledge process; never assisted, and in fact hindered, the university during its investigation; and, only initiated litigation against the fraternity and its members long after the abuse had stopped and after he was suspended by the university for poor academic performance.

Most other serious hazing cases involve significantly different factual circumstances, and, not surprisingly, courts considering some of the legal issues addressed by the Court in Jones have reached different conclusions. The 1998 opinion by the trial court in Tompkins County, New York in the case of Oja v. Theta Chi Fraternity, Inc., 667 N.Y.S.2d 650 (S. Ct. Tompkins County 1998) is one in a line of cases demonstrating how such issues of consent, knowledge and culpable conduct can be resolved differently, depending on the particular circumstances of the hazing. In that case, it was alleged that a pledge died of alcohol intoxication after being commanded to drink excessive amounts of alcohol by fraternity members.

Again per the allegations, Mr. Oja threw up repeatedly, became unconscious and was left unattended before he died. Defendants moved to dismiss the case on the basis of Mr. Oja's culpable conduct, i.e. his purported willingness to follow instructions and consent to the activities which ultimately caused his death.

The court, agreeing with the reasoning in two decisions from courts in Illinois, Haben v. Anderson, 597 N.E.2d 655 (Ill. App. Ct. 1992) and Quinn v. Sigma Roe Chapter of Beta Theta Pi, 507 N.E.2d 1193 (Ill. App. Ct. 191987), denied the motion. The court recognized the enormous peer pressures operating upon young men, beyond childhood but not yet adults, who find themselves in the throes of male bonding, Id. at 969, and ruled that the coercive effect of the initiation ritual, and related issues of culpable conduct, are questions for the trier of the fact to resolve. Id. quoting Haben v. Anderson.

SYNTHESIS: Are other courts likely to follow the reasoning In Jones?

FIERBERG: There is no real federal law on the subject, so each state will follow its own precedent and consider the decisions of other states. You can bet that any fraternity seeking to absolve itself of the responsibility for hazing pledges will cite the Jones case, but it has a unique set of facts, which, frankly, do not apply to most cases in litigation.

SYNTHESIS: Since most students are legally adults, why shouldn't they be responsible for their own decisions to participate in hazing activities?

FIERBERG: In most civil cases, courts are holding students responsible for decisions made with full, free and fair consent. This issue, however, is not as simple as it seems.

First, many criminal statutes include provisions that bar the wrongdoers from defending their conduct on the basis of the students purported consent to the activities (a principal conceptually similar to crimes such as statutory rape, where the victim's consent to the assault is legally irrelevant). We have yet to see whether a court in a civil case will apply such a provision from its criminal code to prevent a civil defendant from defending its conduct on the grounds that the student's purported consent to the hazing bars any right to maintain suit.

In the civil context, many cases of hazing often involve circumstances where the student never truly consents to the hazing or where the consent is obtained by the forced consumption of alcohol, threats or extreme group pressure.

In the civil context, many cases of hazing often involve circumstances where the student never truly consents to the hazing or where the consent is obtained by the forced consumption of alcohol, threats or extreme group pressure. Also, many of these students ultimately do withhold their consent to hazing, but after they've suffered serious harm. This was the circumstance in the case I handled involving hazing by Omega Psi Phi at the University of Maryland (which resulted in a $375,000 verdict against the fraternity). There, my client's treating psychiatrist testified that the student did not give free and full consent to the hazing before he withdrew from the pledge process to avoid further abuse.

SYNTHESIS: What have you learned about the power of "peer pressure" in the hazing cases you've seen?

FIERBERG: For many young people it is an overwhelming influence. For some of the schools I've visited in the context of representing or advising students, the largest, most visible and esteemed social network on campus is within the Greek system. Indeed, the importance of this network is often actively promoted by the university. That said, it should come as no surprise that basic concepts which define our lives, such as acceptance, perseverance, worthiness, loyalty, success, rejection, failure, fear ... are at the heart of the pressure driving students during initiation.

SYNTHESIS: Why didn't hazing victims just leave the organization hazing them?

FIERBERG: They did leave the pledge process and report the hazing to university and law enforcement personnel. Unfortunately, some left after suffering serious injury yet before the hazing got worse.

SYNTHESIS: Are national fraternities serious about stopping hazing? What more can they do?

FIERBERG: Many fraternities and sororities are very serious about stopping hazing, and I have been invited to lecture some of these groups in connection with those efforts. Instead of just talking about the problem, these fraternities have adopted comprehensive anti-hazing policies, educate their membership, pledges and intake staff about the problem, design shortened intake programs, actively monitor the intake programs with graduate students or more senior members of the fraternity, compel their pledges to contact the national office (anonymously) in the event of any hazing, aggressively investigate allegations of hazing, and expel members and chapters that have engaged in this conduct.

SYNTHESIS: What should universities be doing to stop hazing? How can victims be induced to come forward?

FIERBERG: As I've discussed with a number of university deans, the university must first recognize that this is a very serious problem which can lead to the injury of students on campus and civil liability. Accordingly, the university should formally audit its Greek program and, among other things, consider a few of the following issues during that process:

1. Policy: Has the university completely shed the age-old biases that "kids just need to let off steam" or that "any student who gets injured during hazing is just getting what he/she asked for."

Does the university have a comprehensive policy that bans physical and psychological hazing? Does that policy give specific examples of the prohibited conduct? Is that policy linked to the student code of conduct? How does the university communicate this policy to students generally, and, importantly, during the pledge process? Does the university require national fraternities and sororities to agree to be liable and accountable for acts of hazing on campus (even if conducted by the chapter) as a condition for obtaining approval by the university to organize and solicit students on campus?

2. Staffing: Who is responsible for monitoring, taking reports of, and investigating fraternity misconduct on campus? What is their training? Is this same staff also responsible for promoting the Greek system? That is, are you sure that you have the right staff to protect a student from, monitor or investigate misconduct? Do you have the right staff in the position to enforce university policy?

3. Enforcement. See Staffing section. Do violations of the university's hazing policy actually get resolved and punished by a board that includes faculty, students and fraternity members? Notwithstanding obvious issues involving bias, how the university resolves/punishes an incident of hazing may be a substantial factor in determining whether the university is named as a defendant in subsequent litigation. This may be one reason to question whether the university wants students, fraternity members or untrained faculty members making these kinds of critical decisions.

4. The Hazed Student: Do not forget during the investigation that the student and his/her family (often residing far from campus) are looking to the university for guidance, support and responsiveness. Hence, consider the above issues as well as questions of confidentiality and whether university staff should be reporting the identity of the complaining student to the fraternity without first obtaining the student's consent to the release of this information.

More importantly, remember that you have a student on your campus who has just had a terrible experience and may be struggling to stay in school. This is the time to make sure that the student and his/her family know that the resources of the university are available to the student.

In a serious case of hazing I handled at the University of Maryland, the school actually worked with the student and his family to allow him to continue his studies at another school (to avoid, among other things, the enormous social pressure on campus following his report of hazing) yet actually receive his degree from the University of Maryland. The family was particularly grateful for this type of' response, and, as a result, never seriously considered filing suit against the university.

SYNTHESIS: Some fraternity members say that hazing Is essential to group-bonding, and to the affirmation of "manhood." Are they right?

FIERBERG: Wrong. People create life-long bonding and demonstrate manhood in numerous circumstances that do not involve violence, such as in church, marriage, sports, and within the numerous fraternities and sororities that do not haze.

SYNTHESIS: Can fraternities find reasonable alternatives to hazing?

FIERBERG: Just ask the members of fraternities and sororities that have enacted and enforced bans on hazing. I've sat on panels with the presidents of such organizations, and I doubt that any one of these people would tell you that their membership is less worthy because they were not beaten, humiliated or degraded

It should come as no surprise that basic concepts which define our lives, such as acceptance, perseverance, worthiness, loyalty, success, rejection, failure, fear ... are at the heart of the pressure driving students during the pledge process. Indeed, I've heard them say that their membership has been uplifted since hazing was eliminated.

SYNTHESIS: You've seen students subjected to severe hazing. What did they tell you about the experience? What kinds of physical and psychological harm did they suffer?

FIERBERG: I have represented young people who have been beaten with canes, horse hair whipped, administered third degree bums, subjected to bizarre sexual rituals or psychologically harassed until they broke down (resulting in hospitalization and ongoing psychological counseling).

Remember, hazing often takes place at a very important time in a young person's life ... college, when there are very high hopes, expectations and fears about leaving home, creating new friendships and social networks and, generally, enjoying the experience of learning at an institution that was selected after extensive research and discussion with family members.

Most of the young people that I've represented have dropped out of school as a direct result of the hazing, so it is safe to say that all of them have had these particular hopes and expectations crashing. Add to this mix such things as suicidal impulses, intrusive recollections (day and nightmares) and post-traumatic stress disorder, and you get a fair picture of the terrible affect of hazing.

Douglas E. Fierberg is a trial lawyer and partner in the Washington, D.C. law firm of Bode & Grenier, L.L.P. Mr. Fierberg represents victims of hazing, personal injury and other campus crimes, and serves as counsel for certain national sororities which have committed to end hazing.