Do Title IX Protections Discriminate Against Fraternity Members?

An unorthodox and potentially precedent-setting lawsuit against Louisiana State University alleges officials ignore fraternity hazing but protect sororities.

July 25, 2019
 
Max Gruver

A lawsuit filed by the parents of a Louisiana State University student who died during a fraternity hazing ritual could drastically reform college disciplinary systems nationwide if it is successful.

This month, a federal judge agreed that a groundbreaking legal argument by the student's parents potentially has merit. The parents' argument is that fraternity members and pledges at the state's flagship institution are far more at risk than their sorority counterparts because the university disregarded the dangerous and sometimes fatal hazing activities that occur among men in Greek life and cracked down on the women more severely.

The lawyer for the parents of Max Gruver -- an 18-year-old who died in 2017 after being forced to chug hard liquor -- alleged this violates Title IX of the Education Amendments of 1972, the federal law barring sex discrimination at public and private educational institutions that receive federal funds.

Title IX cases often grab headlines because the law prohibits sexual violence on college campuses, a problem that has received increased media scrutiny and prompted public outrage in the past decade. In recent years, however, advocates for students accused of sexual assault have increasingly asserted that guidance on Title IX issued by the Obama administration on how these cases should be adjudicated infringed on the due process rights of the accused.

Still, the law has never been tested in a case involving hazing and purported gender inequities in Greek life. Legal observers said this interpretation of Title IX stretches its boundaries and could prompt others to challenge colleges' disciplinary measures with legal arguments that have not applied under the law.

“You would need to be watching every equity point -- to traffic court, to sabbaticals, to discipline in residence halls,” said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida. “You would need to have an equity monitor at all times … the infrastructure to monitor this would be extremely costly and fairly intrusive.”

U.S. District Court Judge Shelly D. Dick wrote in a recent ruling that she would allow the Title IX allegations in the Gruver family's lawsuit to go to trial. They are seeking $25 million in damages.

Dick was persuaded by the argument that men involved in Louisiana State’s Greek system possibly “face a risk of serious injury and death,” which is a far cry from how university administrators publicly portray Greek culture on campus.

The lawsuit notes that university officials sent Max Gruver a book -- Greek Tiger, a guide to fraternity and sorority life at the institution -- the summer before he arrived on campus, and that his parents say encouraged him to join. But the handbook did not mention the “rampant” hazing incidents in fraternities, the lawsuit states.

Institutions rarely publicize fraternity or sorority infractions, even serious incidents such as hazing and sexual assaults, and it’s a long-standing problem, said John Hechinger, senior editor at Bloomberg News and author of True Gentlemen: The Broken Pledge of America’s Fraternities.

“It’s sort of shocking that colleges promote these organizations when all of these terrible things have been happening," he said.

Four fraternity pledges, including Gruver, have died from hazing at Louisiana State since 1979. In contrast, “hazing of female Greek students is virtually nonexistent,” the lawsuit states.

The Gruver family's lawyer, Douglas Fierberg, contends that because the university has essentially protected sorority members by limiting hazing among them, it has violated Title IX by not doing the same for fraternities.

Louisiana State countered in court filings that Title IX did not apply in this case.

Judge Dick disagreed.

“If these facts are proven, a jury may infer that LSU’s policy created the heightened risk to Greek male students of serious injury or death by hazing, thereby inflicting the injury alleged herein,” she wrote in her ruling.

Matthew Naquin, 21, the accused ringleader of the hazing against Max Gruver, was recently found guilty of negligent homicide. Gruver had been made to recite the Greek alphabet as part of a hazing episode -- he was forced to take swigs of 190-proof liquor each time he erred. An autopsy revealed Gruver died from alcohol poisoning.

Ernie Ballard, a Louisiana State spokesman, declined to comment on Dick’s ruling other than to say it was a preliminary motion. He did provide a written statement on the verdict related to Naquin.

“Our hearts ache for the Gruvers and all those impacted by this trial and the verdict,” the statement said. “Hazing is an irresponsible and dangerous activity that we do not tolerate at LSU. These tragedies, and the penalties that follow, can be prevented and we have been working diligently to put more safeguards, education and reporting outlets in place for our students regarding hazing. [The] verdict shows that allegations of hazing are fully investigated, and those found responsible face criminal charges.”

While the Gruvers won in moving the lawsuit forward, Gentry McCreary, chief executive officer of Dyad Strategies, which consults with institutions on Greek life, said he doubts their rationale on Title IX would hold up during a trial.

McCreary said the initial strategy was “brilliant,” as many institutions would be tempted to settle during this phase in the legal proceedings. But he said the lawsuit would likely fall through unless the data supported the lawsuit’s theory.

A settlement is more likely, he said. He cited the settlement between Pennsylvania State University and the family of Tim Piazza, a fraternity pledge who died after being forced to drink until, intoxicated, he tumbled down a flight of stairs. Fraternity members carried him to a couch but did not get him medical care, and he died the next day.

The Penn State settlement encouraged fraternities to enact new safeguards to stop hazing, including having a “trained adult” who is not a chapter member live in the Greek houses. Penn State also must provide more training against hazing and on alcohol abuse as part of the settlement.

Courts and lawmakers nationwide are taking hazing more seriously. The governor of Florida just signed one of the country's toughest antihazing laws. Legislation has been proposed in Louisiana that would require universities to immediately report hazing incidents to law enforcement. It would also force institutions to document every step they take in responding to hazing complaints.

Lake theorized that if Louisiana State wanted to settle, it may have offered to earlier on. He believes Fierberg, the attorney representing the Gruvers, may not want to settle. Because his argument was so unorthodox, he may not have expected to win, Lake said. Now, Fierberg is leading one of the most significant college discipline lawsuits in higher education, Lake said.

“If he’s successful, lawsuits will be filed in every federal court on this,” Lake said.

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