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Fight for Right Not Over Yet

Guest Column Aram W. Harrow

In his Nov. 17 column entitled "Moving Beyond the Housing Decision," Pavan K. Auluck '97 argues that "griping about matters that [we] can't change" is a waste of time because MIT cannot afford to turn back time. Rescinding President Charles M. Vest's decision will result only in lawsuits and bad press claiming that MIT is not correcting its perceived alcohol problem. Perceptions are impossible to argue against.

This argument echoes a long line of similar half-hearted claims that began only days after Vest ambushed students with his surprise announcement a few days before rush. These claims rest on two key assumptions: MIT's legal liability and the public relations advantages of symbolic action against the fraternity menace.

While perhaps "perceptions are impossible to argue against," unsupported legal arguments are not. While trying to decide what charges to pursue, Suffolk County District Attorney Ralph C. Martin II said that charging MIT with involuntary manslaughter was a possibility; he was referring to the 1944 Coconut Grove case in which a property owner was convicted when hundreds of customers died in a fire in his building. Martin, however, never brought that claim to court.

The unstated reason is that far more specific and recent court rulings have exempted universities from liability for their students' extracurricular actions off campus.

This wasn't always the case. In the 1913 case of Gott v. Berea College, the court upheld a school policy prohibiting students from attending local bars based on the newly applied doctrine of in loco parentis. This meant that colleges stood in loco parentis to students; colleges had all the rights and responsibilities of parents.

In the 1970's, this policy began to change. The 26th Amendment went into effect in 1971, lowering the voting age to 18 and legally defining most college students as adults. Subsequent court cases began changing the university's role towards students; instead of a parental relationship, the university was defined to have an "arms-length" relationship with students.

Bradshaw v. Rawlings is the precedent which governs current law on the subject. Returning from an off-campus sophomore-class picnic, Bradshaw was injured in a car crash in which the driver drank college-purchased beer. Bradshaw won over $1 million in a lower court, but the Third Circuit Court of Appeals reversed the decision in 1989. Declaring in loco parentis dead, the court wrote: "Our beginning point is a recognition that the modern American college is not an insurer of the safety of its students. Whatever may have been its responsibility in an earlier era, the authoritarian role of today's college administrations has been notably diluted in recent decades. Trustees, administrators, and faculties have been required to yield to the expanding rights and privileges of their students."

Of course, in loco parentis isn't the only ground for establishing the legally necessary "duty of care." Students have three other possible grounds for suit: claiming a "special relationship" between the university and student, that colleges assume a duty because of their regulation or control of an activity, or that colleges have a duty to protect students on their property.

The Bradshaw decision, however, denies all of these grounds for suit as well. It refutes the special-relationship claim along with in loco parentis and holds that any "assumed duty" must be explicitly assumed by the university. In the Phi Gamma Delta example, MIT must have guaranteed a hazing-free environment. Finally, in both Bradshaw and any possible suit against MIT, the harm didn't occur on the school's property.

Recently there have been claims of college liability re-emerging. In 1991, Furek v. University of Delaware found the university liable for injuries caused by fraternity hazing. The ruling found precedent in Mullins v. Pine Manor College, in which a college was found liable for failing to provide adequate security to a student who was assaulted in a dorm. On inspection, however, these precedents wouldn't apply to the Krueger case.

The Mullins case was based on the guarantee of security implicit in the arrangement to house students in a dorm owned and operated by the university. Calling fraternities "approved freshman housing" doesn't imply the same guarantee of security.

In Furek, the fraternity was on campus, regulated by a well-publicized anti-hazing policy and under the supervision of campus police. In fact, Furek was stopped by campus police the night before "Hell Week" along with several other pledges because they were sneaking around wearing black. They were sent on their way after telling the police that they were just doing a raid on the Sigma Phi Epsilon house as a pledge activity. The court found the university liable both because it policed and regulated the fraternity and because the fraternity was on university property, neither of which are reasons that would apply to MIT.

When the Furek decision referred to Mullins, the court wrote that "[t]he ... duty resulted from the recognition of the unique situation created by the concentration of young people on a college campus and the ability of the university to protect its students." The relevant laws are sections 314A and 323 of the Second Restatement of Torts. Section 314A says that property ownership confers liability and Section 323 says that rendering necessary protective services confers liability. Both conditions clearly do not apply to MIT fraternities. Moreover, Furek and the single other case decided on its precedent (Marshall v. University of Delaware) have not set any trend; the general rule is still to find no university duty of care.

MIT has little to fear, either from the Krueger case or any potential future lawsuit. As long as fraternities aren't on land owned by the Institute and, perversely, as long as MIT continues to turn a blind eye to hazing, then it has little to fear. The DA's unwillingness to prosecute MIT for Krueger's death, even given evidence of the Institute's inaction on prior hazing, is a good sign that the law attempts only to punish people who commit crimes, not people who fail to stop them.

The other advantage claimed is that MIT's image and reputation will improve. The argument goes that symbolic action is what's necessary, since the goal is more to show that problems are being addressed than to really address them. Unfortunately, this assumes that the action is only symbolic.

The most likely effect will be drastic changes in large parts of the MIT environment. Fraternities will evolve into the sort that haze and drink more, private dorm parties at MIT and other schools will replicate the old fraternity parties except for fraternity risk management, dorm rush will likely disappear, and all students will be more likely to live in a places that they're unhappy with and that offer less emotional support.

The question becomes, then, whether the myriad problems created by MIT's goal of change at any cost will be more concealable than the old ones. This seems unlikely for a few reasons. First, while alcohol and fraternities are always popular media targets, suicides and depression at MIT have been popular targets in the past. The success of the freshman year pass-fail system is a good indicator that qualitative improvements in student happiness translate into quantitative reductions in such measurable and publicizable areas as suicide and depression rates. Likewise, MIT shouldn't hope that a decline in students' happiness and well-being will go unnoticed by the ranks of prospective students and their parents. Moreover, most status quo negative publicity is based on MIT alcohol use, not just fraternity drinking. It should be obvious that failing to reduce binge drinking or, worse, increasing the problem, will not reflect well on MIT's image. Parents usually aren't impressed by strong anti-fraternity measures in schools where drinking is high.

The housing decision is not historic trivia; it should not be seen as something that we are locked into. If we, as a student body, favor our current form of housing, then we should continue to fight tooth and nail to preserve the right of choice for future MIT classes. It is important to remember that MIT could, if it chose, restore the old system with only a minor and short-term loss of face. We should never give up hope that we can convince them to do so, for only then will it truly become too late to turn back.

Aram W. Harrow is a member of the class of 2001.