Academic journal article Emory Law Journal

Fraternizing with Franchises: A Franchise Approach to Fraternities

Academic journal article Emory Law Journal

Fraternizing with Franchises: A Franchise Approach to Fraternities

Article excerpt

INTRODUCTION

Fraternities are founded on values and principles relating to community service, scholarship, and leadership.1 Fraternities are also beneficial for their members. For example, fraternity members often have higher grade point averages and higher graduation rates than unaffiliated students.2 Additionally, students in fraternities collectively raise millions of dollars for philanthropies and spend millions of hours serving the community annually.3 Further, fraternities help students establish valuable friendships4 and provide leadership opportunities and experience for their members.5 However, recent headlines reveal a dark side to fraternity life: 85 Yale FratMembers Included in Suit over Death, Injury at 2011 Harvard Game;6 5 from Baruch College Face Murder Charges in 2013 Fraternity Hazing;7 UAPD Investigates Sexual Assault Allegation Near Fraternity House;8 Fresno State Suspends Alpha Gamma Rho Fraternity for Hazing Activity9 Not all fraternity members and chapters live up to the Animal House stereotype,10 but headlines do not lie: with increasing frequency, national organizations may face legal issues stemming from local chapters' actions.

When an unfortunate fraternity incident occurs, who is responsible? The member(s), the local chapter, or the national organization?11 That question is an overarching concern in the days following an incident. As to individual chapter members, they can face liability for their actions.12 Typically, a local chapter is an unincorporated association13 and whether it faces liability depends on the laws under which it was formed.14 But what about the national organization? It can be difficult to hold the national organization liable15 despite tragic incidents, and Smith v. Delta Tau Delta, Inc.16 depicts this difficulty. In Smith, Johnny Smith, a college freshman, had to participate in a "'hell week' of hazing and sleep deprivation" to gain membership into the Beta Psi Chapter of Delta Tau Delta and died as a result.17 Smith was spray painted when he failed to participate in an event to the fraternity brothers' satisfaction and had to clean the house kitchen wearing only an apron.18 At a house party at the conclusion of "hell week," Smith, after he "was visibly intoxicated," participated in "pledge family drink night," an event the chapter required freshmen pledges to participate in from time to time as a condition of membership, which involved "drink[ing] alcohol with their fraternity families."19 That night, Smith consumed numerous beers and shots, fell down a stairwell sustaining several cuts, could not walk, and could barely talk.20 Smith, with a blood alcohol level near 0.40%, died in a pool of his own vomit and was not discovered until four to eight hours later.21 Despite the national organization's broad enforcement powers and provision of "informational resources, organizational guidance, common traditions, and its brand" to the local chapter, the Indiana Supreme Court did not hold the national organization liable.22

In addition to the difficulty of holding national organizations liable, the public generally does not realize the extent to which national organizations go to prevent liability.23 National organizations have learned what subjects them to liability and have evolved in response.24 To prevent liability, national organizations have self-insured, developed procedures and policies to transfer liability to outside parties, found creative ways to protect their assets from juries, and found ways to indemnify the national and local organizations for undergraduate members' conduct.25 Moreover, a national organization's imposed protocol following a fraternity incident can be self-serving:

Those questionnaires and honest accounts-submitted gratefully to the grown-ups who have arrived, the brothers believe, to help them- may return to haunt many of the brothers, providing possible cause for separating them from the fraternity, dropping them from the fraternity's insurance, laying the blame on them as individuals and not on the fraternity as the sponsoring organization. …

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