Why Is Anyone Falling For This "Fraternities Are Banning Hard Liquor" Thing?

It seemed like a refreshingly altruistic and selflessly motivated move when the North-American Interfraternity Conference announced a new initiative to ban hard liquor last week. Specifically, the resolution requires all member fraternities—which covers more than 6,000 chapters around the country—to implement a policy by Sept. 1, 2019, "that prohibits the presence of alcohol products above 15% ABV in any chapter facility or at any chapter event, except when served by a licensed third-party vendor."

The Washington Post called the move "long overdue"; the New York Times quoted Judson Horras, the NIC's president and chief executive, calling it, “probably the most important thing we could do"; and the Chronicle of Higher Education said this was, "another sign that national fraternity leaders are phasing out their traditional hands-off approach." Certainly, any attempt to curb dangerous behavior is better than no attempt at all, but that's a lot of credulous coverage for a rule that appears effectively toothless.

All fraternities claim to have banned hazing. How could they not? To do anything but would imply that a tax-exempt organization tacitly endorses what amounts to peer torture.

And yet, every year, college kids die during hazing events. Last year alone, there were four publicly known hazing-related deaths, which constitutes a troubling uptick after ten students died from fraternity hazing events the previous five years combined. Many more members, or merely friends of members, suffered injury or assault at fraternity-sanctioned parties or chapter houses. And with negligible exception, these incidents involved drinking to excess—another activity which fraternities claim to regulate or forbid. The hierarchy of fraternity governing in the country is complicated, but whether at the North-American Interfraternity Conference level, the "name brand" fraternity level, or the local chapter level, most or all policies in place designed to curb and control the consumption of alcohol at fraternities.

These bans are self-evidently designed to deter the worst behaviors that often accompany large groups of unsupervised men on the cusp of adulthood. But from the fraternity's perspective, they're also designed to serve as a mitigating legal force against the occasionally cataclysmic results of that behavior.

Beta Theta Pi, the fraternity where Tim Piazza died at the Penn State chapter last year after being forced to imbibe dangerous amounts of alcohol as part of a hazing ritual, for example, explicitly stipulates that, "No member can organize, encourage, or participate in drinking games, including any activity that requires drinking as part of the rules or phases of the activity. Examples include consuming shots equating to one’s age, beer pong, dares, 'century club,' or any other activities involving the consumption of alcohol under duress or encouragement." Their "Risk Management Policy" goes on to say that "alcohol is not allowed" at certain events such as "recruitment / rush," and "new member / pledge events," as well as "[a]ny ritual events." Kegs are also banned.

But none of that helped the 19-year-old Piazza, who died after languishing for hours in a drunken stupor with serious injuries he sustained after falling down the stairs. Security camera footage showed that although the other members of the fraternity were aware of his fall and his inebriated state, he was left without medical attention until the following day. That security footage, and the sensational details that were uncovered in the grand jury that followed, were enough to induce Beta Theta Pi to settle with Piazza's parents just this week for an undisclosed amount.

The Penn State chapter house was closed following Piazza's death, and the settlement includes a "legally binding" plan to make all Beta Theta Pi houses alcohol- and substance-free by August 2020. Dozens of other frats have had their local chapters suspended or disbanded for instances of sexism, racism, or violence in recent years—but any lasting change to the national culture would be an exception to the norm in the wake of a fraternity-related tragedy.

It would ascribe a level of unscrupulousness that I wouldn't want to be on the hook for to say that fraternities actively encourage flouting of their alcohol regulations. But at the very least, they reap the benefits of looking the other way when the rules are broken. Fraternities are technically charitable organizations—charitable organizations that bring in millions of dollars each year from member dues. And while those members might be interested in the networking opportunities that fraternities flaunt, it's the social life that really draws in eager freshmen. No one makes movies about dry fraternities. And there are plenty of reasons why the North-American Interfraternity Conference's highly publicized ban should be taken with a very large grain of salt.

When I asked the NIC's Chief Communications officer, Heather Kirk, a series of questions about the practical application and policing of what would amount to a massive overhaul in undergraduate behavior, she responded only that, "Each fraternity will implement the policy with its chapters, holding members and chapters accountable as necessary through their adjudication processes." I have since followed up to ask if there is any material difference to this new rule and existing rules that members are demonstrably not held accountable for—when was the last time a fraternity brother was apprehended for playing beer pong?—and have yet to hear back.

A cynical person might start to wonder why fraternities bother with all these rules at all if they don't intend to enforce them—at least not with any regularity. And with the heavy-handed caveat that of course the NIC would like to induce its members to stop drinking themselves and others to death but can only do so much to combat willful recklessness, there is a cynical answer.

In 2014, Caitlin Flanagan (yes, the byline should give you pause, but even Flanagan critics agreed she got this part right) wrote a 15,000-word cover story for The Atlantic looking at "The Dark Power of Fraternities." Buried amongst the devastating details of specific instances is a bunch of legalese about liability, but what it boils down to is this: When something bad does happen, policies like these various alcohol bans help fraternities shift blame from the organization onto the misbehaving brothers, who likely didn't realize they were breaking the rules by engaging in classic fraternity behavior.

"For fraternities to survive," she writes, "they needed to do four separate but related things":

The insurance issue is overcome by essentially "self-insuring." A group of fraternities pool a large sum of money, obtained via member dues, into the Fraternity Risk Management Trust—from which settlements to people like the Piazzas is paid out. They have to do this since no normal insurance company would supply a policy to such risky ventures. But the indemnification issue is where things get a little craven. If someone does get hurt, or worse, and a lawsuit is brought against the fraternity and some of its members—those who supplied the birthday shots, or bought the keg for the binge drinking, for example—the fraternity is responsible for defending itself, but it can avoid having to cover the legal fees or insurance payout of any defendants who broke a fraternity rule. As Flanagan writes, "Any plaintiff’s attorney worth his salt knows how to use relevant social-host and dramshop laws against a fraternity; to avoid this kind of liability, the fraternity needs to establish that the young men being charged were not acting within the scope of their status as fraternity members. Once they violated their frat’s alcohol policy, they parted company with the frat."

In the most egregious instances, the fraternity would likely still be found liable even with lip service policies in place, because it'd be easy enough to prove negligence. And it would be entirely reasonable to say that the young men who haze each other or sexually assault women at their house parties should be held individually accountable for their behavior and that in this way, the fraternity's rules are functioning just fine. Danger is often the result of broken laws—and is that the law's fault?

But it's not really about culpability—or at least it shouldn't be. I'm willing to give fraternities the benefit of the doubt that these policies are actually about protecting the safety and well-being of the students who join them. So why aren't they working?

I spoke to Doug Fierberg, a lawyer who has made a practice of representing victims of "school violence"—which means he spends a lot of time suing fraternities. He was quoted in Flanagan's article describing the various alcohol-related risk management policies as "primarily designed to take the nationals’ fingerprints off the injury and deaths.”

I wanted to know if he thought this new policy was any better. "It’s a step in the right direction," he said. "Is it going to stop some of the injury and death? Yes. Is it going to stop all the injury and death? No."

Then he told me about case he just settled on behalf of a pledge who was assaulted at the University of Chicago chapter of Phi Delta Theta, the same national fraternity where a Louisiana State University freshmen died last year after an alcohol-based hazing ritual.

Phi Delta Theta is a dry fraternity. But it's not really dry, is it?

"As a matter of policy it has been dry for years; but as a matter of fact, no," Fierberg said. "And part of the reason it's not dry as a matter of fact is because of the dangerous management structure of fraternities."

By that, Fierberg means 18- to 22-year-old men who not only have an outsized influence on the overall governing of these million-dollar national organizations but who also are the only grassroots enforcement for any of these policies. Dorms would be unsafe without security guards or RAs, too, he reasons, and that lack of oversight is at once what makes fraternities so appealing and so dangerous.

"This is one of the important things that’s needed to change," Fierberg says about the NIC's newest attempt to curb alcohol consumption. "But standing alone it’s going to have to swim upstream against the structures in place."

The positive media attention around this new rule feels self-serving at a time when fraternities should be seriously reckoning with what, if any value, they provide to their young and impressionable cohorts, who exist in a strange hybrid space between customers and employees. Fraternities simultaneously make victims and perpetrators of the young men who pay them for that opportunity, and even in the latter case the system should be held accountable.

It's willfully disingenuous for the NIC to tout the benefits of any particular policy while knowingly not enforcing other similar rules. Specifically: alcohol bylaws intended to be policed by intoxicated college kids seem designed to fail. But frankly it doesn't matter how well-meaning these top-down edicts are if the end result doesn't make the system safer. Fraternities are large, powerful organizations that have an all-consuming influence on the lives of hundreds of thousands of young people in this country. We should expect more of them than to try their hardest.