VICE Sports Q&A: Valparasio Law Professor Susan Stuart on Hazing

As cases of hazing involving sexual assault between high school athletes continue to make headlines, Valparaiso University law professor Susan P. Stuart talks about why these cases keep happening and the role Title IX has played in their litigation.
February 4, 2016, 3:04pm
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Cases of hazing involving sexual assault and harassment among high school athletes continue to make headlines. They've happened across the country, with recent incidents occurring in Tennessee, where three Ooltewah High School basketball players were charged with the rape of a teammate, to this week in Oklahoma, where four Norman North High School wrestlers were charged with rape. The topic of sexual assault as athletic hazing has even been featured on the current season of the ABC drama American Crime.

Read More: Inside an Elite High School's Culture of Hazing and Bullying

Valparaiso University law professor and associate dean Susan Stuart has studied a number of Title IX cases involving male-on-male locker room sexual harassment, which she wrote about in a 2013 article in the Western New England Law Review called "Warriors, Machismo, and Jockstraps: Sexually Exploitative Athletic Hazing and Title IX in the Public School Locker Room." VICE Sports talked to Stuart about why these cases keep happening, the role Title IX has played in their litigation, and what steps can be taken to prevent harassment and hazing in the future. (This interview has been lightly edited for length and clarity.)

VICE Sports: Can you give us a little background on how you became engaged in your work on hazing?

Susan Stuart: How I got into the hazing was kind of by accident. One of my former students had transferred to another law school and was on that law school's law journal and asked me if I would write an article. So I wrote one on how to craft a peer-on-peer sexual harassment case, because I was primarily a trial lawyer and that interested me. As the intro to my Western New England Law Review article suggests, as I was going through all of the data, my research assistants picked up every single case they could find that had to do with peer-on-peer sexual harassment under Title IX. I started noticing this trend about young boys being more likely to win: fewer cases, but a greater likelihood of success.

Boys were more likely to bring cases once it was beyond their endurance—they were either suffering psychological effects or they had been pulled out of school or they had been physically injured. And that's when I noted that, at least from the small group of cases we were able to connect, a lot of them focused on athletic hazing in the locker room.

I thought it was interesting that the title of the article was "Warriors, Machismo and Jockstraps." How does this kind of toxic masculinity tend to manifest itself in these cases?

One of the troubling things, as I was looking at some of the research, had to do with the responses in a couple of the cases, which was, well, "Boys will be boys, this is what jocks do, and men will be men, and wussies need not apply." The response of a couple of the school administrators in these cases was "Suck it up." The same thing with the coaches, they just turned a blind eye.

What I don't know or have not updated is whether anybody has systemically looked at the high school hazing issues, and there might be some privacy issues involved in that. I know that with self-identification, there was that mid-2000s survey done by USA TODAY that indicated a significant number of athletes, men and women, are being hazed. What is different about the men, when they take the ugly sexual turn, is what's becoming increasingly problematic. It's not just having to run laps in your underwear. It's becoming abusive and dangerous.

I was stunned by the number of cases you cited that escalated into sodomy or similarly direct sexual practices—one case included two boys "swordfighting" with their penises. What purpose does it serve to go this far? How is this behavior used to demean and establish hierarchy in a way "lighter" behavior might not?

I see the sexually abusive component, especially in peer-on-peer same-sex cases, as almost about assigning gender roles. I think there are other kinds of demeaning and abusive behavior, but for some reason it has recently tipped over into sexual behavior and I can't really explain that.

In terms of using sexual derogation to put people in their places, it's kind of a masculine-feminine thing, where the weaker folks are considered "the girls" and the others are the "macho men," and it's just, "be a man, put up with it." For as old as I am and being somewhat familiar with campus hazing and hazing in the Marines and that arc, you never heard stories about the sexually demeaning stuff that you're hearing today, so I think it's kind of a puzzle.

From the male perspective, from what I could gather from both the sociological and the psychological literature was, there was a hierarchy there, as far as who was going to be the alpha males and who was not going to be the alpha males. And that would often require submitting to the alpha male, just more of a dominant-submissive sexual issue, as well as a component of "you're the girl."

What makes the power dynamics at play in these hazing cases particularly fraught for kids?

Because they're kids! If we think about the hazing as a way of trying to reach adulthood when they're not adults yet, we are often leaving them struggling to make their own rules. That was the metaphor that struck me with from The Lord of the Flies. When you leave a bunch of kids on an island, they have to create their own hierarchy. That's kind of what I see with some of these team traditions, they're leaving the athletes adrift to figure it out, and they're adolescents.

What escalates hazing from a one-off or occasional problem, something that could be solved with simple discipline like detention or a suspension from the team, into what you called "systemic" hazing?

It's moving from one incident to what we might also think of as a hostile work environment. That's not to say that one particular athlete can't be a problem. It could be one particular upperclassmen football player who's known to be abusive and aggressive, that would be sufficient to create at least a Title IX problem. There's always going to be that bully out there who's going to haze somebody.

Systemic hazing, as I was talking about it, is where a particular team tradition exists, where this always happens. It's where all the upperclassmen are involved—maybe not all of them are participating, but there might be bystanders who let it go by. It's more a matter of what the remedy might be. That's not to say that a student, regardless of whether it's systemic or just one individual, can't sue under Title IX. It's just harder to deal with this as a school-wide issue and change the team dynamics if it's only one bad apple.

Where are athletes getting the idea that this sort of behavior is sanctioned or endorsed?

There may well be teams out there in which there is no tradition of hazing, so those who are older or in positions of power—captains or upperclassmen—simply lie and say, "This is the tradition and we're in charge of you." It could be more like gang behavior, that kind of hierarchy.

But there are others who actually do have a tradition of this. Oftentimes, what coaches say and what those who are doing the hazing say is "It happened to me, so it's going to happen to you." Whether they were bystanders or victims, it's kind of like "if I had to do this, so do you." It's very hard to break that chain. It's very brave for a 14-year-old to say, "No, I don't want to do this," if you want to belong. There's just a social construct there. When a particular athletic team gets caught up in this and it becomes advertised, you'll even hear alums saying,"I put up with it, they should, too."

And so if you're a freshman and somebody says this is just how it works, regardless of if the tradition actually exists or not, you're going to go along with it.

Yeah! Because you want to belong! That's one of the things that adolescents have the hardest time with—it's what I had a problem with when I was an adolescent. You're insecure, trying to create your own friends. I think one of the telling things as I was re-reading my article, it was, "we did this because we wanted these people to be our friends." That's really sad.

It seems like there's high expectations on the athlete who is actually the target of the hazing to stand up and do something about it himself. Especially with how the "athlete identity" is crafted, to admit that kind of thing would be a failure.

My brothers were all athletes, and of course this was back in the 1960s and the 1970s. There was a great deal of pressure, not on my brothers necessarily but on teenage boys, to be a man. If your only guidance is athletic teams, which may be the only thing going on a particular weekend, and these are people who your community loves and gets their autographs and puts their names in the paper, that's who they look up to. That's one of the reasons I think if we're making a more concerted effort in our athletic teams to deal with those hazing issues, you might see some trickle-down effect and see less sexual harassment school-wide. I couldn't guarantee that, but that's a bit of the premise of the end of my article.

What legal responsibilities do the school or the coach actually assume?

A lot of it is going to depend on the state, because the tort of negligent supervision has to be accepted in your particular jurisdiction. Some states will allow somebody to pursue a remedy only if there's been some kind of reckless or intentional behavior: the teacher knew something was going to happen and left the room anyway. Under other circumstances, which is negligent supervision, if you should have known something was going to happen, like based on the ages of your students or based on the dynamic of a particular team, you shouldn't have left. Leaving them to self-supervise is a risky legal strategy. The ones most likely to be charged with the duty of supervision are the coaches. They can certainly delegate it to an assistant coach, but delegating it to upperclassmen can be dangerous.

Why has Title IX turned out to be such an effective method for resolving these cases in civil court?

If you go through Title IX litigation, you are now able to collect damages. This is all about getting money or getting some kind of remedy. The bigger issue is to find the bigger pockets. You could clearly sue the parents of a child who had harassed you under their insurance policy, but being able to sue a peer and getting any money out of them is really remote. Title IX is one vehicle for taking care of individual claims. It has only been about 20 years since the Supreme Court has allowed the personal damages claims [against schools, in Davis v. Monroe County Board of Education in 1999].

I think boys were kind of late to the game because Title IX had been originally crafted to deal with women in the late 1970s. As the cases and any kind of sexual discrimination started percolating up with adults it turned out that, yes, peer-on-peer and male-on-male sexual harassment was a viable cause of action under Title IX.

People tend to see Title IX as covering gender discrimination issues. Where in the Title IX language does this peer-on-peer male sexual harassment fit in, and how was the precedent established?

It only says "because of sex" in the Title IX language. I say that because I'm teaching employment law right now and we're on peer-on-peer harassment in the workplace. It's the same thing with Title VII [which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion]. The assumption is that Title VII was passed to protect minorities and women, whereas, as Justice Scalia has said, Title VII doesn't mean that you can't make a hostile working environment for men.

It doesn't necessarily have to be men on women, it can be men on men, as well. The idea is, you're being discriminated against because of sex, and sexual harassment is a form of discrimination regardless of who is on either end of it, and that same idea applies to Title IX as well as Title VII.

What other steps do you think could be taken to ensure that schools do a better job with these hazing cases, both in terms of preventing them from happening in the first place and, since I don't think it's feasible to totally eliminate them, also resolution of these cases after they happen?

I go a little out on the limb in my article and suggest, if this seems to be common in the athletics throughout the school and not just a particular sport, a more systemic Title IX report. In other words, file a complaint that wouldn't get damages for a particular student, but might get the federal government telling you that you're going to lose your student funds if you don't do something. That might be one way of getting their attention.

Internal checking is, let's be honest, a cover-your-ass exercise in many cases. Not always—there have been some schools that have been very forthright in investigating; about a year and half ago in a Chicago suburb, they brought in a consulting law firm to investigate the facts and figure out what kinds of things would help. But I think every community is going to be a little bit different on what kind of strategy is going to help change the culture.