ARBITRATION CLAUSE IS ENFORCEABLE IN HAZING CASE

Dan McCarthy, Manley Burke

As previously reported in Fraternal Law, a twenty year-old junior “aspirant”¹ at the University of Pennsylvania recently accused two members of the Psi Chapter of Alpha Phi Alpha of hazing.  The two members faced criminal charges and were recently convicted of assault and harassment for beating the aspirant and branding him with a rubber band.  The members were each sentenced to nine months probation and the University placed one of the members on academic probation and suspended the second for one semester and fired him from his University job.

In addition to the criminal charges, the aspirant, E. Martyn Griffen, filed a civil lawsuit in the United States District Court for the Eastern District of Pennsylvania against the Alpha Phi Alpha national organization, the Psi Chapter of Alpha Phi Alpha and the two individual members.  Mr. Griffen sought damages for assault and battery, negligence and intentional infliction of emotional distress from the individual defendants and damages for negligence from the organizational defendants.  The defendants filed a Motion to Dismiss or, in the Alternative, Stay Pending Litigation Pending Arbitration.  Judge Gene E.K. Pratter recently ruled on the Motion and stayed the litigation pending arbitration of Mr. Griffen’s claims.²

Application for Membership Includes An Arbitration Provision

Mr. Griffen desired to become a member of the Psi Chapter of Alpha Phi Alpha.  The Chapter required all prospective members to complete an Official Application for Membership in order to become an aspirant and, ultimately, a member of the Fraternity.  The Application, among other things, included a Membership Process Form, which described the “Intake process”, or pledging, into the Fraternity.  The Membership Process Form consisted of four paragraphs: 1) a description of the Intake process, 2) a statement against hazing, 3) details of the Fraternity’s dispute resolution process, and 4) a certification that the application agrees to abide by the conditions of the Intake process.

The Court focused on the third paragraph, describing the Fraternity’s dispute resolution process.  The dispute resolution process provided, in part:

Any grievances and disputes regarding membership intake should generally be referred to the National Director of Membership Services for investigation and resolution.  Matters that cannot be resolved within the Fraternity will be referred to arbitration.  The aspirant specifically agrees to follow all the rules, regulations, and guidelines relating to the Intake process…. The aspirant understands this agreement has an effect on interstate commerce and is subject to the Federal Arbitration Act.  The aspirant… and [the Fraternity]… agree that any and all disputes, conflicts, claims and/or causes of action of any kind whatsoever, [i]ncluding but not limited to: contract claims, personal injury claims, bodily injury claims…relating in any manner whatsoever to the Intake process and application shall be subject to and resolved by compulsory and binding arbitration under the Federal Arbitration Act, 9 U.S.C. Section 1, et seq. and the commercial rules of the American Arbitration Act.

Each aspirant had to initial each paragraph and sign a certification that he read, understood, and agreed to comply with the terms set forth in the Membership Process Form.  Mr. Griffen complied with the requirement by initialing the paragraphs and signing his name.

Mr. Griffen sues following hazing activity

Mr. Griffen alleged that on October 12, 2005, the individual defendants punished the aspirants because of the actions of one of the other aspirants.  According to Mr. Griffen, the defendants repeatedly punched him in the thighs and snapped a rubber band around Mr. Griffen’s upper arm.  Mr. Griffen alleged that he suffered permanent injuries and scarring as a result of the hazing.  Mr. Griffen responded with a civil lawsuit in federal court.

 Arbitration or Federal Court?

The Defendants’ motion to dismiss or for a stay argued that Mr. Griffen could not pursue this case in court because of the arbitration clause in the Membership Process Form that Mr. Griffen willingly signed.  Mr. Griffen first argued that the arbitration clause was not valid because it was unconscionable.  In order for an arbitration clause to be set aside as unconscionable, the challenging party must establish that the arbitration clause is both procedurally and substantively unconscionable.  The Court separated the unconscionable arguments into two sections.

The Court stated that it could not conclude, without additional evidence, that the arbitration clause was procedurally unconscionable.  The Court noted that the Fraternity unilaterally drafted the Application, but there was no evidence that the Fraternity refused to negotiate the terms, that Mr. Griffen did not understand the contract or that he found it unfair when he entered into it.  The Court further stated that there was no evidence that Mr. Griffen lacked a meaningful choice of whether or not to enter into the membership contract.  Further, the Court found no procedurally unconscionable aspects in the form itself because Mr. Griffen initialed and signed the application, indicating that he had read and accepted the arbitration clause.

As for substantive unconscionability, Mr. Griffen argued that public policy demanded a finding of substantive unconscionability based on the Pennsylvania Anithazing statute.  Mr. Griffen argued, “judicial resolution and the attendant disclosure of the adjudication is necessary in order to protect the population of students and applicants to the University of Pennsylvania and the public at large.”  The Court refused to “infer from the mere criminality of hazing in Pennsylvania a broad, over-riding intent to prohibit private resolution of hazing incidents.”  Ultimately, the Court refused to make a finding of substantive unconscionabilty because it found no inconsistency “between the important social policies protected and advanced by Pennsylvania’s Antihazing statue and enforcing agreements to arbitrate claims of hazing….”

Conclusion

This case could have wide implications in the Greek world.  Should a fraternity or sorority include an arbitration clause in its membership application process?  Some defendants prefer arbitration because they see it as a faster, simpler and less expensive alternative to litigation.  Some plaintiffs abhor arbitration because they see it as denying them their day in court.  Ultimately, the decision whether to include an arbitration clause must be made by each organization.  According to at least one court, now such clauses are enforceable in hazing cases.

1 Alpha Phi Alpha calls students who seek membership aspirants, not pledges.

2 Griffen v. Alpha Phi Alpha, Inc. No. 06-1735, 2007 WL 707364 (E.D. Pa. Mar. 2, 2007).

“Justice is:  JUST US.”  Richard Pryor