Court of Appeals Upholds Constitutionality of Garret’s Law, Michigan’s Hazing Statute

Haellie M. Gordon, Fraternal Law Partners, hgordon@manleyburke.com

On the evening of November 19, 2021, Ethan Cao (“Mr. Cao”), a Michigan State University student and former Pi Alpha Phi member, attended a party with other fraternity members intended to celebrate the transition of new members to full fraternity membership.1 Mr. Cao was known as the “pledge master,” and was therefore the “authoritative figure” for the new member transition process. Upon  Mr. Cao’s arrival, he handed four new members (the “New Members”) a total of twenty (20) shots (five each), which they immediately consumed. Throughout the night, senior fraternity members encouraged the New Members to continue drinking. Eventually, the New Members ended up in the basement of the home, where other fraternity members drew on their shirtless torsos while they appeared unconscious.

Later that evening, police responded to a report of an individual unconscious and not breathing at the property. When they arrived, they found three of the New Members unconscious but alive, while the fourth, Phat Nguyen (“Mr. Nguyen”), was pronounced dead at the scene. According to a subsequent investigation, Mr. Nguyen’s death was attributed to acute ethanol toxicity, with a blood alcohol concentration of .386. The three surviving New Members were hospitalized and later discharged, although one remained in the intensive care unit for two days due to his .427 blood alcohol concentration.

Procedural Background

Mr. Cao was charged under MCL 750.411t, commonly known as “Garret’s Law,” in connection with the death of the New Member and injuries to the three surviving New Members.2 After a two-day preliminary examination before the district court, the prosecution moved to bind3 the case to circuit court for trial.4 Mr. Cao opposed the motion and separately moved to hold Garret’s Law as unconstitutional, both facially and as applied.5 The district court denied Mr. Cao’s motion and granted the prosecution’s. While before the circuit court, Mr. Cao renewed both arguments, which were likewise denied. Mr. Cao applied for an interlocutory appeal to the Court of Appeals of Michigan, which granted his application. The Court ultimately upheld the circuit court’s denial of Mr. Cao’s motions, most notably on the following grounds.

First Amendment

Mr. Cao first challenged Garret’s Law on First Amendment right of association grounds.6 More specifically, he contended the statute impermissibly “targets and broadly criminalizes otherwise lawful conduct of student organizations so much that it impinges on the First Amendment.”7 He further analogizes to religious student organizations—for example, a Roman Catholic student organization that requires “fasting in its strictest form during Lent of its members.”8 The Court found these arguments to be unpersuasive and a mischaracterization of the statute. First, the Court clarified “Garret’s Law does not criminalize lawful expressive conduct by student groups,” but rather “narrowly defines ‘hazing’ to include an ‘intentional, knowing, or reckless act… that the person knew or should have known endangers the physical health or safety of the individual.’”9 The Court then emphasized the State’s interest in preserving human life and the absence of any constitutional protections over conduct “that deliberately or recklessly endangers the physical health or safety of current or prospective members.”10

Equal Protection Clause

Mr. Cao also challenged Garret’s Law as a violation of the Equal Proection Clause by drawing improper distinctions between student organizations by not applying to “an activity that is normal and customary in an athletic, physical education, military training, or similar program sanctioned by the educational institution.”11 The Court found this argument to also be unpersuasive. The Court noted Garret’s Law is rationally related to the State’s legitimate government purpose, and therefore satisfies the requirements of the Equal Proection Clause.12 The Court drew attention to the fact that “[a]thletics, physical education, and military training programs inherently involve physicality that might otherwise seem hazardous, yet they serve legitimate purposes and are subject to institutional oversight.” The Court further emphasized that the programs were “not given carte blanche to haze” as the exception applies “only to normal and customary activities within those settings.”13

Vague and Overbroad

Next, Mr. Cao challenged Garret’s Law on the contention that it was unconstitutionally vague and overbroad.14 More specifically, he contends the statute “fails to provide fair notice of what qualifies as a ‘reckless act’ or what conduct may ‘endanger the physical health or safety’ of an individual.”15 He further alleges Garret’s Law “is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether the law has been violated.”16 Mr. Cao finally contends Garret’s Law is unconstitutional to the extent it precludes consent as a defense. The Court once again disagreed with Mr. Cao’s arguments. To begin, the Court acknowledged hazing is “something of a moving target” and it would “be an impossible task if the legislature had attempted to define [it] specifically.”17 The Court further emphasized that a statute does not need to define an offense with mathematical certainty, and that parties are not permitted to manufacture uncertainty to invalidate a law.18 Next, the Court noted that many criminal laws already require an evaluation of whether a defendant acted recklessly or endangered another’s safety.19 The Court held that “reckless” or “endanger” are not impermissibly vague simply because they require a fact-specific judgment, and that “a person of ordinary intelligence could understand what the statute prohibits.”20 Finally, the Court rejected Mr. Cao’s contention that the absence of consent as a defense renders Garret’s Law unconstitutional, noting that this is a “well-established principle.”21

As Applied

Mr. Cao also challenged Garret’s Law as applied to his actions. He contended the prosecution “merely alleged that he was ‘cheering’ at the party and that punishing him under the statute impermissibly targets expressive conduct.”22 The Court rejected this argument, noting the record demonstrates Mr. Cao “went far beyond cheering,” as he was “the person in charge of the initiation process,” “helped plan the party,” and “dictated when the most intensive alcohol consumption would begin.”23 The Court even noted the evidence suggested Mr. Cao may have physically taped alcohol bottles to the New Members’ hands.24 Accordingly, the Court emphasized this is not a case of punishing protected speech, but rather, an application “to conduct that involved organizing and facilitating a dangerous drinking ritual that led to one death and multiple hospitalizations,” thereby falling “well within constitutional bounds.”^[1]

People v Otto

Finally, Mr. Cao invoked the Court’s decision in People v Otto, 348 Mich App 221, 18 N.W.3d 336 (2023), to argue that the application of Garret’s Law “would stretch the statute beyond its intended reach.”^[2] The Court quickly rejected this assertion, holding that the “conduct charged is precisely the type of behavior Garret’s Law was intended to address: orchestrating a drinking ritual that subjected fraternity pledges to dangerous amounts of alcohol.”^[3]

Next Steps

This case will now return to the circuit court for additional proceedings. However, Mr. Cao’s counsel has indicated he and Mr. Cao intend to “continue [their] appeal to the Michigan State Court.”^[4] The events surrounding Mr. Nguyen’s passing underscore the critical importance of adherence to alcohol policies, risk management protocols, and proactive education on personal and group safety. By reinforcing these measures and promoting a culture of accountability, fraternal organizations can better protect their members and surrounding communities. Fraternal Law Partners will provide further updates as the case progresses.

1 People v. Cao, No. 373185, 2025 WL 2832310, *1 (Mich. Ct. App. Oct. 6, 2025).

2 Id.

3 To move to “bind” a matter to the circuit court for trial means to request a finding at the conclusion of the preliminary examination that (1) a felony has been committed and (2) there is probable cause for charging the defendant with a felony.

4 People v. Cao, No. 373185, 2025 WL 2832310, *2 (Mich. Ct. App. Oct. 6, 2025).

5 Id. at *1.

6 Id. at *5.

7 Id.

8 Id.

9 Id.

10 Id.

11 MCL 750.411t(5).

12 Cao, 2025 WL 2832310 at *6.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id. (citing People v Lenti, 44 Misc. 2d 118, 121-122, 253 N.Y.S.2d 9 (Nassau Co. Ct. 1964)).

18 Id.

19 Id.

20 Id.

21 Id. at *7.

22 Id.

23 Id.

24 Id.

[1] Id.

[2] Id.

[3] Id. at *8.

[4] Matt Mencarini, Appeals court rules against ex-MSU student charged in hazing death, Lansing State Journal (October 7, 2025), https://www.lansingstatejournal.com/story/news/education/2025/10/07/michigan-state-hazing-death-appeal-ethan-cao-phat-nguyen/86552289007/?gnt-cfr=1&gca-cat=p&gca-uir=true&gca-epti=z119837p119750c119750d00—-v119837d–xx–b–xx–&gca-ft=151&gca-ds=sophi.