HAZING LEADS TO LAWSUIT, CRIMINAL CHARGES

Tim Burke, Manley Burke, tburke@manleyburke.com

“I don’t regret joining this Fraternity,” Brent Whiteside was quoted in the January 6, 2009 Richmond Register saying about Kappa Alpha Psi Fraternity.  “What they stand for is what I want to be.  There were just a couple of bad seeds out there.”  The bad seeds he was referring to were three members of the Eastern Kentucky University Kappa Alpha Psi Chapter who had just pleaded guilty to 4^th Degree Assault after beating Whiteside so severely as a part of a hazing ritual that he suffered renal failure and had to be hospitalized.

The three members who each pleaded guilty got off relatively lightly, each being sentenced to home incarceration ranging from 30 days to 100 days.  They will be eligible to have their charges diverted this fall and can ultimately eliminate their criminal record by having the charges expunged.

On January 22, 2009, Whiteside filed suit in the Fayette County Circuit Court of Kentucky against the Kappa Alpha Psi Fraternity, Inc.¹  The Complaint claimed that Whiteside, a student at Eastern Kentucky University, and a pledge of the Eta Alpha Chapter of Kappa Alpha Psi, was beaten on two occasions – once in January of 2008 and again in March.  The suit claims that members of the Fraternity “repeatedly struck and violently beat Whiteside with hands, fists, feet, paddles and canes on and upon his stomach, chest, back and buttocks, inflicting life threatening and disabling injuries.”  Members of the Kappa Alpha Psi Chapter at the University of Kentucky joined in the second beating and “repeatedly punched and slapped Whiteside on and about his stomach, chest and back, inflicting additional life threatening and disabling injuries.”

The lawsuit claims in its first count that the Fraternity failed in its duty to supervise its members.  That failure, it is claimed, led directly to Whiteside’s injuries which made it impossible for Whiteside to complete this spring semester.  Whiteside alleges he suffered lost wages and an impairment of his future earning capacity and “serious and permanent physical injuries, as well as mental impairment, anguish, embarrassment and humiliation.”

Count Two of the Complaint claims that by granting charters to chapters at Eastern Kentucky University and the University of Kentucky, the fraternity was “liable for the acts of its members conducted in furtherance of fraternity matters.”  The suit claims that the “initiation rituals” were conducted in furtherance of the local charters granted by the Fraternity. Count Three claims that the Fraternity acted with “reckless disregard for the health, safety and welfare of its member pledges, including Whiteside.”

A complaint is a statement of claims (facts) which have not yet been proven.  The legal arguments are just that, arguments.  For example, it is certainly not clear that simply because a fraternity grants a charter, it is responsible for the misconduct of a chapter or its members.  The Plaintiff may have a difficult time proving that the beatings were part of “initiation rituals” in furtherance of the charters.

The Fraternity, which as of this writing has not answered the lawsuit, makes clear on the home page to its web site its anti-hazing policy.  Kappa Alpha Psi has joined with the eight other historically African American fraternities and sororities in adopting the National Pan-Hellenic Council, Inc. (NPHC) Resolution which absolutely prohibits hazing.

That policy notes that “NPHC organizations are … committed to promoting the self-respect and dignity of all persons seeking membership in the respective organizations; and … hazing is antithetical to this commitment and is strictly prohibited by the Constitution, Policies and Procedures of each NPHC organization.”  The policy notes that each NPHC organization has instituted rules against hazing and taken steps to reinforce and strengthen its stand against such conduct.  The policy warns that individuals who engage in such conduct will be held liable and required “to respond in monetary damages, civil and criminal penalties and severe disciplinary action by the organization.”

This lawsuit is in its very early stages.  But it is worth noting that the plaintiff failed to name the individuals who engaged in the criminal conduct in spite of the fact that they were obviously well known to him and instead sued only the national fraternity.  Eastern Kentucky University was also not named as a defendant despite the fact that the college may have been in a better position to recognize the conduct that was going on than was the national fraternity located hundreds of miles away.

Obviously, the conduct engaged in and the damage inflicted on Brent Whiteside has no place in the fraternity world.  It is, as the NPHC Policy says, “inimical to the principles for which each organization stands and fails to foster respect for fellow members or preserve human dignity.”

While those who beat Whiteside violated his rights and deserve to be held accountable, it is unclear that Kappa Alpha Psi is the responsible party.  Clearly, those who beat Whiteside are responsible parties.  To the extent chapter officers knew or encouraged the conduct, they may be responsible parties.  But if Kappa Alpha Psi can document that it has a solid record of enforcing the terms of the NPHC Resolution and its own policies and rules against hazing, the fraternity itself may be in a strong position to defend this case.

¹  Whiteside v. Kappa Alpha Psi Fraternity, Inc., Fayette Circuit Court, Civil Branch, 4^th Division, Case No. 09-CI-352.