IFC and PHA Dismissed from Penn State Lawsuit

Tim Burke, Manley Burke, tburke@manleyburke.com

As previously reported in Fraternal Law,¹ a lawsuit was filed against multiple parties by James Vivenzio, a former Penn State student and member of Kappa Delta Roe.  The plaintiff claims to have been the whistleblower on hazing within the fraternity, and on the fact that members of the chapter shared nude photos of unsuspecting women on a secret Facebook page.  Defendants in the lawsuit included Penn State University, the national fraternity, as well as the Penn State Interfraternity Council and the Panhellenic Association.

On December 8, 2016, the court in Dauphin County, where the case was transferred after it was originally filed in Philadelphia County, issued an order responding to a series of Preliminary Objections, the Pennsylvania equivalent of Motions to Dismiss.  The Court held that “a university owes no duty of care to a student based simply on the university-student relationship.”²  Given that conclusion, the court dismissed the negligence claims against Penn State, the Interfraternity Council, and the Panhellenic Association.  Because of decisions the court made with regard to other claims in the Complaint, both the Interfraternity Council and the Panhellenic Association are no longer defendants in the case, nor is the University.  The national fraternity and the chapter remain.  Although an appeal could change that situation.

The Bradshaw case, on which the court relied for its conclusion, is a Third Circuit U.S. Court of Appeals case now approaching 40 years old.  Yet it contains a passage that is worth noting today:

“Our beginning point is a recognition that the modern American college is not an insurer of the safety of its students.  Whatever may have been its responsibility in an earlier era, the authoritarian role of today’s college administrations has been notably diluted in recent decades.  Trustees, administrators and faculties have been required to yield to the expanding rights and privileges of their students.  By constitutional amendment, written and unwritten law, and through the evolution of new customs, rights formerly possessed by college administrations have been transferred to students.  College students today are no longer minors; they are now regarded as adults in almost every phase of community life.  For example except for purposes of purchasing alcoholic beverages, eighteen year old persons are considered adults by the Commonwealth of Pennsylvania.  They may vote, marry, make a will, qualify as a personal representative, serve as a guardian of the estate of a minor, wager at racetracks, register as a public accountant, practice veterinary medicine, qualify as a practical nurse, drive trucks, ambulances and other official fire vehicles, perform general fire-fighting duties, and qualify as a private detective.  Pennsylvania has set eighteen as the age at which criminal acts are no longer treated as those of a juvenile, and eighteen year old students may waive their testimonial privilege protecting confidential statements to school personnel.  Moreover, a person may join a Pennsylvania militia at an even younger age than eighteen and may hunt without adult supervision at age sixteen.  As a result of these and other similar developments in our society, eighteen year old students are now identified with an expansive bundle of individual and social interests and possess discrete rights not held by college students from decades past.  There was a time when college administrators and faculties assumed a role In loco parentis.  Students were committed to their charge because the students were considered minors.  A special relationship was created between college and student that imposed a duty on the college to exercise control over student conduct and, reciprocally, gave the students certain rights of protection by the college.  The campus revolutions of the late sixties and early seventies were a direct attack by the students on rigid controls by the colleges and were an all-pervasive affirmative demand for more student rights.  In general, students succeeded, peaceably and otherwise, in acquiring a new status at colleges throughout the country.  These movements, taking place almost simultaneously with legislation and case law lowering the age of majority, produced fundamental changes in our society.  A dramatic reapportionment of responsibilities and social interests of general security took place….  But today students vigorously claim the right to define and regulate their own lives.  Especially have they demanded and received satisfaction of their interest in self-assertion in both physical and mental activities, and have vindicated what may be called the interest in freedom of the individual will.  In 1972 Justice Douglas summarized the change:

 

Students who, by reason of the Twenty-Sixth Amendment, become eligible to vote when 18 years of age are adults who are members of the college or university community.  Their interests and concerns are often quite different from those of the faculty.  They often have values, views, and ideologies that are at war with the ones which the college has traditionally espoused or indoctrinated.”³

 

The words of the Third Circuit Court continue to ring true today.  But if they are enough to sustain on appeal, Penn State’s dismissal from the Vivenzio case remains to be seen.  On the other hand, the justification for including the Interfraternity Council and the Panhellenic Association has never been clear.  The Complaint offered few, if any, facts which justified those organizations being named as defendants.

1 June 2015, Penn State and Fraternity Sued, March 2016, Kappa Delta Roe – Penn State University Litigation Update.

2 For that conclusion, the court relied on Bradshaw, et al. v. Rawlings, et al., 612 F.2d 135, 138-139 (3^rd Cir. 1979).

3 Healey v. James, 408 U.S. 169, 197 (1972).