K-12 Case with Potential Future Implications for Greek Groups

Ilana Linder, Manley Burke LPA, ilana.linder@manleyburke.com

Although it is uncommon for Fraternal Law, or higher education law more generally, to intersect with K-12 education law, there are some interesting takeaways that can be gleaned from public school cases. One such example is a recent case out of Vermont, where the parents of a high school football player who committed suicide after being physically assaulted by teammates sought to hold their son’s school district liable for his death.[1]

Over a year before the student, Jordan Preavy, transferred to a different high school in the district, numerous reports surfaced of verbal harassment in the form of homophobic comments among other football players. The school district immediately and appropriately responded to these reports, and the verbal assaults eventually ceased before Jordan switched schools.

Upon transferring to his new school and joining that school’s football team, Jordan was subjected to at least one instance of physical assault resembling hazing behaviors. Specifically, one player forcibly held Jordan own while another assaulted him with a broomstick by jabbing it at his buttocks through his clothing. Approximately one year after this incident, Jordan took his own life. Jordan never reported the incident to his family or the school. However, several months after Jordan’s death, the school learned not only of this particular incident, but also became aware that other occurrences of physical and/or sexual assault prevalent among the sports teams.

Jordan’s family argued that the school district breached the duty it owed to Jordan by failing to protect him from a foreseeable harm. They pointed to the prior verbal assault incidents as sufficient notice to make the physical assault(s) foreseeable. However, both the trial and state Supreme Courts disagreed. To the contrary, knowledge that football players were making homophobic comments to each other, with no accompanying physical contact, did not put the school on notice of any predictable assault. Furthermore, the occurrence of other physical assaults in the interim was deemed irrelevant to the school’s duty; because the school was not aware of the occurrences, it did not have any opportunity to intervene until after it was too late. Moreover, the Court rejected plaintiff’s claim that the increase in school bullying/harassment nationally or on other school campuses, without more, constituted evidence of such foreseeability. Accordingly, since the school did not breach its duty of ordinary care owed to Jordan, it could not be held liable for Jordan’s death.

National fraternities and sororities that find themselves in similar positions as this school district, and may find the school’s arguments particularly useful to defend against liability claims. After all, whether a national entity knew or should have known that tortious or criminal behavior was possible is often the decisive factor for cases in which plaintiffs attempt to hold the national organization liable for the actions of individual members or local chapters. Accordingly, a national fraternity may absolve itself of any liability for injuries at the local level if it can establish, as Jordan’s school district did, that the national organization was neither aware of any prior/ongoing occurrences, nor did it have a meaningful opportunity to intervene to prevent future harm until it was too late.

Finally, an attempt to hold one entity responsible on the basis of a similar occurrence at a different institution or school would likely be rejected by courts. For example, just because one university is put on notice that a particular fraternity chapter engaged in sexual misconduct, it does not follow that all other universities in every state that have a chapter of that same fraternity are similarly put on notice of foreseeable sexual assault by members of that fraternity.

[1] Stopford v. Milton Town Sch. Dist., 2018 VT 120 (2018).