Instances of hazing at higher education campuses across the country have gained national attention. These incidents are occurring in all aspects of college life, including sports teams, fraternities, and sororities. In mid-March 2021, two complementary bills were reintroduced in Congress to address the continued issue of hazing at higher education institutions: the Report and Educate About Campus Hazing Act (REACH Act) and the END ALL Hazing Act (the EAH Act, and, together with the REACH Act, the Acts).
Together, these Acts would amend the Higher Education Act of 1965 by solidifying a singular definition of hazing, requiring higher education institutions to disclose hazing incidents in their annual Clery Report, and report incidents of hazing misconduct on a publicly available website, if enacted. According to the bill sponsors, the goal of the Acts is to increase transparency for students, prospective students, and parents.
Hazing Defined Under the Acts
There is no single definition of hazing under current law. The Acts define hazing similarly; however, the REACH Act has a slightly more inclusive definition (its additions to the definition set forth in the EAH Act are signified in italics below).
The Acts define hazing as "any intentional, knowing, or reckless act committed by a student, or a former student, of an institution of higher education, whether individually or in concert with other persons, against another student (regardless of that student's willingness to participate), that:
- was committed in connection with an initiation into, an affiliation with, or the maintenance of membership in, any organization that is affiliated with such institution of higher education (including any athletic team affiliated with that institution; and
- contributes to a substantial risk of physical injury, mental harm, or degradation or causes physical injury, mental harm, or personal degradation."
Obligations of Higher Education Institutions Under the Proposed Acts
The REACH ACT
Currently, all higher education institutions must disseminate a public annual security report to employees and students under the Clery Act that includes data and statistics for:
- Criminal offenses (including criminal homicide, sexual assault, robbery, aggravated assault, burglary, motor vehicle theft, and arson);
- Hate Crimes (including any of the above-mentioned offenses and any incident of larceny theft, simple assault, intimidation, and destruction/damage/vandalism of property);
- Violence Against Women Act offenses (including domestic violence, dating violence, and stalking); and
- Arrests and Referrals for Disciplinary Action (including weapons law violations, drug abuse violations, and liquor law violations).
Should the REACH Act be enacted, hazing will be added to the list of Violence Against Women Act offenses that institutions must report annually.
Also, under the REACH Act, higher education institutions must create and fund a research-based program designed and implemented in partnership with leadership of the institution, faculty, staff, alumni, and families of students. The program must include information on hazing awareness, hazing prevention, the institution's hazing policies, how to report an incident of hazing, and how the report will be processed and investigated.
The END ALL Hazing Act
The EAH Act is designed with a more targeted focus on individuals outside of the higher education institution's community—namely, parents and prospective students.
This bill, unlike the REACH ACT, does not include an educational component. Instead, it would require institutions of higher education to create and maintain public web pages listing any violation of the rules and laws related to hazing or other hazing-related conduct that threatens a student's physical safety, including a violation involving the abuse or illegal use of alcohol or drugs.
The website must also include reports of incidents of hazing in instances where the institution reaches a formal finding of a violation. This public report on the website must include: (i) the type of violation the institution found; (ii) the name of the student organization that committed the violation; (iii) a general description of the violation, charges, findings of the institution, and sanctions placed on the organization; and (iv) the dates on which the violation was alleged to have occurred, the date the organization was charged with misconduct, the date the investigation was initiated, and the date the investigation ended with a finding a violation occurred.
If the EAH Act is enacted, institutions will have to begin collecting incident information as described above on August 1, 2022. This information will then be reported bi-annually on January 1 and July 1 on the institution's public website, along with the anti-hazing policies the institution maintains.
We will continue to monitor the Acts as they progress through the House and Senate. In the meantime, higher education institutions are encouraged to review their anti-harassment, intimidation, and bullying policies for students and employees, along with their Title IX and other misconduct policies, to ensure they are legally compliant and address the current environment.
If you have any questions about the foregoing, or about your policies generally, please contact Doreen S. Martin, Allison B. Gotfried, Sarah B. Donovan, or any other attorney in Venable's Labor and Employment Group.