President Biden has signed the Stop Campus Hazing Act (the “Act”) into law. The Act, the first federal anti-hazing law, is the result of a bi-partisan effort and comes after several years of patchwork efforts to address hazing at colleges and universities at the state level, which resulted in the enactment of hazing transparency laws in states as varied as Georgia, Louisiana, New Jersey, Ohio, Pennsylvania, South Carolina, Texas, Virginia, and Washington. The Act requires institutions of higher education which participate in the federal student aid / Title IV program to take specific action to prevent, respond to, and disseminate information about hazing on campus.
What You Need to Know:
The Act:
- Requires the publication of institutions’ hazing policies and certain hazing-related disciplinary data, including through inclusion in the Annual Security Report (“ASR” or “Clery Report”) and a separate “Campus Hazing Transparency Report”;
- Mandates anti-hazing education and prevention programming; and
- Supplements, but does not supplant, state or local hazing law, where applicable.
Creating a National Hazing Vocabulary
Momentum for the Act built on the heels of several high-profile and tragic incidents of hazing resulting in student death. As noted, the Act was a bi-partisan effort, and is intended to bring protections to states which have not enacted comprehensive state-level anti-hazing regulations, and ensure consistency and uniformity in how hazing is addressed nationwide. For example, the Act provides a federal definition of the term “hazing,” creating a shared national vocabulary for the issue. As defined by the Act, the term “hazing” pertains to:
“any intentional, knowing, or reckless act committed by a person (whether individually or in concert with other persons) against another person or persons regardless of the willingness such other person or persons to participate, that
(I) is connected with an initiation into, an affiliation with, or the maintenance of membership in, a student organization; and
(II) causes or creates a risk, above the reasonable risk encountered in the course of participation in the institution of higher education or the organization (such as the physical preparation necessary for participation in an athletic team), of physical or psychological injury...."
Examples of hazing behaviors provided by the Act include “whipping, beating, striking, electric shocking, placing of a harmful substance on someone’s body”; “sleep deprivation, exposure to the elements, confinement in a small space, extreme calisthenics”; inducing consumption of food, alcohol, drugs, or other substances; inducing the performance of sexual acts; threatening words or conduct; criminal activity or inducing others to engage in criminal activity.
Mandating Education and Prevention Efforts
Institutions must offer a “campus-wide prevention program designed to reach students, staff, and faculty” which addresses the following:
- the definition of hazing, as well as the institution’s hazing policies;
- how to report hazing;
- information about the institution’s hazing response process;
- any applicable state, local, or tribal law; and
- primary prevention strategies.
The prevention program must be “research-informed,” and – paralleling efforts related to sexual assault education and prevention – address related topics such as bystander intervention, ethical leadership, and building group cohesion without hazing.
Instituting Data Reporting Requirements
Applicable policy and prevention program information must be included in the institution’s ASR, and reported hazing incidents involving student organizations must be included in statistics alongside the pre-existing set of reportable offenses (i.e., murder and manslaughter; VAWA offenses; aggravated assault; burglary; motor vehicle theft; arson; drug, weapons, and liquor law violations; and bias crimes). Importantly, if “the same person or persons commit more than one hazing act, and the time and place intervals separating each such act are insignificant, such acts shall be reported as a single hazing incident.” For these purposes, the term “student organization” is broadly defined to include any “club, society, association, varsity or junior varsity athletic team, club sports team, fraternity, sorority, band, or student government” in which “two or more of the members are students enrolled at the institution,” regardless of whether “the organization is established or recognized by the institution.”
Institutions must also prepare a “Campus Hazing Transparency Report” (the “Report”) reporting any hazing incidents involving student organizations established or recognized by the institution for which a formal finding of responsibility has been issued under institutional policy. The Report must include the name of the student organization; a general description of the violation, including whether it involved the illegal use or abuse of alcohol or drugs; the findings and sanctions; and the dates on which the conduct occurred, on which the investigation began and ended, and on which the notice of outcome was provided.
The Report must first be made publicly available no later than twelve (12) months after the date the Act became law, and thereafter updated at least twice a year (e.g., January 15 and July 15), with five (5) academic years’ data to be available at any given time. This differs from the ASR’s standard of including data for the current reporting year plus the two past years. A link to the Report must be posted in a prominent location on the institution’s public website, while posting requirements pertaining to the ASR remain unchanged. Institutions need not prepare a Report unless and until they have made a finding of a hazing violation, and need not update their Reports if they have made no further findings.
Preparing for Compliance
The dictates of the Act are sufficiently straightforward to make implementation reasonably simple. For institutions with applicable state laws, preparing for compliance will involve reviewing existing training materials, policies, and reporting processes to ensure they are consistent with both state law and the new federal law. For institutions in states without pre-existing anti-hazing policy frameworks, the lift will be heavier.
As ever, the involvement of all relevant campus stakeholders is critical. Compliance with the Act will require the participation of public safety/the institution’s law enforcement wing and anyone else responsible for coordinating the activities of Campus Security Authorities (“CSAs”) and Clery reporting, but also:
- student conduct personnel;
- communications personnel; and
- personnel who are closest to the highest-risk students, through athletics, fraternity and sorority life, and other student activities.
The involvement of the latter group is particularly essential to assist the institution in implementing educational programming that is targeted to the specific needs of the institution’s student population.
Act-related reporting may require the public disclosure of misconduct previously unknown to many in the campus community. As such, inquiries and feedback from students and student groups, faculty, staff, families, community members, and the media may be received. In addition to being prepared for the receipt of such inquiries, institutions should take note that the Act is clear that satisfying its reporting requirements does not require or permit the disclosure of students’ personally identifiable information in contravention of the Family Educational Rights and Privacy Act (“FERPA”).
