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When Students Party, College Calls Lawyers

In confronting alcohol and sexual assault, the College must weigh both student safety and its own liability

By Monica M. Dodge and Stephanie B. Garlock, Crimson Staff Writers

It’s been three years since 19-year-old Matthew Sunshine celebrated the end of exams in a Northwestern dorm room by pounding down 17 shots of vodka in about an hour. The next day, his parents received the worst phone call imaginable: Their son had died of alcohol poisoning.

Besides devastating the campus community, the tragic incident also put the university in the crosshairs of potential litigation—in part because Sunshine was on university property, consuming alcohol when he was two years below the legal drinking age.

This fall, Northwestern agreed to review their own alcohol policy and pay Sunshine’s family $2 million.

While universities like Harvard consider the effect that their policies will have on student safety and undergraduate life, there is another factor that is often outside the public eye except when tragedy strikes. When it crafts and enforces policies, the University must consider its legal liability in order to protect its billions of dollars in assets and prevent damage to its reputation. In recent years, Harvard has moved to modify its policies on alcohol and sexual assault to better ensure that its rules and procedures adhere to the ever-shifting legal climate.

TITLE IX POLICIES

In April, Vice President Joe Biden and the Office for Civil Rights published a new set of guidelines explaining what universities must do to keep their sexual assault and sexual harassment procedures in line with federal law.

The new guidelines—which clarify, among other issues, the standard of evidence required to begin investigations in cases of sexual assault—have pushed universities like Harvard to reevaluate their own policies.

“My thinking is that their sense is that campuses were in need of guidance,” Director of the Office of Sexual Assault Prevention and Response Sarah Rankin said. “It was really to clarify the points that [the federal government] perceived schools were struggling to understand and meet.”

Harvard’s Office of General Counsel—which functions as a university-wide legal team—is currently examining each school’s policies and procedures to ensure that they are in line with federal law.

At Harvard, assaults and incidents of harassment by Harvard students that occurred off campus—for example, at final clubs or fraternities in the Square—are already considered to be within the College’s disciplinary purview, according to Associate Dean of the College John “Jay” L. Ellison. But the new guidelines mandate this practice.

“The new Title IX guidelines are much more aware of off-campus behaviors,” said Peter F. Lake ’81, a professor at Stetson University College of Law who specializes in higher education law and policy. “I don’t think the schools have the same luxuries they had even two months ago.”

A Title IX investigation by the Office for Civil Rights that began this year against Yale University will likely attract scrutiny from its peer institutions and has the potential to further alter sexual assault and sexual harassment policies across the nation.

The complaint alleges that a number of public incidents and Yale University policies created a “hostile sexual environment.”

During one incident cited in the complaint, students chanted, “No means yes! Yes means anal!” on Yale’s Old Campus, according to the Yale Daily News. In another instance, student-athletes and fraternity members circulated a “Preseason Scouting Report” which ranked the sexual attractiveness of female undergraduates on Yale’s campus, providing the women’s names, hometowns, and residential colleges.

The complaint further asserts that Yale created an environment in which charges of sexual harassment and assault are not adequately investigated.

Harvard Law School is similarly being investigated this year by the Office for Civil Rights after New England School of Law Adjunct Professor Wendy J. Murphy filed a complaint against the school, arguing that its policies for dealing with sexual assault cases were inefficient and unclear, and furthermore relied on too high a standard of evidence to begin proceedings. The Law School deferred comment to OCR in April.

ENFORCING 21

Alcohol on college campuses poses a number of legal hurdles for university officials.

At universities nation-wide, underage drinking is a fact of life that administrators must confront as part of their attempts to keep university policies within legal bounds.

Lake explained that the drinking age—which was raised to 21 across the nation in 1986—has often been used as more of a “speed limit” than a standard of perfect compliance. On university campuses the attitude has been one of general denial, Lake said.

And—like the investigations at Yale and the Law School, which have the potential to reshape sexual assault policy—changing events in the past decade have provided an incentive for Harvard to look more closely at its own policies on underage drinking on campus.

In a 1997 case at the Massachusetts Institute of Technology, Scott S. Krueger, a freshman pledge at Phi Gamma Delta, shared a bottle of spiced rum with his big brother in the fraternity, drinking to the chorus of “Drink her down, drink her down, drink her down, down, down.”

By the end of the night, Krueger was in a coma with a blood alcohol content of 0.401, more than five times the legal limit to drive in Massachusetts. After 40 hours, he was pronounced dead.

In this case, the fraternity—rather than its members or MIT—was indicted on criminal charges of manslaughter.

The District Attorney in charge of the case, Ralph C. Martin II, said to reporters at the time that in determining the extent of Krueger’s personal responsibility, he took into consideration that the victim was both underage and a freshman in college.

Ultimately, prosecutors were unable to pursue the case after the fraternity disbanded.

In addition, MIT paid a $4.75 million settlement to Krueger’s family and created a $1.25 million scholarship in his name. The family’s lawyer said that they would have sued MIT if an agreement had not been reached.

After Krueger’s death, MIT altered its alcohol policies and its relationship with the Greek system in order to create a safer drinking environment.

“Our approach to alcohol education and policy ... were inadequate,” wrote MIT President Charles Vest in a letter to Krueger’s parents.

Over the past decade, the state of Massachusetts has become increasingly punitive in cases where individuals under 21 are found with alcohol, according to Jeffrey M. Sankey, a lawyer at the Boston-based law firm Dolan Connly, PC.

“Even three or four years ago, students would be caught underage drinking and they’d sort of just be shooed along,” Sankey said. “Now I think that any time that ... anyone under the age of 21 is noticed drinking alcohol, very often now they are referred to the courts.”

Harvard’s Administrative Board has never punished a student simply for drinking underage, said Ellison—who is the Secretary of the Ad Board. But the College, in an effort to align its policies with state law, has tried to avoid funding events where underage drinking is likely to occur. For example, in 2007, the College terminated the Undergraduate Council’s “Party Grants” program, which gave students money to host parties with alcohol.

“[T]he UC has not assumed responsibility ... for verifying that underage students will not be reimbursed for purchasing alcohol,” wrote then-Interim Dean of the College David Pilbeam in an open letter at the time.

At Harvard, these stipulations have had effects on how drinking is treated on campus. This March, the semiannual Pforzheimer Golf event was canceled after House Masters Nicholas A. Christakis and Erika L. Christakis ’86 reviewed the College’s alcohol policy and determined that the event did not fit with the statement’s intent.

“I think that the alcohol policy as a whole is designed to keep our student body as safe and healthy as we can, but also there are legal limitations on what we are allowed to do,” Pfoho House Committee Co-Chair Graham M. Frankel ’12 said in an interview at the time. “Harvard doesn’t shield us from the fact that we’re not allowed to serve alcohol to people under 21.”

Changes on a state and local level have also affected many event policies. Last spring, the Cambridge License Commission decided to stop issuing hard liquor licenses to events hosted by HoCos, such as stein clubs or formals. In the wake of this decision, the College announced last spring that only beer and wine would be served at on-campus events. This spring, the College decided to ban hard alcohol from on-campus formals as well.

“I’ve suspected that a number of the more elite institutions and the cities that house these institutions are ramping up enforcement issues,” Lake said. “There’s less willingness to tolerate ‘Animal House’ culture than there was 20 years ago.”

PLACING RESPONSIBILITY

Beyond the need to keep drinking practices on campus within the bounds of state law, universities must worry about their own legal complicity when drinking goes wrong, regardless of age or location of those consuming the alcohol.

“Alcohol is the biggest risk factor on a college campus,” Lake said.

It is events like those at Northwestern and MIT that College officials cite in their discussions about safe drinking habits. And while such cases provide stark reminders of the dangers to student health and well-being that alcohol may pose, the pecuniary and legal consequences of these incidents should not be underestimated.

Many of the changes in policies around House events stemmed from shifts in who might be allowed to sign the liquor licenses, and who, as a result, would be seen as the liable “host” under Massachusetts law. While it remains unclear who could be blamed if a student were hurt at a Stein Club or formal, HoCo leaders say that they feel responsible for events they throw.

“In Mather, we are instructed by our House Masters and our administrators and even prior HoCos that we are responsible for the safety of the House residents,” Mather HoCo Co-Chair Andrew F. Iannone ’12 said in an interview in March.

Beyond House-sponsored events, student groups—both officially recognized clubs and off-campus, unrecognized groups such as final clubs and fraternities—must work with the University to understand how to minimize risk.

As James F. Mosher—a California-based lawyer who specializes in alcohol policy—explained, universities like Harvard may avoid official relationships with such off-campus groups because they might be held liable despite not having adequate ability to survey and control the environment.

“I never wanted to have responsibility over something I had no oversight for,” former Dean of the College Benedict H. Gross ’71 said.

And occasionally things do go wrong—at both on and off campus events—though no recent Harvard tragedies compare to the deaths on other campuses. When there is an alcohol-related problem at an event hosted by a student group, Dean of Student Life Suzy M. Nelson often intervenes. As she calls the leaders of these groups into her office, she seeks to have an “educational” conversation, focusing on alcohol management at events.

In one such meeting earlier this year, a student organization met with Nelson to discuss dealing with the group’s relationship with alcohol. But within the framework of this discussion, she also handed them material explaining the financial penalties that Northwestern had incurred after the death of a student in an alcohol-related incident and information about the MIT fraternity death. The discussion was about health and safety, but liability, as it often does, loomed in the background.

—Staff writer Monica M. Dodge can be reached at mdodge@college.harvard.edu.

—Staff writer Stephanie B. Garlock can be reached at sgarlock@college.harvard.edu.

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CollegeStudent LifeCollege LifeYear in ReviewAlcoholCommencement 2011