For many years now, at least as long as I have been a brother of Alpha Phi Alpha—17 years—I have heard that “we are one lawsuit away from being out of business.” I am sure other BGLO members have heard the same thing. I always took it as hyperbole; and over the years, maybe it was such or at least a scare tactic. Having been a researcher on BGLOs for the past 14 years and a law professor who has studied BGLOs for the past 3 years, I would bank on the fact that within 25 years the Divine Nine will be the Great Eight, Stellar Seven or Six…maybe the Fabulous Five or Four. Honestly, at the rate that BGLOs are going, I can only foresee two having any longevity. Given their sizes, financial resources, and frequency of hazing litigation, my prediction is that the organizations will fall by the wayside in the following order: Omega Psi Phi, Kappa Alpha Psi/Phi Beta Sigma, Zeta Phi Beta, Sigma Gamma Rho, Iota Phi Theta, Alpha Phi Alpha, Alpha Kappa Alpha/Delta Sigma Theta.
The typical narrative about how BGLOs will meet their demise is typically one that consists of errant undergrads hazing and getting their organization sued out of existence. That is, from where I sit, part of the narrative, but not the whole or even the bulk of the story. Here are the factors that I think will do-in BGLOs:
First: To call someone “paper” or a “skater” is taboo, but the reality is that the current generation of college students is more entitled and less inclined to sacrifice for achievement than prior generations, on average. And that fact will only become amplified with time. I think a person who loses his or her sight, has to get skin grafts on their posterior, or has their kidney ruptured may have strong grounds to sue for hazing-related injuries. Such victims in the past would have been less-likely to sue, because they would have accepted such injuries as part of the hazards that went along with pledging a BGLO. Even more, this new generation may be more inclined to sue for even milder harms or real/perceived slights. Indeed, we live in an increasingly litigious society.
Second: In a study my colleagues and I conducted on over 1,300 BGLO members, we found that BGLO hazing has become more violent at least since the 1950s. More violence likely means more injuries, and more injuries likely mean more lawsuits against BGLOs. In another study, my colleagues and I found that BGLOs have more violent hazing than white fraternities and sororities. Black fraternities are the most violent. Part of this likely has to do with constrained notions of masculinity among black men, including black fraternity members. And given that black fraternities likely will not have any meaningful dialogue about masculinity and black fraternalism, they will not likely sort these issues out, especially as they relate to hazing. As such, hazing will remain particularly violent within these groups.
Third: The only thing that truly stands between BGLOs and plaintiffs in hazing lawsuits is the insurance industry. Unfortunately, there are few insurers of college fraternities and sororities. With the steady flow of hazing litigation involving BGLOs, it is not inconceivable that at some point it becomes unprofitable for any insurer to cover any particular BGLO. For example, let’s say BGLO A pays a $500,000 premium each year to Insurer A, but over the course of three years, Insurer A pays out $1,000,000 a year in hazing settlements involving BGLO A. It would likely make sense for that insurer to drop BGLO from coverage. BGLO A must then move on to Insurer B. With a limited number of such insurers out there, once Insurer B begins to lose money, BGLO A will then have to move on to Insurer C and so on until there is no insurer to cover BGLO A. A possible option is for an insurer to raise the premium, which would trickle down to each chapter in BGLO A. Higher insurance fees, especially for smaller chapters, would kill many BGLO A chapters, especially collegiate chapters. It is doubtful that any campus would let a fraternity or sorority chapter operate on its campus without insurance. As for the national organization of BGLO A, with no insurer, its only option would be to insure itself. And given the financial resources of each BGLO (consider the net assets or fund balances from 2011 and 2010 for each NPHC organization: Alpha Phi Alpha ($6,809,028/$7,258,956); Alpha Kappa Alpha ($24,384,894/$23,654,672); Kappa Alpha Psi ($5,817,499/$5,148,046); Omega Psi Phi ($2,624,479/$2,575,365); Delta Sigma Theta ($19,188,109/$19,555,631); Phi Beta Sigma ($1,835,670/$1,766,064); Zeta Phi Beta ($1,008,703/$1,091,217); Sigma Gamma Rho ($2,559,860/$1,817,088); and Iota Phi Theta ($300,857/$308,047)), it would take few law suits to reduce most BGLOs to bankruptcy. As an additional point, as a recent case between Admiralty Insurance and Kappa Alpha Psi shows, insurers will not insure, or seek to not insure, the hazing activities of BGLO members. Such an outcome would further expose BGLOs’ direct resources to judgment.
Another critical point: whenever a BGLO is sued, let us say in North Carolina just as an example, the BGLO’s General Counsel does not swoop into North Carolina to litigate the case. Rather, the insurance company gives the BGLO a panel of lawyers in the area to choose from—one who will represent the BGLO. I suspect that most of these lawyers are competent, but few are likely to be black, BGLO members, or experienced in litigating hazing cases dealing with BGLOs. Even more, most of them are not likely to affiliate with such a lawyer or hire an expert witness or trial consultant to aid them in navigating the unique terrain of BGLO hazing issues. As such, the parents of a young man or woman allegedly killed by hazing, or one with a severe injury, is a sympathetic plaintiff to a potential jury, and because of that the BGLO-defendant and their local attorney are somewhat outgunned.
Fourth: BGLOs have too many blind spots when it comes to hazing. Most of the organizations do not pay attention to the legal trends. Most of them do not pay attention to broader bodies of knowledge that could aid them in addressing the issue proactively or once litigation arises. They do not mine the data they already have on past litigations and likely do not share such information across organizations. As such, they fail to capture the big picture either in strategies that plaintiffs’ counsels have used against BGLOs, the ebb and flow of the law in the area, types of evidence that has been or not been useful in litigation, best practices, arguments that expert witnesses and trial consultants have made.
Fifth: Similar to number four, BGLOs are information/data adverse. This includes bodies of knowledge that are available outside of the respective organization files. I have attended the Fraternal Law Conference two years in a row. Most BGLOs are not represented there. Arguably, there has been more research on BGLO hazing conducted in the past five years than on any other type of organization. However, I would bet that most BGLO members and leaders have never looked at this research to see how it may aid them in addressing this issue within their own ranks. Part of this has to do with organizational politics. For example, given the petty intra-organizational rivalries between the groups, do you think Kappa Alpha Psi leadership would consult with a Phi Beta Sigma researcher on BGLO hazing? I doubt it, because they won’t consult with a Kappa, like Dr. Ricky Jones, who has researched the issue. What about vice-versa? Nope! Phi Beta Sigma has never even consulted with the only Sigma, Dr. Matthew Hughey, who currently studies the issue—ironic given that they have a national, anti-hazing initiative. These organizations do not solicit feedback, certainly not on a regular basis, from non-BGLO hazing experts or even BGLO members who are hazing experts, even within their own ranks. The ironic thing about BGLOs is that, for the most part, they have tremendous intellectual capital, given the nature of alumni membership within these groups, but the vast majority of this intellectual capital goes untapped. So, BGLOs remain in an information vacuum due to their own actions or inactions.
Sixth: In one study my colleagues and I conducted, we found that a determinant of hazing was the extent to which BGLO members were truly aware of sanctions associated with hazing. Arguably, most do not know how bad the problem is or how high the stakes truly are. Leadership within BGLOs seem to believe that their current efforts are the best possible, and they are not. Telling BGLO members that hazing will destroy BGLOs is very different from laying out the case systematically and regularly. But that all turns on having sufficient information—e.g., aggregating the major hazing incidents across BGLOs, resultant injuries, lawsuits, settlement/judgment figures, criminal convictions—to make such a case. But, as I have said, BGLOs do not keep such records, and to date they have not invested in gathering and consolidating such information. I suspect that given their indifference to information consolidated and analyzed by outside sources, even those efforts would be snubbed. With all that said, BGLO members are woefully under-informed about hazing, its nature, and the challenges it raises. And these very members are expected to either create and reform the Membership Intake Process within their own organizations or vote on its form and application.
Seventh: Black Greek-letter organizations have also lost their luster. We now live in an age in which many college students do not feel the need to join any fraternity or sorority. Some choose to join something other than a BGLO. It is problematic that BGLOs have built no real pipeline to membership by seeing mentoring K-12 African Americans as not simply good for the community but also necessary for the future viability of these organizations. At this rate, a decade or two from now, the pickings will be remarkably slim for college students who are interested in BGLO membership and possessed of the requisite qualities and characteristics that will sustain BGLOs. Even more, BGLOs have not thought through an optimal MIP that will commit members to their respective BGLO in real and tangible—financially and physically active—ways. As such, while BGLOs are likely to see fewer and fewer aspiring members or ones with poorer credentials than decades before, they are also likely to witness a greater hemorrhaging of active members. And for organizations with an economic model that depends largely on initiation fees and membership dues, their best hope will be to lower the bar to membership. This will fundamentally alter the nature of these organizations, not guarantee long-term membership commitment, and continue to leave them vulnerable to limited coffers and increasing hazing allegations, among other things.
In the end, I am hopeful about the longevity of BGLOs but not optimistic. Their demise will be blamed on 19-23 year-olds, but how responsible can you expect “kids” to be, even those who espouse high ideals? The end of BGLOs will ultimately have resulted from the failure of the adults, especially those in leadership, from doing, not simply something(s) about hazing, but all that needed to be done. Within BGLOs, there is not the will to be transformative. These are inherently conservative organizations where new modes of thinking are strenuously resisted, organizational politics prevails, and provincialism rules the day. Only time will tell; but time is not on their side.