Existing law makes it unlawful to engage in hazing, which is defined as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, that is likely to cause serious bodily injury to a former, current, or prospective student of a school, community college, college, university, or other educational institution in the state. Existing law establishes civil liability for hazing participants or the organization if it is involved in the hazing.

This bill would expressly prohibit a person from being subjected to hazing in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. The bill would define an educational institution as a public or private institution of higher education in the state. The bill would, beginning January 1, 2026, additionally authorize a former, current, or prospective student, against whom hazing is directed and who has suffered injury as a result, to commence a civil action against an educational institution if (1) the institution has direct involvement in the hazing practice of the organization, or knew or should have known of the hazing practice and failed to take reasonable steps to prevent the hazing practice, (2) the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident, and (3) the alleged hazing incident occurred on or after January 1, 2026. For purposes of determining whether an educational institution knew or should have known of the hazing practice and failed to take reasonable steps to prevent the hazing practice of the organization, the bill would establish a rebuttable presumption that an educational institution took reasonable steps to address hazing if the educational institution has specified antihazing measures. The bill would require the Trustees of the California State University, the Regents of the University of California, and certain independent institutions of higher education, on or before June 30, 2026, and annually thereafter, to report to the appropriate policy committees of the Legislature the number of hazing incidents that constituted a violation of the institutions policy prohibiting hazing and whether the violation was affiliated with a student organization, as specified.

This bill would also require the State Department of Education to make available on the departments internet website, on or before July 1, 2025, a model antihazing policy for local educational agencies and resources on hazing prevention for professional development purposes and to increase awareness among pupils, school staff, and community members of the dangers of hazing.

Existing law makes it unlawful to engage in hazing, which is defined as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, that is likely to cause serious bodily injury to a former, current, or prospective student of a school, community college, college, university, or other educational institution in the state. Existing law establishes civil liability for hazing participants or the organization if it is involved in the hazing.

This bill would expressly prohibit a person from being subjected to hazing in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. The bill would define an educational institution as a public or private institution of higher education in the state. The bill would, beginning January 1, 2026, additionally authorize a former, current, or prospective student, against whom hazing is directed and who has suffered injury as a result, to commence a civil action against an educational institution if (1) the institution has direct involvement in the hazing practice of the organization, or knew or should have known of the hazing practice and failed to take reasonable steps to prevent the hazing practice, (2) the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident, and (3) the alleged hazing incident occurred on or after January 1, 2026. For purposes of determining whether an educational institution knew or should have known of the hazing practice and failed to take reasonable steps to prevent the hazing practice of the organization, the bill would establish a rebuttable presumption that an educational institution took reasonable steps to address hazing if the educational institution has specified antihazing measures. The bill would require the Trustees of the California State University, the Regents of the University of California, and certain independent institutions of higher education, on or before June 30, 2026, and annually thereafter, to report to the appropriate policy committees of the Legislature the number of hazing incidents that constituted a violation of the institutions policy prohibiting hazing and whether the violation was affiliated with a student organization, as specified.

This bill would also require the State Department of Education to make available on the departments internet website, on or before July 1, 2025, a model antihazing policy for local educational agencies and resources on hazing prevention for professional development purposes and to increase awareness among pupils, school staff, and community members of the dangers of hazing.

Existing law makes it unlawful to engage in hazing, which is defined as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, that is likely to cause serious bodily injury to a former, current, or prospective student of a school, community college, college, university, or other educational institution in the state. Existing law establishes civil liability for hazing participants or the organization if it is involved in the hazing.

This bill would expressly prohibit a person from being subjected to hazing in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. The bill would define an educational institution as a public or private institution of higher education in the state. The bill would, beginning January 1, 2026, additionally authorize a person against whom hazing is directed on or after January 1, 2026, former, current, or prospective student, against whom hazing is directed and who has suffered injury as a result, to commence a civil action against an educational institution if (1) the institution has direct involvement in the hazing practice of the organization, or knew or should have known of the hazing practice and failed to take reasonable steps to stop prevent the hazing practice, and (2) the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. incident, and (3) the alleged hazing incident occurred on or after January 1, 2026. For purposes of determining whether an educational institution knew or should have known of the hazing practice and failed to take reasonable steps to stop prevent the hazing practice of the organization, the bill would establish a rebuttable presumption that an educational institution took reasonable steps to address hazing if the educational institution had taken has specified antihazing measures. The bill would require the Trustees of the California State University, the Regents of the University of California, and the appropriate governing bodies of certain independent institutions of higher education, on or before June 30, 2026, and annually thereafter, to report to the appropriate policy committees of the Legislature the number of hazing incidents that constituted a violation of the institutions policy prohibiting hazing, and, hazing and whether the violation was affiliated with a student organization, as specified.

This bill would also require the State Department of Education to make available on the departments internet website, on or before July 1, 2025, a model antihazing policy for local educational agencies and resources on hazing prevention for professional development purposes and to increase awareness among pupils, school staff, and community members of the dangers of hazing.

Existing law makes it unlawful to engage in hazing, which is defined as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, that is likely to cause serious bodily injury to a former, current, or prospective student of a school, community college, college, university, or other educational institution in the state. Existing law establishes civil liability for hazing participants or the organization if it is involved in the hazing.

This bill would expressly prohibit a person from being subjected to hazing in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. The bill would define an educational institution as a public or private institution of higher education in the state. The bill would, beginning January 1, 2026, additionally establish civil liability for authorize a person against whom hazing is directed on or after January 1, 2026, to commence a civil action against an educational institution if (1) the institution has direct involvement in the hazing practice of the organization, or knew or should have known of the hazing practice and failed to take reasonable steps to stop the hazing practice, and (2) the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. For purposes of determining whether an educational institution knew or should have known of the hazing practice and failed to take reasonable steps to stop the hazing practice of the organization, the bill would establish a rebuttable presumption that an educational institution took reasonable steps to address hazing if the educational institution had taken specified antihazing measures. The bill would require the Trustees of the California State University, the Regents of the University of California, and the appropriate governing bodies of certain independent institutions of higher education, on or before June 30, 2026, and annually thereafter, to report to the appropriate policy committees of the Legislature the number of hazing, as defined for purposes of this report, hazing incidents that constituted a violation of the institutions policy prohibiting hazing, and, whether the violation was affiliated with a student organization, as specified.

This bill would also require the State Department of Education to make available on the departments internet website, on or before July 1, 2025, a model antihazing policy for local educational agencies and resources on hazing prevention for professional development purposes and to increase awareness among pupils, school staff, and community members of the dangers of hazing.

Existing law makes it unlawful to engage in hazing, which is defined as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, that is likely to cause serious bodily injury to a former, current, or prospective student of a school, community college, college, university, or other educational institution in the state. Existing law establishes civil liability for hazing participants or the organization if it is involved in the hazing.

This bill would expressly prohibit a person from being subjected to hazing in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. The bill would define an educational institution as a public or private institution of higher education in the state. The bill would, beginning January 1, 2026, additionally establish civil liability for an educational institution if (1) the institution has direct involvement in the hazing practice of the organization, or knew or should have known of the hazing practice and failed to take reasonable steps to stop the hazing practice, and (2) the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. For purposes of determining whether an educational institution knew or should have known of the hazing practice and failed to take reasonable steps to stop the hazing practice of the organization, the bill would establish a rebuttable presumption that an educational institution took reasonable steps to address hazing if the educational institution had taken specified antihazing measures. The bill would require the Trustees of the California State University, the Regents of the University of California, and the appropriate governing bodies of certain independent institutions of higher education, on or before June 30, 2026, and annually thereafter, to report to the appropriate policy committees of the Legislature the number of hazing, as defined for purposes of this report, incidents that constituted a violation of the institutions policy prohibiting hazing, and, whether the violation was affiliated with a student organization, as specified.

This bill would also require the State Department of Education to make available on the departments internet website, on or before July 1, 2025, a model antihazing policy for local educational agencies and resources on hazing prevention for professional development purposes and to increase awareness among pupils, school staff, and community members of the dangers of hazing.

Existing law makes it unlawful to engage in hazing, which is defined as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, that is likely to cause serious bodily injury to a former, current, or prospective student of a school, community college, college, university, or other educational institution in the state. Existing law establishes civil liability for hazing participants or the organization if it is involved in the hazing.

This bill would expressly prohibit a person from being subjected to hazing in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. The bill would define an educational institution as a public or private institution of higher education in the state. The bill would, beginning January 1, 2025, 2026, additionally establish civil liability for an educational institution, which the bill would define as a public or private institution of higher education in the state, institution if (1) the institution has direct involvement in the hazing practices practice of the organization, or knew or should have known of the hazing practices practice and failed to take reasonable steps to stop the hazing practices, or unreasonably failed to prevent or discover the hazing practices of the organization, practice, and (2) the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. For purposes of determining whether an educational institution knew or should have known of the hazing practices practice and failed to take reasonable steps to stop the hazing practices, or unreasonably failed to prevent or discover the hazing practices practice of the organization, the bill would require consideration to be given to the extent that the institution had specific antihazing measures in place at the time of the alleged hazing incident. establish a rebuttable presumption that an educational institution took reasonable steps to address hazing if the educational institution had taken specified antihazing measures. The bill would require the Trustees of the California State University, the Regents of the University of California, and the appropriate governing bodies of certain independent institutions of higher education, on or before June 30, 2026, and annually thereafter, to report to the appropriate policy committees of the Legislature the number of hazing, as defined for purposes of this report, incidents that constituted a violation of the institutions policy prohibiting hazing, and, whether the violation was affiliated with a student organization, as specified.

This bill would also require the State Department of Education to make available on the departments internet website, on or before July 1, 2025, a model antihazing policy for local educational agencies and resources on hazing prevention for professional development purposes and to increase awareness among pupils, school staff, and community members of the dangers of hazing.

Existing law makes it unlawful to engage in hazing, which is defined as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, that is likely to cause serious bodily injury to a former, current, or prospective student of a school, community college, college, university, or other educational institution in the state. Existing law establishes civil liability for hazing participants or the organization if it is involved in the hazing.

This bill would, beginning January 1, 2025, additionally establish civil liability for an educational institution, which the bill would define as a public or private institution of higher education in the state, if (1) the institution has direct involvement in the hazing practices of the organization, knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practices, or unreasonably failed to prevent or discover the hazing practices of the organization, and (2) the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. For purposes of determining whether an educational institution knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practices, or unreasonably failed to prevent or discover the hazing practices of the organization, the bill would require consideration to be given to the extent that the institution had specific antihazing measures in place at the time of the alleged hazing incident.

This bill would also require the State Department of Education to make available on the departments internet website, on or before July 1, 2025, a model antihazing policy for local educational agencies and resources on hazing prevention for professional development purposes and to increase awareness among pupils, school staff, and community members of the dangers of hazing.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2193

Author:(Holden)

As Amended Ver:August 15, 2024

Majority vote

SUMMARY

Authorizes, as of January 1, 2026, a civil action against a higher educational institution for an instance of hazing under certain circumstances.

Major Provisions

1. Prohibits a person from being subjected to hazing in any program or activity conducted by an educational institution that receives financial assistance, as specified.
2. Authorizes a person against whom hazing is directed on or after January 1, 2026, to commence a civil action against an educational institution if both of the following apply:
   1. The educational institution had direct involvement in the hazing practices or knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice.
   2. At the time of the alleged hazing incident, the organization involved in the hazing was affiliated with the educational institution.
3. Specifies that for purposes of determining whether an educational institution should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice of the organization, there shall be a rebuttable presumption that an educational institution had taken specified anti-hazing measures.
4. Defines "hazing" to mean any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. "Hazing" does not include customary athletic events or school-sanctioned events.
5. Requires the Trustees of the California State University, the Regents of the University of California, and the governing bodies of certain independent institutions of higher education, on or before June 30, 2026, and annually thereafter, to submit specified reports containing information on the number of nature of hazing incidents that occurred in violation of their policies.
6. Requires the State Department of Education to post a model anti-hazing policy and other relevant resources on its department website on or before July 1, 2025.
7. Specifies that nothing in this bill affects existing rights, obligations, or remedies under Section 245.6 of the Penal Code.

Senate Amendments

Define "hazing" and make clarifying amendments relative to the authorization to bring an action.

COMMENTS

Existing law and an educational institution's duty to its students. The California Penal Code makes it a crime for a person to engage in "hazing," defined as "any method of initiation or preinitiation into a student organization . . . [that] is likely to cause serious bodily injury" to a prospective, current, or former student. In addition to imposing criminal penalties, the Penal Code also authorizes a civil action for damages, but only against persons who have directly participated. Although existing law applies to any educational institution – including K-12 schools – the hazing provisions primarily seek to address the humiliating and often alcohol-saturated rituals imposed upon college or university students who want to join a sorority or fraternity. In addition to imposing criminal penalties, existing law permits a hazing victim to bring a civil action for damages against persons who engage in hazing activities and the organizations that request or require subjection to hazing as a condition of membership. However, the existing statute does not expressly impose civil liability on educational institutions that grant official recognition to fraternities and sororities. This bill would change that by making colleges and universities liable if they (1) had direct involvement in the hazing practices of an affiliated student organization; or (2) knew or should have known of the hazing practices and failed to take reasonable steps to stop them. For purposes of establishing the liability of an educational institution, the bill creates a rebuttable presumption that the institution took reasonable steps to stop the hazing if they adopted and implemented specified anti-hazing measures.

One could argue that existing negligence principles may, in some instances, already subject educational institutions to liability if they fail to take "reasonable" steps to prevent injuries to their students. To recover civil damages under a theory of negligence, a plaintiff must show that 1) the defendant owed a duty of care to the plaintiff; 2) the defendant breached the duty of care; and 3) the breach was the proximate cause of the injury. To sue a college or university for hazing injuries successfully, therefore, the injured student must first meet the threshold "duty" requirement. We all have a duty to the rest of the world to act in a manner that will not cause foreseeable harm to others. However, this duty only applies to our actions; we generally do not have a duty to protect others from harms caused by third parties, unless we have a "special relationship" with the person harmed. In the absence of a "special relationship," the common law does not impose a duty to affirmatively prevent harm caused by third parties.

While California courts differ on the extent to which universities have a special relationship to students, they have been reluctant to find colleges and universities liable for harms caused by hazing. For example, California courts have held that, while there is a "special relationship" between a university and its students, the university only has a duty to protect or warn students from foreseeable harms when students are on campus, or "while they are engaged in activities that are part of the school's curriculum or closely related to its delivery of educational services." A university is not, however, liable for "student behavior over which the university has no significant degree of control." (Regents of University of California v. Superior Court (2018) 4 Cal. 5th 607, 624-625, 627.) While local fraternity and sorority chapters are recognized by colleges and universities –and often advertised as an integral part of college life – they do not clearly constitute a part of the university's curriculum or educational mission, especially when activities take place off-campus on property not owned by the university. While courts in some other states have upheld jury findings that a university failed to use reasonable care in responding to and investigating hazing reports, California appellate courts have not construed the special relationship between a university and a student broadly enough to impose liability for harms caused by hazing activity. (Compare Morrison v. Kappa Alpha Psi Fraternity (1999) 738 So. 2d 1105 [a Louisiana court finding a university liable for failing to take adequate action in response to hazing reports], with University of Southern California v. Superior Court (2018) 30 Cal. App. 5th 429, 440 [a California court finding that the university did not have a duty to prevent a hazing-related injury in a fraternity].)

Notwithstanding how the courts currently apply common law principles, the Legislature has the power to define the scope of liability as a matter of preferred public policy. As the California Supreme Court put it, whether "a new duty should be imposed in a particular context is essentially a question of public policy." The existence of a duty is not "an immutable fact of nature," but a policy judgement about whether a particular plaintiff is entitled to protection. (Regents, supra at 628.) This bill would set forth a reasonable policy preference: educational institutions – who offer official recognition to fraternities and sororities and benefit from their presence – should take reasonable steps to reduce hazing activities that they know or should know pose a risk of harm to their students. This does not mean that educational institutions must stop all hazing activity or that an educational institution will automatically be liable for any injury caused by hazing activities. They would only be expected to take "reasonable" steps to discover or prevent dangerous hazing activity among affiliated student organizations which the college or university formally recognizes.

The Governor's Veto of AB 299. In the veto message of last year's AB 299 (Holden) of 2023, the Governor expressed support for the intent of the bill but also expressed concern that the bill might create "expansive financial exposure even for [colleges and universities] that are taking appropriate steps to protect their students from hazing." The Governor encouraged the author to more "clearly define when liability arises," especially where the college or university has already taken steps to reduce hazing.

This bill seeks to address the Governor's concern by more precisely defining when an educational institution would be liable and, as important, what steps it could take to avoid liability. It does so in part by creating a rebuttable presumption that a college has acted reasonably, if it adopts, implements, and updates a number of specified anti-hazing policies. Notably, that the bill does not create a "safe harbor" that shields an institution from liability if they take certain actions. Rather, the bill creates a presumption in favor of reasonableness if they take those actions. A plaintiff could still rebut this presumption by, for example, showing that the institution formally adopted the policies but did not carry them out with sufficient diligence.

According to the Author

According to the author, despite reports of deaths and injuries caused by student hazing activities, many of our state's educational institutions make only "a lackluster effort … to address [hazing] in a preventative manner."

Arguments in Support

The Consumer Attorneys of California (CAOC) contends that this measure is needed because:

Student hazing has been directly responsible for the deaths or serious injuries of young students. The ramifications of student hazing can extend far beyond its survivors, undermining their self-esteem and impacting their psychological wellbeing. These consequences have their own tragic results, frequently resulting in student suicide or acts of retaliation, the latter of which we saw most recently at the University of Virginia.

Hazing is a clearly detrimental practice that California has characteristically taken seriously through legislation. This piece of legislation keeps us on that path by holding the educational institutions who promote participation in and benefit from these organizations responsible for the consequences that they may bring to students. This responsibility will hopefully incentivize institutions to bolster their oversight and preventative measures as they pertain to hazing to save students' lives.

The Faculty Association of California Community Colleges "strongly supports AB 2193 because it helps protect students from the dangerous and potentially fatal practice of hazing. By holding educational institutions accountable for their role in enabling or failing to prevent hazing, this bill encourages colleges to take proactive steps to combat hazing and create a safer environment for students. Implementing anti-hazing policies, education, and training programs will help raise awareness about the dangers of hazing while also empowering faculty, staff, and students to recognize and report incidents."

Arguments in Opposition

Public Risk Innovation, Solutions, and Management (PRISM), a California Joint Powers Authority that provides risk management services to public agencies, including colleges and universities, opposes a previous version of this bill because it exposes "higher educational institutions to costly litigation." PRISM argues that the "should have known" standard in AB 2193 places "an undue burden on institutions, potentially leading to expensive legal battles. We believe that unless an institution can be proven grossly negligent in preventing hazing incidents, it is unfair to hold them liable for events beyond their control."

FISCAL COMMENTS

According to the Senate Appropriations analysis:

1. One-time costs (General Fund), potentially in the range of $575,000, to Trustees of the California State University (CSU) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. CSU has 23 campuses. Ongoing costs (General Fund), potentially in the range of $920,000, to CSU to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program, offer this program annually to other groups, and to annually report to the Legislature. This assumes ongoing activities have costs of $40,000 per campus. The CSU also assumes unknown, though potentially significant, costs (General Fund) associated with the liability provisions in the bill.
2. Regents of the University of California (UC) estimates one-time costs (General Fund) of $275,000 to develop and offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to all athletic teams and campus-recognized sororities and fraternities. Additionally, UC anticipates ongoing costs (General Fund) in the tens of thousands to update existing rules and regulations governing student and employee behavior. UC would also incur unknown, potentially significant costs (General Fund), associated with the liability provisions in this bill.
3. One-time Proposition 98 General Fund costs, potentially in the range of $2.9 million, to California Community Colleges (CCC) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. The state has 115 CCCs. CCC would also incur unknown, potentially significant costs (Proposition 98 General Fund), associated with the liability provisions in this bill. Additionally, ongoing General Fund cost, potentially in the range of $3.5 million annually, to CCC to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to other groups. This assumes ongoing activities have costs of $30,000 per campus.
4. Unknown cost pressures (General Fund) to the California Department of Education (CDE) to make certain information available on its website.
5. Unknown, potentially significant cost pressure to the state funded trial court system (Trial Court Trust Fund, General Fund) to adjudicate the cause of action created by this bill. The fiscal impact of this bill to the courts will depend on many unknown factors, including the numbers of violations alleged to have occurred, if parties settle the matter before the filing of an action, and the factors unique to each case. An eight hour court day costs approximately $8,000 in staff in workload. If the bill results in only 12 or more days spent in court, trial court costs could be in the hundreds of thousands of dollars. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources and to increase the amount appropriated to backfill for trial court operations. The Budget Act of 2024, for the fiscal year beginning July 1, 2024, includes a $97 million reduction to the trial courts, a commensurate reduction of up to 7.95 percent to the budget for the state-level judiciary, and a reduction of the trial court state-level emergency reserve in the Trial Court Trust Fund from $10 million to $5 million. The Budget Act also includes a $37.3 million General Fund backfill for the Trial Court Trust Fund to address the continued decline in civil fee and criminal fine and penalty revenues expected in fiscal year 2024‒25.

VOTES:

ASM JUDICIARY: 10-0-2

YES: Kalra, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Reyes, Sanchez, Waldron

ABS, ABST OR NV: Dixon, Pacheco

ASM HIGHER EDUCATION: 7-0-4

YES: Mike Fong, Arambula, Boerner, Chen, Jackson, Low, Muratsuchi

ABS, ABST OR NV: Ta, Essayli, Irwin, Quirk-Silva

ASM APPROPRIATIONS: 12-1-2

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Dixon

ABS, ABST OR NV: Jim Patterson, Ta

ASSEMBLY FLOOR: 55-1-24

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Mike Fong, Garcia, Gipson, Grayson, Haney, Hart, Jackson, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ting, Villapudua, Waldron, Wallis, Ward, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Jones-Sawyer

ABS, ABST OR NV: Alanis, Bains, Cervantes, Megan Dahle, Dixon, Essayli, Flora, Vince Fong, Friedman, Gabriel, Gallagher, Holden, Hoover, Irwin, Lackey, Mathis, Stephanie Nguyen, Pacheco, Jim Patterson, Joe Patterson, Luz Rivas, Ta, Valencia, Weber

SENATE FLOOR: 29-7-4

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Cortese, Dodd, Durazo, Eggman, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

NO: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Seyarto

ABS, ABST OR NV: Caballero, Glazer, Min, Ochoa Bogh

UPDATED

VERSION: July 3, 2024

CONSULTANT: Tom Clark / JUD. / (916) 319-2334 FN: 0004268

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2193

Author:(Holden)

As Amended Ver:August 15, 2024

Majority vote

SUMMARY

Authorizes, as of January 1, 2026, a civil action against a higher educational institution for an instance of hazing under certain circumstances.

Major Provisions

1. Prohibits a person from being subjected to hazing in any program or activity conducted by an educational institution that receives financial assistance, as specified.
2. Authorizes a person against whom hazing is directed on or after January 1, 2026, to commence a civil action against an educational institution if both of the following apply:
   1. The educational institution had direct involvement in the hazing practices or knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice.
   2. At the time of the alleged hazing incident, the organization involved in the hazing was affiliated with the educational institution.
3. Specifies that for purposes of determining whether an educational institution should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice of the organization, there shall be a rebuttable presumption that an educational institution had taken specified anti-hazing measures.
4. Defines "hazing" to mean any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. "Hazing" does not include customary athletic events or school-sanctioned events.
5. Requires the Trustees of the California State University, the Regents of the University of California, and the governing bodies of certain independent institutions of higher education, on or before June 30, 2026, and annually thereafter, to submit specified reports containing information on the number of nature of hazing incidents that occurred in violation of their policies.
6. Requires the State Department of Education to post a model anti-hazing policy and other relevant resources on its department website on or before July 1, 2025.
7. Specifies that nothing in this bill affects existing rights, obligations, or remedies under Section 245.6 of the Penal Code.

Senate Amendments

Define "hazing" and make clarifying amendments relative to the authorization to bring an action.

COMMENTS

Existing law and an educational institution's duty to its students. The California Penal Code makes it a crime for a person to engage in "hazing," defined as "any method of initiation or preinitiation into a student organization . . . [that] is likely to cause serious bodily injury" to a prospective, current, or former student. In addition to imposing criminal penalties, the Penal Code also authorizes a civil action for damages, but only against persons who have directly participated. Although existing law applies to any educational institution – including K-12 schools – the hazing provisions primarily seek to address the humiliating and often alcohol-saturated rituals imposed upon college or university students who want to join a sorority or fraternity. In addition to imposing criminal penalties, existing law permits a hazing victim to bring a civil action for damages against persons who engage in hazing activities and the organizations that request or require subjection to hazing as a condition of membership. However, the existing statute does not expressly impose civil liability on educational institutions that grant official recognition to fraternities and sororities. This bill would change that by making colleges and universities liable if they (1) had direct involvement in the hazing practices of an affiliated student organization; or (2) knew or should have known of the hazing practices and failed to take reasonable steps to stop them. For purposes of establishing the liability of an educational institution, the bill creates a rebuttable presumption that the institution took reasonable steps to stop the hazing if they adopted and implemented specified anti-hazing measures.

One could argue that existing negligence principles may, in some instances, already subject educational institutions to liability if they fail to take "reasonable" steps to prevent injuries to their students. To recover civil damages under a theory of negligence, a plaintiff must show that 1) the defendant owed a duty of care to the plaintiff; 2) the defendant breached the duty of care; and 3) the breach was the proximate cause of the injury. To sue a college or university for hazing injuries successfully, therefore, the injured student must first meet the threshold "duty" requirement. We all have a duty to the rest of the world to act in a manner that will not cause foreseeable harm to others. However, this duty only applies to our actions; we generally do not have a duty to protect others from harms caused by third parties, unless we have a "special relationship" with the person harmed. In the absence of a "special relationship," the common law does not impose a duty to affirmatively prevent harm caused by third parties.

While California courts differ on the extent to which universities have a special relationship to students, they have been reluctant to find colleges and universities liable for harms caused by hazing. For example, California courts have held that, while there is a "special relationship" between a university and its students, the university only has a duty to protect or warn students from foreseeable harms when students are on campus, or "while they are engaged in activities that are part of the school's curriculum or closely related to its delivery of educational services." A university is not, however, liable for "student behavior over which the university has no significant degree of control." (Regents of University of California v. Superior Court (2018) 4 Cal. 5th 607, 624-625, 627.) While local fraternity and sorority chapters are recognized by colleges and universities –and often advertised as an integral part of college life – they do not clearly constitute a part of the university's curriculum or educational mission, especially when activities take place off-campus on property not owned by the university. While courts in some other states have upheld jury findings that a university failed to use reasonable care in responding to and investigating hazing reports, California appellate courts have not construed the special relationship between a university and a student broadly enough to impose liability for harms caused by hazing activity. (Compare Morrison v. Kappa Alpha Psi Fraternity (1999) 738 So. 2d 1105 [a Louisiana court finding a university liable for failing to take adequate action in response to hazing reports], with University of Southern California v. Superior Court (2018) 30 Cal. App. 5th 429, 440 [a California court finding that the university did not have a duty to prevent a hazing-related injury in a fraternity].)

Notwithstanding how the courts currently apply common law principles, the Legislature has the power to define the scope of liability as a matter of preferred public policy. As the California Supreme Court put it, whether "a new duty should be imposed in a particular context is essentially a question of public policy." The existence of a duty is not "an immutable fact of nature," but a policy judgement about whether a particular plaintiff is entitled to protection. (Regents, supra at 628.) This bill would set forth a reasonable policy preference: educational institutions – who offer official recognition to fraternities and sororities and benefit from their presence – should take reasonable steps to reduce hazing activities that they know or should know pose a risk of harm to their students. This does not mean that educational institutions must stop all hazing activity or that an educational institution will automatically be liable for any injury caused by hazing activities. They would only be expected to take "reasonable" steps to discover or prevent dangerous hazing activity among affiliated student organizations which the college or university formally recognizes.

The Governor's Veto of AB 299. In the veto message of last year's AB 299 (Holden) of 2023, the Governor expressed support for the intent of the bill but also expressed concern that the bill might create "expansive financial exposure even for [colleges and universities] that are taking appropriate steps to protect their students from hazing." The Governor encouraged the author to more "clearly define when liability arises," especially where the college or university has already taken steps to reduce hazing.

This bill seeks to address the Governor's concern by more precisely defining when an educational institution would be liable and, as important, what steps it could take to avoid liability. It does so in part by creating a rebuttable presumption that a college has acted reasonably, if it adopts, implements, and updates a number of specified anti-hazing policies. Notably, that the bill does not create a "safe harbor" that shields an institution from liability if they take certain actions. Rather, the bill creates a presumption in favor of reasonableness if they take those actions. A plaintiff could still rebut this presumption by, for example, showing that the institution formally adopted the policies but did not carry them out with sufficient diligence.

According to the Author

According to the author, despite reports of deaths and injuries caused by student hazing activities, many of our state's educational institutions make only "a lackluster effort … to address [hazing] in a preventative manner."

Arguments in Support

The Consumer Attorneys of California (CAOC) contends that this measure is needed because:

Student hazing has been directly responsible for the deaths or serious injuries of young students. The ramifications of student hazing can extend far beyond its survivors, undermining their self-esteem and impacting their psychological wellbeing. These consequences have their own tragic results, frequently resulting in student suicide or acts of retaliation, the latter of which we saw most recently at the University of Virginia.

Hazing is a clearly detrimental practice that California has characteristically taken seriously through legislation. This piece of legislation keeps us on that path by holding the educational institutions who promote participation in and benefit from these organizations responsible for the consequences that they may bring to students. This responsibility will hopefully incentivize institutions to bolster their oversight and preventative measures as they pertain to hazing to save students' lives.

The Faculty Association of California Community Colleges "strongly supports AB 2193 because it helps protect students from the dangerous and potentially fatal practice of hazing. By holding educational institutions accountable for their role in enabling or failing to prevent hazing, this bill encourages colleges to take proactive steps to combat hazing and create a safer environment for students. Implementing anti-hazing policies, education, and training programs will help raise awareness about the dangers of hazing while also empowering faculty, staff, and students to recognize and report incidents."

Arguments in Opposition

Public Risk Innovation, Solutions, and Management (PRISM), a California Joint Powers Authority that provides risk management services to public agencies, including colleges and universities, opposes a previous version of this bill because it exposes "higher educational institutions to costly litigation." PRISM argues that the "should have known" standard in AB 2193 places "an undue burden on institutions, potentially leading to expensive legal battles. We believe that unless an institution can be proven grossly negligent in preventing hazing incidents, it is unfair to hold them liable for events beyond their control."

FISCAL COMMENTS

According to the Senate Appropriations analysis:

1. One-time costs (General Fund), potentially in the range of $575,000, to Trustees of the California State University (CSU) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. CSU has 23 campuses. Ongoing costs (General Fund), potentially in the range of $920,000, to CSU to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program, offer this program annually to other groups, and to annually report to the Legislature. This assumes ongoing activities have costs of $40,000 per campus. The CSU also assumes unknown, though potentially significant, costs (General Fund) associated with the liability provisions in the bill.
2. Regents of the University of California (UC) estimates one-time costs (General Fund) of $275,000 to develop and offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to all athletic teams and campus-recognized sororities and fraternities. Additionally, UC anticipates ongoing costs (General Fund) in the tens of thousands to update existing rules and regulations governing student and employee behavior. UC would also incur unknown, potentially significant costs (General Fund), associated with the liability provisions in this bill.
3. One-time Proposition 98 General Fund costs, potentially in the range of $2.9 million, to California Community Colleges (CCC) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. The state has 115 CCCs. CCC would also incur unknown, potentially significant costs (Proposition 98 General Fund), associated with the liability provisions in this bill. Additionally, ongoing General Fund cost, potentially in the range of $3.5 million annually, to CCC to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to other groups. This assumes ongoing activities have costs of $30,000 per campus.
4. Unknown cost pressures (General Fund) to the California Department of Education (CDE) to make certain information available on its website.
5. Unknown, potentially significant cost pressure to the state funded trial court system (Trial Court Trust Fund, General Fund) to adjudicate the cause of action created by this bill. The fiscal impact of this bill to the courts will depend on many unknown factors, including the numbers of violations alleged to have occurred, if parties settle the matter before the filing of an action, and the factors unique to each case. An eight hour court day costs approximately $8,000 in staff in workload. If the bill results in only 12 or more days spent in court, trial court costs could be in the hundreds of thousands of dollars. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources and to increase the amount appropriated to backfill for trial court operations. The Budget Act of 2024, for the fiscal year beginning July 1, 2024, includes a $97 million reduction to the trial courts, a commensurate reduction of up to 7.95 percent to the budget for the state-level judiciary, and a reduction of the trial court state-level emergency reserve in the Trial Court Trust Fund from $10 million to $5 million. The Budget Act also includes a $37.3 million General Fund backfill for the Trial Court Trust Fund to address the continued decline in civil fee and criminal fine and penalty revenues expected in fiscal year 2024‒25.

VOTES:

ASM JUDICIARY: 10-0-2

YES: Kalra, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Reyes, Sanchez, Waldron

ABS, ABST OR NV: Dixon, Pacheco

ASM HIGHER EDUCATION: 7-0-4

YES: Mike Fong, Arambula, Boerner, Chen, Jackson, Low, Muratsuchi

ABS, ABST OR NV: Ta, Essayli, Irwin, Quirk-Silva

ASM APPROPRIATIONS: 12-1-2

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Dixon

ABS, ABST OR NV: Jim Patterson, Ta

ASSEMBLY FLOOR: 55-1-24

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Mike Fong, Garcia, Gipson, Grayson, Haney, Hart, Jackson, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ting, Villapudua, Waldron, Wallis, Ward, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Jones-Sawyer

ABS, ABST OR NV: Alanis, Bains, Cervantes, Megan Dahle, Dixon, Essayli, Flora, Vince Fong, Friedman, Gabriel, Gallagher, Holden, Hoover, Irwin, Lackey, Mathis, Stephanie Nguyen, Pacheco, Jim Patterson, Joe Patterson, Luz Rivas, Ta, Valencia, Weber

UPDATED

VERSION: July 3, 2024

CONSULTANT: Tom Clark / JUD. / (916) 319-2334 FN: 0004268

 THIRD READING  

Bill No: AB 2193

Author: Holden (D), et al.

Amended: 8/15/24 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 8-1, 6/18/24

AYES: Umberg, Wilk, Allen, Ashby, Durazo, Roth, Stern, Wahab

NOES: Niello

NO VOTE RECORDED: Caballero, Laird

SENATE EDUCATION COMMITTEE: 6-0, 7/3/24

AYES: Newman, Ochoa Bogh, Cortese, Gonzalez, Smallwood-Cuevas, Wilk

NO VOTE RECORDED: Glazer

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/15/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NOES: Jones, Seyarto

ASSEMBLY FLOOR: 55-1, 5/21/24 - See last page for vote

SUBJECT: Hazing: educational institutions: prohibition and civil liability: reports and resources

SOURCE: Author

DIGEST:

This bill creates civil liability for a public or private institution of higher education by a person harmed by a hazing incident that occurred on or after January 1, 2026 from an organization affiliated with the educational institution under specified circumstances, with a rebuttable presumption that the institution took reasonable steps to stop the hazing if the institution has taken specified actions to prevent hazing, and also mandates the creation and availability of anti-hazing resources for K-12 schools, requires specified universities to report to the Legislature annually about hazing incidents on their campuses, and prohibits any person from being subjected to hazing in any program by an educational institution that receives, or benefits from, state financial assistance, as specified.

ANALYSIS:

Existing law:

1. Makes it unlawful to engage in hazing, as defined. Makes any violation that does not result in death or serious bodily injury punishable as a misdemeanor, and makes any violation that results in death or serious bodily injury punishable as a misdemeanor or a felony. (Pen. Code § 245.6.)
   1. Defines “hazing” for purposes of the above to mean any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. Specifies that “hazing” does not include customary athletic events or school-sanctioned events. (Pen. Code § 245.6 (b).)
   2. In addition to imposing criminal penalties, authorizes a victim of hazing to bring a civil action against any person who participates in the hazing, or any organization to which the student is seeking membership whose agents or officers authorized, requested, commanded, participated in, or ratified the hazing. (Pen. Code § 245.6 (e))
2. Makes hazing, as defined in Penal Code Section 245.6, grounds for suspension or expulsion from school. (Education (Edu.) Code § 48900)
3. Requires colleges and universities to adopt a policy that requires fraternities and sororities seeking campus recognition to submit annual reports to the college or university that contain specified information on the sorority’s or fraternity’s members and their conduct. Requires the college or university to (a) suspend campus recognition of any sorority or fraternity that does not comply with the reporting requirements, and (b) compile, maintain, and post the collected information into a publicly accessible report, as specified. (Edu. Code § 66310 et seq.)
4. Requires the governing board of each community college district, the Trustees of the California State University (CSU), the Regents of the University of California (UC), and the governing boards of independent postsecondary education institutions receiving public funds for student financial assistance to require the appropriate officials at each campus to compile records of all occurrences reported to the campus of, and arrests for, crimes that are committed on campus that involve violence, hate violence, theft, destruction of property, illegal drugs, or alcohol intoxication. (Edu. Code § 67380)
5. Requests the Trustees of the CSU, the Regents of the UC, and the governing board of each community college district to adopt and publish policies on harassment, intimidation, and bullying to be included within the rules and regulations governing student behavior and, if the institution expends funds to support activities related to campus climate, as defined, to adopt and publish the above-described policies. (Edu. Code § 66302)

This bill:

1. Requires that, on or before July 1, 2025, the California Department of Education (Department) make available on the department’s website both:
   1. A model anti-hazing policy for local educational agencies;
   2. Resources on hazing prevention for professional development purposes and for increasing awareness among pupils, school staff, and community members of the dangers of hazing.
2. Encourages schools to use the resources made available by the Department pursuant to (1), above, for professional development purposes and for increasing awareness among pupils, school staff, and community members of the dangers of hazing.
3. Defines the following terms, for the purposes of (1) and (2), above:
   1. “hazing” to mean a method of initiation or pre-initiation into a student organization or student body that is likely to causes serious bodily injury to a former, current, or prospective pupil of a school. Specifies that hazing does not include customary athletic events or school-sanctioned events.
   2. “school” to mean a public or private school in the state maintaining kindergarten or any of grades 1 to 12.
4. Establishes the Stop Campus Hazing Act, which specifies, along with the below-described provisions, that no person shall be subjected to hazing in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or that enrolls students who receive state student financial aid.
5. Provides, for the purposes of the Stop Campus Hazing Act, the following definitions:
   1. “affiliated” to mean currently recognized or sanctioned by the educational institution through its official student organization application process. An organization that had previously been recognized or sanctioned but subsequently had their recognition or sanction withdrawn or revoked by the educational institution shall not be considered affiliated.
   2. “educational institution” to mean a public or private institution of higher education in the state, and the officers, employees, or governing bodies of that institution, when acting in their official capacity.
   3. “hazing” to mean any method of initiation or pre-initiation into an affiliated student organization or student body, which the initiator knows or should have known is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in the state. Hazing does not include customary athletic events or school-sanctioned events.
6. Allows, beginning January 1, 2026, a former, current, or prospective student against whom hazing is committed, and who has suffered injury as a result, to commence a civil action for injury or damages from the hazing against an institution of higher education for the hazing practice involving one or more students of the organization, if all of the following apply:
   1. the educational institution had direct involvement in, or knew or should have known of, the dangerous hazing practice of the organization and failed to take reasonable steps to stop the hazing practice of the organization;
   2. the organization involved in the hazing was affiliated with the educational institution at the time of the alleged hazing incident; and
   3. the alleged hazing incident occurred on or after January 1, 2026.
7. Provides for a rebuttable presumption that an educational institution took reasonable steps to prevent the hazing practice, pursuant to (a) of (6), above, if the educational institution has all of the following:
   1. Rules and regulations governing student behavior that include a prohibition on hazing, anonymous reporting of hazing incidents, and disciplinary actions for the violation of the hazing prohibition.
   2. Procedures by which all students are informed of the rules and regulations, with applicable penalties, and any revisions to the rules and regulations;
   3. Rules and regulations governing employee behavior that include a prohibition on hazing and disciplinary actions for the violation of the hazing prohibition;
   4. Procedures by which all employees are informed of the rules and regulations, with applicable penalties, and any revisions to the rules and regulations;
   5. A comprehensive prevention and outreach program addressing hazing that includes components on identifying hazing, hazing prevention, and bystander intervention. Such outreach program must be provided to inform students of the educational institution’s policy prohibiting hazing, and at least include a process for contacting and informing the student body, athletic programs, and affiliated student organizations about the educational institution’s prohibition on hazing policy. This program includes, but is not limited to providing students with information on all of the following:
      1. Hazing awareness, and prevention and the educational institution’s policy on the prohibition of hazing;
      2. Campus policies and resources relating to hazing, including how to report, including anonymously, hazing to the appropriate campus personnel;
      3. A focus on prevention and bystander intervention training.
         • 1. Specifies that this comprehensive prevention and outreach program be a part of every incoming student’s orientation and shall be offered annually to athletic teams and affiliated sororities and fraternities.
8. Specifies that the duties and obligations imposed by the Act are cumulative with any other duties or obligations imposed under other law, and shall not be construed to relieve any party from any duties or obligations imposed under other law, and do not limit any rights or remedies under existing law.
9. Specifies that, notwithstanding the provisions of this section, nothing in (4) through (7), above, affects existing rights, obligations, and remedies under Section 245.6 of the Penal Code.
10. Requires that, on or before June 30, 2026 and by June 30 of every year thereafter, the Trustees of the CSU, the Regents of the UC, and each independent institution of higher education that is a “qualifying institution” as defined in subdivision (l) of Section 69432.7, report to the appropriate policy committees of the Legislature the number of hazing incidents that constituted a violation of the institution’s policy prohibiting hazing and whether the violation was affiliated with a student organization. Requires that these reports be disaggregated by campus.
11. Specifies that this report must comply with all applicable state and federal privacy laws, including but not limited to, the federal Family Educational Rights and Privacy Act.
12. For the purposes of (11), above, provides the following definitions:
    1. “hazing” to mean any method of initiation or pre-initiation into an affiliated student organization or student body, which the initiator knows or should have known is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in the state. Specifies that hazing does not include customary athletic events or school-sanctioned events.
    2. “student organization” to mean either of the following:
       1. A conference-based competitive program at the institution of higher education; or
       2. A sorority or fraternity that has officially met the formal chartering and recognition requirements at the institution of higher education where it operates and remains in good standing at the time of the alleged hazing incident.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• One-time costs (General Fund), potentially in the range of $575,000, to Trustees of the California State University (CSU) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. CSU has 23 campuses. Ongoing costs (General Fund), potentially in the range of $920,000, to CSU to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program, offer this program annually to other groups, and to annually report to the Legislature. This assumes ongoing activities have costs of $40,000 per campus. The CSU also assumes unknown, though potentially significant, costs (General Fund) associated with the liability provisions in the bill.
• Regents of the University of California (UC) estimates one-time costs (General Fund) of $275,000 to develop and offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to all athletic teams and campus-recognized sororities and fraternities. Additionally, UC anticipates ongoing costs (General Fund) in the tens of thousands to update existing rules and regulations governing student and employee behavior. UC would also incur unknown, potentially significant costs (General Fund), associated with the liability provisions in this bill.
• One-time Proposition 98 General Fund costs, potentially in the range of $2.9 million, to California Community Colleges (CCC) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. The state has 115 CCCs. CCC would also incur unknown, potentially significant costs (Proposition 98 General Fund), associated with the liability provisions in this bill. Additionally, ongoing General Fund cost, potentially in the range of $3.5 million annually, to CCC to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to other groups. This assumes ongoing activities have costs of $30,000 per campus.
• Unknown cost pressures (General Fund) to the California Department of Education (CDE) to make certain information available on its website.
• Unknown, potentially significant cost pressure to the state funded trial court system (Trial Court Trust Fund, General Fund) to adjudicate the cause of action created by this bill. The fiscal impact of this bill to the courts will depend on many unknown factors, including the numbers of violations alleged to have occurred, if parties settle the matter before the filing of an action, and the factors unique to each case. An eight hour court day costs approximately $8,000 in staff in workload. If the bill results in only 12 or more days spent in court, trial court costs could be in the hundreds of thousands of dollars. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources and to increase the amount appropriated to backfill for trial court operations. The Budget Act of 2024, for the fiscal year beginning July 1, 2024, includes a $97 million reduction to the trial courts, a commensurate reduction of up to 7.95 percent to the budget for the state-level judiciary, and a reduction of the trial court state-level emergency reserve in the Trial Court Trust Fund from $10 million to $5 million. The Budget Act also includes a $37.3 million General Fund backfill for the Trial Court Trust Fund to address the continued decline in civil fee and criminal fine and penalty revenues expected in fiscal year 2024‒25.

SUPPORT: (Verified 8/15/24)

Administrators Association of San Diego City Schools
California Federation of Teachers, AFL-CIO
CFT - a Union of Educators & Classified Professionals, AFT, AFL-CIO
Consumer Attorneys of California
Faculty Association of California Community Colleges

OPPOSITION: (Verified 8/19/24)

Association of California Community College Administrators
California Chamber of Commerce
Community College League of California
Statewide Association of Community Colleges

ARGUMENTS IN SUPPORT: According to the Faculty Association of California Community Colleges, which supports AB 2193:

FACCC strongly supports AB 2193 as an important step toward combating hazing and protecting the safety and well-being of students in our state's higher education institutions. Hazing is a serious issue that can cause severe physical and emotional trauma, and in some cases, death. As educators, it is our responsibility to create a safe and inclusive learning environment for all students, free of the dangers of hazing.

AB 2193 sends a clear message that hazing will not be tolerated in California's community colleges by establishing civil liability for educational institutions that are directly involved in hazing, fail to take reasonable steps to stop known hazing practices, or unreasonably fail to prevent or discover hazing practices by affiliated organizations. This bill encourages institutions to take proactive steps to prevent hazing, such as implementing comprehensive anti-hazing policies, conducting thorough investigations, and providing education and training to students, faculty, and staff.

Furthermore, requiring the State Department of Education to provide model anti hazing policies and resources ensures that all educational institutions have access to the tools and guidance needed to effectively address and prevent hazing. This provision will help to establish a statewide approach to combating hazing and promoting student safety.

ARGUMENTS IN OPPOSITION: According to the Association of California Community College Administrators, which is opposed to AB 2193:

AB 2193 would establish civil liability against an educational institution for an instance of hazing if that educational institution has direct involvement in, knew, or should have known of, the dangerous hazing practices of an affiliated organization.

ACCCA emphatically opposes hazing and strongly endorses the needed implementation of practices that prevent hazing and protect students from this horrendous act. However, we believe that the inclusion of community colleges in this bill is misplaced as our institutions do not have a Greek system, our students rarely remain on campus outside of attending class, and we do not have a history of hazing incidents.

Despite no real history of hazing in our system, AB 2193 would still open community colleges up to costly litigation by including the ambiguous “should have known” language in the bill. This language creates an unreasonable expectation for colleges to have micro-level involvement within student organizations, which further opens colleges up to costly liability.

We strongly believe that unless it can be proven that an institution was grossly negligent in preventing a hazing incident, it is unfair to open them up to costly liability for events that are beyond their control. Furthermore, the current version of AB 2193 will result in significant costs for educational institutions to settle lawsuits, which are Proposition 98 dollars that should be used on students and staff.

ASSEMBLY FLOOR: 55-1, 5/21/24

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Mike Fong, Garcia, Gipson, Grayson, Haney, Hart, Jackson, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Ortega, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ting, Villapudua, Waldron, Wallis, Ward, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Jones-Sawyer

NO VOTE RECORDED: Alanis, Bains, Cervantes, Megan Dahle, Dixon, Essayli, Flora, Vince Fong, Friedman, Gabriel, Gallagher, Holden, Hoover, Irwin, Lackey, Mathis, Stephanie Nguyen, Pacheco, Jim Patterson, Joe Patterson, Luz Rivas, Ta, Valencia, Weber

Prepared by: Ian Dougherty / JUD. / (916) 651-4113

8/19/24 10:47:20

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 2193 (Holden) - Hazing: educational institutions: prohibition and civil liability: reports and resources

Bill Summary:

AB 2193 establishes civil liability for a public or private postsecondary educational institution relating to student hazing.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 15, 2024

Fiscal Impact:

• One-time costs (General Fund), potentially in the range of $575,000, to Trustees of the California State University (CSU) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. CSU has 23 campuses. Ongoing costs (General Fund), potentially in the range of $920,000, to CSU to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program, offer this program annually to other groups, and to annually report to the Legislature. This assumes ongoing activities have costs of $40,000 per campus. The CSU also assumes unknown, though potentially significant, costs (General Fund) associated with the liability provisions in the bill.
• Regents of the University of California (UC) estimates one-time costs (General Fund) of $275,000 to develop and offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to all athletic teams and campus-recognized sororities and fraternities. Additionally, UC anticipates ongoing costs (General Fund) in the tens of thousands to update existing rules and regulations governing student and employee behavior. UC would also incur unknown, potentially significant costs (General Fund), associated with the liability provisions in this bill.
• One-time Proposition 98 General Fund costs, potentially in the range of $2.9 million, to California Community Colleges (CCC) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. The state has 115 CCCs. CCC would also incur unknown, potentially significant costs (Proposition 98 General Fund), associated with the liability provisions in this bill. Additionally, ongoing General Fund cost, potentially in the range of $3.5 million annually, to CCC to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to other groups. This assumes ongoing activities have costs of $30,000 per campus.
• Unknown cost pressures (General Fund) to the California Department of Education (CDE) to make certain information available on its website.
• Unknown, potentially significant cost pressure to the state funded trial court system (Trial Court Trust Fund, General Fund) to adjudicate the cause of action created by this bill. The fiscal impact of this bill to the courts will depend on many unknown factors, including the numbers of violations alleged to have occurred, if parties settle the matter before the filing of an action, and the factors unique to each case. An eight hour court day costs approximately $8,000 in staff in workload. If the bill results in only 12 or more days spent in court, trial court costs could be in the hundreds of thousands of dollars. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources and to increase the amount appropriated to backfill for trial court operations. The Budget Act of 2024, for the fiscal year beginning July 1, 2024, includes a $97 million reduction to the trial courts, a commensurate reduction of up to 7.95 percent to the budget for the state-level judiciary, and a reduction of the trial court state-level emergency reserve in the Trial Court Trust Fund from $10 million to $5 million. The Budget Act also includes a $37.3 million General Fund backfill for the Trial Court Trust Fund to address the continued decline in civil fee and criminal fine and penalty revenues expected in fiscal year 2024‒25.

Author Amendments:

These amendments clarify that a former, current, or prospective student against whom hazing is directed at and who has suffered an injury can bring a cause of action against the institution, as specified. These amendments also clarify that the bill is perspective and applies to incidents alleged to have occurred on or after January 1, 2026. The amendments also make technical and clarifying changes.

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SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 2193 (Holden) - Hazing: educational institutions: prohibition and civil liability: reports and resources

Bill Summary:

AB 2193 establishes civil liability for a public or private postsecondary educational institution relating to student hazing.

Fiscal Impact:

• One-time costs (General Fund), potentially in the range of $575,000, to Trustees of the California State University (CSU) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. CSU has 23 campuses. Ongoing costs (General Fund), potentially in the range of $920,000, to CSU to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program, offer this program annually to other groups, and to annually report to the Legislature. This assumes ongoing activities have costs of $40,000 per campus. The CSU also assumes unknown, though potentially significant, costs (General Fund) associated with the liability provisions in the bill.
• Regents of the University of California (UC) estimates one-time costs (General Fund) of $275,000 to develop and offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to all athletic teams and campus-recognized sororities and fraternities. Additionally, UC anticipates ongoing costs (General Fund) in the tens of thousands to update existing rules and regulations governing student and employee behavior. UC would also incur unknown, potentially significant costs (General Fund), associated with the liability provisions in this bill.
• One-time Proposition 98 General Fund costs, potentially in the range of $2.9 million, to California Community Colleges (CCC) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. The state has 115 CCCs. CCC would also incur unknown, potentially significant costs (Proposition 98 General Fund), associated with the liability provisions in this bill. Additionally, ongoing General Fund cost, potentially in the range of $3.5 million annually, to CCC to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to other groups. This assumes ongoing activities have costs of $30,000 per campus.
• Unknown cost pressures (General Fund) to the California Department of Education (CDE) to make certain information available on its website.
• Unknown, potentially significant cost pressure to the state funded trial court system (Trial Court Trust Fund, General Fund) to adjudicate the cause of action created by this bill. The fiscal impact of this bill to the courts will depend on many unknown factors, including the numbers of violations alleged to have occurred, if parties settle the matter before the filing of an action, and the factors unique to each case. An eight hour court day costs approximately $8,000 in staff in workload. If the bill results in only 12 or more days spent in court, trial court costs could be in the hundreds of thousands of dollars. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources and to increase the amount appropriated to backfill for trial court operations. The Budget Act of 2024, for the fiscal year beginning July 1, 2024, includes a $97 million reduction to the trial courts, a commensurate reduction of up to 7.95 percent to the budget for the state-level judiciary, and a reduction of the trial court state-level emergency reserve in the Trial Court Trust Fund from $10 million to $5 million. The Budget Act also includes a $37.3 million General Fund backfill for the Trial Court Trust Fund to address the continued decline in civil fee and criminal fine and penalty revenues expected in fiscal year 2024‒25.

Background:

Hazing, an activity of initiation or preinitiation into a group, has long occurred on university campuses throughout California. Under existing law, a private right of action currently exists for someone against whom hazing is directed against “any participants in the hazing, or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing.” (Pen. Code, § 245.6, subd. (e).)

Common law torts may already subject educational institutions to some liability if they cause or unreasonably fail to protect their students. Liability under such actions will be limited to cases in which the plaintiff can show the educational institution owed a duty of care to the plaintiff, breached this duty of care. Thus, under the current case law, universities are generally not at risk of liability for hazing committed by a group affiliated with the university.

Proposed Law:

• Creates civil liability for a public or private institution of higher education by a person harmed by hazing from an organization affiliated with the educational institution when the institution “knew or reasonably should have known” of the hazing.
• Establishes a rebuttable presumption that an educational institution took reasonable steps to stop the hazing practice of the organization if the educational institution took specified actions including updating and maintaining rules and regulations, and implementing a prevention and outreach program.
• Requires the CSU Trustees, the UC Regents, and the appropriate governing bodies of each independent institution of higher education that is a “qualifying institution,” as defined, to report by June 30, 2026, annually thereafter to the appropriate policy committees of the Legislature both of the following, disaggregated by campus: The number of hazing incidents that constituted a violation of the institution of higher education’s policy prohibiting hazing; and, whether the violation was affiliated with a student organization.
• Requires CDE to post on its website a model anti-hazing policy and resources on hazing prevention. Encourages schools to use the resources made available by CDE for professional development purposes and for increasing awareness among students, school staff, and community members of the dangers of hazing.

Related Legislation: AB 299 (Holden, 2023) was substantially similar to this bill. AB 299 was vetoed by the Governor, whose veto message read:

Beginning January 1, 2025, this bill authorizes a civil action against a public or private institution of higher education by a person harmed by hazing involving an organization affiliated with the educational institution when the institution had direct involvement in, knew of, or "in the exercise of ordinary care reasonably should have known" of the hazing and unreasonably failed to prevent, discover, or stop the hazing.

Hazing has no place in public or private institutions of higher education (IHE). I agree that IHEs that knowingly support hazing or fail to take reasonable steps to prevent hazing should be accountable. However, as drafted, this bill goes much further than that, creating expansive financial exposure even for IHEs that are taking appropriate steps to protect their students from hazing. I encourage the author to more clearly define when liability arises when IHEs have taken statutorily defined reasonable steps to prevent hazing.

-- END --

SENATE COMMITTEE ON EDUCATION

Senator Josh Newman, Chair

2023 - 2024 Regular

Bill No: Hearing Date: July 3, 2024

Subject:

SUMMARY

This bill (1) establishes civil liability for a public or private institution of higher education by a person harmed by hazing from an organization affiliated with the educational institution under specified circumstances, with a rebuttable presumption that the institution took reasonable steps to stop the hazing if the institution has taken specified actions to prevent hazing; (2) requires the California State University (CSU), University of California (UC), and independent institutions of higher education to submit a report to the Legislature on the number of hazing incidents; and (3) requires the California Department of Education (CDE) to post on its website a model anti-hazing policy and resources for hazing prevention.

BACKGROUND

Existing law:

Conduct – postsecondary educational institutions

1. Requires the California Community Colleges (CCC), CSU, and UC to adopt specific rules and regulations governing student behavior along with the applicable penalties for violations of rules and regulations. Existing law requires institutions to adopt procedures by which all students are informed of such rules and regulations with applicable penalties. (Education Code (EC) § 66300)
2. Requires the CCC and CSU, and requests UC, to adopt and publish policies on harassment, intimidation, and bullying to be included within the rules and regulations governing student behavior within their respective segments of public postsecondary education. Existing law states legislative intent that the policies be provided online and printed materials covering rules and regulations within respective segments of public postsecondary education. (EC § 66302)
3. Requires each institution of higher education to include in the institution’s requirements for campus recognition of each campus-recognized sorority or fraternity, annually reporting by the organizations with information about membership including the number of students, average grade point average, amount of money fundraised, and current conduct status. (EC § 66312)
4. Requires the CCC, the CSU, UC, the UC College of the Law, San Francisco, and any postsecondary education institution receiving public funds for student financial aid to authorize the appropriate officials on each campus to compile records of all reported occurrences of and arrests for, crimes that are committed on campus and that involve violence, hate violence, theft, destruction of property, illegal drugs or alcohol intoxication. (EC § 67380)

Hazing – criminal penalties and civil remedies

1. Provides that it is unlawful to engage in hazing, and defines “hazing” as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by a postsecondary education institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, university, or other postsecondary education institution in the state. Existing law excludes customary athletic events or school-sanctioned events from the definition of hazing. (Penal Code § 245.6)
2. Sets forth misdemeanor and felony penalties for hazing. (Penal Code § 245.6)
3. Authorizes a person against whom hazing is directed to take civil action for injury or damages against any participants in the hazing or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing. (Penal Code § 245.6)

ANALYSIS

This bill:

Civil action against institutions of higher education

1. Prohibits any person from being subjected to hazing in any program or activity conducted by any educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid.
   
2. Authorizes a person against whom hazing is directed to commence a civil action for injury or damages, beginning January 1, 2026, against any educational institution for the hazing practice of the organization involving one or more students (in addition to bringing an action against any participants in the hazing or the organization as allowed by existing law) if both of the following apply:
   
   1. The educational institution had direct involvement in the hazing practice of the organization, or knew or should have known of the hazing practice and failed to take reasonable steps to stop the hazing practice of the organization.
      
   2. At the time of the alleged hazing incident, the organization involved in the hazing is affiliated with the educational institution.

Rebuttable presumption

1. Establishes a rebuttable presumption that an educational institution took reasonable steps to stop the hazing practice of the organization if the educational institution has done all of the following:
   
   1. Update and maintain existing rules and regulations governing student behavior to include a prohibition on hazing, anonymous reporting of hazing incidents, and adopt applicable penalties for the violation of the hazing prohibition. Institutions are required to adopt procedures by which all students are informed of the updated rules and regulations, with applicable penalties, and any revisions to the rules and regulations.
      
   2. Update and maintain existing rules and regulations governing employee behavior to include a prohibition on hazing, and adopted applicable penalties for the violation of the hazing prohibition. Institutions are required to adopt procedures by which all employees are informed of the updated rules and regulations, with applicable penalties, and any revisions to the rules and regulations.
      
   3. Develop and implement a comprehensive prevention and outreach program addressing hazing, and requires the program to include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness-raising campaigns, primary prevention, bystander intervention, and risk reduction.
      
      This bill requires an outreach program to be provided to inform students of the educational institution’s policy on the prohibition of hazing, and, at a minimum, include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the educational institution’s overall prohibition on hazing policy. This bill further provides that “comprehensive prevention and outreach program” includes, but is not limited to, providing information to students about all of the following:
      

• Hazing awareness, prevention, and the educational institution’s policy on the prohibition of hazing.
  
• Campus policies and resources relating to hazing, including how to report hazing to the appropriate campus personnel, which includes anonymous reporting.
  
• A focus on prevention and bystander intervention training as it relates to hazing.
  

This bill requires the comprehensive prevention and outreach program to address hazing to be part of every incoming student’s orientation and to be offered annually to the following campus affiliated organizations:

• Athletic teams.
  
• Campus-recognized sororities and fraternities.

Damages

1. Authorizes a civil action brought under this bill, or existing law, to seek damages for emotional injuries as a component of actual damages, in addition to any other remedies available under law, including, but not limited to, damages for bodily injury or harm.

General provisions relative to civil action

1. Provides that nothing in this bill affects existing rights, obligations, and remedies under existing law, and that the duties and obligations imposed by this bill are cumulative with any other duties or obligations imposed under other law and are not be construed to relieve any party from any duties or obligations imposed under other law, and do not limit any rights or remedies under existing law.
   
2. Defines the following terms:
   
   1. “Affiliated” means currently recognized or sanctioned by the educational institution, but specifically excludes an organization that had previously been recognized or sanctioned by the educational institution but has subsequently had that recognition or sanction withdrawn.
      
   2. “Educational institution” means a California public or private institution of higher education, and includes the officers, employees, or governing bodies of the institution.
      
   3. “Hazing” means any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. This bill excludes customary athletic events or school-sanctioned events from the definition of “hazing.”

Report to the Legislature

1. Requires the CSU Trustees, the UC Regents, and the appropriate governing bodies of each independent institution of higher education that is a “qualifying institution,” as defined, to report by June 30, 2026, annually thereafter to the appropriate policy committees of the Legislature both of the following, disaggregated by campus:
   
   1. The number of hazing incidents that constituted a violation of the institution of higher education’s policy prohibiting hazing; and,
      
   2. Whether the violation was affiliated with a student organization.
      
2. Requires reporting to comply with all applicable state and federal privacy laws, including, but not limited to, the federal Family Educational Rights and Privacy Act.
   
3. Defines the following terms for purposes of reporting:
   
   1. “Hazing” means an intentional, knowing, or reckless act committed by a student or an employee of the 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 the initiation into, or the maintenance of membership in, any affiliated organization that is recognized or sanctioned by the institution of higher education, including any clubs, associations, fraternity, sorority, or athletic teams recognized or sanctioned by that institution; and, is likely to cause or causes serious bodily injury or serious mental harm, or death to a current student of an education institution. This bill excludes customary athletic events or school-sanctioned events from the definition of “hazing.”
      
   2. “Student organization” means any of the following:
      
      1. An intercollegiate athletic program at the institution of higher education.
         
      2. A sorority or fraternity that has officially met the formal chartering and recognition requirements at the institution of higher education where it operates.
         
      3. An organization recognized or sanctioned by the institution of higher education whose membership includes more than 100 students.

Model policy and resources for K-12 schools

1. Requires CDE to make available on its website both of the following by July 1, 2025:
   
   1. A model anti-hazing policy for local educational agencies.
      
   2. Resources on hazing prevention for professional development purposes and for increasing awareness among students, school staff, and community members of the dangers of hazing.
      
2. Encourages schools to use the resources made available by CDE for professional development purposes and for increasing awareness among students, school staff, and community members of the dangers of hazing.
   
3. Defines the following terms for purposes of the model policy and resources for K-12 schools:
   
   1. “Hazing” means a method of initiation or pre-initiation into a student organization or student body that is likely to cause serious bodily injury to a former, current, or prospective pupil of a school. This bill excludes customary athletic events or school-sanctioned events from the definition of “hazing.”
      
   2. “School” means a California public or private school maintaining kindergarten or any of grades 1 to 12, inclusive.

STAFF COMMENTS

1. Need for the bill. According to the author, “Hazing is a clearly detrimental practice that California has been characteristically taken seriously through legislation. Despite this, we have seen an influx of dangerous hazing practices within these organizations, and a lackluster effort on the part of many institutions to address it in a preventative manner. In its most tragic cases, hazing is often directly responsible for the death or serious injury of a young student. However, the ramifications of this practice extend far beyond for its survivors, undermining their self-esteem and impacting their psychological wellbeing.
   
   “This bill allows for civil action to be brought against an educational institution for an instance of hazing in which one or more students were involved if that educational institution knew or should have known of the dangerous hazing practices of an affiliated organization. In doing so, we hold the educational institutions who promote participation in and benefit from these organizations responsible for the consequences they may bring to students. This responsibility will incentivize institutions to bolster their oversight and preventative measures as they pertain to hazing. It keeps California on its path of addressing hazing practices in our state, and allows us to work with educational institutions and organizations to prioritize students’ safety.”
   
2. Civil action. Existing law makes the act of hazing a misdemeanor or a felony depending upon the severity of bodily injury. Additionally, existing law authorizes a person against whom hazing is directed to take civil action for injury or damages against any participants in the hazing or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing.
   
   This bill establishes a civil action against postsecondary educational intuitions if both of the following occurred:
   
   1. At the time of the alleged hazing incident, the organization involved in the hazing is affiliated with the educational institution; and,
      
   2. The educational institution had direct involvement in the hazing practice of the organization, or knew or should have known of the hazing practice and failed to take reasonable steps to stop the hazing practice of the organization.
      

This bill establishes a rebuttable presumption that an educational institution took reasonable steps to stop the hazing practice of the organization if the educational institution took specified actions (updated and maintained rules and regulations, and implemented a prevention and outreach program).

As noted in the Senate Judiciary Committee analysis, this bill does not contain a safe harbor or a rebuttal presumption, but instead permits the court to consider if the postsecondary education institution has enacted enough administrative protocols to discover, prevent, and address hazing on campus to avoid civil liability. Safe harbor would mean if the postsecondary education institution took specified actions (updated and maintained rules and regulations, and implemented a prevention and outreach program), the postsecondary education intuition would be determined to have acted reasonably. Rebuttal presumption presumes that the postsecondary education institution acted reasonably unless there is evidence to prove otherwise or there is enough evidence to create sufficient doubt.

Is the rebuttable presumption established by this bill sufficient to protect students from hazing and protect institutions from being liable when specified prevention actions are taken?

Staff recommends an amendment to specify that institutions may be liable only for hazing incidents that occur on or after the implementation date of the bill, thereby prohibiting retroactive liability.

1. Affiliated organizations. This bill authorizes a person against whom hazing is directed to commence a civil action against any educational institution for the hazing practice of the organization if (a) the institution had direct involvement in the hazing practice of the organization, or knew or should have known of the hazing practice and failed to take reasonable steps to stop the hazing practice of the organization, and (b) at the time of the alleged hazing incident, the organization involved in the hazing is affiliated with the educational institution.
   
   “Affiliated organizations” include not only sororities and fraternities, but also includes service clubs, sports clubs and other special-interest and affinity groups focusing on issues such as sustainability and environmental awareness, social issues, military service, and performance arts. This bill applies to all public and private institutions of higher education, including community colleges.
   
2. How will institutions of higher education respond? This bill creates civil liability for a public or private institution of higher education by a person harmed by hazing from an organization affiliated with the educational institution when the institution “knew or reasonably should have known” of the hazing. Will institutions of higher education comply with the requirements in this bill, or will they stop recognizing affiliated organizations? As noted in the Senate Judiciary Committee analysis, this bill sets out a clear path for universities with affiliated sororities and fraternities on their campuses to shield themselves from liability: the implementation of robust anti-hazing policies and programs aimed at prohibiting, investigating, preventing, and educating students and employees on hazing.
   
3. Two definitions of hazing. This bill includes two different definitions of hazing; one for purposes of the civil action and one for reporting. Staff recommends an amendment to use the definition of hazing that is currently in the bill relative to civil action, which is aligned with the existing definition in the Penal Code (see #6c above).
   
4. Hazing at K-12 schools. Existing law provides that students may be suspended or expelled for engaging in, or attempting to engage in, hazing. Existing law does not require schools to train educators or students on hazing prevention, nor does it require hazing to be specifically addressed in school safety plans. This bill requires CDE to post on its website a model anti-hazing policy and resources on hazing prevention.
   
5. Fiscal impact. According to the Assembly Appropriations Committee, this bill would impose the following costs:
   
   1. Unknown, though potentially significant, General Fund costs to UC and CSU, and Proposition 98 General Fund costs to CCC, to the extent successful claims against the institutions are brought under this bill.
      
   2. One-time General Fund costs, potentially in the range of $225,000 to UC. Ongoing General Fund costs, potentially in the range of $360,000 annually, to UC.
      
   3. One-time General Fund costs, potentially in the range of $575,000. Ongoing General Fund costs, potentially in the range of $920,000, to CSU.
      
   4. One-time Proposition 98 General Fund costs, potentially in the range of $2.9 million, to California Community Colleges (CCC). Ongoing General Fund cost, potentially in the range of $3.5 million annually, to CCC.
      
   5. Likely minor General Fund costs to CDE to make certain information available on its website.
      
   6. Minor Proposition 98 General Fund cost pressures to LEAs who choose to use the resources for professional development and increasing awareness about hazing.
      
6. Prior legislation.
   
   AB 299 (Holden, 2023) was similar to this bill, but lacked the rebuttable presumption that is included in this bill. AB 299 was vetoed by the Governor, whose veto message read:
   
   Beginning January 1, 2025, this bill authorizes a civil action against a public or private institution of higher education by a person harmed by hazing involving an organization affiliated with the educational institution when the institution had direct involvement in, knew of, or "in the exercise of ordinary care reasonably should have known" of the hazing and unreasonably failed to prevent, discover, or stop the hazing.
   
   Hazing has no place in public or private institutions of higher education (IHE). I agree that IHEs that knowingly support hazing or fail to take reasonable steps to prevent hazing should be accountable. However, as drafted, this bill goes much further than that, creating expansive financial exposure even for IHEs that are taking appropriate steps to protect their students from hazing. I encourage the author to more clearly define when liability arises when IHEs have taken statutorily defined reasonable steps to prevent hazing.

SUPPORT

California Federation of Teachers

Consumer Attorneys of California

Faculty Association of California Community Colleges

OPPOSITION

Association of California Community College Administrators

Community College League of California

Statewide Association of Community Colleges

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SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 2193 (Author:Holden)

Version: May 16, 2024

Hearing Date: June 18, 2024

Fiscal: Yes

Urgency: No

Consultant: ID

SUBJECT

Hazing: educational institutions: prohibition and civil liability: reports and resources

DIGEST

This bill creates civil liability for a public or private institution of higher education by a person harmed by hazing from an organization affiliated with the educational institution under specified circumstances, with a rebuttable presumption that the institution took reasonable steps to stop the hazing if the institution has taken specified actions to prevent hazing, and also mandates the creation and availability of antihazing resources for K-12 schools, requires specified universities to report to the Legislature annually about hazing incidents on their campuses, and prohibits any person from being subjected to hazing in any program by an educational institution that receives, or benefits from, state financial assistance, as specified.

EXECUTIVE SUMMARY

Hazing is a major issue on many college campuses that often results in injury and even death for the students being hazed. Despite attempts to reduce hazing and push universities to respond, hazing continues to be an issue on many California campuses. This bill creates a civil cause of action against a public or private institution of higher education by a person who was subject to hazing at an organization affiliated with the higher education institution, if the educational institution was involved in, or knew or should have known of the hazing and failed to take reasonable steps to stop it. This civil liability allows for recovery for injury or damages, including emotional injuries and bodily injury or harm. The bill includes a rebuttable presumption that the institution took reasonable steps to stop the hazing if the institution has taken specified actions to prevent hazing. This bill also mandates that the Department of Education create and make available a model anti-hazing policy and resources for K-12 schools, requires specified universities to report to the Legislature annually about hazing incidents on their campuses, and prohibits any person from being subjected to hazing in any program by an educational institution that receives, or benefits from, state financial assistance, as specified. AB 2193 is supported by Consumer Attorneys of California and a number of teacher and faculty associations, and is opposed by the California Chamber of Commerce and a number of universities and university organizations. If it passes this Committee, AB 2193 will next be heard by the Senate Education Committee.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Makes it unlawful to engage in hazing, as defined. Makes any violation that does not result in death or serious bodily injury punishable as a misdemeanor, and makes any violation that results in death or serious bodily injury punishable as a misdemeanor or a felony. (Pen. Code § 245.6.)
   1. Defines “hazing” for purposes of the above to mean any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. Specifies that “hazing” does not include customary athletic events or school-sanctioned events. (Pen. Code § 245.6 (b).)
   2. In addition to imposing criminal penalties, authorizes a victim of hazing to bring a civil action against any person who participates in the hazing, or any organization to which the student is seeking membership whose agents or officers authorized, requested, commanded, participated in, or ratified the hazing. (Pen. Code § 245.6 (e).)
2. Makes hazing, as defined in Penal Code Section 245.6, grounds for suspension or expulsion from school. (Education Code Section 48900.)
3. Requires colleges and universities to adopt a policy that requires fraternities and sororities seeking campus recognition to submit annual reports to the college or university that contain specified information on the sorority’s or fraternity’s members and their conduct. Requires the college or university to (a) suspend campus recognition of any sorority or fraternity that does not comply with the reporting requirements, and (b) compile, maintain, and post the collected information into a publicly accessible report, as specified. (Edu. Code § 66310 et seq.)
4. Requires the governing board of each community college district, the Trustees of the California State University (CSU), the Regents of the University of California (UC), and the governing boards of independent postsecondary education institutions receiving public funds for student financial assistance to require the appropriate officials at each campus to compile records of all occurrences reported to the campus of, and arrests for, crimes that are committed on campus that involve violence, hate violence, theft, destruction of property, illegal drugs, or alcohol intoxication. (Edu. Code § 67380.)
5. Requests the Trustees of the CSU, the Regents of the UC, and the governing board of each community college district to adopt and publish policies on harassment, intimidation, and bullying to be included within the rules and regulations governing student behavior and, if the institution expends funds to support activities related to campus climate, as defined, to adopt and publish the above-described policies. (Edu. Code § 66302.)

This bill:

1. Requires that, on or before July 1, 2025, the California Department of Education (Department) make available on the department’s website both:
   1. A model anti-hazing policy for local educational agencies;
   2. Resources on hazing prevention for professional development purposes and for increasing awareness among pupils, school staff, and community members of the dangers of hazing.
2. Encourages schools to use the resources made available by the Department pursuant to (1), above, for professional development purposes and for increasing awareness among pupils, school staff, and community members of the dangers of hazing.
3. Defines the following terms, for the purposes of (1) and (2), above:
   1. “hazing” to mean a method of initiation or pre-initiation into a student organization or student body that is likely to causes serious bodily injury to a former, current, or prospective pupil of a school. Specifies that hazing does not include customary athletic events or school-sanctioned events.
   2. “school” to mean a public or private school in the state maintaining kindergarten or any of grades 1 to 12.
4. Establishes the Stop Campus Hazing Act, which specifies, along with the below-described provisions, that no person shall be subjected to hazing in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or that enrolls students who receive state student financial aid.
5. Provides, for the purposes of the Stop Campus Hazing Act, the following definitions:
   1. “affiliated” to mean currently recognized or sanctioned by the educational institution. An organization that had previously been recognized or sanctioned but subsequently had their recognition or sanction withdrawn shall not be considered affiliated.
   2. “educational institution” to mean a public or private institution of higher education in the state, and the officers, employees, or governing bodies of that institution.
   3. “hazing” to mean any method of initiation or pre-initiation into a student organization or student body, whether or not the organization or body is officially recognized by the educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in the state. Hazing does not include customary athletic events or school-sanctioned events.
6. Allows, beginning January 1, 2026, a person against whom hazing is committed to commence a civil action for injury or damages from the hazing against an institution of higher education for the hazing practice involving one or more students of the organization, if both of the following apply:
   1. the educational institution had direct involvement in, or knew or should have known of, the dangerous hazing practice of the organization and failed to take reasonable steps to stop the hazing practice of the organization; and
   2. the organization involved in the hazing was affiliated with the educational institution at the time of the alleged hazing incident.
7. Provides for a rebuttable presumption that an educational institution took reasonable steps to stop the hazing practice, pursuant to (a) of (6), above, if the educational institution has done all of the following:
   1. Updated and maintained existing rules and regulations governing student behavior to include a prohibition on hazing, anonymous reporting of hazing incidents, and applicable penalties for the violation of the hazing prohibition.
   2. Adopted procedures by which all students are informed of the updated rules and regulations, with applicable penalties, and any revisions to the rules and regulations;
   3. Updated and maintained existing rules and regulations governing employee behavior to include a prohibition on hazing, and applicable penalties for the violation of the hazing prohibition;
   4. Adopted procedures by which all employees are informed of the updated rules and regulations, with applicable penalties, and any revisions to the rules and regulations;
   5. Developed and implemented a comprehensive prevention and outreach program addressing hazing that includes a range of prevention strategies, including empowerment programming for victim prevention, awareness-raising campaigns, primary prevention, bystander intervention, and risk reduction. Such outreach program must be provided to inform students of the educational institution’s policy prohibiting hazing, and at least include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the educational institution’s prohibition on hazing policy. This program includes, but is not limited to providing students with information on all of the following:
      1. Hazing awareness, and prevention and the educational institution’s policy on the prohibition of hazing;
      2. Campus policies and resources relating to hazing, including how to report, including anonymously, hazing to the appropriate campus personnel;
      3. A focus on prevention and bystander intervention training.

Specifies that this comprehensive prevention and outreach program be a part of every incoming student’s orientation and shall be offered annually to athletic teams and campus-recognized sororities and fraternities.

1. Provides that a civil action brought under this bill, or under Section 245.6 of the Penal Code, may seek damages for emotional injuries as a component of actual damages, in addition to any other remedies available under law, including, but not limited to, damages for bodily injury or harm.
2. Specifies that the duties and obligations imposed by the Act are cumulative with any other duties or obligations imposed under other law, and shall not be construed to relieve any party from any duties or obligations imposed under other law, and do not limit any rights or remedies under existing law.
3. Specifies that, notwithstanding the provisions of this section, nothing in (4) through (7), above, affects existing rights, obligations, and remedies under Section 245.6 of the Penal Code.
4. Requires that, on or before June 30, 2026 and by June 30 of every year thereafter, the Trustees of the CSU, the Regents of the UC, and the appropriate governing bodies of each independent institution of higher education that is a “qualifying institution” as defined in subdivision (l) of Section 69432.7, report to the appropriate policy committees of the Legislature the number of hazing incidents that constituted a violation of the institution’s policy prohibiting hazing, and whether the violation was affiliated with a student organization. Requires that these reports be disaggregated by campus.
5. Specifies that this report must comply with all applicable state and federal privacy laws, including but not limited to, the federal Family Educational Rights and Privacy Act.
6. For the purposes of (9), provides the following definitions:
   1. “hazing” to mean an intentional, knowing, or reckless act committed by a student or an employee of the institution of higher education, whether individually or in concert with other person against another student, regardless of that student’s willingness to participate, that was committed in connection with initiation into, or maintaining membership in, an affiliated organization that is recognized or sanctioned by the institution of higher education, including any clubs, associations, fraternities, sororities, or athletic teams recognized or sanctioned by the institution, and that is likely to cause or causes serious bodily injury or serious mental harm, or death to a current student. Specifies that hazing does not include customary athletic events or school-sanctioned events.
   2. “student organization” to mean any of the following:
      1. An intercollegiate athletic program at the institution of higher education;
      2. A sorority or fraternity that has officially met the formal chartering and recognition requirements at the institution of higher education where it operates; or
      3. An organization recognized or sanctioned by the institution of higher education whose membership includes more than 100 students.

COMMENTS

1. Author’s statement

According to the author:

Hazing is a clearly detrimental practice that California has characteristically taken seriously through legislation. Despite this, we have seen an influx of dangerous hazing practices within these organizations, and a lackluster effort on the part of many institutions to address it in a preventative manner. In its most tragic cases, hazing is often directly responsible for the death or serious injury of a young student. However, the ramifications of this practice extend far beyond for its survivors, undermining their self-esteem and impacting their psychological wellbeing.

This bill allows for a civil action to be brought against an educational institution for an instance of hazing in which one or more students were involved if that educational institution knew or should have known of the dangerous hazing practices of an affiliated organization. In doing so, we hold the educational institutions who promote participation in and benefit from these organizations responsible for the consequences they may bring to students. This responsibility will incentivize institutions to bolster their oversight and preventative measures as they pertain to hazing. It keeps California on its path of addressing hazing practices in our state, and allows us to work with educational institutions and organizations to prioritize students’ safety.

1. The problem of hazing at California educational institutions

Involvement in student sports and extracurricular activities is an essential part of the student experience. However, while such involvement can usually be enriching and formative for students, too often is it marred by the harmful practices of hazing.

Hazing, an activity of initiation or pre-initiation into a group, has long occurred on university campuses throughout California. Hazing often includes requiring new initiates or recruits to do an act which may be degrading, inappropriate, harmful, and dangerous, in order to join the group or as part of joining. One report has estimated that 55 percent of all college students involved in clubs, teams, and organizations experience hazing.^[1] That report found that alcohol consumption, humiliation, isolation, sleep-deprivation, and sexual acts are common hazing practices. Hazing has resulted in physical harm and even the death of numerous students subjected to it. Data shows that there was at least one hazing-related death a year between 1961 and 2017.^[2] Incidents of hazing have made headline news in recent years, and investigative reporting has found that hazing is rampant on some university campuses.^[3] While hazing usually occurs at a student organization, the organization responsible is often recognized by the educational institution as an official, school-affiliated student group.

1. Existing law relating to hazing

In response to tragic incidents of hazing, various laws have been passed and campaigns launched to prevent and reduce hazing on college campuses. Particularly, in 2006, the California Legislature passed AB 1454 (Torlakson, Ch. 601, Stats. 2006). Under AB 1454, a private right of action currently exists for someone against whom hazing is directed, which can be brought against “any participants in the hazing, or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing.” (Cal. Pen. Code § 245.6(e).) By these terms, the civil liability created by AB 1454 did not create any liability or ability for a student subjected to hazing on the educational institution.

Common law torts currently subjects educational institutions to some liability if they cause or unreasonably fail to protect their students. However, liability under such torts may be very limited. For negligence, for example, a plaintiff must show that the defendant owed a duty of care to the plaintiff, that the defendant breached this duty of care, and that the break was the proximate cause of plaintiff’s injury. The duty required under negligence only applies to a defendant’s own actions and not those of a third party, unless there is a “special relationship” between the defendant and the plaintiff. (Regents of University of California v. Superior Court, (2018) 4 Cal.5th 607.) Typical special relationships include those between common carriers and their passengers, landlords and their tenants, and colleges and students engaged in curricular activities.

California courts have found a “special relationship” between a university and its students, but only if the students are “engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.” (Regents, 4 Cal.5th at pp. 624-625.) Under this test, a California court found in 2018 that the university did not have a duty to the injured student in a case relating to harm during an off-campus party at an affiliated fraternity. (University of Southern California v. Superior Court, (2018) 30 Cal. App. 5th 429.)

Under these cases and legal standards, it is only under narrow circumstances where a university may be liable for the hazing activities of a sorority or fraternity or other student organization, even if affiliated with the university. Such hazing would have to be found to be part of the school’s curriculum or closely related to the delivery of educational services. While sororities and fraternities may be an important part of college life or a university’s social scene and community, making the connection to the university’s curriculum or education may be attenuated. There may be more nuance when the sorority or fraternity is considered, as some are, to be a “professional” or “business” sorority or fraternity, as the organization’s purpose may then be more closely tied to the university’s educational mission. Nonetheless, under the current case law, universities are generally not at risk of liability for hazing committed by a sorority or fraternity affiliated with the university.

Regardless of the state of negligence caselaw, the Legislature is free to define liability and civil causes of action as a matter of public policy. The California Supreme Court has indeed noted that, “whether a new duty should be imposed in any particular context is essentially a question of public policy.” (Regents, 4 Cal. 5th at p. 627.) Also of relevance to public policy considerations is the fact that, as the California Supreme Court has also noted in the Regents case, the California Constitution includes provisions noting students’ rights to attend campuses which are safe and to be safe and secure at California schools. (Regents, 4 Cal. 5th at 628 (referencing Cal. Const., art. I, § 28, subd. (a)(7)).) This provision of the California Constitution evidences a public policy favoring measures to ensure the safety of California’s public school students.

1. AB 2193 addresses the issue of hazing through education and resources, a requirement that certain educational institutions report to the Legislature annually, and creates a cause of action for those injured by hazing

The consideration of these public policy decisions underlie AB 2193. AB 2193 attempts to address the ongoing issue of hazing at California’s educational institutions through four main components: the provision of education and resources for primary schools; a requirement that educational institutions of higher education provide annual reports on hazing on their campuses to the Legislature; and the creation of a cause of action for an individual injured by hazing against the educational institution under certain circumstances. AB 2193 also states that no person shall be subjected to hazing in any program or activity conducted by an educational institution that receives or benefits from state financial assistance, or that enrolls students who receive student financial aid. AB 2193 is similar in many respects to a bill authored by Assemblymember Holden last year, AB 299. AB 299 passed this committee on a vote of 8 to 1, and ultimately passed the Legislature. However, it was vetoed by the Governor. AB 299 did not include the requirement that universities report hazing incidents to the Legislature, and it also did not include the rebuttable presumption present in AB 2193’s cause of action. The Governor’s concerns with AB 299 and how this bill addresses them is discussed below.

• 1. AB 2193 requires education and resources for Kindergarten through 12^th grade schools

AB 2193 aims one aspect of its provisions toward preventing hazing at primary educational institutions in the state. This component of the bill requires the Department of Education (Department) to develop and make available for kindergarten through 12^th grade schools a model anti-hazing policy and resources on hazing prevention. These materials must be made available to schools on the Department’s website, and AB 2193 states that schools are encouraged to use the resources for professional development purposes and for increasing awareness among pupils, staff, and community members. AB 2193 provides the Department until July 1, 2025 to make these documents available.

• 1. AB 2193 requires public universities to provide annual reports on hazing to the Legislature

AB 2193 also requires the state’s public universities to report to the appropriate policy committees of the Legislature the number of hazing incidents violating the institution’s policies from the year, and whether the violation was affiliated with a student organization. AB 2193 requires these reports from the Trustees of the CSU system, the Regents of the UC, and from the governing bodies of independent higher education institutions in the state. The reports must be disaggregated by campus, and must be delivered annually, beginning on or before June 30, 2026.

• 1. AB 2193 creates a cause of action for injured students, with a rebuttable presumption for when universities take certain actions

In addition, AB 2193 seeks to address the issue of hazing by extending a duty to universities to prevent hazing at their campuses by affiliated organizations. Specifically, AB 2193 provides that an individual injured by an incident of hazing may commence a civil action against the educational institution for injury or damages, if: the educational institution had direct involvement in the hazing, or knew or should have known of the hazing practice and failed to take reasonable steps to stop the practices; and the organization involved in the hazing was affiliated with the educational institution at the time the hazing incident took place. The author reasons that this duty should be public policy because universities offer official recognition to sororities and fraternities and benefit from their presence on campus, because universities have had a lackluster response to hazing, and because doing so will bolster universities’ oversight and hazing prevention activities. If a university elects to recognize a student organization, AB 2193 requires the university to accept some responsibility for any hazing that is conducted by the organization.

However, AB 2193 does not provide responsibility for all hazing, just that hazing which the university had direct involvement in (for example, if it was committed by or at the direction of the university’s athletic staff), or which the university was aware of or should have been aware of and failed to take reasonable steps to stop. If a university receives reports of hazing taking place, and elects to do nothing, the university could potentially be liable. If the university did not know of the hazing practices, but should have known, for example, because news reports reported on the practices or because they were particularly rampant, and the university does not have processes to identify and stop hazing, the university could also potentially be liable. However, if an incident happened without the university’s knowledge and when the university otherwise takes reasonable steps to identify and prevent hazing, the university would not be liable.

Moreover, AB 2193 includes a rebuttable presumption that a university did take reasonable steps to stop the hazing, if the university has taken certain steps to prevent hazing. This rebuttable presumption applies if the educational institution has rules governing student and employee behavior that prohibit hazing, provide for anonymous reporting of hazing incidents, and that adopt applicable penalties for hazing. The institution must also have procedures for informing students and employees of these rules and the penalties for hazing. In addition, the educational institution must develop and implement a prevention and outreach program that includes a range of prevention strategies, including empowering programming for victim prevention, bystander intervention, and risk reduction, and awareness campaigns, and which must be part of incoming students’ orientation and offered annually to sororities and fraternities and athletic teams. If a university implements these requirements or rules governing student and employee behavior, procedures for informing students and employees of these rules, and a prevention and outreach program, it will enjoy a rebuttable presumption that it is not liable for a student’s injury from an incident of hazing.

Last year, concerns were raised with AB 299 that universities needed a “safe harbor” provision so that they could reasonably know when they were protected from liability. A safe harbor provision was not ultimately included in the version that passed this committee and the Legislature. In the Governor’s veto measure, Governor Newsom stated as the reason for his veto that the bill did not provide sufficient clarity for when liability would arise for an educational institution and when it would be protected from liability. AB 2193’s rebuttable presumption arguably addresses these concerns by balancing the need for the consideration of particular circumstances in a case with the need to provide universities clarity regarding their liability. If the institution proves that they have taken the listed steps for the presumption, it would be presumed to have acted reasonably and not liable when it did not know of the hazing but should have known. Yet if facts show extenuating circumstances or ways in which the university did not actually act reasonably, the presumption may be able to be overcome by the plaintiff. This allows for particularly egregious cases to still proceed and victims to seek justice, while otherwise providing universities with protection if they comply with the bill’s requirements for the presumption.

Through this cause of action and its rebuttable presumption, AB 2193 ensures both that students harmed by hazing may have an avenue for redress for their injuries, and that universities adopt policies that prevent and combat hazing on campus. Because the bill sets out specific university actions that must be taken for the rebuttable presumption and (therefore protection from liability to apply), AB 2193 will likely result in many or most California universities adopting the actions listed in the bill so as to limit their liability. AB 2193 would thus work to bolster universities’ anti-hazing programs and policies, and likely accordingly reduce the incidence of hazing on their campuses. Some universities also may simply decide to rescind the recognition of sororities or fraternities at their university altogether. This would shield the university from liability under AB 2193 outright because the bill requires that the organization committing the hazing be affiliated with the university at the time of the hazing incident. Yet the decision whether to recognize an organization is one a university faces every time an organization or sorority or fraternity forms on their campus, and one may wonder why some universities have not already considered disaffiliating with the organizations that have long track records of hazing incidents. AB 2193 simply makes clear that, when a university has recognized an organization and so benefits from the organization’s presence on campus, it should be liable if it fails to do its part to make sure that organization does not engage in hazing.

AB 2193 sets out a clear path for universities with affiliated sororities and fraternities on their campuses to shield themselves from liability: the implementation of robust anti-hazing policies and programs aimed at prohibiting, investigating, preventing, and educating students and employees on hazing. AB 2193 will help ensure that many of California’s universities implement these policies and build strong hazing prevention programs, and it will provide those harmed by hazing with a right to be made whole when a university fails to take steps to prevent hazing on their campus.

1. Arguments in support

According to the Faculty Association of California Community Colleges, which supports AB 2193:

FACCC strongly supports AB 2193 as an important step toward combating hazing and protecting the safety and well-being of students in our state's higher education institutions. Hazing is a serious issue that can cause severe physical and emotional trauma, and in some cases, death. As educators, it is our responsibility to create a safe and inclusive learning environment for all students, free of the dangers of hazing.

AB 2193 sends a clear message that hazing will not be tolerated in California's community colleges by establishing civil liability for educational institutions that are directly involved in hazing, fail to take reasonable steps to stop known hazing practices, or unreasonably fail to prevent or discover hazing practices by affiliated organizations. This bill encourages institutions to take proactive steps to prevent hazing, such as implementing comprehensive anti-hazing policies, conducting thorough investigations, and providing education and training to students, faculty, and staff.

Furthermore, requiring the State Department of Education to provide model anti hazing policies and resources ensures that all educational institutions have access to the tools and guidance needed to effectively address and prevent hazing. This provision will help to establish a statewide approach to combating hazing and promoting student safety.

1. Arguments in opposition

According to the Association of Independent California Colleges and Universities, which is opposed to AB 2193:

AICCU and our institutions agree with the author that hazing is a deplorable act that endangers the well-being of students. We share the goal of preventing as many instances of hazing as possible through training, policies, and methods to report suspected instances. In the 2021-22 legislative session, we worked in close collaboration with Assemblymember Freddie Rodriguez on Assembly Bill 524, the Campus-Recognized Fraternity and Sorority Transparency Act, which implemented mandatory data reporting by Greek organizations to bring transparency on the academic achievement, philanthropic work, and misconduct of members. Identifying the appropriate set of policies, training, and reporting for colleges and universities is a worthy discussion, and one that we and our member institutions welcome.

We greatly appreciate the engagement with the author’s office to date and believe that the current bill language is significantly better than it was at the time it was introduced. We are especially thankful that the current bill text includes a rebuttable presumption in Section 66308(b). Our remaining concerns are focused on technical clarifications to definitions and greater consistency in terminology that we believe will improve the bill without modifying the foundational goals of the author and sponsors.

Again, we share the perspective that one instance of hazing is too many and the goal to minimize those to the greatest extent possible. Our institutional staff do and will continue to work to ensure students are safe and free from harmful hazing practices, and believe that with some additional fixes we would be comfortable with the language.

SUPPORT

CFT

Consumer Attorneys of California
Faculty Association of California Community Colleges

OPPOSITION

Association of Independent California Colleges and Universities

California Chamber of Commerce

California State University

Community College League of California

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation:

AB 1327 (Weber, Ch. 366, Stats. 2023) required the California Interscholastic Federation to, during years in which it is not required to submit a required report to the Legislature, and at the request of the Legislature, make itself available for hearings regarding the report, and required the Department of Education to develop a standardized incident form to track racial discrimination, harassment, or hazing, as specified.

AB 299 (Holden, 2023) would have required the Department of Education to make available on the department’s website a model anti-hazing policy for local educational agencies and resources on hazing prevention, and would have created a civil cause of action for an individual injured by hazing against an educational institution, if the institution had direct involvement in, knew of, or in the exercise of ordinary care reasonably should have known of the hazing practices and unreasonably failed to prevent, discover, or stop the hazing practices. The bill would have required the consideration of whether the institution took specified anti-hazing measures in determining if the institution unreasonably failed to prevent, discover, or stop the hazing. AB 299 was vetoed by the Governor on the reason that it created expansive financial exposure for covered educational institutions.

AB 524 (Rodriguez, Ch. 268, Stats. 2022) established the Campus-Recognized Sorority and Fraternity Transparency Act, which requires each institution of higher education to include in the institution’s requirements for campus recognition of a campus-recognized sorority or fraternity a requirement that the sorority or fraternity submit to the institution on or before July 1, 2023, and annually thereafter, specified information concerning the sorority’s or fraternity’s members and their conduct or face suspension. Additionally each institution with sororities or fraternities is required to compile and maintain the collected information into a publicly accessible report posted, and archived, on each respective campus’ Greek Life internet homepage or its equivalent for a minimum of 10 years and sent through a campus wide email to all enrolled students on or before October 1, 2023, and annually thereafter.

SB 1454 (Torlakson, Ch.601, Stats. 2006) repealed the Education Code hazing provisions and instead codified within the Penal Code a new definition of hazing and prescribed misdemeanor and felony penalties, as well as allowing a person to bring a civil action for injury or damages against individuals who participate in the hazing or the organizations that authorize, request, command, participate in, or ratify the hazing.

PRIOR VOTES:

Assembly Floor (Ayes 55, Noes 1)

Assembly Appropriations Committee (Ayes 12, Noes 1)

Assembly Higher Education Committee (Ayes 7, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

1. Elizabeth Allen et al, “Hazing in View: College Students at Risk,” National Study of Student Hazing (Mar. 11, 2008). ↑

2. Hank Nuwer, Hazing: Destroying Young Lives (2018 Indiana University Press) ↑

3. David Gotfredson, “Protests at Vista High School over student hazing video; Friday football game forfeited, CBS 8 (Sept. 14, 2022), available at https://www.cbs8.com/article/news/investigations/protests-at-vista-high-school-student-hazing-video/509-2b335be4-a61b-49e6-bc0f-7ec410b551bd; Jack Molmud & Anthony Cave, “Hazing, drug abuse and harassment allegations plagued San Diego State fraternities for years, documents show,” CBS 8 (Jul. 28, 2021), available at https://www.cbs8.com/article/news/investigations/hazing-drug-abuse-and-harassment-allegations-plagued-san-diego-state-fraternities-for-years-documents-show/509-f06a1982-e9b9-4044-8449-3ff6c41c3609. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 2193

Author:(Holden)

As Amended Ver:May 16, 2024

Majority vote

SUMMARY

Authorizes, as of January 1, 2026, a civil action against a higher educational institution for an instance of hazing under certain circumstances.

Major Provisions

1. Prohibits a person from being subjected to hazing in any program or activity conducted by an educational institution that receives financial assistance, as specified.
2. Establishes civil liability for an educational institution if both of the following apply:
   1. The educational institution had direct involvement in the hazing practices or knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice.
   2. At the time of the alleged hazing incident, the organization involved in the hazing was affiliated with the educational institution.
3. Specifies that for purposes of determining whether an educational institution should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice of the organization, there shall be a rebuttable presumption that an educational institution had taken specified anti-hazing measures.
4. Requires the Trustees of the California State University, the Regents of the University of California, and the governing bodies of certain independent institutions of higher education, on or before June 30, 2026, and annually thereafter, to submit specified reports containing information on the number of nature of hazing incidents that occurred in violation of their policies.
5. Requires the State Department of Education to post a model anti-hazing policy and other relevant resources on its department website on or before July 1, 2025.
6. Specifies that nothing in this bill affects existing rights, obligations, or remedies under Section 245.6 of the Penal Code.

COMMENTS

Existing law and an educational institution's duty to its students. The California Penal Code makes it a crime for a person to engage in "hazing," defined as "any method of initiation or preinitiation into a student organization . . . [that] is likely to cause serious bodily injury" to a prospective, current, or former student. In addition to imposing criminal penalties, the Penal Code also authorizes a civil action for damages, but only against persons who have directly participated. Although existing law applies to any educational institution – including K-12 schools – the hazing provisions primarily seek to address the humiliating and often alcohol-saturated rituals imposed upon college or university students who want to join a sorority or fraternity. In addition to imposing criminal penalties, existing law permits a hazing victim to bring a civil action for damages against persons who engage in hazing activities and the organizations that request or require subjection to hazing as a condition of membership. However, the existing statute does not expressly impose civil liability on educational institutions that grant official recognition to fraternities and sororities. This bill would change that by making colleges and universities liable if they (1) had direct involvement in the hazing practices of an affiliated student organization; or (2) knew or should have known of the hazing practices and failed to take reasonable steps to stop them. For purposes of establishing the liability of an educational institution, the bill creates a rebuttable presumption that the institution took reasonable steps to stop the hazing if they adopted and implemented specified anti-hazing measures.

One could argue that existing negligence principles may, in some instances, already subject educational institutions to liability if they fail to take "reasonable" steps to prevent injuries to their students. To recover civil damages under a theory of negligence, a plaintiff must show that 1) the defendant owed a duty of care to the plaintiff; 2) the defendant breached the duty of care; and 3) the breach was the proximate cause of the injury. To sue a college or university for hazing injuries successfully, therefore, the injured student must first meet the threshold "duty" requirement. We all have a duty to the rest of the world to act in a manner that will not cause foreseeable harm to others. However, this duty only applies to our actions; we generally do not have a duty to protect others from harms caused by third parties, unless we have a "special relationship" with the person harmed. In the absence of a "special relationship," the common law does not impose a duty to affirmatively prevent harm caused by third parties.

While California courts differ on the extent to which universities have a special relationship to students, they have been reluctant to find colleges and universities liable for harms caused by hazing. For example, California courts have held that, while there is a "special relationship" between a university and its students, the university only has a duty to protect or warn students from foreseeable harms when students are on campus, or "while they are engaged in activities that are part of the school's curriculum or closely related to its delivery of educational services." A university is not, however, liable for "student behavior over which the university has no significant degree of control." (Regents of University of California v. Superior Court (2018) 4 Cal. 5th 607, 624-625, 627.) While local fraternity and sorority chapters are recognized by colleges and universities –and often advertised as an integral part of college life – they do not clearly constitute a part of the university's curriculum or educational mission, especially when activities take place off-campus on property not owned by the university. While courts in some other states have upheld jury findings that a university failed to use reasonable care in responding to and investigating hazing reports, California appellate courts have not construed the special relationship between a university and a student broadly enough to impose liability for harms caused by hazing activity. (Compare Morrison v. Kappa Alpha Psi Fraternity (1999) 738 So. 2d 1105 [a Louisiana court finding a university liable for failing to take adequate action in response to hazing reports], with University of Southern California v. Superior Court (2018) 30 Cal. App. 5th 429, 440 [a California court finding that the university did not have a duty to prevent a hazing-related injury in a fraternity].)

Notwithstanding how the courts currently apply common law principles, the Legislature has the power to define the scope of liability as a matter of preferred public policy. As the California Supreme Court put it, whether "a new duty should be imposed in a particular context is essentially a question of public policy." The existence of a duty is not "an immutable fact of nature," but a policy judgement about whether a particular plaintiff is entitled to protection. (Regents, supra at 628.) This bill would set forth a reasonable policy preference: educational institutions – who offer official recognition to fraternities and sororities and benefit from their presence – should take reasonable steps to reduce hazing activities that they know or should know pose a risk of harm to their students. This does not mean that educational institutions must stop all hazing activity or that an educational institution will automatically be liable for any injury caused by hazing activities. They would only be expected to take "reasonable" steps to discover or prevent dangerous hazing activity among affiliated student organizations which the college or university formally recognizes.

The Governor's Veto of AB 299. In the veto message of last year's AB 299 (Holden) of 2023, the Governor expressed support for the intent of the bill but also expressed concern that the bill might create "expansive financial exposure even for [colleges and universities] that are taking appropriate steps to protect their students from hazing." The Governor encouraged the author to more "clearly define when liability arises," especially where the college or university has already taken steps to reduce hazing.

This bill seeks to address the Governor's concern by more precisely defining when an educational institution would be liable and, as important, what steps it could take to avoid liability. It does so, in large part, by creating a rebuttable presumption that a college has acted reasonably if it adopts, implements, and updates a number of specified anti-hazing policies. Notably, that the bill does not create a "safe harbor" that shields an institution from liability if they take certain actions. Rather, the bill creates a presumption in favor of reasonableness if they take those actions. A plaintiff could still rebut this presumption by, for example, showing that the institution formally adopted the policies but did not carry them out with sufficient diligence.

According to the Author

According to the author, despite reports of deaths and injuries caused by student hazing activities, many of our state's educational institutions make only "a lackluster effort . . . to address [hazing] in a preventative manner."

Arguments in Support

The Consumer Attorneys of California (CAOC) contends that this measure is needed because:

Student hazing has been directly responsible for the deaths or serious injuries of young students. The ramifications of student hazing can extend far beyond its survivors, undermining their self-esteem and impacting their psychological wellbeing. These consequences have their own tragic results, frequently resulting in student suicide or acts of retaliation, the latter of which we saw most recently at the University of Virginia.

Hazing is a clearly detrimental practice that California has characteristically taken seriously through legislation. This piece of legislation keeps us on that path by holding the educational institutions who promote participation in and benefit from these organizations responsible for the consequences that they may bring to students. This responsibility will hopefully incentivize institutions to bolster their oversight and preventative measures as they pertain to hazing to save students' lives.

The Faculty Association of California Community Colleges "strongly supports AB 2193 because it helps protect students from the dangerous and potentially fatal practice of hazing. By holding educational institutions accountable for their role in enabling or failing to prevent hazing, this bill encourages colleges to take proactive steps to combat hazing and create a safer environment for students. Implementing anti-hazing policies, education, and training programs will help raise awareness about the dangers of hazing while also empowering faculty, staff, and students to recognize and report incidents."

Arguments in Opposition

Public Risk Innovation, Solutions, and Management (PRISM), a California Joint Powers Authority that provides risk management services to public agencies, including colleges and universities, opposes a previous version of this bill because it exposes "higher educational institutions to costly litigation." PRISM argues that the "should have known" standard in AB 2193 places "an undue burden on institutions, potentially leading to expensive legal battles. We believe that unless an institution can be proven grossly negligent in preventing hazing incidents, it is unfair to hold them liable for events beyond their control."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Unknown, though potentially significant, General Fund costs to UC and CSU, and Proposition 98 General Fund costs to CCC, to the extent successful claims against the institutions are brought under this bill.
2. One-time General Fund costs, potentially in the range of $225,000 to UC. Ongoing General Fund costs, potentially in the range of $360,000 annually, to UC.
3. One-time General Fund costs, potentially in the range of $575,000. Ongoing General Fund costs, potentially in the range of $920,000, to CSU.
4. One-time Proposition 98 General Fund costs, potentially in the range of $2.9 million, to California Community Colleges (CCC). Ongoing General Fund cost, potentially in the range of $3.5 million annually, to CCC.
5. Likely minor General Fund costs to CDE to make certain information available on its website.
6. Minor Proposition 98 General Fund cost pressures to LEAs who choose to use the resources for professional development and increasing awareness about hazing..

VOTES

ASM JUDICIARY: 10-0-2

YES: Kalra, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Reyes, Sanchez, Waldron

ABS, ABST OR NV: Dixon, Pacheco

ASM HIGHER EDUCATION: 7-0-4

YES: Mike Fong, Arambula, Boerner, Chen, Jackson, Low, Muratsuchi

ABS, ABST OR NV: Ta, Essayli, Irwin, Quirk-Silva

ASM APPROPRIATIONS: 12-1-2

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Dixon

ABS, ABST OR NV: Jim Patterson, Ta

UPDATED

VERSION: May 16, 2024

CONSULTANT: Tom Clark / JUD. / (916) 319-2334 FN: 0003261

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2193

Author:(Holden) – As Amended Ver:April 25, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill establishes civil liability for a public or private postsecondary educational institution in cases of student hazing. The bill establishes a rebuttable presumption that an educational institution took reasonable steps to address hazing if the institution took certain steps prior to an incident, such as having updated certain rules and regulations and having implemented a comprehensive prevention and outreach program addressing hazing.

Specifically, this bill:

1. Establishes, beginning January 1, 2026, civil liability for a postsecondary educational institution in cases of student hazing if (a) the institution has direct involvement in the hazing practice of the organization, or knew or should have known of the hazing practice and failed to take reasonable steps to stop the hazing practice, and (b) the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. The bill establishes a rebuttable presumption that an educational institution took reasonable steps to address hazing if the educational institution had taken the following antihazing measures:
2. Updated existing rules and regulations governing student behavior to include a prohibition on hazing and adopted applicable penalties for the violation of the hazing prohibition. Adopted procedures by which all students are informed of the updated rules and regulations.
3. Updated existing rules and regulations governing employee behavior to include a prohibition on hazing and adopted applicable penalties for the violation of the hazing prohibition. Adopted procedures by which all employees are informed of the updated rules and regulations.
4. Implemented a comprehensive prevention and outreach program addressing hazing. An outreach program is to be provided to make students aware of the educational institution’s policy on the prohibition on hazing and include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the educational institution’s overall prohibition on hazing policy. The comprehensive prevention and outreach program is also to be part of every incoming student’s orientation and offered annually to campus-affiliated athletic teams and campus-recognized sororities and fraternities.
5. Requires, by June 30, 2026, and each year thereafter, the Trustees of the California State University (CSU), the Regents of the University of California (UC), and the appropriate governing bodies of private institutions of higher education that receive state financial aid to report to the Legislature the number of hazing incidents that constituted a violation of the institution of higher education’s policy prohibiting hazing and whether the violation was affiliated with a student organization. The report is to disaggregate information by campus.
6. Requires, July 1, 2025, the California Department of Education (CDE) to post on its website a model antihazing policy for local educational agencies (LEAs) and resources on hazing prevention for professional development purposes and for increasing awareness among pupils, school staff, and community members of the dangers of hazing. The bill encourages schools to use the resources for professional development and increasing awareness about hazing.

FISCAL EFFECT:

1. Unknown, though potentially significant, General Fund costs to UC and CSU, and Proposition 98 General Fund costs to CCC, to the extent successful claims against the institutions are brought under this bill. This bill allows a prevailing plaintiff to recover damages for emotional injuries and bodily harm, among other available remedies, from institutions of higher education.
2. One-time General Fund costs, potentially in the range of $225,000 to UC, to develop a comprehensive hazing prevention and outreach program, update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. The UC has nine campuses.
3. Ongoing General Fund costs, potentially in the range of $360,000 annually, to UC to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program, offer this program annually to other groups, and to annually report to the Legislature. This assumes ongoing activities have costs of $40,000 per campus.
4. One-time General Fund costs, potentially in the range of $575,000, to CSU to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. CSU has 23 campuses.
5. Ongoing General Fund costs, potentially in the range of $920,000, to CSU to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program, offer this program annually to other groups, and to annually report to the Legislature. This assumes ongoing activities have costs of $40,000 per campus.
6. One-time Proposition 98 General Fund costs, potentially in the range of $2.9 million, to California Community Colleges (CCC) to develop a comprehensive hazing prevention and outreach program and to update existing rules and regulations governing student and employee behavior. This assumes the one-time activities have costs of $25,000 per campus. The state has 115 CCCs.
7. Ongoing General Fund cost, potentially in the range of $3.5 million annually, to CCC to offer to all incoming students during orientation a comprehensive hazing prevention and outreach program and to offer this program annually to other groups. This assumes ongoing activities have costs of $30,000 per campus.
8. Likely minor General Fund costs to CDE to make certain information available on its website.
9. Minor Proposition 98 general Fund cost pressures to LEAs who choose to use the resources for professional development and increasing awareness about hazing.

COMMENTS:

1. Background. For institutions of higher education, this bill defines “hazing” to means any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in the state.

The Penal Code makes hazing unlawful and, in addition to imposing criminal penalties, the penal code authorizes a victim of hazing to bring a civil action against any person who participates in the hazing, or any organization to which the student is seeking membership whose agents or officers authorized, requested, commanded, participated in, or ratified the hazing.

This bill allows a student to bring a civil action against an institution of higher education if the institution has direct involvement in, or knew or should have known of, hazing practices of an organization and the organization is affiliated with the educational institution at the time of the alleged incident. The bill provides a rebuttable presumption that the institution took reasonable steps to address hazing if the educational institution had certain antihazing measures in place.

1. Related Legislation. AB 299 (Holden) was similar to this bill and but did not contain a rebuttable presumption, among other differences. AB 299 was vetoed by the Governor, who stated:

I agree that IHEs that knowingly support hazing or fail to take reasonable steps to prevent hazing should be accountable. However, as drafted, this bill goes much further than that, creating expansive financial exposure even for IHEs that are taking appropriate steps to protect their students from hazing. I encourage the author to more clearly define when liability arises when IHEs have taken statutorily defined reasonable steps to prevent hazing.

Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081

Date of Hearing: April 23, 2024

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Mike Fong, Chair

ABPCA Bill Id:AB 2193 (

Author:Holden) – As Introduced Ver:February 7, 2024

SUBJECT: Hazing: postsecondary education institutions: civil liability: resources

SUMMARY: Permits victims of hazing to take civil action against postsecondary education institutions if specific circumstances are met and provides judicial consideration for whether an institution should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice, or unreasonably failed to prevent or discover the hazing practice for purposes of the lawsuit. Specifically, this bill:

1. Defines the following for purposes of the measure:
   1. “Affiliated” means currently recognized or sanctioned by the postsecondary education institution. For purposes of this section, an organization that has been previously recognized or sanctioned by the education institution but is no longer recognized or sanctioned is not affiliated;
   2. “Education institution” means a public or private institution of higher education in the state. The term includes officers, employees, or governing bodies of the institution; and,
   3. “Hazing” means a method of initiation or preinitiation into a student organization or student body that is likely to cause serious bodily injury to a former, current, or prospective student of a postsecondary education institution. “Hazing” does not include customary athletic events or school-sanctioned events.
2. Permits, on January 1, 2025, a person who is the victim of hazing to take civil action for injury or damages. A person may take civil action against the participants in the hazing or the organization as permitted by the Penal Code Section 245.6, or an action may be brought against any postsecondary education institution for the hazing practices of the organization involving one or more students if the following apply:
   1. At the time of the alleged hazing incident, the organization involved in the hazing is affiliated with the education institution; and,
   2. One of the following occurred:
      1. The education institution has direct involvement in the hazing practices of the organization;
      2. The education institution knew or should have known of the hazing practices, and failed to take reasonable steps to stop the hazing practice; or,
      3. The education institution unreasonably failed to prevent or discover the hazing practices of the organization.
3. Stipulates for purposes of determining whether a education institution, “should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice, or unreasonably failed to prevent or discover the hazing practice,” consideration shall be given to the extent the education institution, at the time of the alleged hazing incident, had each of the following measures in place:
   1. Adopt and distribute a written antihazing policy consistent with rules and procedures for hazing prevention, intervention, and discipline, including all of the following:
      1. Prohibition on hazing;
      2. Notice of how violation will be enforced;
      3. Requirements for reporting of potential hazing;
      4. Examples of unacceptable activities and behaviors;
      5. Required education and training programming;
      6. Annual distribution of the policy by means other than online posting; and,
      7. Designate at least one employee to oversee the implementation of the antihazing policy; and,
      8. Posting of the antihazing policy online on the education institution’s website.
   2. Implementation of a reasonable antihazing investigation, enforcement, and reporting program that includes all of the following:
      1. Gathering confidential data about student experiences with hazing with affiliated student organizations and use the data to update the policies regarding the postsecondary education institution’s specific hazing prevention strategies;
      2. A reasonable and good faith process for diligently investigating and responding to reports of hazing in a timely manner and to document the investigations;
      3. Enforce hazing violations with appropriate penalties, including fines, withholding diplomas, or transcripts, discipline such as probation or suspension or dismissal, and recession of permission for an affiliated student organization to operate on campus property or to be affiliated with the education institution.
      4. Reporting of hazing incidents to law enforcement or other appropriate third parties when applicable.
      5. Annual reporting online in a readily accessible and prominent location on the postsecondary education institution’s internet website on past hazing violations without disclosing personal identifying information of students.
   3. Implementation of a reasonable institution-wide antihazing education and training program that does all the following:
      1. Aligns with the education institution in having a primary concern for student safety;
      2. Reinforces that all students, faculty, and staff are responsibility for following reporting procedures when they notice hazing;
      3. Requires training on antihazing policies early intervention, reporting, and creating a safe school environment.
4. Permits a civil action brought by this measure or by Section 245.6 of the Penal Code to seek damages for emotional injuries as a component of actual damages in addition to any other remedies under the law including, but not limited to damages for bodily injury or harm.
5. Clarifies the measure does not prohibit nor limit any other potential cause of action under any other law that is available to a person against whom hazing is directed.
6. Requires by July 1, 2025, the California Department of Education (CDE) to make available on the CDE’s website the following:
   1. An model for an antihazing policy for K-12 districts, including private schools;
   2. Resources on hazing prevention for provisional development purposes and for increasing awareness among pupils, school staff, and community member of the dangers of hazing.
7. Encourages K-12 public and private schools maintaining kindergarten or any grades 1 to 12 to use the resources made available on the CDE’s website for professional development purposes and to increase awareness among pupils, school staff, and community members of the dangers of hazing of hazing.

EXISTING LAW:

1. Requires the California Community Colleges, the California State University, the University of California College of the Law, San Francisco, University of California, and any postsecondary education institution receiving public funds for student financial aid to authorize the appropriate officials one each campus to compile records of all occurrences reported to campus police, campus security personnel, or campus safety authorities of and arrests for, crimes that are committed on campus and that involve violence, hate violence, theft, destruction of property, illegal drugs or alcohol intoxication (Education Code (EDC) Section 67380 (a) (1)).
2. Requires the California Community Colleges, the California State University, and the University of California to adopt specific rules and regulations governing student behavior along with the applicable penalties for violations of rules and regulations. The institutions shall adopt procedures by which all students are informed of such rules and regulations with applicable penalties (EDC Section 66300).
3. Requires the California Community Colleges, the California State University, and the University of California are requested to adopt and publish policies on harassment, intimidation, and bullying to be included within the rules and regulations governing student behavior within their respective segments of public postsecondary education. The intention of the Legislature is for the policies to be provided online and printed materials covering rules and regulations within respective segments of public postsecondary education (EDC Section 66302).
4. Requests the CSU and the UC to provide as part of the established campus orientations, educational and prevention information on cyberbullying to students on campuses (EDC Section 66302.5).
5. Declares it is unlawful to engage in hazing. Defines “Hazing” as a method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by a postsecondary education institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, university, or other postsecondary education institution in the state. The term hazing does not include customary athletic events or school-sanctioned events;
6. Stipules a violation of the above that does not result in serious bodily injury is a misdemeanor, punishable by a fine or not less than one hundred dollars, nor more than five thousand dollars, or imprisonment in the county jail for not more than one year, or both;
7. Stipulates a person who engages in hazing that results in death or serious bodily injury is guilty of either a misdemeanor or a felony and shall be punished by imprisonment in county jail not exceeding on year or by imprisonment;
8. Authorizes a person against whom hazing is directed to take civil action for injury or damages. The action may be brought against any participants in the hazing or any organization to which the student is seeking membership; and
9. Prosecution under this section will not prohibit prosecution under any other law (Penal Code 245.6).

FISCAL EFFECT: Unknown

COMMENTS: Double referral. This measure was heard by the Assembly Judiciary Committee on March 29, 2023, where it passed with a 10-0 vote. Issues germane to the judiciary were discussed in the Committee’s analysis.

Author’s intent. According to the author, “Hazing is a clearly detrimental practice that California has been characteristically taken seriously through legislation. Despite this, we have seen an influx of dangerous hazing practices within these organizations, and a lackluster effort on the part of many institutions to address it in a preventative manner. In its most tragic cases, hazing is often directly responsible for the death or serious injury of a young student. However, the ramifications of this practice extend far beyond for its survivors, undermining their self-esteem and impacting their psychological wellbeing.”

The author further contends, “this bill allows for civil action to be brought against a postsecondary education institution for an instance of hazing in which one or more students were involved if that postsecondary education institution knew or should have known of the dangerous hazing practices of an affiliated organization. In doing so, we hold the postsecondary education institutions who promote participation in and benefit from these organizations responsible for the consequences they may bring to students. This responsibility will incentivize institutions to bolster their oversight and preventative measures as they pertain to hazing. It keeps California on its path of addressing hazing practices in our state, and allows us to work with postsecondary education institutions and organizations to prioritize students’ safety.”

Hazing on college campuses. StopHazing.org was established in 1998 after the first state, New Hampshire, passed an anti-hazing law.^[1] Currently, 46 States have adopted anti-hazing laws and there is an effort to pass a national requirement to prevent hazing on collegiate campuses. In 2008, a national study on hazing was produced by researchers at the University of Maine in collaboration with more than 30 project partners. “Hazing in View: College Students at Risk” found more than half of college students who are part of student organizations experience hazing and 47% of students experienced hazing prior to coming to college.^[2]

According to Hank Nuwer Unofficial Hazing Clearinghouse, Unofficial Hazing Deaths Database Clearinghouse, Part Two, between 1959 and 2021, there has been one or more deaths from hazing; however no deaths have been declared from hazing in 2022, 2023, or 2024.^[3]

Hazing is defined differently by different organizations. StopHazing.org defines hazing as having three parts:

1. It occurs in a group context;
2. The action perpetrated against another person is humiliating, degrading, or endangering in nature; and,
3. Happens regardless of the individual’s willingness to participate.^[4]

Hazing is not relegated to collegiate campuses, it can occur on a high school campus and in the workplace. The location of the hazing is not what defines an act as hazing instead it is the action or behavior of one person whose acceptance to a group is predicated on the completion of the said action or behavior. Due to the myriad of behaviors that could constitute hazing, experts have thought of hazing as a spectrum from socially unacceptable behavior to torture (waterboarding and sleep deprivation):^[5]

California law already prohibits certain types of hazing. The Penal Code Section 245.6 makes the act of hazing a misdemeanor or a felony depending upon the scope of the bodily injury to the victim or whether the act lead to the death of the victim. Furthermore, the Penal Code permits a person to sue the participants in the hazing or the organization, including specific members or staff of the organization, which permitted the hazing.

If individuals who are subject to hazing can already sue the people who committed the hazing and the organization who permitted it for injury or damages, the Committee may wish to explore if AB 2193 is necessary?

Proponents of the measure would argue the bill is necessary because victims of hazing are not able to sue the postsecondary education institution for damages following a hazing incident. AB 2193 (Holden) would establish the right for victims to sue postsecondary education intuitions if the following occurred:

1. If the student organization whose students conducted the hazing was a sanctioned or recognized student organization; and,
2. If the postsecondary education institution knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice, or unreasonably failed to prevent or discover the hazing practices of the organization.

The Assembly Judiciary Committee’s analysis on AB 2193 (Holden) states: “California courts differ on the extent to which universities have a special relationship to students, they have been reluctant to find colleges and universities liable for harms caused by hazing.”^[6] Therefore, this measure is necessary to hold colleges and universities liable under the law for hazing.

AB 2193 (Holden) does not contain a safe harbor or a rebuttal presumption, but instead permits the court to consider if the postsecondary education institution has enacted enough administrative protocols to discover, prevent, and address hazing on campus to avoid civil liability. As described in the Assembly Judiciary Committee’s analysis, “this does not mean that postsecondary education institutions must stop all hazing activity or that a postsecondary education institution will automatically be liable for any injury caused by hazing activities. They would only be expected to take reasonable steps to discover or prevent dangerous hazing activity among affiliated student organization which the college or university formally recognizes.”⁶

Reasonable steps to address hazing. AB 2193 (Holden) would by establishing liability require postsecondary education institution to do the following:

1. Establish a new policy on hazing prevention, intervention, and discipline;
2. Implement a reasonable antihazing investigation, enforcement, and reporting program, including a confidential survey about student experiences with hazing;
3. Implement a reasonable antihazing education and training program; and,
4. Establishes all students, faculty, and staff are responsible reporters when they notice hazing.

The reasonable steps required by the measure are the strongest and most robust policies to address any student code of conduct violation on campus and go above and beyond the requirements established by the State for other student code of conduct violations, such as sexual harassment.

In 2023, The Chronicle of Higher Education published a report, “The Future of Campus Safety: Managing Risk, Promoting Welfare”, which contained a section on the best practices for addressing and preventing hazing. The report’s section on hazing begins with highlighting how, “activists have called on more state legislatures to make hazing a felony, increase colleges’ reporting obligations, and mandate anti-hazing training on campus.” The report opines the main prevention tool to prevent hazing is an integrated prevention training program that helps to identify the warning signs, provide bystander intervention, and to establish a culture where reporting is met with support.

In examining the student code of conduct and campus safety policies, Committee Staff learned California postsecondary education institutions already have prohibitions on hazing. Campuses have definitions of hazing, policies prohibiting hazing, reporting options for those who are victims, and adjudication processes for hazing incidents within their student code of conduct, all of which are easily accessible from the campus websites.

Therefore it appears, the majority of postsecondary education institutions are already in compliance with almost all of the provisions of AB 2193 (Holden) when it comes to reasonable steps. The Committee may wish to explore whether having policy requirements in the Education Code is an alternative to punitive civil liability.

Committee Staff note that in some cases the antihazing polices adopted by the postsecondary education institution provide for disciplinary action to be taken for behavior that is not illegal under the Penal Code nor would be subject to civil litigation under this measure.

For example, CSU Long Beach prohibits psychological hazing, which is not listed in the Penal Code definitions. CSU Long Beach’s definition of hazing includes behaviors such as never doing anything with pledges, requiring pledges to call members Mr. or Miss, scavenger hunts or road trip, and phone or house duty that are only assigned to pledges. These are all prohibited behaviors which go beyond the scope of AB 2193 (Holden).

A recent incident of hazing at UC Davis was reported where a student was hazed by a fraternity on campus. The hazing was reported, and the Office of Student Support and Judicial Affairs on campus is reviewing the case. In the meantime, the student organization has ceased operations until the review is complete. UC Davis has most, if not all, of the required reasonable steps required by AB 2193 (Holden) and, yet, the student was still subjected to hazing.

The student is on the record stating he hopes to have the student organization pay for his medical bills and he wants an apology.^[7]

While the incident and subsequent disciplinary actions are pending, this incident raises concerns not addressed by AB 2193 (Holden), specifically regarding remedies or supportive measures for victims of hazing.

This measure creates a lengthy legal process by which a student who is a victim would have to go through two separate adjudication processes before they ever receive relief for damages:

1. The postsecondary education institution wouldn’t have an investigative procedure with penalties for the perpetrators, but no mention of remedies for the victims; and,
2. A legal court case where the attorney would sue the postsecondary education for monetary relief.

In an age where restorative justice and educational access are paramount principles for how to address misconduct on campus, this measure appears to focus on the punitive damages an attorney and victim could take against a postsecondary education institution, but mentions nothing about having immediate relief or provisions to protect the student from retaliation, nor does it offer supportive measures to help the victims matriculate with their studies.

Furthermore, the measure as written opens postsecondary education institutions to potential liability on two fronts, from the victim of the hazing incident and from the respondent (those who conducted the hazing). The measure does not include an evidentiary standard, due process rights, nor the right to appeal for those who are accused of hazing. The measure also permits as a disciplinary measures the withholding of diplomas and transcripts, a practice that previous bills considered by this Committee have sought to disband.

Arguments in support. According to the Consumer Attorneys of California, “Hazing is a clearly detrimental practice that California has characteristically taken seriously through legislation. This piece of legislation keeps us on that path by holding the postsecondary education institutions who promote participation in and benefit from these organizations responsible for the consequences that they may bring to students. This responsibility will hopefully incentivize institutions to bolster their oversight and preventative measures as they pertain to hazing to save students’ lives.”

“Current law already allows for a civil action to be brought against the participant or organization involved in the hazing; however, the postsecondary education institution with knowledge of the hazing currently cannot be held accountable. AB 2193 will mirror the current policy in ensuring that postsecondary education institutions that knew or should have known of the dangerous hazing practices are also held accountable. To be found liable the institution must be affiliated with the organization and (1) would either have to have had direct involvement in the dangerous hazing practices; (2) the institution knew or should have known about the dangerous hazing practices; or (3) unreasonably failed to prevent or discover the hazing practices of the organization.”

According to the Faculty Association of the California Community Colleges, “AB 2193 sends a clear message that hazing will not be tolerated in California's community colleges by establishing civil liability for postsecondary education institutions that are directly involved in hazing, fail to take reasonable steps to stop known hazing practices, or unreasonably fail to prevent or discover hazing practices by affiliated organizations. This bill encourages institutions to take proactive steps to prevent hazing, such as implementing comprehensive anti-hazing policies, conducting thorough investigations, and providing education and training to students, faculty, and staff. Furthermore, requiring the State Department of Education to provide model anti-hazing policies and resources ensures that all postsecondary education institutions have access to the tools and guidance needed to effectively address and prevent hazing. This provision will help to establish a statewide approach to combating hazing and promoting student safety.”

Arguments in opposition. The Public Risk Innovation, Solutions, and Management, a California Joint Powers Authority representing approximately 2,000 public entities, opposes AB 2193 (Holden) as, “we believe this measure would open higher education institutions to costly litigation, especially since the bill states that the institution “should have known” of an affiliated organization's hazing practices. AB 2193 implies that institutions should have been aware of hazing practices within affiliated organizations. However, this standard places an undue burden on institutions, potentially leading to expensive legal battles. We believe that unless an institution can be proven grossly negligent in preventing hazing incidents, it is unfair to hold them liable for events beyond their control. The “should have known” standard creates an unrealistic expectation for institutions to have micro-level involvement within student organizations. It assumes that institutions can foresee every action taken by these groups, which is impractical and unfeasible.”

The Association of Independent California Colleges and Universities (AICCU), expressed concerns, as the AICCU’s, “concerns remain consistent with those expressed last year on AB 299, a nearly identical proposal to AB 2193. We remain concerned that the scope of civil liability proposed in the bill remains onerous, particularly since it applies to all campus-recognized student organizations, which in addition to Greek life would include intercollegiate and club athletics, student clubs, and more. At some of our institutions, the number of student organizations this could encapsulate will be in the hundreds. While we agree that many of the proposed measures in the bill are appropriate, we do not believe that it is possible to fully legislate individuals from committing illegal acts. The language in print does not provide clear assurances that institutions can avoid civil litigation, even if they have each of the measures set forth in subsection (c).”

“This bill also could have the unintended consequence of reducing the oversight of colleges over certain student organizations. Our colleges and universities work to leverage every dollar in their budgets, yet there are concerns about whether claims brought forward under this bill would be covered by institutions’ general liability coverage. The potential for expanded legal exposure under this bill without question require university general counsels to re-examine their recognition of certain student organizations. If institutions disaffiliate with student organizations in order to minimize their legal and financial risk, bad actors may still operate, albeit outside the bounds of the institution.”

Committee comments. In their support of the measure, the Consumer Attorneys of California argue AB 2193 (Holden) is necessary as “postsecondary education institutions with knowledge of the hazing currently cannot be held accountable.”

AB 2193 (Holden) could also lead to postsecondary education institutions being held accountable for acts of hazing that occurred without the postsecondary education institutions knowledge. The measure permits a court to determine if the reasonable measures conducted by the institution as listed by the measure, were enough to discover the hazing practice of the organization or prevent the hazing.

AB 2193 (Holden) raises a question as to whether postsecondary education institutions are responsible for preventing all acts of violence on campus.

In “The Regents of the Univ. of California v. Superior Court (CA SCt 2018) No. S230568” it was successfully argued that higher education’s free pass on liability for foreseeable violence against their students is no longer defensible.^[8] Specifically the California Supreme Court opined,

“We emphasize that a duty of care is not the equivalent of liability. Nor should our holding be read to create an impossible requirement that colleges prevent violence on their campuses. Colleges are not the ultimate insurers of all student safety. We simply hold that they have a duty to act with reasonable care when aware of a foreseeable threat of violence in a curricular setting. Reasonable care will vary under the circumstances of each be unavoidable despite a college’s best efforts to prevent them. Courts and juries should be cautioned to avoid judging liability based on hindsight case. Moreover, some assaults may be unavoidable despite a college’s best efforts to prevent them.”^[9]

The Supreme Court of California further opined the scope of liability is a matter of public policy despite arguing that colleges despite their best efforts may not be able to prevent every act of violence on campus.

The second policy question before this Committee is what constitutes “reasonable steps” in preventing hazing on campus.

AB 2193 (Holden) goes beyond evidence based best practices for the prevention of hazing on campus. Senate Bill 2901by Senator Klobuchar contains evidence-based national best practices as identified in the Federal Anti-Hazing Legislation and REACH Act: A Concept Paper by the Clery Center and StopHazing.org^[10]. The congressional proposal includes:

1. A definition of hazing;
2. Requirements for annual reporting on hazing incidents that occurred on campus; and,
3. Requires postsecondary education institutions to include educational and comprehensive research-based programming on hazing^[11].

Furthermore, the “reasonable steps” as suggested by AB 2193 (Holden) are far beyond any other requirements to address prevent and address violations of student code of conduct on campus, including the ban on drinking and drugs on campus.

In a 50-State Summary of Hazing Laws, conducted by the SUNY Student Conduct Institute, found that 46 states have at least some type of antihazing law contained within their state laws. These laws range from criminal laws with sanctions for individuals and universities to educational codes that threaten to withdraw funding from institutions for failure to investigate fully.^[12] None have civil liability; in fact, some states have immunity from liability for reporting and addressing hazing.

Opponents of the measure have suggested to Committee Staff the only the method by which an institution would be shielded from civil liability would be to disband all student organizations, including those with classroom activities such as band, debate club, and student associations that represent the student body.

During the Assembly Judiciary Committee hearing on March 19, 2024, proponents of AB 2193 (Holden), stated that if an institution were to follow the policies and procedure enumerated in Section 32050 subdivision (c) of this measure, a summary judgement would be granted and postsecondary education institution would not be libel. “Summary judgements” are when one party contents there are no facts that need to be decided or the parties agree on the facts.

AB 2193 (Holden) states the court has discretion to consider whether the postsecondary education institution adopted the provision of subdivision (c) and implemented those provision in a reasonable manner to prevent and address hazing. Therefore, by the very nature of the bill, if lawsuits were brought forward it would mean the facts were in dispute and therefore the court would use their discretion.

The description by the proponents of AB 2193 (Holden) would suggest a safe harbor or a rebuttal presumption exists. However, as described in the Assembly Judiciary Committee’s analysis, the measure does not have a safe harbor nor a rebuttal presumption. Safe harbor would mean if the postsecondary education institution adopted the policies enumerated in subdivision (c) of Section 32050 of this measure, the postsecondary education intuition would be determined to have acted reasonably. Rebuttal presumption presumes that the postsecondary education institution acted reasonably unless there is evidence to prove otherwise or there is enough evidence to create sufficient doubt.

The Governor vetoed AB 299 (Holden) of 2023, because:

“Beginning January 1, 2025, this bill authorizes a civil action against a public or private institution of higher education by a person harmed by hazing involving an organization affiliated with the postsecondary education institution when the institution had direct involvement in, knew of, or "in the exercise of ordinary care reasonably should have known" of the hazing and unreasonably failed to prevent, discover, or stop the hazing.

Hazing has no place in public or private institutions of higher education (IHE). I agree that IHEs that knowingly support hazing or fail to take reasonable steps to prevent hazing should be accountable. However, as drafted, this bill goes much further than that, creating expansive financial exposure even for IHEs that are taking appropriate steps to protect their students from hazing. I encourage the author to more clearly define when liability arises when IHEs have taken statutorily defined reasonable steps to prevent hazing.

For these reasons, I cannot sign this bill.”

The concerns from the Governor’s veto regarding exposure for postsecondary education institutions that are taking appropriate steps is still warranted. The author has yet to address this concern and therefore, this measure still opens institutions; who are reasonably taking steps to address hazing, to lawsuits.

The Committee may wish to explore if opening institutions to costly lawsuits will ultimately harm students. The cost to pay for the lawsuits will result in higher tuition costs and could result in a disbandment of student organizations on campus for smaller universities.

Due to the concerns specified above, the Committee has offered and the Author has accepted the following amendments:

1. Section 66304 is added to the Education Code

66304 This chapter shall be known, and may be cited, as the Stop Campus Hazing Act.

Section 2. Section 66305 is added to the Education Code:

66305. (a) No person shall be subjected to hazing in any program or activity conducted by any postsecondary education institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid.

(b) Hazing” means any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an postsecondary education institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other postsecondary education institution in this state. The term “hazing” does not include customary athletic events or school-sanctioned events.

1. Section 66305 is added to the Education Code:

66305. 32050 (a) For purposes of this section, the following definitions apply:

(1) “Affiliated” means currently recognized or sanctioned by the postsecondary education institution. For purposes of this section, an organization that had previously been recognized or sanctioned by the postsecondary education institution but has subsequently had that recognition or sanction withdrawn shall not be considered affiliated.

(2) “Postsecondary education institution” means a public or private institution of higher education in the state. The term includes the officers, employees, or governing bodies of the institution.

(3) “Hazing” means any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an education institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other education institution in this state. The term “hazing” does not include customary athletic events or school-sanctioned events.

any intentional, knowing, or reckless act committed by a student or 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 a method of initiation or preinitiation into a student organization or student body that is likely to cause serious bodily injury to a former, current, or prospective student of an postsecondary education institution. “Hazing” does not include customary athletic events or school-sanctioned events.

(b) Beginning January 1, 2026 2025, a person against whom hazing is directed may commence a civil action for injury or damages. In addition to bringing an action against any participants in the hazing or the organization pursuant to subdivision (e) of Section 245.6 of the Penal Code, an action may be brought against any postsecondary education institution for the hazing practices of the organization involving one or more students if both of the following apply:

(1) The postsecondary education institution had direct involvement in the hazing practice of the organization, knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice of the organization.

The postsecondary education institution has direct involvement in the hazing practices of the organization, knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice, or unreasonably failed to prevent or discover the hazing practices of the organization.

(2) At the time of the alleged hazing incident, the organization involved in the hazing is affiliated with the postsecondary education institution.

(c) For purposes of paragraph (1) of subdivision (b) there shall be a rebuttable presumption an education institution took reasonable steps to address hazing if the education institution has done all of the following:

(1) Updated existing rules and regulations governing student behavior to include a prohibition on hazing and adopted applicable penalties for the violation of the hazing prohibition. The education institutions shall adopt procedures by which all students are informed of such rules and regulations, with applicable penalties, and any revisions thereof.

(2)Updated existing rules and regulations governing employee behavior to include a prohibition on hazing and adopted applicable penalties for the violation of the hazing prohibition. The education institutions shall adopt procedures by which all employees are informed of such rules and regulations, with applicable penalties, and any revisions thereof.

(3)(A) Implemented a comprehensive prevention and outreach programs addressing hazing. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution’s policy on the prohibition on hazing. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall prohibition on hazing policy.

(B) The comprehensive prevention and outreach program to address hazing shall be part of every incoming student’s orientation and shall be offered annually to the following campus affiliated organizations:

(i) Athletic teams

(ii) Campus-recognized sorority or fraternity

(C) For purposes of this section “comprehensive prevention and outreach program” includes, but is not necessarily limited to, providing information to students about all of the following:

(i) Hazing awareness, prevention, and the institution’s policy on the prohibition of hazing.

(ii) Campus policies and resources relating to hazing, including how to report hazing to the appropriate campus personnel.

(iii) A focus on prevention and bystander intervention training as it relates to hazing.

 For purposes of determining under paragraph (1) of subdivision (b) whether an postsecondary education institution “should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice, or unreasonably failed to prevent or discover the hazing practices of the organization,” consideration shall be given to the extent that the institution, at the time of the alleged hazing incident, had each of the following measures in place:

(1) Adoption and distribution of a written antihazing policy consisting of rules and procedures for hazing prevention, intervention, and discipline, including all of the following:

(A) Prohibition on hazing.

(B) Notice of how violations will be enforced.

(C) Requirements for the reporting of potential hazing.

(D) Examples of unacceptable activities and behaviors.

(E) Required education and training, as described in paragraph (3).

(F) Annual distribution of the policy by means other than online posting.

(G) Designation of at least one employee to oversee the implementation of the antihazing policy.

(H) Posting the antihazing policy online in a readily accessible and prominent location on the postsecondary education institution’s internet website in a manner that is easily accessible to the public.

(2) Implementation of a reasonable antihazing investigation, enforcement, and reporting program that includes all of the following:

(A) Gathering confidential data about student experiences with hazing with affiliated student organizations.

(B) Incorporation of the data gathered under subparagraph (A) to build or refine institution-specific hazing prevention strategies.

(C) A reasonable and good faith process for diligently investigating and responding to reports of hazing in a timely manner.

(D) Documentation of investigations required by subparagraph (C).

(E) Enforcing hazing violations with appropriate penalties, including fines, withholding diplomas or transcripts, discipline such as probation, suspension, or dismissal, and rescission of permission for an affiliated student organization to operate on campus property or be affiliated with the postsecondary education institution.

(F) Reporting of hazing incidents to law enforcement or other appropriate third parties when applicable.

(G) Annual reporting online in a readily accessible and prominent location on the institution’s internet website on past hazing violations without disclosing personal identifying information of students.

(3) Implementation of a reasonable institutionwide antihazing education and training program that does all of the following:

(A) Aligns with the postsecondary education institution in having a primary concern for student safety.

(B) Reinforces that all students, faculty, and staff are responsible for following reporting procedures when they notice hazing.

(C) Requires training on antihazing policies, early intervention, reporting, and creating a safe school environment.

(d) A civil action brought under this section or Section 245.6 of the Penal Code may seek damages for emotional injuries as a component of actual damages, in addition to any other remedies available under law, including, but not limited to, damages for bodily injury or harm.

(e) The duties and obligations imposed by this act are cumulative with any other duties or obligations imposed under other law and shall not be construed to relieve any party from any duties or obligations imposed under other law, and do not limit any rights or remedies under existing law

This section does not prohibit or limit any other potential cause of action under any other law that is available to a person against whom hazing is directed.

1. Adds Education Code Section 66306 to read as follows:

66306 (a) On or before June 30, 2026, and on or before June 30 of each year thereafter, the Trustees of the California State University, the Regents of the University of California, and the appropriate governing bodies of each independent institution of higher education that is a “qualifying institution,” as defined in subdivision (l) of Section 69432.7, shall report to the appropriate policy committees of the Legislature the number of hazing incidents that constituted a violation of the institution of higher education policy prohibiting hazing, and, whether the violation was affiliated with a student organization. The report shall be disaggregated by campus.

(b) Notwithstanding any other requirement of this section, a report required pursuant to this subdivision shall comply with all applicable state and federal privacy laws, including, but not limited to, the federal Family Educational Rights and Privacy Act (20 U.S.C. Sec. 1232g).

(c) As used in this chapter, the following definitions apply:

(1) “Student organization” means any of the following:

(A) An intercollegiate athletic program at the institution of higher education.

(B) A sorority or fraternity that has officially met the formal chartering and recognition requirements at the institution of higher education where it operates.

(C) An organization recognized or sanctioned by the postsecondary education institutions whose membership includes more than 100 students.

(2) “Hazing” means intentional, knowing, or reckless act committed by a student or an employee of the 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 the initiation into, or the maintenance of membership in, any affiliated organization that is recognized or sanctioned by the institution of higher education, including any clubs, associations, fraternity, sorority, or athletic teams recognized or sanctioned by that institution; and, is likely to cause or causes serious bodily injury or serious mental harm, or death to a current student of an education institution. “Hazing” does not include customary athletic events or school-sanctioned events.

REGISTERED SUPPORT / OPPOSITION:

Support

California Federation of Teachers Afl-cio
Consumer Attorneys of California
Faculty Association of California Community Colleges

Oppose

Association of California Community College Administrators
California Chamber of Commerce
Community College League of California
Public Risk Innovation, Solutions, and Management (PRISM)
Statewide Association of Community Colleges

Analysis Prepared by: Ellen Cesaretti-Monroy / HIGHER ED. / (916) 319-3960

1. https://stophazing.org/about/ ↑

2. https://stophazing.org/research/national-hazing-study-hazing-in-view/ ↑

3. https://www.hanknuwer.com/hazing-destroying-young-lives/ ↑

4. https://stophazing.org/issue/ ↑

5. https://deanofstudents.berkeley.edu/our-resources/support/hazing/ ↑

6. https://lis.calegis.net/LISWeb/faces/bills/billxmlxsl.xhtml;jsessionid=wD8DG2fAq_efpGRDD3CQYQTclzY6Qo7IQbodLGOHvokjqEw-auW6!-862952211!1970636317# ↑

7. https://www.sacbee.com/news/local/article287797090.html ↑

8. https://www.vectorsolutions.com/resources/blogs/ca-supreme-court-rules-universities-duty-protect-foreseeable-violence/ ↑

9. https://law.justia.com/cases/california/supreme-court/2018/s230568.html ↑

10. https://stophazing.org/wp-content/uploads/2021/04/REACH-White-Paper.pdf ↑

11. https://www.congress.gov/bill/118th-congress/senate-bill/2901?q=%7B%22search%22%3A%22%22%7D&s=1&r=1 ↑

12. https://system.suny.edu/sci/news/4-21-21-hazing/index.html ↑

Date of Hearing: March 19, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 2193

Author:(Holden) – As Introduced Ver:February 7, 2024

SUBJECT: Hazing: educational institutions: civil liability: resources

KEY ISSUE: SHOULD AN EDUCATIONAL INSTITUTION BE LIABLE FOR INJURIES CAUSED BY “HAZING” IF IT KNEW OR SHOULD HAVE KNOWN ABOUT the DANGEROUS HAZING PRACTICES OF AN AFFILIATED ORGANIZATION and failed to take reasonable steps to discover or prevent the hazing?

SYNOPSIS

The California Penal Code makes it a crime for a person to engage in “hazing,” defined as “any method of initiation or preinitiation into a student organization . . . [that] is likely to cause serious bodily injury” to a prospective, current, or former student. In addition to imposing criminal penalties, existing law permits a hazing victim to bring a civil action for damages, but only against persons who engage in hazing activities and the organizations that make subjection to hazing as a condition of membership. The existing statute does not, however, expressly impose civil liability on educational institutions that grant official recognition to fraternities and sororities. This bill would change that by imposing civil liability on a public or private institution of higher education in the state, if the institution (1) had direct involvement in the hazing practices of an affiliated organization; (2) knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practices; or (3) unreasonably failed to prevent or discover the hazing practices of the organization. For purposes of determining whether an educational institution “knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practices, or unreasonably failed to prevent or discover the hazing practices of the organization,” the bill would require a court to consider whether the institution had specific anti-hazing measures in place at the time of the hazing incident. The bill would also require the State Department of Education to make available on the department’s internet website, on or before July 1, 2025, a model anti-hazing policy and related resources to increase awareness among pupils, school staff, and community members on the dangers of hazing.

This bill is virtually identical to last year’s AB 299, which passed out of this Committee but was vetoed. The Governor’s veto message expressed support for the author’s policy objective but wanted greater clarity, and limitation, on the scope of liability. Despite modest changes, it is unclear if the bill under consideration addresses the Governor’s concerns. The bill is supported by the California Consumer Attorneys and the Faculty Association of California Community Colleges. The California State University opposes this bill unless amended, as discussed below. The California Community Colleges oppose their inclusion in the bill given that they do not recognize sororities and fraternities. The author has indicated a willingness to consider amendments if the bill moves forward, but the bill will not be amended in this Committee. Should this bill be approved by this Committee, it would be referred to the Assembly Committee on Higher Education.

SUMMARY: Authorizes, as of January 1, 2025, a civil action against a higher educational institution for an instance of hazing under certain circumstances. Specifically, this bill:

1. Allows a person against whom hazing is directed to commence a civil action for injury or damages against a public or private higher educational institution for the hazing practices of the organization if both of the following apply:
   1. The educational institution had direct involvement in the hazing practices, knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice, or unreasonably failed to prevent or discover the hazing practices; and
   2. At the time of the alleged hazing incident, the organization involved in the hazing is affiliated with the educational institution.
2. Specifies that for purposes of determining whether an educational institution “should have known of the hazing practices and failed to take reasonable steps to stop the hazing practice, or unreasonably failed to prevent or discover the hazing practices” consideration must be given to the extent that the institution, at the time of the alleged hazing incident, had each of the following measures in place:
   1. Adoption and distribution of a written anti-hazing policy consisting of rules and procedures for hazing prevention, intervention, and discipline, as prescribed;
   2. Implementation of a reasonable anti-hazing investigation, enforcement, and reporting program, as prescribed; and
   3. Implementation of a reasonable institution wide anti-hazing education and training program, as prescribed.
3. Provides that a civil action brought under this bill or under Penal Code Section 245.6 may seek damages for emotional injuries as a component of actual damages, in addition to any other remedies available under law, including, but not limited to, damages for bodily injury or harm. Specifies that nothing in this bill prohibits or limits any other potential cause of action under any other law that is available to a person against whom hazing is directed.
4. Requires the State Department of Education to post a model anti-hazing policy and other relevant resources on its department website on or before July 1, 2025.

EXISTING LAW:

1. Makes it unlawful to engage in hazing, as defined. Makes any violation that does not result in death or serious bodily injury punishable as a misdemeanor, and makes any violation that results in death or serious bodily injury punishable as a misdemeanor or a felony. (Penal Code Section 245.6.)
   1. Defines “hazing” for purposes of the above to mean any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. Specifies that “hazing” does not include customary athletic events or school-sanctioned events. (Penal Code Section 245.6 (b).)
   2. In addition to imposing criminal penalties, authorizes a victim of hazing to bring a civil action against any person who participates in the hazing, or any organization to which the student is seeking membership whose agents or officers authorized, requested, commanded, participated in, or ratified the hazing. (Penal Code Section 245.6 (e).)
2. Makes hazing, as defined in Penal Code Section 245.6, grounds for suspension or expulsion from school. (Education Code Section 48900.)
3. Requires colleges and universities to adopt a policy that requires fraternities and sororities seeking campus recognition to submit annual reports to the college or university that contain specified information on the sorority’s or fraternity’s members and their conduct. Requires the college or university to (a) suspend campus recognition of any sorority or fraternity that does not comply with the reporting requirements (b) compile, maintain, and post the collected information into a publicly accessible report, as specified. (Education Code Section 66310 et seq.)
4. Requires the governing board of each community college district, the Trustees of the California State University (CSU), the Regents of the University of California (UC), and the governing boards of independent postsecondary education institutions receiving public funds for student financial assistance to require the appropriate officials at each campus to compile records of all occurrences reported to the campus of, and arrests for, crimes that are committed on campus that involve violence, hate violence, theft, destruction of property, illegal drugs, or alcohol intoxication. (Education Code Section 67380.)
5. Requests the Trustees of the CSU, the Regents of the UC, and the governing board of each community college district to adopt and publish policies on harassment, intimidation, and bullying to be included within the rules and regulations governing student behavior and, if the institution expends funds to support activities related to campus climate, as defined, to adopt and publish the above-described policies. (Education Code Section 66302.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: According to the author, despite reports of deaths and injuries caused by student hazing activities, many of our state’s educational institutions make only “a lackluster effort . . . to address [hazing] in a preventative manner.” To be sure, colleges and universities have suspended Greek organizations and their members after a high profile death or other serious incident. However, according to the author, they often fail to take affirmative, preventive steps that might have stopped a tragedy from occurring in the first place. This bill would give educational institutions some incentive to take those steps by making them liable for injuries caused by a dangerous hazing activity if they knew or should have known about the hazing activity and failed to take reasonable steps to discover or prevent dangerous hazing activity. The bill would also require the State Department of Education to develop and post a model anti-hazing policy and related resources on its department website.

Existing law and an educational institution’s duty to its students. The California Penal Code makes it a crime for a person to engage in “hazing,” defined as “any method of initiation or preinitiation into a student organization . . . [that] is likely to cause serious bodily injury” to a prospective, current, or former student. In addition to imposing criminal penalties, the Penal Code also authorizes a civil action for damages, but only against persons who have directly participated. Although existing law applies to any educational institution – including K-12 schools – the hazing provisions primarily seek to address the humiliating and often alcohol-saturated rituals imposed upon college or university students who want to join a sorority or fraternity. In addition to imposing criminal penalties, existing law permits a hazing victim to bring a civil action for damages against persons who engage in hazing activities and the organizations that request or require subjection to hazing as a condition of membership. The existing statute does not, however, expressly impose civil liability on educational institutions that grant official recognition to fraternities and sororities. This bill would change that by making colleges and universities liable if they (1) have direct involvement in the hazing practices of an affiliated student organization; (2) knew or should have known of the hazing practices and failed to take reasonable steps to stop the hazing practices, or (3) unreasonably failed to prevent or discover the hazing practices of the organization. For purposes of determining whether an educational institution “should have known” of the hazing practices and failed to take “reasonable” steps to discover or prevent the hazing practices, the bill would require a court to consider the extent that the institution had specific anti-hazing measures in place at the time of the hazing incident, including by adopting appropriate prevention, investigative, enforcement, and educational policies.

One could argue that existing negligence principles may, in some instances, already subject educational institutions to liability if they fail to take “reasonable” steps to prevent injuries to their students. To recover civil damages under a theory of negligence, a plaintiff must show that (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached the duty of care; and (3) the breach was the proximate cause of the injury. To successfully sue a college or university for hazing injuries, therefore, the injured student must first meet the threshold “duty” requirement. We all have a duty to the rest of the world to act in a manner that will not cause foreseeable harm to others. However, this duty only applies to our actions; we generally do not have a duty to protect others from harms caused by third parties, unless we have a “special relationship” with the person harmed. In the absence of a “special relationship,” the common law does not impose a duty to affirmatively prevent harm caused by third parties.

While California courts differ on the extent to which universities have a special relationship to students, they have been reluctant to find colleges and universities liable for harms caused by hazing. For example, California courts have held that, while there is a “special relationship” between a university and its students, the university only has a duty to protect or warn students from foreseeable harms when students are on campus, or “while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.” A university is not, however, liable for “student behavior over which the university has no significant degree of control.” (Regents of University of California v. Superior Court (2018) 4 Cal. 5th 607, 624-625, 627.) While local fraternity and sorority chapters are recognized by colleges and universities –and often advertised as an integral part of college life – they do not clearly constitute a part of the university’s curriculum or educational mission, especially when activities take place off-campus on property not owned by the university. While courts in some other states have upheld jury findings that a university failed to use reasonable care in responding to and investigating hazing reports, California appellate courts have not construed the special relationship between a university and a student broadly enough to impose liability for harms caused by hazing activity. (Compare Morrison v. Kappa Alpha Psi Fraternity (1999) 738 So. 2d 1105 [a Louisiana court finding a university liable for failing to take adequate action in response to hazing reports], with University of Southern California v. Superior Court (2018) 30 Cal. App. 5^th 429, 440 [a California court finding that the university did not have a duty to prevent a hazing-related injury in a fraternity].)

Notwithstanding how the courts currently apply common law principles, the Legislature has the power to define the scope of liability as a matter of preferred public policy. As the California Supreme Court put it, whether “a new duty should be imposed in a particular context is essentially a question of public policy.” The existence of a duty is not “an immutable fact of nature,” but a policy judgement about whether a particular plaintiff is entitled to protection. (Regents, supra at 628.) This bill would set forth a reasonable policy preference: educational institutions – who offer official recognition to fraternities and sororities and benefit from their presence – should take reasonable steps to reduce hazing activities that they know or should know pose a risk of harm to their students. This does not mean that educational institutions must stop all hazing activity or that an educational institution will automatically be liable for any injury caused by hazing activities. They would only be expected to take “reasonable” steps to discover or prevent dangerous hazing activity among affiliated student organizations which the college or university formally recognizes.

The Governor’s Veto of AB 299. In the veto message of last year’s AB 299, the Governor expressed support for the intent of the bill but also expressed concern that the bill might create “expansive financial exposure even for [colleges and universities] that are taking appropriate steps to protect their students from hazing.” The Governor encouraged the author to more “clearly define when liability arises,” especially where the college or university has already taken steps to reduce hazing. It is not at all clear if the relatively minor changes to the current iteration of the bill address these concerns. The primary concern continues to be whether an educational institution that adopts the prescribed policies set forth in the bill will be shielded from liability.

The question of a “safe harbor” provision. As noted below, this bill is opposed by the California State University (CSU) unless amended, and CSU has recently submitted proposed amendments to both the Committee and the author’s office. Most of these amendments propose minor and useful clarifying language. However, CSU’s primary concern appears to be the absence of a “safe harbor” provision – that is, a provision that would affirmatively shield educational institutions if they take the steps prescribed in the bill. Specifically, the bill in print directs the courts, when determining the educational institutions liability, to give “consideration” to whether the institution has implemented the prescribed anti-hazing policies and programs. However, the bill in print does not expressly state that an institution that adopts these policies or programs shall be immune from liability; rather, the bill only provides that “consideration shall be given” to the extent to which a school adopted such policies and programs. The proposed amendments offered by CSU would create a safe harbor by expressly providing that an “educational institution shall be deemed to have acted reasonably” if it adopts and implements the prescribed policies and programs.

The key difference between the bill in print and the amendment proposed by CSU, therefore, concerns the court’s discretion to “consider” whether measures have been adopted, as opposed to a bright line rule that educational institutions shall be deemed to have acted reasonably – and therefore immune from liability – if they had those policies in place at the time of harmful hazing incident. The best argument for the CSU position is that a true safe harbor will give educational institutions a degree of certainty. The best argument for the approach of the bill in print is that it grants the court discretion if it finds that an educational institution adopted the policies on paper only, without making a reasonable, good faith effort to carry them out.

The author has indicated to the Committee a willingness to consider amendments along the lines proposed by CSU; however, given that the Committee only recently saw the proposed amendments, the author is not willing to take amendments in this Committee. The Committee notes that there may be a middle ground between the CSU safe harbor provision – that an institution adopting the measures “shall be deemed to have acted reasonably” – and the current bill’s approach, which simply says that the court shall give “consideration” to whether the institution adopted the measures. For example, if the bill moves out of this Committee, the author may wish to revise existing language to provide that adopting the prescribed measures creates a “rebuttable presumption” that an educational institution acted reasonably.

Should community colleges be exempt from the bill’s provisions? The bill in print authorizes a civil action against an “educational institution,” which the bill defines as “a public or private institution of higher education in the state.” This would, include therefore, the several public community colleges in the state. The Association of California Community College Administrators (ACCCA) and the Community College League of California (CCLC) point out that community colleges “do not have a Greek system,” that their “students rarely remain on campus outside of attending class,” and that community colleges “do not have a history of hazing incidents.” ACCCA and CCLC claim that the “should have known” standard in the bill in print will create expectations that the community colleges will need to have “micro-level involvement” with all student groups, even though they do not have or recognize the types of student organizations that prompted the bill. A possible rejoinder to this concern is that if the community colleges have no affiliated student organizations that engage in “hazing,” then they would not have any exposure because the bill only applies if the student organization was “affiliated with” – that is, “recognized or sanctioned by” – the educational institution. Moreover, apparently not everyone in the community college world agrees with ACCCA and CCLC, as the Faculty Association of California Community Colleges “strongly” supports this bill.

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California (CAOC) contends that this measure is needed because:

Student hazing has been directly responsible for the deaths or serious injuries of young students. The ramifications of student hazing can extend far beyond its survivors, undermining their self-esteem and impacting their psychological wellbeing. These consequences have their own tragic results, frequently resulting in student suicide or acts of retaliation, the latter of which we saw most recently at the University of Virginia.

Hazing is a clearly detrimental practice that California has characteristically taken seriously through legislation. This piece of legislation keeps us on that path by holding the educational institutions who promote participation in and benefit from these organizations responsible for the consequences that they may bring to students. This responsibility will hopefully incentivize institutions to bolster their oversight and preventative measures as they pertain to hazing to save students’ lives.

The Faculty Association of California Community Colleges “strongly supports AB 2193 because it helps protect students from the dangerous and potentially fatal practice of hazing. By holding educational institutions accountable for their role in enabling or failing to prevent hazing, this bill encourages colleges to take proactive steps to combat hazing and create a safer environment for students. Implementing anti-hazing policies, education, and training programs will help raise awareness about the dangers of hazing while also empowering faculty, staff, and students to recognize and report incidents.”

ARGUMENTS IN OPPOSITION, UNLESS AMENDED: The Association of Independent California Colleges and Universities (AICCU) opposes this bill unless it is “amended to provide stronger legal protections for institutions.” While AICCU supports the goal of preventing dangerous hazing, it has concerns about the “scope of civil liability” proposed in the bill. Specifically, AICCU notes that while the bill is primarily concerned with Greek organizations, it applies to all affiliated student organizations, which would “include intercollegiate and club athletics, student clubs, and more.” AICCU does not believe “that it is possible to fully legislate individuals from committing illegal acts” no matter what policies are implemented, and the bill in print “does not provide clear assurances that institutions can avoid civil litigation, even if they have each of the [prescribed] measures.” In addition, AICCU argues that the bill could have the unintended consequence of reducing college oversight of student organizations. That is, if colleges are liable for harms caused by officially recognized organizations, they may simply choose to disaffiliate with student organizations in order to avoid exposure to unknown financial risks. If that happens, colleges will have less ability to address the behavior of bad actors.

The California State University (CSU) Office of the Chancellor, writes that it supports the bill’s goal of preventing dangerous hazing practices. However, CSU opposes this measure unless it is amended [as detailed in the analysis above] to provide “further clarity to avoid any misinterpretation of the role and duty of the educational institution.” CSU believes that its proposed amendments will “strengthen the intent of the bill while also providing clear guidance for how an educational institution shall be deemed to have acted reasonably to stop hazing.”

Arguments in Opposition: The Association of California Community College Administrators (ACCCA) “emphatically opposes hazing and strongly endorses the needed implementation of practices that prevent hazing and protect students from this horrendous act.” However ACCA opposes the inclusion of community colleges, arguing that the bill “is misplaced as our institutions do not have a Greek system, our students rarely remain on campus outside of attending class, and we do not have a history of hazing incidents.” ACCCA adds that despite having “no real history of hazing in our system, AB 2193 would still open community colleges up to costly litigation by including the ambiguous ‘should have known’ language in the bill. This language creates an unreasonable expectation for colleges to have micro-level involvement within student organizations, which further opens colleges up to costly liability. . . We strongly believe that unless it can be proven that an institution was grossly negligent in preventing a hazing incident, it is unfair to open them up to costly liability for events that are beyond their control. Furthermore, the current version of AB 2193 will result in significant costs for educational institutions to settle lawsuits, which are Proposition 98 dollars that should be used on students and staff.”

Public Risk Innovation, Solutions, and Management (PRISM), a California Joint Powers Authority that provides risk management services to public agencies, including colleges and universities, opposes this bill because it exposes “higher educational institutions to costly litigation.” PRISM argues that the “should have known” standard in AB 2193 places “an undue burden on institutions, potentially leading to expensive legal battles. We believe that unless an institution can be proven grossly negligent in preventing hazing incidents, it is unfair to hold them liable for events beyond their control.”

Prior related legislation. AB 299 (Holden, 2023) was substantially the same as the bill under consideration. Vetoed.

AB 524 (Chap. 268, Stats. 2022) requires colleges and universities to adopt a policy that requires fraternities and sororities seeking campus recognition to submit annual reports to the college or university that contain specified information on the sorority’s or fraternity’s members and their conduct. Requires the college or university to (a) suspend campus recognition of any sorority or fraternity that does not comply with the reporting requirements (b) compile, maintain, and post the collected information into a publicly accessible report, as specified.

REGISTERED SUPPORT / OPPOSITION:

Support

Consumer Attorneys of California

Faculty Association of California's Community Colleges

Opposition, Unless Amended

Association of Independent California Colleges & Universities (AICCU)

California State University, Office of the Chancellor

Opposition

Association of California Community College Administrators

Community College League of California

Public Risk Innovation, Solutions, and Management (PRISM)

Analysis Prepared by: Tom Clark / JUD. / (916) 319-2334