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 the institution has direct involvement in the hazing practices of the organization, or knew or in the exercise of ordinary care reasonably should have known of the hazing practices of the organization to which the student is seeking membership and unreasonably failed to prevent, discover, or stop the hazing practices, and 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 unreasonably failed to prevent, discover, or stop the hazing practices, the bill would require consideration of the extent to which 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, 2024, 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 the institution has direct involvement in, in the hazing practices of the organization, or knew or in the exercise of ordinary care reasonably should have known of, of the hazing practices of the organization to which the student is seeking membership and unreasonably failed to prevent, discover, or stop the hazing practices, and the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. The bill would specify that an educational institution that reasonably should have known of those hazing practices includes an institution that unreasonably fails to proactively prevent, discover, or stop the hazing practices. For purposes of determining whether an educational institution unreasonably fails to proactively failed to prevent, discover, or stop the hazing practices, the bill would authorize require consideration of the extent to which 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, 2024, 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 the institution has direct involvement in, or knew or in the exercise of ordinary care reasonably should have known of, the hazing practices of the organization to which the student is seeking membership and the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. The bill would specify that an educational institution that reasonably should have known of those hazing practices includes an institution that unreasonably fails to proactively prevent, discover, or stop the hazing practices. For purposes of determining whether an educational institution unreasonably fails to proactively prevent, discover, or stop the hazing practices, the bill would authorize consideration of the extent to which 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, 2024, 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 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 the institution has direct involvement in, or knew or in the exercise of ordinary care should have known of, the hazing practices of the organization to which the student is seeking membership and the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. The bill would specify that an educational institution that should have known of those hazing practices includes an institution that unreasonably fails to proactively prevent, discover, or stop the hazing practices. For purposes of determining whether an educational institution unreasonably fails to proactively prevent, discover, or stop the hazing practices, the bill would authorize consideration of the extent to which 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, 2024, 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 additionally establish civil liability for an educational institution institution, which the bill would define as a public or private institution of higher education in the state, if the institution has direct involvement in, or knew or should have known of, the hazing practices of the organization to which the student is seeking membership and the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. The bill would specify that an educational institution that should have known of those hazing practices includes an institution that fails to proactively prevent, discover, or stop the hazing practices. For purposes of determining whether an educational institution fails to proactively prevent, discover, or stop the hazing practices, the bill would authorize consideration of the extent to which the institution had specific antihazing measures in place at the time of the alleged hazing incident.

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 additionally establish civil liability for an educational institution if the institution has direct involvement in, or knew or should have known of, the dangerous hazing practices of the organization to which the student is seeking membership and the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. The bill would specify that an educational institution that should have known of those dangerous hazing practices includes an institution that fails to proactively prevent, discover, or stop the dangerous hazing practices. For purposes of determining whether an educational institution fails to proactively prevent, discover, or stop the dangerous hazing practices, the bill would authorize consideration of the extent to which the institution had specific antihazing measures in place at the time of the alleged hazing incident.

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 additionally establish civil liability for an educational institution if the institution has direct involvement in, or knew or should have known of, the dangerous hazing practices of the organization to which the student is seeking membership and the organization involved in the hazing is affiliated with the educational institution at the time of the alleged hazing incident. The bill would specify that an educational institution that should have known of those dangerous hazing practices includes an institution that fails to proactively prevent, discover, or stop the dangerous hazing practices. For purposes of determining whether an educational institution fails to proactively prevent, discover, or stop the dangerous hazing practices, the bill would authorize consideration of the extent to which the institution had specific antihazing measures in place at the time of the alleged hazing incident.

GOVERNOR'S VETO

GV Bill Id:AB 299

Author:(Holden)

As Enrolled Ver:September 14, 2023

2/3 vote

SUMMARY

Authorizes, as of January 1, 2025, a civil action against a higher educational institution for an instance of hazing, as defined, if that educational institution knew or should have known of the hazing practices of an affiliated organization.

Major Provisions

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 has direct involvement in, or knew or should have known of, the hazing practices of the organization and unreasonably failed prevent, discover, or stop 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 educational institution.
2. Specifies that for purposes of the above an educational institution that "should have known" of hazing practices of an affiliated organization includes an educational institution that fails to proactively prevent, discover, or stop the hazing practices of the organization.
3. Specifies that for purposes of determining whether an educational institution "unreasonably fails to proactively prevent, discover, or stop the hazing practices of the organization," consideration may be given to the extent to which 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 an anti-hazing investigation, enforcement, and reporting program, as prescribed.
   3. Implementation of an institution wide anti-hazing education and training program, as prescribed.
4. 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.
5. Requires the State Department of Education to post a model anti-hazing policy on its department website on or before July 1, 2024.

Senate Amendments

1. Clarify that an educational institution is liable if it has direct involvement of the hazing practices of a student organization or if it knew or should have known of the practices and unreasonably failed to prevent, discover, or stop the hazing practices of the organization.
2. Make this bill's liability provisions effective as of January 1, 2025.
3. Make minor clarifying changes.

Governor’s Veto Message

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.

COMMENTS

This bill gives educational institutions some incentive to take steps by making them liable for injuries caused by a hazing activity that they "knew or should have known" about. Under the bill, an educational institution that "should have known" about hazing dangers includes an institution that "unreasonably fails to prevent, discover, or stop the hazing practices." In other words, the bill seeks to prevent educational institutions from adopting a posture of willful ignorance in order to escape liability.

Existing law and an educational institution's duty to its students. The private right of action created by the existing Penal Code provision restricts liability to "any person who participates in the hazing activity" as well as the "organization to which the student is seeking membership." The organization, and its agents and officers, assume liability to the extent that they authorized, requested, commanded, or ratified the hazing. One cannot read the existing statute, in other words, to impose liability on the educational institution. In theory, common law tort principles – especially negligence – may 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 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.

California courts have found a "special relationship" between a university and its students, but 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 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.) The author sets 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 try to stop all hazing activity or that an educational institution will automatically be liable for any injury caused by the hazing activities. The bill does not require institutions to end hazing or hold them accountable for every hazing injury that might occur; it only requires that they adopt policies reasonably calculated to address a widely acknowledged problem.

According to the Author

Despite reports of deaths and injuries caused by student hazing activities, the author of AB 299 contends, 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.

Arguments in Support

StopHazing, an organization established in 1998 and dedicated to "comprehensive hazing prevention," supports AB 299 because it will "promote a safe and inclusive school, campus, and organizational environment through research, resource sharing, and the development of data-driven strategies for hazing prevention and the promotion of positive group climates."

The Consumer Attorneys of California (CAOC) believe that AB 299 sensibly reinforces recent efforts to address the serious problem of hazing by "holding the educational institutions who promote participation in and benefit from [fraternities and sororities] 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 in an effort to save students' lives.

Arguments in Opposition

The Association of California Community College Administrators (ACCCA) "opposes hazing and strongly endorses the needed implementation of practices that prevent hazing and protect students from this horrendous act." However, ACCA believes that, as currently written, "AB 299 would open educational institutions to costly litigation by stating that the institution "should have known" of the hazing practices of an affiliated organization. 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."

FISCAL COMMENTS

According to the Senate Appropriations Committee:

1. Costs in the high tens of millions of dollars to the California Community Colleges, California State University (CSU), and University of California (UC) for additional staff to create, implement, and oversee antihazing policies on and around campus, provide institution-wide antihazing education and training programs, and generate annual reports (Proposition 98 General Fund, General Fund).
2. Unknown court workload cost pressures to adjudicate civil actions brought against educational institutions for hazing incidents that occur in situations where it may be possible that the institution knew or should have known the hazing was taking place (Trial Court Trust Fund, General Fund).
3. Likely minor and absorbable costs to the Department of Education (CDE) to develop and publish a model antihazing policy and develop and maintain internet with resources on hazing prevention.

VOTES

ASM JUDICIARY: 10-0-1

YES: Maienschein, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas, Sanchez

ABS, ABST OR NV: Essayli

ASM HIGHER EDUCATION: 9-0-3

YES: Mike Fong, Addis, Arambula, Gabriel, Irwin, Ortega, Sanchez, Santiago, Wallis

ABS, ABST OR NV: Ta, Low, Weber

ASM APPROPRIATIONS: 12-2-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Sanchez, Weber, Ortega

NO: Dixon, Mathis

ABS, ABST OR NV: Megan Dahle, Robert Rivas

ASSEMBLY FLOOR: 63-4-13

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

NO: Dixon, Essayli, Jones-Sawyer, Mathis

ABS, ABST OR NV: Bains, Megan Dahle, Flora, Vince Fong, Gallagher, Hoover, Lackey, Pacheco, Jim Patterson, Joe Patterson, Schiavo, Ta, Webe r

SENATE FLOOR: 24-6-10

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

NO: Dahle, Grove, Jones, Nguyen, Niello, Seyarto

ABS, ABST OR NV: Allen, Alvarado-Gil, Caballero, Dodd, Glazer, Laird, Limón, Min, Ochoa Bogh, Rubio

ASSEMBLY FLOOR: 63-3-14

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

NO: Essayli, Mathis, Jim Patterson

ABS, ABST OR NV: Bains, Megan Dahle, Dixon, Flora, Vince Fong, Gallagher, Hoover, Lackey, Stephanie Nguyen, Pacheco, Joe Patterson, Schiavo, Ta, Weber

UPDATED

VERSION: September 14, 2023

CONSULTANT: Tom Clark / JUD. / (916) 319-2334 FN: 0002554

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 299

Author:(Holden)

As Amended Ver:September 1, 2023

Majority vote

SUMMARY

Authorizes, as of January 1, 2025, a civil action against a higher educational institution for an instance of hazing, as defined, if that educational institution knew or should have known of the hazing practices of an affiliated organization.

Major Provisions

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 has direct involvement in, or knew or should have known of, the hazing practices of the organization and unreasonably failed prevent, discover, or stop 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 educational institution.
2. Specifies that for purposes of the above an educational institution that "should have known" of hazing practices of an affiliated organization includes an educational institution that fails to proactively prevent, discover, or stop the hazing practices of the organization.
3. Specifies that for purposes of determining whether an educational institution "unreasonably fails to proactively prevent, discover, or stop the hazing practices of the organization," consideration may be given to the extent to which 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 an anti-hazing investigation, enforcement, and reporting program, as prescribed.
   3. Implementation of an institution wide anti-hazing education and training program, as prescribed.
4. 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.
5. Requires the State Department of Education to post a model anti-hazing policy on its department website on or before July 1, 2024.

Senate Amendments

1. Clarify that an educational institution is liable if it has direct involvement of the hazing practices of a student organization or if it knew or should have known of the practices and unreasonably failed to prevent, discover, or stop the hazing practices of the organization.
2. Make this bill's liability provisions effective as of January 1, 2025.
3. Make minor clarifying changes.

COMMENTS

This bill gives educational institutions some incentive to take steps by making them liable for injuries caused by a hazing activity that they "knew or should have known" about. Under the bill, an educational institution that "should have known" about hazing dangers includes an institution that "unreasonably fails to prevent, discover, or stop the hazing practices." In other words, the bill seeks to prevent educational institutions from adopting a posture of willful ignorance in order to escape liability.

Existing law and an educational institution's duty to its students. The private right of action created by the existing Penal Code provision restricts liability to "any person who participates in the hazing activity" as well as the "organization to which the student is seeking membership." The organization, and its agents and officers, assume liability to the extent that they authorized, requested, commanded, or ratified the hazing. One cannot read the existing statute, in other words, to impose liability on the educational institution. In theory, common law tort principles – especially negligence – may 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 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.

California courts have found a "special relationship" between a university and its students, but 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 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.) The author sets 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 try to stop all hazing activity or that an educational institution will automatically be liable for any injury caused by the hazing activities. The bill does not require institutions to end hazing or hold them accountable for every hazing injury that might occur; it only requires that they adopt policies reasonably calculated to address a widely acknowledged problem.

According to the Author

Despite reports of deaths and injuries caused by student hazing activities, the author of AB 299 contends, 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.

Arguments in Support

StopHazing, an organization established in 1998 and dedicated to "comprehensive hazing prevention," supports AB 299 because it will "promote a safe and inclusive school, campus, and organizational environment through research, resource sharing, and the development of data-driven strategies for hazing prevention and the promotion of positive group climates."

The Consumer Attorneys of California (CAOC) believe that AB 299 sensibly reinforces recent efforts to address the serious problem of hazing by "holding the educational institutions who promote participation in and benefit from [fraternities and sororities] 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 in an effort to save students' lives."

Arguments in Opposition

The Association of California Community College Administrators (ACCCA) "opposes hazing and strongly endorses the needed implementation of practices that prevent hazing and protect students from this horrendous act." However, ACCA believes that, as currently written, "AB 299 would open educational institutions to costly litigation by stating that the institution "should have known" of the hazing practices of an affiliated organization. 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.”

FISCAL COMMENTS

According to the Senate Appropriations Committee:

1. Costs in the high tens of millions of dollars to the California Community Colleges, California State University (CSU), and University of California (UC) for additional staff to create, implement, and oversee antihazing policies on and around campus, provide institution-wide antihazing education and training programs, and generate annual reports (Proposition 98 General Fund, General Fund).
2. Unknown court workload cost pressures to adjudicate civil actions brought against educational institutions for hazing incidents that occur in situations where it may be possible that the institution knew or should have known the hazing was taking place (Trial Court Trust Fund, General Fund).
3. Likely minor and absorbable costs to the Department of Education (CDE) to develop and publish a model antihazing policy and develop and maintain internet with resources on hazing prevention.

VOTES:

ASM JUDICIARY: 10-0-1

YES: Maienschein, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas, Sanchez

ABS, ABST OR NV: Essayli

ASM HIGHER EDUCATION: 9-0-3

YES: Mike Fong, Addis, Arambula, Gabriel, Irwin, Ortega, Sanchez, Santiago, Wallis

ABS, ABST OR NV: Ta, Low, Weber

ASM APPROPRIATIONS: 12-2-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Sanchez, Weber, Ortega

NO: Dixon, Mathis

ABS, ABST OR NV: Megan Dahle, Robert Rivas

ASSEMBLY FLOOR: 63-4-13

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

NO: Dixon, Essayli, Jones-Sawyer, Mathis

ABS, ABST OR NV: Bains, Megan Dahle, Flora, Vince Fong, Gallagher, Hoover, Lackey, Pacheco, Jim Patterson, Joe Patterson, Schiavo, Ta, Weber

SENATE FLOOR: 24-6-10

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

NO: Dahle, Grove, Jones, Nguyen, Niello, Seyarto

ABS, ABST OR NV: Allen, Alvarado-Gil, Caballero, Dodd, Glazer, Laird, Limón, Min, Ochoa Bogh, Rubio

UPDATED

VERSION: September 1, 2023

CONSULTANT: Tom Clark / JUD. / (916) 319-2334 FN: 0001966

 THIRD READING  

Bill No: AB 299

Author: Holden (D)

Amended: 9/1/23 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 8-1, 6/27/23

AYES: Umberg, Allen, Ashby, Durazo, Laird, Min, Stern, Wiener

NOES: Niello

NO VOTE RECORDED: Wilk, Caballero

SENATE EDUCATION COMMITTEE: 4-1, 7/5/23

AYES: Newman, Cortese, McGuire, Smallwood-Cuevas

NOES: Wilk

NO VOTE RECORDED: Ochoa Bogh, Glazer

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

ASSEMBLY FLOOR: 63-4, 5/31/23 - See last page for vote

SUBJECT: Hazing: educational institutions: civil liability: resources

SOURCE: Author

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 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, and also mandates the creation and availability of anti-hazing resources for K-12 schools.

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 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. Allows 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, if both of the following apply:
   1. the educational institution had direct involvement in the hazing practices of the organization; or
      1. the educational institution knew of, or in the exercise of ordinary care should have known of, the hazing practices of the organization, and unreasonably failed to prevent, discover, or stop the hazing practices of the organization; and
   2. at the time of the alleged hazing incident, the organization involved in the hazing was affiliated with the educational institution.
2. Specifies that for purposes of determining whether an educational institution “unreasonably fails to proactively prevent, discover, or stop the hazing practices of the organization,” consideration must be given to the extent to which 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 an anti-hazing investigation, enforcement, and reporting program, as prescribed; and
   3. implementation of an institution-wide anti-hazing education and training program, as prescribed.
3. Provides that any civil action allowed by this section may be commenced beginning January 1, 2025.
4. 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. 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.
5. Mandates that, on or before July 1, 2024, the Department of Education must make available on its website a model anti-hazing policy for local educational agencies and resources on hazing prevention, and encourages K-12 public or private educational institutions to use these resources for professional development purposes and for increasing awareness of the dangers of hazing.

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

According to the Senate Appropriations Committee:

• Costs in the high tens of millions of dollars to the California Community Colleges, California State University (CSU), and University of California (UC) for additional staff to create, implement, and oversee antihazing policies on and around campus, provide institution-wide antihazing education and training programs, and generate annual reports (Proposition 98 General Fund, General Fund).
  
• Unknown court workload cost pressures to adjudicate civil actions brought against educational institutions for hazing incidents that occur in situations where it may be possible that the institution knew or should have known the hazing was taking place (Trial Court Trust Fund, General Fund).
• Likely minor and absorbable costs to the Department of Education (CDE) to develop and publish a model antihazing policy and develop and maintain internet with resources on hazing prevention.

SUPPORT: (Verified 8/31/23)

Consumer Attorneys of California

Stophazing

University of California Student Association

OPPOSITION: (Verified 8/31/23)

Association of California Community College Administrators

Association of California School Administrators

Association of Independent California Colleges & Universities

California Association of Joint Powers Authorities

California State University, Office of the Chancellor

Community College League of California

Public Risk Innovation, Solutions, and Management Schools Excess Liability Fund

ARGUMENTS IN SUPPORT: According to the Consumer Attorneys of California, who are in support of AB 299:

Student hazing has been directly responsible for the deaths or serious injuries of young students. The ramifications of student hazing can extend far beyond for 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 in an effort 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 educational institution with knowledge of the hazing currently cannot be held accountable. AB 299 will mirror the current policy in ensuring that educational institutions that knew or should have known of the dangerous hazing practices are also held accountable. In order to be found liable the institution would either have to have had direct involvement in the dangerous hazing practices or the institution knew or should have known about the dangerous hazing practices.

AB 299 will ensure that educational institutions act to prevent dangerous hazing practices and keep students safe. For these reasons our organization joins in strong support.

ARGUMENTS IN OPPOSITION: According to the Community College League of California, who oppose AB 299:

Hazing is a dangerous and horrible practice that no student, educational institution, or campus community should have to face. Community colleges are uniquely positioned as the only public educational institutions without fraternities and sororities, where hazing commonly takes place. Our students rarely remain on campus outside of their courses since most community colleges are commuter schools and many students have work and family obligations outside of the classroom. Therefore, the Community College League of California strongly believes that our colleges are not the appropriate target for this legislation.

Although hazing is not prevalent on our campuses, AB 299 would still result in significant costs to our colleges. As Proposition 98 funded campuses with the lowest per-pupil funding rate in the state, compliance with the suggested measure would take millions of dollars away from urgent student needs, such as wrap-around basic needs services. Additionally, the “should have known” standard creates an unreasonable expectation for colleges to have a micro-level involvement within student organizations, further opening colleges up to costly liability.

With increased cost pressures and lower-than-expected state budget revenues, our colleges are forced to make hard decisions on how to best use our limited resources. If implemented, AB 299 (Holden) would result in fewer dollars for critical campus resources, including resources that ensure students are fed, housed, and supported.

ASSEMBLY FLOOR: 63-4, 5/31/23

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

NOES: Dixon, Essayli, Jones-Sawyer, Mathis

NO VOTE RECORDED: Bains, Megan Dahle, Flora, Vince Fong, Gallagher, Hoover, Lackey, Pacheco, Jim Patterson, Joe Patterson, Schiavo, Ta, Weber

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

9/2/23 12:38:36

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 299 (Holden) - Hazing: educational institutions: civil liability: resources

Bill Summary:

AB 299 would establish civil liability for a public or private institution of higher education when the institution knew or should have known of the hazing. The bill would also require the creation and availability of antihazing resources for K-12 schools.

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

The following information is revised to reflect amendments

adopted by the committee on September 1, 2023

Fiscal Impact:

• Costs in the high tens of millions of dollars to the California Community Colleges, California State University (CSU), and University of California (UC) for additional staff to create, implement, and oversee antihazing policies on and around campus, provide institution-wide antihazing education and training programs, and generate annual reports (Proposition 98 General Fund, General Fund).
  
• Unknown court workload cost pressures to adjudicate civil actions brought against educational institutions for hazing incidents that occur in situations where it may be possible that the institution knew or should have known the hazing was taking place (Trial Court Trust Fund, General Fund).
• Likely minor and absorbable costs to the Department of Education (CDE) to develop and publish a model antihazing policy and develop and maintain internet with resources on hazing prevention.

Author Amendments:

Make a clarifying change.

-- END --

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 299 (Holden) - Hazing: educational institutions: civil liability: resources

Bill Summary:

AB 299 would establish 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 should have known” of the hazing. The bill would also require the creation and availability of antihazing resources for K-12 schools.

Fiscal Impact:

• Costs in the high tens of millions of dollars to the California Community Colleges, California State University (CSU), and University of California (UC) for additional staff to create, implement, and oversee antihazing policies on and around campus, provide institution-wide antihazing education and training programs, and generate annual reports (Proposition 98 General Fund, General Fund).*
  
• Unknown court workload cost pressures to adjudicate civil actions brought against educational institutions for hazing incidents that occur in situations where it may be possible that the institution knew or should have known the hazing was taking place (Trial Court Trust Fund, General Fund).*
• Likely minor and absorbable costs to the Department of Education (CDE) to develop and publish a model antihazing policy and develop and maintain internet with resources on hazing prevention.
  

*See Staff Comments for additional detail.

Background:

Hazing, an activity of initiation or preinitiation into a group, has long occurred on university campuses throughout California. One report has estimated that 55 percent of all college students involved in clubs, teams, and organizations experience hazing. That report found that alcohol consumption, humiliation, isolation, sleep-deprivation, and sexual acts are common hazing practices. Hazing has also resulted in physical harm and even the death of students subjected to it. While hazing usually occurs at a student organization, the organization responsible is often affiliated with the educational institution at which the hazing takes place.

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 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 may already subject 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.

Under existing law, it is only under narrow circumstances where a university may be liable for the hazing activities of a sorority or fraternity, 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.

Proposed Law:

• Allows 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, if both of the following apply:
  • the educational institution had direct involvement in, or knew or in the exercise of ordinary care should have known of, the dangerous hazing practices of the organization;
  • at the time of the alleged hazing incident, the organization involved in the hazing was affiliated with the educational institution.
• Specifies that an educational institution that “should have known” of dangerous hazing practices of an affiliated organization if the educational institution unreasonably fails to proactively prevent, discover, or stop the dangerous hazing practices of the organization.
• Specifies that for purposes of determining whether an educational institution “unreasonably fails to proactively prevent, discover, or stop the dangerous hazing practices of the organization,” consideration may be given to the extent to which the institution, at the time of the alleged hazing incident, had each of the following measures in place:
  • adoption and distribution of a written anti-hazing policy consisting of rules and procedures for hazing prevention, intervention, and discipline, as prescribed;
  • implementation of an anti-hazing investigation, enforcement, and reporting program, as prescribed; and
  • implementation of an institution wide anti-hazing education and training program, as prescribed.
• Provides that the civil action allowed by this section may be commenced beginning January 1, 2025.
• 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. 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.
• Mandates that, on or before July 1, 2024, the Department of Education must make available a model antihazing policy for local educational agencies and provide resources on hazing prevention, and encourages K-12 public or private educational institutions to use these resources for professional development purposes and for increasing awareness of the dangers of hazing.

Related Legislation:

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.

Staff Comments:

• Antihazing policies and reporting requirements:
  • The California Community Colleges Chancellor’s Office (CCCO) reports local assistance costs of approximately $203,327 to $307,338 per college, and a total cost to fully implement AB 299 for all 115 colleges of $23.3 to $35.2 million (Proposition 98 General Fund). The CCCO further reports state operations costs relating to monitoring implementation of this bill and the corresponding policies and practices ranging from approximately $13,000 to $55,000.
  • The CSU reports that additional staffing will be necessary to monitor affiliated fraternity and sorority activities. For the designated staff, CSU estimates each campus would need a 0.5 FTE staff member. The systemwide cost for all 23 CSU institutions is estimated to range between $1.2 and $1.7 million. The CSU estimates training costs to be approximately $15 million. Actual costs could be less, provided they are offered to CSU at a discount. Cost estimates are based on one vendor’s individual pricing for a student course at $22.50 and another vendor’s individual pricing for an employee training module at $75.00. The costs assume training for all 477,466 students and 55,834 employees.
  • The UC estimates needing additional staffing of 1.0 FTE per campus for the monitoring and reporting provisions of AB 299. Those costs would be approximately $1.5 million annually and ongoing. The UC noted unquantifiable training and education costs associated with AB 299 for the approximate 280,000 students and 227,000 faculty and staff in the system.
• Litigation costs:
  • AB 299 may result in court settlements, judgments, or other enforcement orders impacting the General Fund and Proposition 98 General Fund. Although litigation costs are generally speculative, there are numerous active lawsuits as a result of hazing incidents within the State. Damages and other costs associated with the liability created by this measures are impossible to quantify, but would likely be significant.
  • AB 299 would create a cause of action allowing individuals harmed by hazing to sue an institution of higher education for injury or damages in specified circumstances. It is unknown how many additional actions would be brought as a result of the implementation of this bill. However, it generally costs about $8,000 to operate a courtroom for one eight-hour day. Although courts are not funded on the basis of workload, increased pressure on the trial courts and staff may create a need for increased funding for courts from the General Fund (GF) to perform existing duties. Numerous trial court operations are funded through the imposition and collection of criminal fines and fees. However, the Legislature has reduced and eliminated criminal fines and fees over the past decade. As a result, the 2023-24 budget includes an ongoing annual allocation of $105.1 million backfill from the General Fund in order to address declining revenue to the Trial Court Trust Fund.

-- END --

SENATE COMMITTEE ON EDUCATION

Senator Josh Newman, Chair

2023 - 2024 Regular

Bill No: AB 299 Hearing Date: July 5, 2023

Subject: Hazing: educational institutions: civil liability: resources.

SUMMARY

This bill 1) authorizes, beginning January 1, 2025, a person against whom hazing is directed to bring a civil action for injury or damages against a public or private educational institution of higher education if the institution has direct involvement in, or knew or reasonably should have known of the hazing practices; and, 2) requires the California Department of Education (CDE) to post on its website a model anti-hazing policy and resources on hazing prevention for professional development and increasing awareness.

BACKGROUND

Existing law:

Criminal and civil provisions related to hazing

1. Provides that it is unlawful to engage in hazing, as defined. Existing law 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 § 245.6.)
   
2. Defines “hazing” for purposes of the above 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 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 § 245.6 (b).)
   
3. 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 § 245.6 (e).)

Policies and responses to hazing in K-12 schools, colleges and universities

1. Includes hazing as grounds for suspension or expulsion from grades K-12. (Education Code (EC) § 48900.)
2. Requires institutions of higher education to adopt a policy that requires fraternities and sororities seeking campus recognition to submit annual reports that contain specified information on the sorority’s or fraternity’s members and their conduct. Existing law 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. (EC § 66310 et seq.)
3. 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. (EC § 67380)
4. 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. (EC § 66302)

ANALYSIS

This bill:

Civil action related to hazing in higher education

1. Authorizes, beginning January 1, 2025, a person against whom hazing is directed to commence a civil action for injury or damages against any participants in the hazing or the organization and against any educational institution for the hazing practices of the organization involving one or more students if both of the following apply:
   
2. The educational institution has direct involvement in, or knew or in the exercise of ordinary care reasonably should have known of, the hazing practices of the organization.
   
3. At the time of the alleged hazing incident, the organization involved in the hazing is affiliated with the educational institution.
   
4. Provides that an educational institution that “reasonably should have known of the hazing practices of the organization” includes an educational institution that unreasonably fails to proactively prevent, discover, or stop the hazing practices of the organization.
   

Determining “unreasonably fails to proactively prevent, discover, or stop” hazing

1. Authorizes, for purposes of determining whether an educational institution “unreasonably fails to proactively prevent, discover, or stop the hazing practices of the organization,” consideration to be given to the extent that the institution, at the time of the alleged hazing incident, had each of the following measures in place:
   
2. Adoption and distribution of a written anti-hazing policy consisting of rules and procedures for hazing prevention, intervention, and discipline, including all of the following:
   
3. Prohibition on hazing.
   
4. Notice of how violations will be enforced.
   
5. Requirements for the reporting of potential hazing.
   
6. Examples of unacceptable activities and behaviors.
   
7. Required education and training, as described in (c) at the top of page # 4.
   
8. Annual distribution of the policy by means other than online posting.
   
9. Designation of at least one employee to oversee the implementation of the anti-hazing policy.
   
10. Posting the anti-hazing policy online in a readily accessible and prominent location on the educational institution’s internet website in a manner that is easily accessible to the public.
    
11. Implementation of an anti-hazing investigation, enforcement, and reporting program that includes all of the following:
    
12. Gathering confidential data about student experiences with hazing with affiliated student organizations.
    
13. Incorporation of the data gathered to build or refine institution-specific hazing prevention strategies.
    
14. A process for diligently investigating and responding to reports of hazing in a timely manner.
    
15. Documentation of investigations.
    
16. 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 educational institution.
    
17. Reporting of hazing incidents to law enforcement or other appropriate third parties when applicable.
    
18. 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.
    
19. Implementation of an institution-wide anti-hazing education and training program that does all of the following:
    
20. Aligns with the educational institution having a primary concern for student safety.
    
21. Reinforces that all students, faculty, and staff are responsible for following reporting procedures when they notice hazing.
    
22. Requires training on anti-hazing policies, early intervention, reporting, and creating a safe school environment.
    

Damages and other cause of action

1. Authorizes a civil action brought pursuant to this bill or 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 available under law, including, but not limited to, damages for bodily injury or harm.
   
2. Specifies that this bill 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.

Resources for K-12 schools

1. Requires, by July 1, 2024, CDE to make available on its website both of the following:
   
2. A model anti-hazing policy for local educational agencies.
   
3. Resources on hazing prevention for professional development purposes and for increasing awareness among students, school staff, and community members of the dangers of hazing.
   
4. 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.
   

Definitions

1. Includes the following definitions:
   
2. “Affiliated” means currently recognized or sanctioned by the educational institution, but excludes an organization that had previously been recognized or sanctioned by the educational institution but has subsequently had that recognition or sanction withdrawn.
   
3. “Educational institution” means a public or private institution of higher education in California, including the officers, employees, or governing bodies of the institution.
   
4. 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 student of an educational institution. This bill excludes customary athletic events or school-sanctioned events from the definition of “hazing.”
   
5. “School” means a public or private school in the state maintaining kindergarten or any of grades 1 to 12.

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 of higher education 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. Additionally, AB 299 requires the Department of Education to make available on their website a model anti-hazing policy and resources on hazing prevention in an effort to address hazing instances occurring at the K-12 level.
   
   “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. Affiliated organizations. This bill references a) currently recognized or sanctioned by the educational institution in definition of “affiliated”; b) a student organization or student body in the definition of “hazing.” “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. Therefore, this bill applies to all public and private institutions of higher education, including community colleges.
   
3. Extends civil liability to universities and their employees. Existing law allows for a civil action to be brought against the participant or organization involved in the hazing; however, educational institutions with knowledge of the hazing currently cannot be held liable. This bill provides that an educational institution that “reasonably should have known of the hazing practices of the organization” includes an educational institution that unreasonably fails to proactively prevent, discover, or stop the hazing practices of the organization. The standard of “reasonably should have known” was considered by the Senate Judiciary Committee during its June 27, 2023 hearing of this bill. Should colleges and universities be liable for organizations they officially recognize, if they reasonably should have known of hazing practices? Is it realistic that colleges and universities are that aware of hazing activities?
   
   The author committed to taking further amendments when this bill was heard in the Senate Judiciary Committee on June 27, 2023. Specifically, the author agreed to create elements for a cause of action and establish an affirmative defense (e.g. if institutions of higher education take specified actions to prevent and/or respond to incidents of hazing, those factors shall, rather than may, be considered when determining whether the institution is liable).
   
   Due to timing, these amendments should be taken in the Senate Appropriations Committee.
   
4. 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, AB 299 sets out a clear path for universities with affiliated sororities and fraternities on their campuses to shield their liability: the implementation of robust anti-hazing policies and programs aimed at prohibiting, investigating, punishing, and educating and training on hazing.
   
5. Report on sororities and fraternities. AB 524 (Rodriguez) Chapter 268, Statutes of 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. The annual report is to include the number of citations, or disciplinary actions taken, relating to misconduct at a chapter house or sanctioned event; the definition of “misconduct” specifically includes hazing.
   
6. Fiscal impact. According to the Assembly Appropriations Committee, this bill would impose the following costs:
   
7. Unknown, though potentially significant, ongoing General Fund costs to public universities to pay for damages or to follow other court enforcements resulting from this bill.
   
8. Potential one-time and ongoing General Fund costs to public universities, potentially in the low millions of dollars, to adopt certain policies and practices put forth in the bill.
   
9. Unknown, though potentially significant, ongoing Proposition 98 General Fund costs to public colleges to pay for damages or to follow other court enforcements resulting from this bill.
   
10. Potential one-time and ongoing Proposition 98 General Fund costs to public colleges, potentially in the millions of dollars, to adopt certain policies and practices put forth in the bill.

SUPPORT

Consumer Attorneys of California

OPPOSITION

Association of Community College Administrators

Community College League of California

Public Risk Innovation, Solutions, and Management

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 299 (Author:Holden)

Version: June 19, 2023

Hearing Date: June 27, 2023

Fiscal: Yes

Urgency: No

Consultant: ID

SUBJECT

Hazing: educational institutions: civil liability: 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 when the institution “knew or should have known” of the hazing, and also mandates the creation and availability of antihazing resources for K-12 schools.

EXECUTIVE SUMMARY

Hazing is a major issue on many college campuses that results in injuries and the deaths of students every year. Despite attempts to reduce hazing and push universities to respond, hazing continues to be an issue on many California campuses. This bill creates a private cause of action for civil liability for 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. This civil liability allows for recovery for injury or damages, including emotional injuries and bodily injury or harm, when the organization that committed the hazing is affiliated with the institution of higher education and the educational institution had direct involvement in, or knew or should have known of the hazing practices of the organization. It defines “should have known” to include an institution that unreasonably fails to proactively prevent, discover, or stop the hazing practices of the organization. The bill also lists measures the institution may take to meet the requirement of “proactively prevent,” such as the adoption of an antihazing policy, education and training on hazing, and procedures for the investigation and enforcement of reports of hazing and the institution’s antihazing policy.

Lastly, with regard to public or private schools from kindergarten to 12th grade, the bill requires the California Department of Education to make available a model antihazing policy for local educational purposes, as well as resources on hazing prevention. The bill states that such schools are encouraged to use the resources available for professional development purposes and for increasing awareness of the dangers of hazing.

AB 299 is supported by Consumer Attorneys of California and the organization StopHazing. It is opposed by the Community College League of California, and the California State University is opposed unless amended. Should this bill pass out of this Committee, it will then be heard in 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. Allows 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, if both of the following apply:
   1. the educational institution had direct involvement in, or knew or in the exercise of ordinary care should have known of, the dangerous hazing practices of the organization;
   2. at the time of the alleged hazing incident, the organization involved in the hazing was affiliated with the educational institution.
2. Specifies that an educational institution that “should have known” of dangerous hazing practices of an affiliated organization if the educational institution unreasonably fails to proactively prevent, discover, or stop the dangerous hazing practices of the organization.
3. Specifies that for purposes of determining whether an educational institution “unreasonably fails to proactively prevent, discover, or stop the dangerous hazing practices of the organization,” consideration may be given to the extent to which 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 an anti-hazing investigation, enforcement, and reporting program, as prescribed; and
   3. implementation of an institution wide anti-hazing education and training program, as prescribed.
4. Provides that the civil action allowed by this section may be commenced beginning January 1, 2025.
5. 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. 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.
6. Mandates that, on or before July 1, 2024, the Department of Education must make available a model antihazing policy for local educational agencies and provide resources on hazing prevention, and encourages K-12 public or private educational institutions to use these resources for professional development purposes and for increasing awareness of the dangers of hazing.

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 civil action to be brought against an institution of higher education 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 that participation 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

Hazing, an activity of initiation or preinitiation into a group, has long occurred on university campuses throughout California. 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 also resulted in physical harm and even the death of students subjected to it. While hazing usually occurs at a student organization, the organization responsible is often affiliated with the educational institution at which the hazing takes place.

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).

1. Existing law relating to hazing

Under AB 1454, 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.” (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 may already subject 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.) In a case relating to harm during an off-campus party at an affiliated fraternity, a California court found that the university did not have a duty under this test. (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, 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 common law negligence, 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, as the California Supreme Court has also noted here, that 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. (Id.)

1. AB 299 addresses the issue of hazing through extending liability to the universities that knew or should have known of the hazing at an affiliated organization

The consideration of these public policy decisions underlie AB 299. It seeks to address the issue of hazing by extending a duty to universities to prevent hazing at their campuses by affiliated organizations. 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 their campuses, because universities have had a lackluster response to hazing, and because doing so will bolster universities’ oversight and hazing prevention activities. This is likely true: since the bill sets out specific university actions to be considered in weighing whether the university “reasonably should have known” of the hazing practices (and thus whether the university can be held liable), the bill will likely result in many or most California universities adopting the actions listed in the bill. Not doing so would risk making the university liable for any harm from hazing by affiliated organizations on their campus.

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 299 because the second requirement under subdivision (b) of 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. AB 299 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 299 sets out a clear path for universities with affiliated sororities and fraternities on their campuses to shield their liability: the implementation of robust anti-hazing policies and programs aimed at prohibiting, investigating, punishing, and educating and training on hazing. The creation of the duty under AB 299 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 school fails to take steps to prevent hazing on their campus.

1. Arguments in support

According to the Consumer Attorneys of California, who are in support of AB 299:

Student hazing has been directly responsible for the deaths or serious injuries of young students. The ramifications of student hazing can extend far beyond for 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 in an effort 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 educational institution with knowledge of the hazing currently cannot be held accountable. AB 299 will mirror the current policy in ensuring that educational institutions that knew or should have known of the dangerous hazing practices are also held accountable. In order to be found liable the institution would either have to have had direct involvement in the dangerous hazing practices or the institution knew or should have known about the dangerous hazing practices.

AB 299 will ensure that educational institutions act to prevent dangerous hazing practices and keep students safe. For these reasons our organization joins in strong support.

1. Arguments in opposition

According to the Community College League of California, who oppose AB 299:

Hazing is a dangerous and horrible practice that no student, educational institution, or campus community should have to face. Community colleges are uniquely positioned as the only public educational institutions without fraternities and sororities, where hazing commonly takes place. Our students rarely remain on campus outside of their courses since most community colleges are commuter schools and many students have work and family obligations outside of the classroom. Therefore, the Community College League of California strongly believes that our colleges are not the appropriate target for this legislation.

Although hazing is not prevalent on our campuses, AB 299 would still result in significant costs to our colleges. As Proposition 98 funded campuses with the lowest per-pupil funding rate in the state, compliance with the suggested measure would take millions of dollars away from urgent student needs, such as wrap-around basic needs services. Additionally, the “should have known” standard creates an unreasonable expectation for colleges to have a micro-level involvement within student organizations, further opening colleges up to costly liability.

With increased cost pressures and lower-than-expected state budget revenues, our colleges are forced to make hard decisions on how to best use our limited resources. If implemented, AB 299 (Holden) would result in fewer dollars for critical campus resources, including resources that ensure students are fed, housed, and supported.

SUPPORT

Consumer Attorneys of California

StopHazing

OPPOSITION

Community College League of California

The California State University (opposed unless amended)

RELATED LEGISLATION

Pending Legislation: None known

Prior Legislation:

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 63, Noes 4)

Assembly Appropriations Committee (Ayes 12, Noes 2)

Assembly Higher Education Committee (Ayes 9, 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). ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 299

Author:(Holden)

As Amended Ver:May 18, 2023

Majority vote

SUMMARY

Authorizes a civil action against a higher educational institution for an instance of hazing, as defined, if that educational institution knew or should have known of the hazing practices of an affiliated organization.

Major Provisions

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 has direct involvement in, or knew or should have known of, 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 educational institution.
2. Specifies that for purposes of the above an educational institution that "should have known" of hazing practices of an affiliated organization includes an educational institution that fails to proactively prevent, discover, or stop the hazing practices of the organization.
3. Specifies that for purposes of determining whether an educational institution "fails to proactively prevent, discover, or stop the hazing practices of the organization," consideration may be given to the extent to which 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 an anti-hazing investigation, enforcement, and reporting program, as prescribed.
   3. Implementation of an institution wide anti-hazing education and training program, as prescribed.
4. 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.
5. Requires the State Department of Education to post a model anti-hazing policy on its department website on or before July 1, 2024.

COMMENTS

This bill gives educational institutions some incentive to take steps by making them liable for injuries caused by a hazing activity that they "knew or should have known" about. Under the bill, an educational institution that "should have known" about hazing dangers includes an institution that "fails to proactively prevent, discover, or stop the hazing practices." In other words, the bill seeks to prevent educational institutions from adopting a posture of willful ignorance in order to escape liability.

Existing law and an educational institution's duty to its students. The private right of action created by the existing Penal Code provision restricts liability to "any person who participates in the hazing activity" as well as the "organization to which the student is seeking membership." The organization, and its agents and officers, assume liability to the extent that they authorized, requested, commanded, or ratified the hazing. One cannot read the existing statute, in other words, to impose liability on the educational institution. In theory, common law tort principles – especially negligence – may 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 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.

California courts have found a "special relationship" between a university and its students, but 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 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.) The author sets 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 try to stop all hazing activity or that an educational institution will automatically be liable for any injury caused by the hazing activities. The bill expressly directs the court, in determining whether an institution failed to proactively respond to or investigate reports of hazing, to consider whether or not the institution had certain policies in place, including, among others, reporting and educational programs. The bill does not require institutions to end hazing or hold them accountable for every hazing injury that might occur; it only requires that they adopt policies reasonably calculated to address a widely acknowledged problem.

According to the Author

Despite reports of deaths and injuries caused by student hazing activities, the author of AB 299 contends, 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.

Arguments in Support

StopHazing, an organization established in 1998 and dedicated to "comprehensive hazing prevention," supports AB 299 because it will "promote a safe and inclusive school, campus, and organizational environment through research, resource sharing, and the development of data-driven strategies for hazing prevention and the promotion of positive group climates."

The Consumer Attorneys of California (CAOC) believe that AB 299 sensibly reinforces recent efforts to address the serious problem of hazing by "holding the educational institutions who promote participation in and benefit from [fraternities and sororities] 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 in an effort to save students' lives."

Arguments in Opposition

The Association of California Community College Administrators (ACCCA) "opposes hazing and strongly endorses the needed implementation of practices that prevent hazing and protect students from this horrendous act." However, ACCA believes that, as currently written, "AB 299 would open educational institutions to costly litigation by stating that the institution "should have known" of the hazing practices of an affiliated organization. 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."

FISCAL COMMENTS

According to the Assembly Appropriations analysis:

1. Unknown, though potentially significant, ongoing General Fund costs to public universities to pay for damages or to follow other court enforcements resulting from this bill.
2. Potential one-time and ongoing General Fund costs to public universities, potentially in the low millions of dollars, to adopt certain policies and practices put forth in the bill.
3. Unknown, though potentially significant, ongoing Proposition 98 General Fund costs to public colleges to pay for damages or to follow other court enforcements resulting from this bill.
4. Potential one-time and ongoing Proposition 98 General Fund costs to public colleges, potentially in the millions of dollars, to adopt certain policies and practices put forth in the bill.
5. Unknown, though potentially significant, ongoing Proposition 98 General Fund costs to community colleges to pay for damages or to follow other court enforcements resulting from this bill.

VOTES

ASM JUDICIARY: 10-0-1

YES: Maienschein, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas, Sanchez

ABS, ABST OR NV: Essayli

ASM HIGHER EDUCATION: 9-0-3

YES: Mike Fong, Addis, Arambula, Gabriel, Irwin, Ortega, Sanchez, Santiago, Wallis

ABS, ABST OR NV: Ta, Low, Weber

ASM APPROPRIATIONS: 12-2-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Sanchez, Weber, Ortega

NO: Dixon, Mathis

ABS, ABST OR NV: Megan Dahle, Robert Rivas

UPDATED

VERSION: May 18, 2023

CONSULTANT: Tom Clark / JUD. / (916) 319-2334 FN: 0000740

Date of Hearing: May 3, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 299

Author:(Holden) – As Amended Ver:April 11, 2023

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

SUMMARY:

This bill establishes civil liability for an educational institution if the institution has direct involvement in, or knew or should have known of, hazing practices of an organization and the organization involved in the hazing is affiliated with the educational institution at the time of the alleged incident. The bill specifies that “should have known of the hazing practices of the organization” includes situations where an educational institution fails to proactively prevent, discover, or stop the hazing practices of the organization.

To determine whether an educational institution failed to proactively prevent, discover, or stop the hazing practices of the organization, the bill allows a court to consider whether an institution, at the time of hazing incident, had various measures in place. The bill defines these measures as the following:

1. For each educational institution, adoption and distribution of a written antihazing policy consisting of rules and procedures for hazing prevention, intervention, and discipline that contains prescribed elements, as well as, annual distribution of the policy by means other than online posting.
2. For institutions of higher education, designation of at least one employee to oversee the implementation of the antihazing policy, as well as, posting the policy online.
3. For educational institutions serving grades one through 12, posting the policy with other bullying and harassment prevention information on the institution’s website.
4. For every educational institution, implementation of an antihazing investigation, enforcement, and reporting program that includes routine, confidential surveying of students; incorporation of that survey data to inform hazing prevention strategies; active investigations of student organizations that have received hazing reports.
5. For an institution of higher education, 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, and implementation of an institution-wide antihazing education and training program

FISCAL EFFECT:

1. Unknown, though potentially significant, ongoing General Fund costs to public universities to pay for damages or to follow other court enforcements resulting from this bill.
2. Potential one-time and ongoing General Fund costs to public universities, potentially in the low millions of dollars, to adopt certain policies and practices put forth in the bill. The bill does not explicitly require universities to adopt these policies and practices, however, public universities may feel compelled to implement these policies and practices for liability avoidance. The state has 32 public universities.
3. Unknown, though potentially significant, ongoing Proposition 98 General Fund costs to public colleges to pay for damages or to follow other court enforcements resulting from this bill.
4. Potential one-time and ongoing Proposition 98 General Fund costs to public colleges, potentially in the millions of dollars, to adopt certain policies and practices put forth in the bill. The bill does not explicitly require colleges to adopt these policies and practices, however, public colleges may feel compelled to implement these policies and practices for liability avoidance. The state has 116 public colleges.
5. Unknown, though potentially significant, ongoing Proposition 98 General Fund costs to local educational agencies (LEAs) and community colleges to pay for damages or to follow other court enforcements resulting from this bill.
6. Potential one-time and ongoing Proposition 98 General Fund costs to LEAs, potentially in the tens of millions of dollars, to adopt certain policies and practices put forth in the bill. The bill does not explicitly require LEAs to adopt these policies and practices, however, LEAs may feel compelled to implement these policies and practices for liability avoidance. The state has over 2,000 LEAs, including charter schools.

COMMENTS:

1. Purpose. According to the author:

We have seen an influx of dangerous hazing practices within 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] hold[s] the educational institutions who promote participation in and benefit from these organizations responsible for the consequences they may bring to students.

1. Background. The Penal Code makes it unlawful to engage in hazing, and defines “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 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. 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 educational institution 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 specifies that a court may consider whether an educational institution had various measures in place when making a judgement on the civil action against an institution.

1. Prior Legislation. AB 524 (Rodriguez), Chapter 268, Statutes of 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 annually specified information regarding the sorority’s or fraternity’s members and their conduct, among other provisions.

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

Date of Hearing: April 18, 2023

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Mike Fong, Chair

ABPCA Bill Id:AB 299 (

Author:Holden) – As Amended Ver:April 11, 2023

SUBJECT: Hazing: educational institutions: civil liability

SUMMARY: Authorizes a civil action against an educational institution for an instance of hazing, as defined, if that educational institution knew or should have known of the dangerous hazing practices of an affiliated organization. Specifically, this bill:

1. Allows a person against whom hazing is directed to commence a civil action for injury or damages against an educational institution for the dangerous hazing practices of the organization if both of the following apply:
   1. The educational institution has direct involvement in, or knew, or should have known of, the dangerous hazing practices of the organization.
   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 the above an educational institution that “should have known” of dangerous hazing practices of an affiliated organization includes an educational institution that fails to proactively prevent, discover, or stop the dangerous hazing practices of the organization.
3. Specifies that for purposes of determining whether an educational institution, “fails to proactively prevent, discover, or stop the dangerous hazing practices of the organization,” consideration may be given to the extent to which the institution, at the time of the alleged hazing incident, had each of the following measures in place:
4. Adoption and distribution of a written anti-hazing policy consisting of rules and procedures for hazing prevention, intervention, and discipline, as prescribed.
5. Implementation of an anti-hazing investigation, enforcement, and reporting program, as prescribed.
6. Implementation of an institution wide anti-hazing education and training program, as prescribed.
7. 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. 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.

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 pre-initiation 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 (EDC) 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. (EDC 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. (EDC 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. (EDC Section 66302.)

FISCAL EFFECT: Unknown. This bill is keyed as non-fiscal.

COMMENTS: Double-referral. AB 299 (Holden) was heard in the Assembly Committee on Judiciary, where it passed with a 10-0 vote. A legal review of private rights of action is addressed in the Committee on Judiciary analysis.

Purpose. According to the author, “we have seen an influx of dangerous hazing practices within 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 states that, “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.”

Collegiate hazing. The 2008 report, “Hazing in View: College Students at Risk” provided the findings of their National Study of Student Hazing. The research was based on the analysis of 11,482 survey responses from undergraduate students enrolled at 53 colleges and universities and more than 300 interviews with students and campus personnel at 18 of those institutions. The report found that:

1. 55% of college students involved in clubs, teams, and organizations experience hazing.
2. Hazing occurs in, but extends beyond, varsity athletics and Greek-letter organizations and includes behaviors that are abusive, dangerous, and potentially illegal.
3. Alcohol consumption, humiliation, isolation, sleep- deprivation, and sexual acts are common hazing practices across all types of student groups.
4. There are public aspects to student hazing including: 25% of coaches or organization advisors that were aware of the group’s hazing behaviors; 25% of the behaviors occurred on-campus in a public space; in 25% of hazing experiences, alumni were present; and students talk with peers (48%) or family (26%) about their hazing experiences.
5. In more than half of the hazing incidents, a member of the offending group posts pictures on a public web space.
6. More students perceive positive rather than negative outcomes of hazing.
7. In 95% of the cases where students identified their experience as hazing, they did not report the events to campus officials.
8. Students recognize hazing as part of the campus culture; 69% of students who belonged to a student activity organization reported they were aware of hazing activities occurring in student organizations other than their own.

Arguments in support. The Consumer Attorneys of California wrote in support of AB 299 (Holden), noting that “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 in an effort 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 educational institution with knowledge of the hazing currently cannot be held accountable. AB 299 will mirror the current policy in ensuring that educational institutions that knew or should have known of the dangerous hazing practices are also held accountable. In order to be found liable the institution would either have to have had direct involvement in the dangerous hazing practices or the institution knew or should have known about the dangerous hazing practices.”

StopHazing also wrote in support of AB 299 (Holden), expressing that “policy is crucial to comprehensive hazing prevention and can lead to future prevention of dangerous hazing instances. Across the nation, hazing laws vary, are weak, or nonexistent. However, strengthening policy is one of the best ways to confront the issue of hazing. The provisions of AB 299 (Holden) would strengthen California’s commitment to keeping students safe at school and work to prevent senseless hazing tragedies.”

Arguments in opposition. A coalition of opposition representing Association of California School Administrators (ACSA), the Schools Excess Liability Fund (SELF), the California Association of Joint Powers Authorities (CAJPA), and Public Risk Innovation, Solutions, and Management (PRISM) wrote to express opposition, noting that “we believe the approach in AB 299 (Holden) does not appropriately consider the unique differences between K-12 local educational agencies and higher education institutions. It also does not consider existing standards of care that educators serving K-12 grades have for students, who are nearly all minors, in settings outside the school day or off campus. Finally, we believe further review of terms is warranted to avoid confusion on such an important issue.

“Under existing law, school districts and other [Local Educational Authorities (LEA)] have been respondents to hazing claims and held liable under the provisions generally known as “negligent supervision” pursuant to Education Code Sections 44807 – 44808, amongst others. While the term hazing is not expressly used, failure to hold pupils accountable for their actions, in addition to failing to exercise reasonable care for students, has been grounds for school districts assuming civil liability. AB 299 (Holden) is drafted without reference to these standards.

“The recent amendments to AB 299 (Holden) define the term ‘affiliated student organizations’ and we are continuing our review of this language to ensure school districts proactively protecting students from hazing and other harmful behaviors are not held liable for the actions of a group lacking a direct relationship to the LEA.”

The Association of California Community College Administrators (ACCCA) also wrote in opposition of AB 299 (Holden), noting that “ACCCA emphatically opposes hazing and strongly endorses the needed implementation of practices that prevent hazing and protect students from this horrendous act. However, as currently written, AB 299 (Holden) would open educational institutions to costly litigation by stating that the institution “should have known” of the dangerous hazing practices of an affiliated organization.”

“There are no educational institutions that want to see the horrific act of hazing take place on their campuses, but to require institutions to know about an event that has yet to take place is an impossible mandate to implement. 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 299 will result in significant costs for educational institutions to settle lawsuits, which are dollars that should be used on students and staff.”

Joint powers authorities. As noted by the opposition, potential liability created by this bill is being funded, in part, by Proposition 98 funding that would otherwise go directly to education. Many public entities including school districts use the joint powers authority mechanism to self-fund their liability and other risk related obligations in a non-profit, public entity risk pool. These public entity risk pools are not insurance companies with large capital reserves. Instead, risk pools are funded by their local government members.

The Committee may wish to consider the impact that the provisions of AB 299 (Holden) will have on future Proposition 98 responsibilities.

Committee staff notes that this bill, while referred to the Committee on Higher Education, is also applicable to schools traditionally in the purview of the Assembly Committee on Education.

Comments from the Education Committee. The Assembly Committee on Education provided comments on AB 299 (Holden), noting that “although hazing children and youth is clearly a serious issue, many other forms of behavior among peers contribute to negative outcomes and mental health issues. Other bills have proposed requiring schools to adopt policies relating to body shaming, teen dating violence, bleeding control, and many others.

The Committee may wish to consider whether the State can expect schools to respond to each of these with a specific policy. Schools are currently required to address school climate, school connectedness, and school safety within their Local Control and Accountability Plan (LCAP).”

Prior legislation. SB 1454 (Torlakson) Chapter 601, Statutes of 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.

AB 524 (Rodriguez) Chapter 268, Statutes of 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.

REGISTERED SUPPORT / OPPOSITION:

Support

Consumer Attorneys of California

Stophazing

Opposition

Association of California Community College Administrators

Association of California School Administrators

California Association of Joint Powers Authorities (CAJPA)

Public Risk Innovation, Solutions, and Management (PRISM)

Schools Excess Liability Fund (SELF)

Analysis Prepared by: Kevin J. Powers / HIGHER ED. / (916) 319-3960

Date of Hearing: March 14, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:AB 299

Author:(Holden) – As Introduced Ver:January 26, 2023

SUBJECT: Hazing: educational institutions: civil liability

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?

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. Although existing law applies to any educational institution, it primarily sought to address the humiliating and usually alcohol-saturated rituals imposed upon college 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 and give educational institutions an incentive to take affirmative steps to prevent hazing by making them liable for injuries caused by dangerous hazing activities that they “knew or should have known” about.

One could argue that existing negligence principles, at common law, already subject educational institutions to liability if they fail to take reasonable steps to prevent injuries to students. In the absence of a “special relationship,” however, 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. This bill, however, effectively imposes a duty on educational institutions to affirmatively address the dangerous hazing practices of an affiliated student organization, and authorizes a private right of action when the duty is breached. The author has engaged in discussions with educational associations about some of their concerns, but at this time, there is no registered opposition to the bill. Should this bill pass this Committee, it would be referred to the Higher Education Committee.

SUMMARY: Authorizes a civil action against an educational institution for an instance of hazing, as defined, if that educational institution knew or should have known of the dangerous hazing practices of an affiliated organization. Specifically, this bill:

1. Allows a person against whom hazing is directed to commence a civil action for injury or damages against an educational institution for the dangerous hazing practices of the organization if both of the following apply:
   1. The educational institution has direct involvement in, or knew or should have known of, the dangerous hazing practices of the organization.
   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 the above an educational institution that “should have known” of dangerous hazing practices of an affiliated organization includes an educational institution that fails to proactively prevent, discover, or stop the dangerous hazing practices of the organization.
3. Specifies that for purposes of determining whether an educational institution “fails to proactively prevent, discover, or stop the dangerous hazing practices of the organization,” consideration may be given to the extent to which 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 an anti-hazing investigation, enforcement, and reporting program, as prescribed.
   3. Implementation of an institution wide anti-hazing education and training program, as prescribed.
4. 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. 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.

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 non-fiscal.

COMMENTS: Despite reports of deaths and injuries caused by student hazing activities, the author of AB 299 contends, 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 that they “knew or should have known” about. Under the bill, an educational institution that “should have known” about hazing dangers includes an institution that “fails to proactively prevent, discover, or stop the dangerous hazing practices.” In other words, the bill seeks to prevent educational institutions from adopting a posture of willful ignorance in order to escape liability.

Existing law and an educational institution’s duty to its students. The private right of action created by the existing Penal Code provision restricts liability to “any person who participates in the hazing activity” as well as the “organization to which the student is seeking membership.” The organization, and its agents and officers, assume liability to the extent that they authorized, requested, commanded, or ratified the hazing. One cannot read the existing statute, in other words, to impose liability on the educational institution. In theory, common law tort principles – especially negligence – may 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 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.

California courts have found a “special relationship” between a university and its students, but 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 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.) The author sets 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 try to stop all hazing activity or that an educational institution will automatically be liable for any injury caused by the hazing activities. The bill expressly directs the court, in determining whether an institution failed to proactively respond to or investigate reports of hazing, to consider whether or not the institution had certain policies in place, including, among others, reporting and educational programs. The bill does not require institutions to end dangerous hazing or hold them accountable for every hazing injury that might occur; it only requires that they adopt policies reasonably calculated to address a widely acknowledged problem.

ARGUMENTS IN SUPPORT: StopHazing, an organization established in 1998 and dedicated to “comprehensive hazing prevention,” supports AB 299 because it will “promote a safe and inclusive school, campus, and organizational environment through research, resource sharing, and the development of data-driven strategies for hazing prevention and the promotion of positive group climates.”

The Consumer Attorneys of California (CAOC) believe that AB 299 sensibly reinforces recent efforts to address the serious problem of hazing by “holding the educational institutions who promote participation in and benefit from [fraternities and sororities] 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 in an effort to save students’ lives.”

Prior Related Legislation: SB 1454 (Torlakson) Chapter 601, Statutes of 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.

AB 524 (Rodriguez) Chapter 268, Statutes of 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.

REGISTERED SUPPORT / OPPOSITION:

Support

Consumer Attorneys of California

StopHazing

Opposition

None on file

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