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Excerpted From: Gregory S. Parks, The Failure of Zero-tolerance Policies in Addressing Hazing, 126 Penn State Law Review Penn Statim 1 (2021) (61 Footnotes) (Full Document)


GregorySParksHazing has been a persistent issue over generations and across organization-types. For many, the default solution has been zero- tolerance policies. Zero-tolerance is generally intended to express the unacceptance of targeted behaviors that, if committed, will be severely punished, no matter how major or minor. Zero-tolerance was originally developed as a United States Customs Service Policy in 1986. Attorney Peter Nunez first issued zero-tolerance policies for federal and state agencies to seize boats and vehicles transporting illegal drugs. By 1988, zero-tolerance policies were applied to a broad range of issues and conduct. The problem with zero-tolerance as an approach to address issues like hazing, which have civil and criminal legal implications, is that it reflects a fundamental misunderstanding as to the limits of sanctions in deterring behavior. In this Article, Part I explores the persistence of zero-tolerance policies as a remedial measure for hazing. Part II addresses why zero-tolerance fails as a remedy to hazing. Part III suggests how institutions and organizations could shift to a more effective approach.

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In practical terms, legislators must consider that although there may be a trend toward adding more teeth--i.e., felony provisions--to anti-hazing statutes, harsh sanctions likely mean little in the way of deterrence. If the goal of these statutes is to deter rather than punish, legislators should focus attention on ways to nudge individual, institutional, and organizational actors towards casting more light on hazing within their purview. Institutions and organizations, if serious about preventing hazing, should focus attention on ways to more effectively unearth hazing. One proven method is auditing their high-risk student organizations or chapters. The audit should not be labelled as such, and it should not be narrowly focused on unearthing hazing. Rather, to maintain trust and to help such institutional and organizational sub-units become more broadly effective, “audits” should focus on a range of issues. As such, they should be holistic and affirmative rather than narrow and punitive. In closing, the role of potential sanctions should be seen as one small part, rather than the presumed response, of a broad array of tactics to address hazing.

Associate Dean of Strategic Initiatives and Professor of Law, Wake Forest University School of Law.

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