If a recent appellate court ruling stands, attorneys for two former Southern University marching band members will be able to argue to a jury that rampant hazing was occurring in the band and that the school knew about it but failed to properly address the situation.
An attorney for Southern said Wednesday the school denies those allegations and is prepared to fight them at a trial if necessary.
A state 1st Circuit Court of Appeal decision Tuesday also would allow an East Baton Rouge Parish jury to hear evidence of off-campus hazing activities that sent Marcus Heath and Cameron Taylor to the hospital in late 2008.
Southern attorney Winston DeCuir Sr. said the university will decide soon whether to ask the Louisiana Supreme Court to review the appeals court ruling that reversed state District Judge Tim Kelley’s April decision primarily in favor of Southern.
“Otherwise we’ll be ready for trial” on Oct. 19, DeCuir said.
Corey Hebert, an attorney for Heath and Taylor, said Wednesday the hazing allegations deserve to be heard by a jury.
“We at least get to take it to a jury,” he said. “This is something that needs to go to a jury.”
Kelley ruled last month that Southern is not “vicariously liable” for former student band leader Jeremy Dixon’s off-campus hazing activities that injured Heath and Taylor in November 2008.
Dixon, of Natchez, Mississippi, and six other former Southern marching band members pleaded no contest in 2009 to charges of criminal conspiracy to commit second-degree battery and misdemeanor hazing. They were put on probation and ordered to perform community service.
Kelley also found that Southern has “discretionary-function immunity” for any actions or inactions with respect to addressing hazing within the marching band.
The 1st Circuit reversed Kelley on both points, saying Southern “failed to meet its burden of demonstrating entitlement to summary judgment.” Summary judgment is a procedural device that allows the speedy disposition of a controversy without the need for a trial.
“We were very surprised,” DeCuir said. “We thought Judge Kelley was correct. We still think Judge Kelley was correct.”
Vicarious liability refers to the liability that a supervisory party, such as an employer, bears for the conduct of a subordinate or associate, such as an employee, because of the relationship between the two parties.
Heath and Taylor’s attorneys contend Dixon was an employee of Southern by virtue of his status as a student section leader in the band. Lawyers for Southern disagree with that position.
Discretionary immunity can be granted for the acts of public officials when the act in question required the exercise of judgment in carrying out official duties, such as planning or policymaking.
DeCuir said Southern has an anti-hazing policy, students are required to sign a no-hazing contract and anti-hazing workshops are held on the campus.
Hebert contends Southern consistently failed to take any action to discipline members of its band following confirmed hazing events.
Circuit Judges Mitch Theriot, Wayne Ray Chutz, John Pettigrew and William Crain voted to reverse Kelley. Circuit Judge Ernest Drake dissented, indicating he would decline to exercise the appellate court’s supervisory jurisdiction at this stage of the proceedings.
Heath and Taylor sued Southern and Dixon after the November 2008 off-campus hazing incident, which they said involved band members being struck by 2-by-4-inch boards as part of an unsanctioned initiation into the band’s unofficial French horn fraternity, Mellow Phi Fellow.
DeCuir said the university admits the incident occurred. Hebert claims the incident was the culmination of a long pattern of hazing, some of which took place on band trips.
Follow Joe Gyan Jr. on Twitter, @JoeGyanJr