The Advocate | By Joe Gyan Jr. | November 28, 2019

A lawsuit that Max Gruver’s parents filed last year against the LSU Board of Supervisors, Phi Delta Theta and current and former members of the fraternity has detoured into a fight over whether the university can be sued as a result of his 2017 alcohol-related hazing death.

LSU argues the university should be dismissed from the wrongful death suit because the U.S. Constitution bars private suits against a state in federal court. The school argues that, as an arm of the state, it is shielded by 11th Amendment sovereign immunity.

In opposing the request, attorneys for Stephen and Rae Ann Gruver cite a 2000 ruling by the 5th U.S. Circuit Court of Appeals that found LSU was not shielded by sovereign immunity for Title IX claims.

Title IX is a federal law that prohibits intentional sex discrimination by educational institutions that receive federal funds.

Lawyers for the Gruvers argue LSU has validly waived immunity because Congress conditioned the university’s receipt of Title IX funds on waiver of its 11th Amendment immunity.

The Gruvers’ suit alleges that LSU engaged in a practice of discrimination by policing sorority hazing more strictly than fraternity hazing. The Gruvers argue that because that practice is grounded in outdated stereotypes of men, it is intentional discrimination that forces males to seek benefits of Greek Life with greater risk of injury.

“This is the adverse, discriminatory treatment that left Max immediately and continuously at risk of severe injury and death the moment he began pledging Phi Delt,” the Gruver family attorneys argue in federal court documents. Those lawyers are Douglas Fierberg and Jonathon Fazzola of The Fierberg National Law Group in Traverse City, Michigan, and former U.S. Attorney Donald Cazayoux Jr. and Lane Ewing Jr. of Cazayoux Ewing Law Firm in Baton Rouge.

LSU’s attorneys — David Bienvenu Jr., Lexi Holinga, Anthony Lascaro and Patrick Hunt with Bienvenu, Bonnecaze, Foco, Viator & Holinga — describe the Gruver family claim as “novel” in court documents and argue the claim fails because the Gruvers “do not allege that LSU took any particular adverse action against Mr. Gruver.”

“Simply put: Title IX prohibits sexual harassment. It does not prohibit ‘hazing’ that does not constitute sexual harassment,” the lawyers representing the university add.

This past summer, a federal judge in Baton Rouge sided with the Gruvers on the immunity issue.

“In keeping with Fifth Circuit precedent, the Court finds that LSU is not shielded from suit under Title IX by Eleventh Amendment sovereign immunity,” Chief U.S. District Judge Shelly Dick wrote in July.

Her ruling is now on appeal before the New Orleans-based 5th U.S. Circuit.

Dick noted that the Gruvers’ lawsuit “is replete with allegations that LSU had knowledge of the hazing problem within Greek fraternities and was deliberately indifferent to the risk this posed to male Greek students by a policy of general inaction to fraternity violations as opposed to strong corrective action taken in response to sorority violations.”

“The Court finds that … if these facts are proven, a jury may infer that LSU’s policy created the heightened risk to Greek male students of serious injury or death by hazing, thereby inflicting the injury alleged herein,” she wrote.

LSU, through spokesman Ernie Ballard, declined comment on the current posture of the lawsuit.

In a written statement, Stephen and Rae Ann Gruver said they “beat LSU in the first round and won’t be deterred” by the school’s appeal. The Gruvers said it is imperative to reform universities by compelling them to address dangerous hazing on campus.

“Currently, universities recognize, promote and supply fraternities with significant resources and staff to recruit students and generate wealth. Yet, when tragedies arise, as they have for decades, universities act as though they have no direct control over or relationship with fraternities,” they wrote.

The Gruvers said universities in fact have the authority to insist that the student organizations reform for the safety of students.

“Winning our Title IX claim against LSU will ensure that universities use that power to end hazing and save lives,” they added.

Max Gruver, 18, of Roswell, Georgia, had been at LSU just a month when he died of alcohol poisoning and aspiration in what authorities have described as a hazing ritual — dubbed “Bible study” — at the Phi Delta Theta fraternity house. Gruver and other Phi Delta Theta pledges were told to chug 190-proof liquor the night of Sept. 13, 2017, if they gave wrong answers to questions about the fraternity or could not recite the Greek alphabet.

Gruver died the next morning. His blood-alcohol level was 0.495%, which is more than six times the legal limit to drive in Louisiana. An autopsy also detected THC, the chemical found in marijuana, in Gruver’s system.

Phi Delta Theta has been banned from LSU’s campus until at least 2033 as a result of the probe into the events leading to Gruver’s death.

The Gruver family lawsuit, which seeks $25 million in damages, claims LSU and Phi Delta Theta knew for years that pledges were being abused and that Max’s death could have been avoided if the institution had taken steps against “masculine rites of passage.”

His death resulted in the arrest of 10 current or former LSU students. An East Baton Rouge Parish grand jury indicted four of them: Matthew Naquin for negligent homicide, and Sean-Paul Gott, Ryan Isto and Patrick Forde for misdemeanor hazing.

Naquin, 21, of Fair Oaks Ranch, Texas, was convicted in July of negligent homicide and recently sentenced to 5 years in prison, with 2½ years of the time suspended. He also was put on probation for 3 years, fined $1,000 and ordered to perform 1,000 hours of community service.

Several witnesses testified at Naquin’s trial that he disliked Gruver, wanted him cut from the fraternity and played a central role in the ill-fated hazing.

Because negligent homicide is not considered a crime of violence in Louisiana, Naquin will be eligible to seek parole after serving 25% — or 7½ months — of his 30-month prison term. But he could end up serving even less time than that.

East Baton Rouge Parish District Attorney Hillar Moore III said offenders can earn up to 360 days of good time for completing certain programs and classes while behind bars.

Naquin, however, is free on bail while he appeals his conviction. The district attorney said it could be up to a year and a half before Naquin would have to begin serving any prison time.

Naquin also is charged with obstruction of justice for allegedly deleting hundreds of files from his phone during the criminal investigation and after a search warrant had been issued for the phone. His next court date on that charge is Feb. 11.

Gott, 22, of Lafayette, and Isto, 20, of Butte, Montana, pleaded no contest to hazing last year and were sentenced in July to 30 days in jail, the maximum allowed under Louisiana law at the time of Gruver’s death. Isto, who was Naquin’s roommate at LSU, and Gott testified for the prosecution at Naquin’s trial.

Forde, 22, of Westwood, Massachusetts, also testified. Prosecutors have not decided whether to prosecute him. His next court date is Dec. 5.

Naquin, Gott, Isto, Forde and other current and former Phi Delta Theta members were named as defendants in the Gruver lawsuit, but court records show Naquin was dismissed from the case in August after a settlement was reached. The terms were not disclosed.