As you should by now be able to see very clearly, the interests of the national organization and the individual members cleave sharply as this crisis-management plan is followed. Those questionnaires and honest accounts-submitted gratefully to the grown-ups who have arrived, the brothers believe, to help them-may return to haunt many of the brothers, providing possible cause for separating them from the fraternity, dropping them from the fraternity’s insurance, laying the blame on them as individuals and not on the fraternity as the sponsoring organization. Indeed, the young men who typically rush so gratefully into the open arms of the representatives from their beloved national-an outfit to which they have pledged eternal allegiance-would be far better served by not talking to them at all, by walking away from the chapter house as quickly as possible and calling a lawyer.
So here is the essential question: In the matter of these disasters, are fraternities acting in an ethical manner, requiring good behavior from their members and punishing them soundly for bad or even horrific decisions? Or are they keeping a cool distance from the mayhem, knowing full well that misbehavior occurs with regularity (“most events take place at night”) and doing nothing about it until the inevitable tragedy occurs, at which point they cajole members into incriminating themselves via a crisis-management plan presented as being in their favor?
The opposing positions on this matter are held most forcefully and expressed most articulately by two men: Douglas Fierberg, the best plaintiff’s attorney in the country when it comes to fraternity-related litigation, and Peter Smithhisler, the CEO of the North-American Interfraternity Conference, a trade organization representing 75 fraternities, among them all 32 members of the Fraternal Information and Programming Group. In a parallel universe, the two men would be not adversaries but powerful allies, for they have much in common: both are robust midwesterners in the flush of vital middle age and at the zenith of their professional powers; both possess more dark knowledge of college-student life and collegiate binge drinking than many, if not most, of the experts hired to study and quantify the phenomenon; both have built careers devoted to the lives and betterment of young people. I have had long and wide-ranging conversations with both men, in which each put forth his perspective on the situation.
Sure, he has built a lucrative practice
Fierberg is a man of obvious and deep intelligence, comfortable-in the way of alpha-male litigators-with sharply correcting a fuzzy thought; with using obscenities; with speaking derisively, even contemptuously, of opponents. He is also the man I would run to as though my hair were on fire if I ever found myself in a legal battle with a fraternity, and so should you. In a year of reporting this story, I have not spoken with anyone outside of the fraternity system who possesses a deeper understanding of its inner workings; its closely guarded procedures and money trails; and the legal theories it has developed over the past three decades to protect itself, often very successfully, from lawsuits. Fierberg speaks frequently and openly with the press, and because of this-and because of the reticence of senior members of the fraternity system to speak at length with meddlesome journalists-the media often reflect his attitude.
One man is an avenger, a gun for hire, a person constitutionally ill-prepared to lose a fight; the other is a conciliator, a patient explainer, a man ever willing to lift the flap of his giant tent and welcome you inside
For all these reasons, Fierberg is generally loathed by people at the top of the fraternity world, who see him as a money-hungry lawyer who has chosen to chase their particular ambulance, and whose professed zeal for reforming the industry is a sham: what he wants is his share of huge damages, not systemic changes that would cut off the money flow. But in my experience of him, this is simply not the case. But he is clearly passionate about his cause and the plight of the kids-some of them horribly injured, others dead-who comprise his caseload, along with their shattered parents.