Judge rules Virginia Tech did not violate Clery Act, waives fines

Expert says decision also sets precedent for how DOE determines Clery Act violation
 - 
Wednesday, April 4, 2012

WASHINGTON—In a decision that experts say could have far-reaching implications on campus security nationwide, an administrative law judge at the Department of Education has ruled that Virginia Tech was not in violation of the Clery Act for not sending a timely warning to the campus community in the early hours of the 2007 shooting that left 32 dead. The judge also dismissed a $55,000 civil penalty the DOE levied on Virginia Tech for the alleged violations.

Following the Virginia Tech massacre of April 16, 2007, the DOE fined the school for two violations of the Clery Act: That it failed to issue a timely warning when two students were shot in their dorm two-and-a-half hours before the subsequent massacre that claimed an additional 30 lives, and that the school failed to follow the timely warning policy contained in its Annual Security Report. The education department fined Virginia Tech $27,500 for each violation.

Administrative Judge Ernest Canellos found the school in compliance with the Clery Act on the first point, and admitted a "technical" violation existed in the second point, but declined to levy a fine for it. The judge's decision is appealable to the Secretary of Education.

A brief recap of the chronology of the tragic events that day is necessary to understand the issues at play. At 7:24 a.m. on April 16, 2007, a Virginia Tech Police Department officer responded to a dorm and discovered two students had been shot by an at-large gunman. Two hours later, at 9:26 a.m., the school sent an email to the campus community that said, in part, that campus police were investigating "a shooting incident" that had occurred at a dorm, and urged the campus community "to be cautious and asked to contact Virginia Tech Police if you observe anything suspicious or with information on the case." At 9:40 a.m., the at-large gunman was chaining the doors at Norris Hall and over the next 10 minutes killed an additional 30 victims before committing suicide.

Given that the email was not sent until two hours after the initial incident, the DOE ruled that Virginia Tech had failed to issue a timely warning. However, Canellos disagreed, determining that the email was sent in a timely manner given the circumstances at the time—campus police thought it was an isolated incident of domestic violence. "This was not an unreasonable amount of time in which to issue a warning," Canellos wrote in his decision. "Yes, the warning could have gone out sooner, and in hindsight, it is beyond regretful that it did not. However, if the later shootings at Norris Hall had not occurred, it is doubtful that the timing of the email would have been perceived as too late."

As for the second Clery Act violation of Virginia Tech not following its stated timely response policy, Canellos admitted there was a "technical" violation, but threw out the fine. "Having found that Virginia Tech did issue a timely warning, it would not be in keeping with the purpose of a fine action to penalize the institution for a technical deviation from its stated policy when there was no ill intent on the part of Virginia Tech."

Is it accurate to say Canellos has ruled that Virginia Tech was not in violation of the Clery Act? S. Daniel Carter, the campus security expert who filed the initial DOE complaint against Virginia Tech as an employee with Security on Campus, argues that Canellos' jurisdiction was only over the appropriate levying of fines and that determination of Clery Act violation "is outside his jurisdiction."

However, Canellos suggests in his decision that he does have jurisdiction to rule on the violation itself, saying "clearly my only jurisdiction is to determine if [the DOE] has met its burden of proof and persuasion that Virginia Tech violated the Clery Act's timely warning provisions as alleged by [the DOE], and if so, what fines I should impose." A call to the DOE's Officer of Hearings and Appeals was not returned on Monday afternoon.

Virginia Attorney General Ken Cuccinelli, whose office argued the appeal for the school, said in a statement that he was pleased with Canellos' decision. “We have maintained from the beginning that Virginia Tech’s notification to the campus community met all of requirements of the Clery Act, and we are glad the judge agreed," Cuccinelli said. "For us, this appeal was not about the fines as much as it was about the arbitrary way the U.S. Department of Education tried to apply the law against a school that responded reasonably while an unforeseen and unprecedented crime was occurring on campus.”

The decision could also contain a precedent-setting opinion that the DOE could use in future Clery Act violation decisions, Carter told Security Director News, sister publication of Security Systems News. As previously stated, campus police had determined that morning that given the circumstances of the initial dorm-room shooting it was likely an isolated incident of domestic violence. As a result, even though Virginia Tech sent out the 9:26 a.m. email, it argued that no timely warning was required because the shootings did not represent "an ongoing threat," Canellos wrote.

While Canellos ruled that the 9:26 a.m. email was a timely response given the circumstances, he disagreed with the school that the event did not represent an ongoing threat. "I find that it was not reasonable for Virginia Tech to conclude that the shootings at WAJ [West Ambler Johnston residence hall] did not represent a threat to the campus community," Canellos wrote.

This is significant, Carter said, because in making this finding Canellos is saying that the Department of Education "can apply a reasonableness standard to determine whether institutions should have issued timely warnings or not. Because previously my understanding had been that if an institution said we determined there was no threat, that was the end of it. ... It was my belief that the education department had the authority to investigate the veracity of that statement—in order words were they acting as if there was a threat but merely 'said' there wasn’t one. If so, then they could issue a finding of violation. The new standard means that they aren’t simply evaluating whether or not the statement is the truth, but is the position a reasonable one, which is a very different standard."

"The precedent-making nature of this case cannot be underestimated," Carter continued. "This is not just going to affect Virginia Tech, this is going to affect the entire campus public safety community."

The DOE has 30 days to appeal the decision to the Secretary of Education, who would have a final say on the fines. A call to the department's press office was not returned by press time, though a spokesperson told the Associated Press that the department was weighing its options.

The VTV Family Outreach Foundation, created by survivors and families of those killed during the 2007 Virginia Tech shooting, issued a news release calling on the Department of Education to appeal the decision. "It is important that institutions be held accountable for following the standards for campus safety established in federal law," said the foundation's release. "Upholding this civil penalty will remind governing boards and executive staffs of all institutions of their responsibility for the protection, safety and security of students, faculty and staff."

Given that this case has gone far beyond being about just a $55,000 fine, and questions the DOE's authority in enforcing the Clery Act, Carter said his "educated guess" is that the department will appeal the judge's decision to the Secretary of Education, who has final authority in the case. "The takeaway is this is unlikely to be the final word, and we're still likely several years away from having a final word on the matter," Carter said.

In another seemingly contradictory ruling, a jury on March 14 found the school negligent for waiting to warn students about the early-morning shootings in a wrongful death civil lawsuit brought against the school by the families of two of the murder victims, according to the AP. The jury awarded $4 million to each of the families, but the state of Virginia immediately appealed, claiming under state law the award should be capped at $100,000, the AP reported.