As Virginia Tech prepares to appeal a recent ruling by the U.S. Department of Education that its actions in the immediate aftermath of the April 16th shootings violated the the Clery Act, the university has found a new ally: Virginia Attorney General Ken Cuccinelli.
On a conference call from Richmond yesterday, Cuccinelli blasted the DOE’s “shoddy” investigation of Virginia Tech’s alleged Clery Act violations and explained that the appeal is designed “… to compel the DOE to treat Virginia Tech fairly and to apply a very poorly defined and subjectively applied federal law consistently and correctly.”
Late last month, Virginia Tech President Charles Steger received an eight-page letter from the U.S. Department of Education informing him that the DOE had completed a two-year long investigation of Virginia Tech’s response to the April 16th shooting and found that it had violated two sections of the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990, or Clery Act, that requires institutions receiving federal student aid to provide students, faculty and staff with “timely warning” of certain crimes committed on university property.
The first two murders committed that morning occurred in West Ambler-Johnson Hall, a residence hall, at 7:15 a.m. campus police officers arrived on the scene nine minutes later. The campus community was notified via email at 9:26 a.m. The second, and most deadly wave of shootings commenced at approximately 9:40 a.m. Since the email was sent after 9 a.m. classes were underway, the DOE concluded that, based on information in the final report of the Governor’s Review Panel, professors and students who were in classes that started at 9 a.m. would not have had an opportunity to be warned about the 7:15 a.m. shootings and the at-large status of the gunman.
Attorney General Cuccinelli argues that the DOE’s “Monday-morning quarterbacking” is pointless:
No one denies that it is possible in hindsight to imagine scenarios where things might have transpired differently on April 16th. But that is not the point—and it is not the way people react to events in the real world.
In the real world, events unfold quickly, and the full context often becomes clear only later. That is what happened on April 16th:
- What first appeared to be an isolated, domestic-related shooting on one part of campus later proved to be connected to a subsequent mass killing on another part of campus; and
- What first appeared to be the act of an intruder who fled the campus later proved to be the act of a campus insider with access — a deeply disturbed student who was determined to kill as many of his fellow students as possible.
Based on what they knew at the time, law enforcement officers and the Virginia Tech administration acted appropriately. They did the best they could under the circumstances as they understood them. And that is the only fair standard by which their actions can be assessed.
Indeed, federal law has since been amended and practices on college campuses all across the country have changed since April 16th, 2007, because of what everyone learned on that awful day.
While the Clery Act does require colleges and universities to provide “timely warning,” it does not define what is timely. In fact, according to the most recent edition (at the time of the shooting) of this handbook on the Clery Act prepared by the DOE, examples of timely warnings can come as long as 24 – 48 hours after a crime has been committed. By comparison, Virginia Tech’s two-hour response time appears admirable.
Cuccinelli goes on to outline three additional problems with the DOE’s case against Virginia Tech:
First, there is the matter of timing. It is four years after the crime in question. A civil trial against the school and some of its officers is now only a few months away. And the U.S. Department of Education has chosen this strange time to issue its fine and publicly hype its action. This is an extraordinarily odd coincidence.
Second, there is the lack of thoroughness. It is not just that federal bureaucrats are engaging in Monday-morning quarterbacking—it is that they have had four years’ worth of Monday mornings. Yet, in all that time, they have not once gotten into the car and driven down to Blacksburg to talk to the police chief or the university president or to anyone else who had to deal with these events in real-time. Their investigation—if you can call it that—appears deeply flawed, and their indifference to the facts on the ground is shocking.
Third, there is the issue of transparency. Virginia Tech has repeatedly requested access to the DOE case file so that it can respond to the factual premise and allegations on which the agency bases its findings. Basic due process requires that access. Yet, all those requests for access have been denied or ignored. Multiple FOIA requests have been filed. Responses were promised. The department’s legal obligation is clear. Yet not one single document has been provided. And this stonewalling has gone on for more than a year.
The attorney general also went to great lengths to dispel the rumor that Virginia Tech’s appeal is driven by its desire not to pay the $55,000 fine that accompanies these violations–a sum that, according to the DOE’s Mary Gust, should be higher: “Virginia Tech’s violations warrant a fine far in excess of what is currently permissible under the statute.”
I am telling you this to let you know that the claims of putting image and money ahead of safety are baseless, but also in the hope that these admissions by these lawyers will cause every journalist to inquire very carefully before repeating their reckless claims in the future. The good name of Virginia Tech and the memory of the victims of that dark April day require no less.
Indeed.
Attorney General Cuccinelli’s full statement is well-worth a read, as is the DOE’s initial letter.
