Wednesday, May 19, 2010
April 16 report: Va. Tech did not issue adequate warning
A U.S. Department of Education draft report says the university violated federal law. Virginia Tech officials disputed the report's findings and argued that federal guidelines for issuing warnings were vague at the time of the shootings.
BLACKSBURG -- Virginia Tech officials are disputing a U.S. Department of Education draft report that alleges the university violated the federal Clery Act in waiting two hours to notify the campus after two shootings in West Ambler Johnston Hall on April 16, 2007.
The university released its official 72-page response, as well as the 11-page DOE draft report Tuesday afternoon on the university's Web site.
Both the university and the DOE declined in February to release the draft report. At the time, the DOE cited a federal Freedom of Information Act provision that exempts draft reports from disclosure. Tech legal counsel deemed the draft report an executive "working paper," which under state sunshine laws may be withheld.
- Read Virginia Tech's 72-page response and the original Department of Education draft report (PDF, 7.34 MB)
However, when the university submitted its written response to the DOE in April, Tech spokesman Larry Hincker said the working paper exemption no longer applied to either document.
The draft report accused Tech officials of two violations of the federal Clery Act for failing "to issue adequate warnings in a timely manner in response to the tragic events of April 16, 2007." Furthermore, when the warnings were issued, they "were not prepared or disseminated in a manner to give clear and timely notice of the threat to the health and safety of campus community members."
Additionally, Tech "did not follow its own policy for the issuance of timely warnings as published in its annual campus security reports," the DOE report stated.
Tech "professionals acted appropriately in their response to the tragic events of April 16, 2007, based on the best information then available to them, and we respectfully disagree with the preliminary conclusions of the Department of Education's Program Review Report," university Director of Emergency Management Mike Mulhare wrote in a statement.
Mulhare, who was hired in 2008, compiled the university's response.
Federal reporting standards
What is the Clery Act?
- The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act was signed in 1990 after the rape and murder of Lehigh University freshman Jeanne Clery in her dorm room in 1986. Her parents advocated for the law after discovering the university failed to disclose 38 violent crimes that occurred on campus in the three years before their daughter’s death.
- The act was amended in 1992, 1998, 2000 and 2008. A federal handbook that guides university compliance has not been updated since 2005.
- Between 1994 and 2009, the U.S. Department of Education conducted 54 major Clery Act compliance reviews.
- Violations can result in fines of up to $27,500 per incident. The highest fine imposed by the department — $357,500 — was levied in 2007 against Eastern Michigan University for systematic underreporting of violent crimes.
Sources: Security On Campus, Inc.; U.S. Department of Education
Schools that participate in federal student aid programs are subject to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, which spells out notification requirements for criminal incidents and other rules. It is enforced by the DOE and violations can result in fines of up to $27,500 per incident, said Daniel Carter, public policy director for Security On Campus Inc.
The nonprofit advocacy group was founded by the parents of Jeanne Clery, and filed the initial DOE complaint against Tech in August 2007. Carter said Tech could face fines of up to $55,000 if the findings of the draft report are upheld.
The draft report is not a final finding of violations. The education department will issue a final determination letter after review of Tech's response, department spokeswoman Jane Glickman wrote in an e-mail. She did not give a timeline for that release. If fines are eventually assessed, Tech may appeal the amount, she said.
In routine cases, it can take six to 18 months for the department to issue a final determination letter, Carter said. Because the Tech shootings were unprecedented in U.S. history, this case could take longer to resolve.
Some families of the dead and injured, as well as a special state investigative panel, have criticized Tech officials for waiting to notify the campus community of the first two shootings.
More than two hours after the 7:15 a.m. shootings of two people in West Ambler Johnston on April 16, 2007, troubled Tech student Seung-Hui Cho chained shut the doors of Norris Hall and opened fire again, ultimately killing 32 students and faculty and injuring dozens more.
Two $10 million wrongful death suits filed against Tech by the families of slain students Julia Pryde and Erin Peterson hinge on whether top university officials had a duty to warn the women of the first shootings, and if waiting two hours to do so constitutes "gross negligence" under the law.
It's unclear if the release of the draft report or Tech's response to it will affect those cases. Plaintiffs attorney Bob Hall could not immediately be reached for comment Tuesday.
Tracey Lane of Giles County said that the draft report validated her belief that Tech could have done more the morning her son, Jarrett Lee Lane, was shot to death in Norris Hall.
"I know it was a very frantic morning for the officials at Tech, and for everyone," Lane said. "But I still think that things might have been different if warnings had gone out earlier."
But Tech officials on Tuesday disputed the report's findings and argued that they are based on flawed sources, including an unofficial, student-run archive of April 16-related documents and an early version of a state investigative panel report that was revised and corrected twice by order of Gov. Tim Kaine.
Tech argued that in 2007, federal guidelines for issuing timely warnings were vague and that accepted practice among universities subject to the Clery Act was to issue them up to 48 hours after a criminal incident. Tech further argued that the university was given little input into the DOE's initial investigation.
As part of its response, Tech also submitted a consultant's report compiled by Dolores Stafford of the Delaware-based D. Stafford & Associates. That report found that "the fact that the administration distributed a timely warning notice in less than two hours would have been sufficient and consistent with what most campuses were doing at that time."
"Tech ... cannot be held accountable for meeting standards that didn't exist prior to the tragic events that occurred on that day," Stafford wrote.
Stafford, whom Tech paid $9,000 for her services, is a former George Washington University police chief and an acknowledged expert on the Clery Act.
While Security On Campus officials said they respect Stafford's expertise, they disagree with her in this case. As of 2005, DOE standards required that "as soon as pertinent information becomes available, the warning should be issued," Carter said.
Although it may be reasonable to wait a day to determine if a string of burglaries poses a threat to the campus community, "situationally, when you have an active shooter who's shot two students, you need to issue it immediately," he said.
Tech is the first university in the country to face scrutiny over its compliance with the timely warning rules, Carter said. "This case is about the integrity of making sure students and employees are informed of threats to their safety."
Staff writer Laurence Hammack contributed to this report.