Virginia Tech April 16th Clery Act fines reinstated by Secretary of Education - The Daily Progress: News

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Virginia Tech April 16th Clery Act fines reinstated by Secretary of Education

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Posted: Friday, August 31, 2012 3:08 pm | Updated: 3:33 pm, Tue Jan 22, 2013.

The U.S. Secretary of Education has reinstated fines against Virginia Tech, over university leaders' actions during the April 16th tragedy.

Secretary Duncan believes Tech leaders did not send out a warning to the campus community in a timely manner, following the murders at West Ambler-Johnston Hall on the morning of April 16, 2007.  That took place before the Norris Hall tragedy.

"Postsecondary institutions should not have multiple timely warning policies -- only some of which are disclosed to the campus community -- that are inconsistent with each other," Secretary Duncan wrote, referring to Virginia Tech's separation of its policy planning group and the Tech Police Department.

Virginia Tech's associated vice-president for university relations, Larry Hincker, sent out this statement late Friday afternoon:

The U.S Secretary of Education has overturned the reasoned judgment of its administrative law judge and reinstated the department’s findings against Virginia Tech.  It determined that the university violated provisions of the Clery Act requiring timely notification to the university community after a crime.

Once again, the higher education community has been put on notice that timeliness is situational and will be determined by Department officials after the fact.  The federal government has never defined a timely warning and continues to hold universities accountable even when a university’s actions are well within the department’s own guidelines.

Earlier this year, Administrative Judge Ernest Canellos determined that university actions on the morning of April 16, 2007, after the shootings in Ambler Johnston dormitory, satisfied the requirements of the “timely warning” provision of the Clery Act.  “This was not an unreasonable amount of time in which to issue a warning,  ….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.” said Canellos.

On the second count, FSA had originally found Virginia Tech found in violation of federal law because an office other than the one identified in its Clery policy statement sent the notice to the university community. Our published policy identified one office, the university police department, with responsibility for sending a timely warning.  When another office sent the notice on April 16, this created a violation of federal law according to the FSA. Such reasoning underscores the DOE’s unreasonable priority of process over substance.  

In his earlier assessment of this devotion to bureaucratic process, Judge Canellos determined that the university did not violate federal law because the email notice was sent by the university communications office and not the university police department.  “As the VTPD were busy investigating a crime, it would be an illogical interpretation of the institution’s policies to require the VTPD to physically compose a message rather than provide substantial input on which the message is based.  I agree,” Canellos concluded.

In the current opinion, the Department Secretary appears neither to agree with Canellos nor override the Department’s assertion.  Instead, he directs the Department to fine the university for “for having inconsistent policies and failing to disclose one of them.”    However, we find this assertion off the mark. All university policies are public and are promulgated in like manner.

The final decision to appeal rests with the agency head, President Charles Steger, and Virginia Attorney General Kenneth Cuccinelli.   No decision has been made at this time, but an appeal to federal court is a strong possibility.  President Steger plans to recommend an appeal.

---

LARRY O'DELL

Associated Press

    

RICHMOND, Va. (AP) - U.S. Education Secretary Arne Duncan reinstated half of a fine levied against Virginia Tech, ruling that university officials failed to issue a timely warning on the day of the deadly campus shooting in April 2007.

    

The Education Department had asked Duncan to reinstate a $55,000 fine that an administrative law judge dismissed in April. The judge had determined that university officials' actions didn't violate the federal Clery Act, which requires schools to issue timely warnings of campus threats.

    

In a ruling Thursday, Duncan wrote that Tech should pay $27,500 for waiting more than two hours to inform the Blacksburg campus of a fatal shooting of two students in a residence hall. By the time the warning was sent, student gunman Seung-Hui Cho was chaining the doors of a building where he killed 30 additional people before committing suicide.

    

Duncan said it was alarming that Tech "argues that it had no duty to warn the campus community after the Police Department discovered the bodies of the two students shot in a dormitory, and did not know the identity or location of the shooter."

    

"Indeed, if there were ever a time when a warning was required under the Clery Act, this would be it."

    

Virginia Tech President Charles Steger will recommend appealing Duncan's ruling in federal court, the university said in a statement. That decision will be made in consultation with the Virginia attorney general's office, which represented the university in the case.

    

"Once again, the higher education community has been put on notice that timeliness is situational and will be determined by Department officials after the fact," Tech spokesman Larry Hincker said in the statement. "The federal government has never defined a timely warning and continues to hold universities accountable even when a university's actions are well within the department's own guidelines."

    

Duncan also ruled that the university should be fined for having inconsistent policies on warnings and for failing to disclose one of them, but he remanded that issue to the administrative law judge to calculate the amount of the penalty.

    

The university's policy in its 2007 Clery Act security report said campus police would issue warnings, but a separate internal policy that Duncan said was not disclosed to students and employees assigned that duty to the university relations department. A "policy group" of university officials authorized the warning, which the university relations department sent at 9:26 a.m. on April 16, 2007.

    

"Postsecondary institutions should not have multiple timely warning policies - only some of which are disclosed to the campus community - that are inconsistent with each other," Duncan wrote.

    

Hincker said Duncan's reasoning "underscores the DOE's unreasonable priority of process over substance," noting that the administrative law judge found that it would be illogical to require police to take time out from investigating a crime to compose the message to be distributed to campus rather than just provide information on which the message is based.

    

He also disputed Duncan's finding that the internal policy was not disclosed.

    

"All university policies are public and are promulgated in like manner," Hincker wrote.

    

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