By Kimberly Hefling
WASHINGTON — Virginia Tech says it acted appropriately in alerting the campus that bloody spring day in 2007 during what turned out to be the deadliest mass shooting in modern U.S. history.
The government disagrees and has levied $55,000 in fines, contending the school was too slow in notifying students, faculty and staff and therefore in violation of a federal law requiring timely warnings when there are safety threats.
The university gets a chance Wednesday to begin making its case before an Education Department administrative judge, Ernest C. Canellos, in hopes of erasing a fine that isn't hefty but can leave a black mark on an institution's record.
The fines were levied under a law known as the Clery Act, which requires colleges and universities to provide warnings in a timely manner and to report the number of crimes on campus. During the Obama administration, there's been a ramping up in enforcement under the act, which has gotten recent attention because of scandals at Penn State and Syracuse.
Investigators have been on the Penn State campus for a Clery Act investigation into whether the university failed to report incidents of sexual abuse in connection to allegations against former assistant football coach Jerry Sandusky. An Education Department spokesman said the department is also reviewing whether a similar investigation will take place at Syracuse. Three men, including two former ballboys, have accused former assistant basketball coach Bernie Fine of molesting them as minors.
In the Virginia Tech case, the rare hearing is expected to last two or three days. It probably won't end with an immediate ruling and further legal challenges could follow. Virginia Tech hasn't indicated it is backing down even though experts say schools found in violation of the law typically accept a fine and agree to changes or negotiate a settlement.
This has attracted great interest in higher education circles, given the high profile nature of the crime and the chance to learn how the department applies the law. The 1990 law was named after Lehigh University student Jeanne Clery, who was raped and murdered in her dorm room by another student in 1986.
During this administration, the Education Department has conducted more random Clery Act audits and has worked at times with the FBI. Six schools this year alone are facing fines, which is the same number that paid fines in the first 18 years of the law, said S. Daniel Carter, director of public policy at Security on Campus Inc., a Wayne, Pa.,-based organization formed by Clery's parents.
The maximum fine per violation under the law is $27,500. Colleges and universities can also lose the right to offer federal student loans, but that's never happened. In the highest fine issued under the Clery Act, Eastern Michigan University agreed in 2008 to pay $350,000 for covering up the rape and killing of a student in her dorm room by telling reporters and her parents there were no signs of foul play.
In the Virginia Tech case, the university opted to exercise its right for an appeals hearing before an Education Department administrative judge. Larry Hincker, a university spokesman, said in an email that the actions taken by Virginia Tech were well within the practices in effect then on campuses.
Virginia's attorney general, Kenneth Cuccinelli, said in a statement earlier this year that the appeal was filed to compel the department to treat Virginia Tech fairly. The university contends the department is holding it to a higher standard than what was in place at the time of the shootings.
"There are important principles and policies at stake here that affect not just Virginia Tech, but colleges and universities all across the country," Cuccinelli said in the statement.
The university is facing charges of failure to issue a timely warning and failure to follow its own procedures for providing notification.
"This case is about responsibility," the Education Department said in a court filing. "Specifically, it's about an institution's responsibility to provide vital information to its students and employees as required by federal law."
The department said the university violated the law by waiting more than two hours after two students were shot to death in a residence hall before sending out a campus wide warning by email. The department said the email was too vague because it mentioned only a "shooting incident" but did not say anyone had died. By that time, student gunman Seung-Hui Cho was chaining shut the doors to a classroom building where he killed 30 more people and then himself.
At the time the email was sent, the university has argued it was believed the two students were shot in an isolated domestic incident and that the shooter had left the campus. The school also contends it had planned a news conference to discuss the residence hall shootings until the later shootings intervened.
"This case is not one in which Virginia Tech was avoiding its responsibilities, but rather one in which it responded in a variety of ways that are permissible under the applicable regulations," the university said in a court filing.
Some family members of the students killed have called the fines woefully inadequate. Suzanne Grimes, whose son Kevin Sterne, was injured in the shootings, is scheduled to testify. She said in a telephone interview that university officials failed in their duty to warn students.
"The families of the deceased have a lifetime of grief and the survivors like my son, Kevin, have a lifetime of injuries and what the future holds for them, as a mother I'm concerned about," Grimes said.
Peter Lake, an education law professor at Stetson University College of Law, said higher education officials believe that what happened at Virginia Tech could happen on any campus. At the same time, university administrators are aware that enforcement of the Clery Act has increased, he said.
"It will be very interesting to see what the arguments are and how they are perceived," Lake said. "I think the field is very much on high alert. They are trying to figure out what's happening next."
While the Virginia Tech hearing may prove instructive for other schools on the Clery Act, a more applicable example on how such cases work involved a review at Tarleton State University in Stephenville, Texas, Carter said.
The Virginia Tech case focuses on what happened related to a specific incident, while Tarleton State's covered broader issues, which is more typical, Carter said.
The Education Department fined Tarleton State $137,500 in 2009 for allegedly underreporting the number of sexual assaults, burglaries and drug-related crimes on and near the campus between 2002 and 2007. The university appealed.
There wasn't an evidentiary hearing, but after reviewing the evidence, Canellos reduced the fine to $27,500. The case was appealed to Education Secretary Arne Duncan, who has not issued a decision.
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