Collegiate Times

Katie Biondo/Collegiate Times

The Department of Education report was sent to Tech officials earlier in 2010 as part of the standard procedure for a Clery Act program review. The university is given a chance to respond to the findings of the investigation.

Tech was granted an extension on the deadline for the response, which was originally set for March 23. The university response is now due April 23.

Daniel Carter, the public policy director for the nonprofit group Security on Campus, said the department typically takes about two months to allow investigators to review the response and produce the final report, at which point the findings would become public.

Security on Campus was founded by the parents of Jeanne Clery, the namesake of the Clery Act, which was enacted in 1990 and requires universities to report crime statistics and give communities timely warnings of campus crimes. Jeanne Clery was raped and murdered in her dorm room at Lehigh University in 1986.

Security on Campus filed a request that led to the Department of Education investigation.

The report determines whether Tech complied with the Clery Act on the morning of the shootings. The Clery Act requires a timely warning of any campus incident that endangers students.Carter said the fact that a response is required shows the investigation has significant implications for the university.

“Any institution that goes through the response process, there are substantive findings,” Carter said. “It’s a program review process — that’s what it’s known as — and any institution that goes through the response process is being presented with findings and being asked to respond to those definitive findings.”

If violations are found, Tech faces a $27,500 fine for each violation. The Clery Act also gives the Department of Education the ability to remove a school from the federal financial aid program for non-compliance, but Carter said he sees no way that would happen.

“That has never happened, and it is not the department approach in enforcing Clery Act cases,” Carter said. “The primary objective here is not to punish but to get corrective action.”

Only six universities have ever been fined for Clery Act violations.

The largest fine, $350,000, was imposed on Eastern Michigan University for failing to disclose that a student death was actually a homicide. Carter said schools can appeal the amount of the fine, but the decisions on violations are final.

Dennis Gregory, an Old Dominion University professor who has conducted research on the Clery Act and higher education law, said the corrective actions suggested by the report would be much more important than the actual sanctions — specifically to the entire higher education community.

“What that will do is provide more specificity to the rest of higher education about what kinds of notification requirements are required — what one has to do in terms of timely notice,” Gregory said.

Tech spokesman Larry Hincker said the report addresses a topic that is still waiting for a precedent to be set.

“It’s a pretty long and complicated process,” Hincker said. “The whole issue is one that has still yet to be resolved nationally.”

Carter said that Tech’s situation was indeed unprecedented, but the Clery Act was designed to help prevent similar occurrences.

“While it is correct there has never been anything like this before, when an institution agrees to participate in federal student aid programs, they agree affirmatively to undertake certain responsibilities,” Carter said. “One of those responsibilities is when there is an ongoing threat as a result of a specified list of crimes, they will warn their campus community and they will have an efficient, effective process for doing so — and also a process that is publicly disclosed.”

Suzanne Grimes, whose son Kevin Sterne was injured in Norris Hall, said she feels confident Tech did not comply with the Clery Act, but she wants a better understanding of what happened inside the university that day.

“I want detailed answers of why they didn’t do it,” Grimes said. “I feel at this point in time, three years after the worst shooting in modern history, they need to explain their lack of action that day to these families that have lost (loved ones) and to survivors.”

The investigation into Tech’s response on April 16, 2007, offers a chance for clarification of a university’s responsibilities in the case of a major emergency.

Hincker and Gregory each pointed out that the higher education community’s knee-jerk reaction to April 16 was to implement more campus notification systems.

“The world of emergency notification completely changed,” Hincker said. “An entire industry of emergency notification sprang from our tragedy.”

Since April 16, Tech has added a text-messaging alert system, LED message boards in classrooms and an alert program for computer desktops.

Gregory said the largely technology-based industry of emergency notification systems could still see a bump if the investigation is critical of Tech’s response.

“A lot of universities were afraid if they didn’t jump on the bandwagon and put in these types of notification systems, they might face legal jeopardy and have another incident that they would be held responsible for if they didn’t move in this direction,” Gregory said.

However, he said the initial reaction of adding notification systems may soon fade into more comprehensive plans for preventing campus tragedies like April 16.

“The commonwealth of Virginia has required by law now that every college and university have a threat assessment team in place,” Gregory said. “So, doing those kinds of things and being able to deal with someone like Cho before an incident occurs I think will better prepare us if something like that ever does happen again.”

Hincker called Tech’s notification system “one of the most robust” in the country, but he also said the university has focused on improving other areas, including mental health care and inter-departmental communication. Tech, in accordance with Virginia law, has a threat assessment team.

“We say that the world did change on April 16 for a lot of people,” Hincker said. “The understanding of mental health and university responsibilities in that area, the whole notion of internal threat assessment — whether it be from outside the university or within the university — has changed.”

Gregory said his research indicates beefing up notification systems is likely not the most effective use of money for universities. He suggested adding new programs to make police more visible on campus and to make it easier for students to report suspicious activities or crimes.
Furthermore, he found it unlikely the Department of Education report would criticize Tech’s method of notification.

Instead, he said a report that is highly critical of Tech would likely compel the higher education community to push funding toward police forces.

“If they really come down and slam Tech for what they believe are egregious violations of the Clery Act, then that will say to the higher education community ‘You need to be much more prepared and much more careful about how you deal with these issues,’” Gregory said. “Now, the fallout from that means that universities are going to have to devote a large amount of money and a large amount of resources to improving campus police departments, increasing the numbers of police officers and support staff and providing vehicles and other types of equipment to help.”

He pointed out that under former Gov. Tim Kaine, the state held a conference for campus police forces in each of the last two years.

Gov. Bob McDonnell has not announced if that will continue.

Of course, the report could also find that Tech’s actions were compliant with the Clery Act, and it may calm the rush to upgrade notification systems.

“If they say Tech did what it was supposed to do, then clearly that gives institutions more flexibility and more breathing room in how they deal with crisis situations like this,” Gregory said. “If they find that Tech is responsible for technical violations of the law that are relatively minor, then that shows you need to mind your P’s and Q’s, but as long as you’re complying, you’re probably going to be OK.”

The university’s actions on April 16 are also being judged in another arena — civil court.

President Charles Steger, former Vice President James Hyatt and former Cook Counseling Center director Robert Miller await trial in suits filed by the families of two students killed in Norris Hall, Julia Pryde and Erin Peterson.

The identical lawsuits seek $10 million each in damages. However, the suits also could set a precedent of legal liability for institutions of higher education.

Carter said the actual findings of the Department of Education report have no bearing on legal liability.

“The Clery Act does not establish any civil liability,” Carter said. “So, you could not go into court and say the Department of Education said this institution violated the Clery Act, therefore we are entitled to damages. That’s actually prohibited under the law.”
However, information included in the report about the events of the day could be utilized in the suits.

“For example, if their investigation yielded a description of the internal discussion process, there is a chance that could be relevant to the civil proceedings,” Carter said.

The plaintiffs’ suits make reference to Tech’s emergency response plan as it stood on April 16, 2007. It said the police chief was to send any emergency notifications to the community. Multiple records show that, in fact, it was the university’s Policy Group, consisting of top-level officials, which sent the alert.

The suits allege that Tech did not follow protocol, and that the confusion caused the alert to be sent too late for students headed to Norris Hall that morning to make use of the warning.

Carter said he understood why the police chief did not send the alert, but hoped Tech officials had thought of other measures to deal with emergencies.
“They were correct in that the chief was occupied trying to apprehend the suspect, but there were not adequate measures in place for there also to be a warning issued quickly,” Carter said. “I think that’s one of the most important lessons, and to this day I remain concerned it’s one of the lessons that was not learned — I mean just about everybody has — but there has not seemed to be that acknowledgement by the officials involved on April 16 at Virginia Tech.”

Hincker said Tech’s current emergency notification plan makes it easier for the alert to be sent quickly by people with knowledge of the situation.

He said the initial responders now have a template for emergency alerts to streamline the process.

“We’ve got lots of people now that can send an emergency notification,” Hincker said. “It’s 30 plus. I don’t know exactly what the number is because the police keep adding people.”

Grimes said Tech should attempt to remain on the leading edge of campus safety.

“As far as them being a role model, they really need to step up to the plate,” Grimes said. “I think other universities need to also follow suit. If they have an emergency response plan, follow it, revisit it, keep looking at it.”

Hincker could not speak directly on the topic of the lawsuits, because the litigation is ongoing. No trial date has been set.

Gregory said he doubted Tech could be held legally liable when considering the situation the officials were dealing with.

He pointed out that officials believed the initial shootings in West Ambler-Johnston Hall could have been the result of a domestic dispute.

“There was a belief, at least initially, that the killings were from an internal source that was particular to (West Ambler-Johnston Hall),” Gregory said. “Whether you need to close down the campus for that is the question. In retrospect, it’s easy to say, ‘Yeah, you should have closed it down,’ but what does that mean for the people who were already in Norris Hall at the time?”

However, these questions seem unlikely to be answered any time soon. After a November 1999 bonfire accident that killed 12 people at Texas A&M University, a lawsuit was filed by victims’ families.

It was settled in October 2008, nearly a decade after the tragedy.

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A version of this article appeared in the Apr 16 issue of the Collegiate Times.