Virginia Tech, with the assistance of Virginia Attorney General Ken Cuccinelli, is appealing fines levied by the federal Department of Education for failing to provide a timely warning during the April 16, 2007, campus shootings.
The DOE fined Tech $55,000 for two violations of the federal Clery Act. The fine is the maximum possible fine per violation. A DOE investigation found that Tech violated two portions of the law, failing to provide a timely warning and failing to follow its own timely warning policy.
Cuccinelli said during a teleconference Wednesday that the DOE did not complete a thorough investigation. While he said the monetary penalty is not significant, the precedent for the higher education community is.
"The main purpose of the appeal is to compel the DOE to treat Virginia Tech fairly and to apply a very poorly defined and subjectively applied federal law consistently and correctly," he said. "There are important principles and policies at stake here that affect not just Virginia Tech, but colleges and universities all across the country."
University spokesman Larry Hincker said the DOE's actions in Tech's case have made the standard for other universities less clear.
"It's all about process," Hincker said. "It really, truly is to understand the rationale upon which this finding, this decision, was made on their part. It really is important to all of higher education."
Cuccinelli said the DOE investigation, which was released in May 2010, was "Monday-morning quarterbacking at its very worst."
"Based on what they knew at the time, law enforcement officers and the Virginia Tech administration acted appropriately," Cuccinelli said. "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."
The appeal argues that the Clery Act's written definition of a timely warning as it stood in 2007 — the act has been amended since the shootings — was "vague at best." It says the DOE is imposing "a standard Virginia Tech was expected to meet that is based on after-the-fact knowledge."
S. Daniel Carter, the public policy director for the nonprofit group Security on Campus, said Tech's allegations of hindsight bias are distractions from the outlined violation. Carter said the university's actions that day showed it identified the shooter as a threat. He said under the Clery Act, the school should have issued a warning as soon as possible.
"Nobody is saying or expecting that anyone could have foreseen the particular outcome, the particular nature of the outcome of the threat," Carter said. "Nobody is saying they should have known there was going to be a mass shooting.
"The Clery Act guidelines were not put in place to expect institutions to have a crystal ball."
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 DOE investigation.