Virginia Tech’s appeal of Department of Education fines is stoking the raging debate over what constitutes a “timely warning.”
Debate centers on the 2007 definition of the term. Four years after Tech student Seung-Hui Cho killed 32 students and faculty members on April 16, 2007, the actions of university officials remain highly controversial. Whether Tech’s top administrators gave the campus community timely warning of the threat is a question at least one judge will have to answer.
In May 2010, federal regulators for the DOE concluded Tech officials did not provide timely warning, as required by the Clery Act, a federal law that requires universities to report crime statistics and alert campus communities to threats. Two separate civil suits set for trial in September allege gross negligence on the part of university officials led to the death of 30 people in Norris Hall.
The DOE report said the warnings issued were not prepared or disseminated in a manner to give clear and timely notice of a threat to the health and safety of campus community members. The report said Tech committed a second violation by not following its own internal emergency notification plan.
Each violation drew the maximum fine from the DOE, $27,500, for a total of $55,000. Tech responded Wednesday with Attorney General Ken Cuccinelli announcing the university is appealing the fines, although the findings themselves cannot be appealed.
But the university is not worried about the money. In his announcement Wednesday, Cuccinelli said “the small monetary penalty is not the reason for this appeal” as Tech has already expended millions as a result of the shootings.
University spokesman Larry Hincker said the appeal is instead a request for clarification for both Tech and the rest of the nation’s universities.
“The DOE’s actions have, to a certain extent, made less clear — not more clear — what their guidance was to the higher education community,” he said.
Tech’s appeal says the Clery Act's written definition of a timely warning as it stood in 2007 was "vague at best." A compliance handbook published in 2005 provided the most current guidelines available at that time.
“Neither the Clery Act nor (the DOE) define ‘timely,’” the 2005 handbook says. “The warning should be issued as soon as the pertinent information is available because the intent of a timely warning is to alert the campus community of continuing threats especially concerning safety, thereby enabling community members to protect themselves.”
Cho shot Emily Hilscher and Ryan Clark in West Ambler-Johnston Hall at about 7:15 a.m. on April 16, 2007. Clark died immediately, and Hilscher died later that day. President Charles Steger and several other university officials were aware of the initial shootings by 8:10 a.m.
Members of the university community received a notice at 9:26 a.m. — 20 minutes after classes began in Norris Hall, where Cho would kill 30 and injure 17 — informing them of a shooting incident in West AJ.
The DOE report deemed the actual content of the warning inadequate as well, as it did not specify the shooting was a murder.
The 2005 handbook offered examples of compliant timely warnings, some of which were sent 24 to 48 hours after incidents. Cuccinelli said university officials sent the alert in a timely fashion by those guidelines.
"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."
He said the DOE is enforcing a standard developed after April 16.
“What we are witnessing, four years after the fact, is Monday-morning quarterbacking at its very worst,” Cuccinelli said.
Terry Hartle, senior vice president of the American Council on Education, expressed a similar sentiment in a recent Chronicle of Higher Education commentary.