Virginia Tech’s response to the Department of Education’s findings that it violated federal laws when it failed to issue a campus-wide warning following April 16, 2007, contains quotes from S. Daniel Carter. Carter is the Director of Public Policy, Security on Campus, Inc. The problem is Tech’s quotes are misleading. The following is Daniel Carter’s response to Virginia Tech:
Review of Virginia Polytechnic Institute & State University
Campus Security Program Review Report & Response
June 4, 2010
By S. Daniel Carter
Introduction
Following a complaint from Security On Campus, Inc. on August 20, 2007, the U.S. Department of Education issued a Campus Security Program Review Report on January 21, 2010; finding Virginia Polytechnic Institute & State University had violated two aspects of the Jeanne Clery Act’s timely warning requirements. Both findings related to the handling of two related shooting incidents at the campus on April 16, 2007, in which 32 students and employees were killed. This review addresses key issues raised by the institution in their response to the initial findings.
Timeliness Violation
The institution contends that, under the guidelines in effect on April 16, 2007, institutions had up to “two business days” in order to issue warnings. In support of this contention, they cite an article written by me, Covering Crime on College Campuses which was published in a 2000 issue of The Quill, stating that warnings “should be made in less than two business days.” This statement is taken out of context and most significantly predates additional guidance promulgated by the U.S. Department of Education in 2005 that established, for the first time, clearer expectations on institutions.
The Handbook for Campus Crime Reporting, published in 2005, clearly states that the U.S. Department of Education interprets the timely warning requirement of the Clery Act to require institutions to issue them “as soon as the pertinent information is available.” It is this standard -- and no other -- that the Department clearly applies in this case. Additional guidance is also stated in the Handbook, supporting the view that at least by 2005, the Department expected some, if not all, warnings to be issued in far-less than two business days. On page 51, when addressing the need for institutions to collect crime report information from all the various officials who are subject to the Clery Act, the Handbook states: “Emphasize the importance of the campus security authority’s role in providing crime reports on an immediate basis to the individual or office responsible for issuing timely warnings.” (emphasis added)
Furthermore, on page 87, there is a sample statement of timely warning policy for institutions to refer to as a guide. It states relevantly that “in all situations that could pose an immediate threat to the community and individuals, the Office of Public Safety may also post a notice on the campus-wide electronic bulletin board” (emphasis added). The use of this type of electronic communication reflects an ongoing evolution of the timely warning requirement which, when first adopted, was often complied with exclusively using paper flyers (which still remain an important channel institutions can use). As technology has permitted institutions to issue warnings more rapidly and widely, expectations have evolved along with these changes.
Incidentally, the institution’s 2007 Annual Security Report, released after the shootings, incorporated this sample language verbatim into their statement of timely warning policy, stating that “in all situations that could pose an immediate threat to the community and individuals, University Relations may also post a notice on the Virginia Tech homepage (www.vt.edu) or utilize the “VT Alerts” automated notification system.” (emphasis added)
The analysis in the Department of Educations’s Campus Security Program Review Report (p. 6) documents the times when various institutional officials and campus security authorities, including the Chief of Police and President, became aware of the “pertinent” details of the initial shooting of two students in West Ambler Johnston (WAJ) Hall no later than 8:10 AM, with the Chief receiving information prior to that. While the institution contests certain details, it is uncontested that the Chief of Police and President were aware of a double shooting. At a minimum, this event would be defined as two aggravated assaults for Clery Act reporting purposes – thus, subject to the timely warning requirement, with an unknown suspect at-large. This is clearly an analysis of when the “pertinent” facts about this incident were available to the decision makers. It is not, as contended by the institution, an application of the confirmation of an emergency guidelines enacted into law in 2008 and into regulation in 2010.
Finally, my reference to warnings being made “in less than two business days” was an articulation – over six-years prior to the tragedy under review – of our best understanding at the time of the Department’s outer limit expectations on warnings. It should not be construed or misrepresented as an endorsement of that timeframe, nor as stating that institutions automatically were granted such a duration for all possible scenarios.
As published in the April 29, 1994 issue of the Federal Register, the Secretary of Education expressed that the appropriate response, including timeframe of issuing the warning, “must be decided on a case-by-case basis in light of all the facts surrounding a crime.” While two business days may have possibly been appropriate in certain contexts, this was never the intention in cases involving more immediate threats.
In this case, the Department undertook an analysis under this longstanding guideline. Based on the facts specific to this case, as to what was appropriate, the Department determined that a warning should have been issued earlier. This, along with the capacity to evaluate based on the totality of an institution’s actions whether or not they have determined there is an ongoing threat, is an enforcement option that is necessary in order for this requirement to have any substantive meaning.
Policy Violations
The statement of timely warning policy published by the institution in 2006, and in effect on April 16, 2007, stated that the Virginia Tech Police Department was responsible for deciding when to issue warnings, as well as actually issuing the warnings. It is uncontested that on April 16, 2007 the University Policy Group, functioning under the institution’s emergency response plan, assumed responsibility for issuing public communications, including the eventual issuance of a “warning” about the initial shootings; and then multiple communications about the second shooting incident.
We concur that having a “redundancy of critical decision making paths,” as the institution has termed this approach after the tragedy, is essential in being capable to successfully comply with Clery Act requirements and to effectively respond in emergency situations. However; this redundant or alternative decision making path was undisclosed to the campus community in the institution’s Annual Security Report, as required by Clery Act guidelines. That, rather than the appropriateness of the alternative, is the issue here.
The fundamental purpose of the Jeanne Clery Act is to ensure that current and prospective campus community members can make informed decisions about campus safety issues. By failing to disclose alternatives to published policies that an institution may elect to follow, the campus community is denied an opportunity to make fully informed decisions and hold decision makers accountable. The problem is simple: if institutions are allowed to apply alternatives at will to their published policies, then the Clery Act is fundamentally undermined.
Conclusion
The institution argues that nobody could have foreseen the mass-shooting occurring after the earlier shooting. Yet, this distracts from the significant problems which occur when institutions ignore established guidelines intended to ensure the protection of all campus communities during emergencies when the complete nature of some threats may remain unknown. An institution’s policies are the transparent lens through which decision makers are viewed and ultimately held accountable. Allowing institutions to arbitrarily move the policy goalposts is an unacceptable limitation of the public’s right to know.
It is our fervant hope that the Education Department will stand by these principals and sustain the substantive findings of the initial Program Review Report issued January 21, 2010.
S. Daniel Carter
Director of Public Policy
Security On Campus, Inc.
133 Ivy Lane, Suite 200
King Of Prussia, PA 19406-2101
Toll Free: 1-888-251-7959
Office: (610) 768-9330
Fax: (610) 768-0646
http://www.securityoncampus.org
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