The case against Virginia Tech has gone back and forth in the legal
system. On December 9, 2010, the Department of Education (DoE) issued findings
that Tech did violate the law; Virginia Tech’s appeal of those findings was
rejected and the DoE fined the school $55,000 for failing to issue a timely
warning after the double homicide at 7:15 a.m. on the morning of April 16,
2007.
The
original fine is the maximum allowed. In issuing the decision, the DoE said,
“While Tech’s violations warrant a fine far in excess of what is currently
permissible under the statute, the Department’s fine authority is limited.”
Tech appealed the DoE decision and in March of 2012, DoE Administrative Judge
Ernest C. Canellos ruled in the school’s favor voiding the violation and striking
the fine. DoE then reinstate the original decision that Tech violated the Clery
Act, but reduced the fine.
Take a moment and read excerpts from the original
DoE’s decision as spelled out in a letter to University President Charles
Steger:
Dear Dr.
Steger:
This letter is to inform you that
the U.S. Department of Education (Department) intends to fine Virginia
Polytechnic Institute and State University (Virginia Tech) $55,000 based on
violations of statutory and regulatory requirements outlined below. This fine
action is taken in accordance with the procedures that the Secretary of
Education (Secretary) has established for assessing fines against institutions
participating in any of the programs authorized under Title IV of the Higher
Education Act of 1965 … .”
…
“The Clery Act and the Department’s
regulations require an institution to provide a timely warning to the campus
community on certain crimes that are reported to campus security authorities or
local police agencies and are considered by the institution to represent a
threat to students and employees. … .”
…
During the morning of April 16,
2007, Seung Hui Cho, a student at Virginia Tech, shot Emily Hilscher in her
dorm room at West Ambler Johnston (WAJ) residence hall. He then shot Ryan
Christopher Clark, a Resident Advisor, in Ms. Hilscher’s room. Both Ms.
Hilscher and Mr. Clark were Virginia Tech students and both died from the
wounds caused by the shootings. Although the Virginia Tech Policy Group met to
plan how to notify the campus community of the dormitory shootings, it did not
issue any notification until more than two hours after the shooting occurred.
About 15 minutes after the Policy Group issued a notice of the shootings at WAJ
to the campus community, Cho began shooting students and Virginia Tech staff in
Norris Hall, a classroom building on the Virginia Tech campus. Ultimately, Cho
murdered 32 people, wounded many more, and then took his own life.”
…
“The Department is taking this fine
action based on the findings in the FPRD, which concluded that Virginia Tech:
(1) failed to provide a timely warning in response to the shootings and murders
that occurred on April 16, 2007; and (2) did not comply with the timely warning
policy it had disclosed to students and staff as part of the ASR [Annual
Security Report all schools participating in the Higher Education Act of 1965,
title IV, are required to prepare, publish and distribute every year]. Based on
these violations of the Clery Act and the Department’s regulations, the
imposition of a fine is warranted. … “
FAILURE
TO PROVIDE TIMELY WARNING
“… all institutions participating in
the Title IV, HEA programs must, in a manner that is timely and will aid in the
prevention of similar crimes, provide a timely warning to the campus if certain
crimes are reported to campus security authorities and are considered to
represent a threat to students and employees. These crimes include the
following: (1) criminal homicide (murder and manslaughter); (2) sex offenses
(forcible and non-forcible); (3) robbery; (4) aggravated assault; (5)
burglary; (6) motor vehicle theft; (7) arson; (8) liquor law, drug law and
illegal weapons possession violations; and (9) hate crimes. The only exception
to this requirement is if the crime is reported to a pastoral or professional
counselor. … .”
“… Virginia Tech failed to issue a
timely warning to the campus community after the first two shootings occurred
at the WAJ campus residence hall.”
“On April 16, 2007, at about 7:15
a.m., Cho shot Ms. Hilscher and Mr. Clark in the WAJ residence hall on Virginia
Tech’s campus. … The police chief also reported to President Steger that no
weapon had been found and that bloody footprints were found, leading away from
the crime scene. President Steger decided to convene the Virginia Tech Policy
Group. At 8:25 a.m., the Policy Group convened to discuss the shootings and how
to notify the campus community. The
Policy Group issued an email to the campus community informing them of the
shootings at WAJ at 9:26 a.m.”
“The fact that the assailant had not
been identified, a weapon had not been found at the scene and that bloody
footprints led away from the bodies strongly indicated that the shooter was
still at large, and posed an ongoing threat to the safety of the students,
staff and others on the Virginia Tech campus. Because Virginia Tech failed to
notify its students and staff of the initial shootings on a timely basis,
thousands continued to travel on campus, without a warning of the events at
WAJ.”
“ … other institutions and
individuals who had information regarding the shootings were taking action. At
about 8:00 a.m., the Virginia Tech Office of Continuing and Professional
Education (OCPE) locked down on its own after a family member notified an OCPE
employee of the WAJ shootings. At 8:15 a.m., two senior officials at Virginia
Tech had conversations with family members in which they related the events at
WAJ. In one conversation the official advised her son, a student at Virginia
Tech, to go to class. In the other, the official arranged for extended
babysitting. At 8:25 a.m., police cancelled bank deposit pickups. At 8:40 a.m.,
a Policy Group member notified the Governor’s office of the double shooting. At
8:45 a.m., a Policy Group member e-mailed a Richmond colleague that one student
had been killed and another critically wounded and stated ‘gunman on the
loose.’ At 8:52 a.m., Blacksburg public schools locked down until more
information became available about the incident. Also at about 8:52 a.m., the
Executive Director of Government Relations at Virginia Tech, with an office
adjacent to the President’s suite, directed that the doors to his office be
locked. Sometime between 9:00 and 9:15 a.m., the Virginia Tech Veterinary
College locked down. At 9:05 am, trash pickup on campus was cancelled. …”
“At 9:26 a.m., Virginia Tech first
notified the campus community of the shootings at WAJ. The message was vague
and only notified the community there had been a shooting on the campus. It did
not mention that there had been a murder or that the killer had not been
identified. The notice did not direct the community to take any safety
measures. The message was not a timely warning as required by the HEA and the
regulations.”
…
“Between approximately 9:40 a.m. and
9:51 a.m. the gunman shot additional victims in Norris Hall before taking his
own life. A second message was sent to the Virginia Tech community at 9:50 a.m.
with a much more explicit warning. This message was not only sent to email and
cell phones but was also broadcast on campus loudspeakers. At 10:17 a.m.,
approximately 26 minutes after the shootings at Norris Hall ended, a third
message was sent to the community cancelling classes and advising everyone to
remain in place.”
“As discussed above, when individuals
and organization received information about the events at WAJ, they were able
to make their own decisions on how to react and on whether or not to take steps
to protect themselves. Had an appropriate timely warning been sent earlier to
the campus community, more individuals could have acted on the information and
made decisions about their own safety.”
“… As the Department has previously
stated, a timely 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 … thereby enabling community members to protect
themselves. …”
…
“While Virginia Tech’s violations
warrant a fine far in excess of what is currently permissible under the
statute, the Department’s fine authority is limited. The HEA authorizes the
Department to impose a maximum fine of $27,500 per violation. As a result the
Department is assessing the maximum statutory fine of $55,000. … ”
The letter was signed by Mary E. Gust, Director,
Administrative Actions and Appeals Service Group.
Below are excerpts of Virginia Tech’s response to
the DoE decision with my critique of their words. To my thinking, the school’s
response is, unfortunately, an exercise in circular reasoning, double-talk, and
a wholesale retreat from the truth.
The school’s response begins with two pages of
written remarks by Larry Hincker, associate vice president for university
relations, and chief spokesperson for the school, dated May 18, 2010.
Hincker asserts: “Virginia Tech appreciates the opportunity to respond to the Department
of Education’s preliminary report, especially given the factual inaccuracies
about the events of April 16, 2007, that continue to be repeated and that are
incorporated in the DoE’s document. Notably, factual errors corrected in the
most recent addendum to the Virginia Tech Review Panel Report were not
corrected in DoE’s preliminary findings, nor has Virginia Tech been accorded
access to the administrative file for the purpose of responding to other
factual misinformation on which DoE may have based its preliminary findings.”
I would note that Tech knew about the errors and omissions in the timeline before the DoE
preliminary findings yet chose to say next to nothing about them until the
school was ruled in violation of the law. Furthermore, the school knows there
are still problems with the timeline: critical omissions that demonstrate that
the school’s failure to react promptly cost lives. The school remains silent on
these points. Finally, it should also be noted that the inaccuracies in no way
change the fact that the Virginia Tech administration failed to give a timely
warning. If anything, it highlights how the Policy Group delayed giving out any
kind of relevant or helpful information.
Hincker then goes on to state: “From the beginning, we have been firmly
committed to full transparency and to sharing lessons learned from this tragedy
with the higher education community and beyond.”
Again, Hincker presents an incorrect, rosy picture
of the school and its president. President
Steger’s policy of “full transparency” and “sharing lessons” from the beginning
is simply not true. If you read Professor Lucinda Roy’s book you will see that
President Steger refused to meet directly with Roy—the faculty member who
probably has the most first-hand information about Cho. Furthermore, other
staff members appeared to be afraid to interact with Roy for fear of reprisals
from the school administration. That is hardly an atmosphere that fosters “transparency”
and “sharing lessons.”
If Virginia Tech was
devoted to “full transparency,” why did the school pay a small fortune to a
public relations firm to spin the tragedy? Less than six weeks after the
shootings, on May 29, 2007, Virginia Tech signed a contract with one of this
country’s largest and most prestigious publication firms—Burson-Marsteller—to
handle publicity about the rampage. And no doubt, the intention was to put the
school, President Steger, and Chief Flinchum in the best light, by focusing
public attention away from the administration’s glaring mistakes in judgment
and toward “the Hokie nation’s” need to pull together and recover. (I will examine
Tech’s relationship with Burson-Marsteller in detail later.)
Perhaps the most damning part of Tech’s response
comes on the first page of the Introduction of its rebuttal: “As part of the university response to the Department of Education’s
Program Review, Virginia Tech retained Delores A. Stafford who has over 26 years
experience in law enforcement and the security industry, and who is a
nationally recognized expert in the Clery Act to review both the DoE’s Program
Review Report and Virginia Tech policies, procedures and response on April 16,
2007.”
Virginia Tech neglects
to tell the reader that the school paid Stafford $9,028.00 for that opinion,
and awarded her a lucrative contract to teach two training courses. In
addition, the school contracted with her to do an audit of all aspects of the
school’s adherence to the Clery Act. According to the Special Assistant to the
Associate Vice President for University Relations, the amount of remuneration
has not been determined. Clearly Ms. Stafford has profited quite well from her
relationship with Virginia Tech. (I look more closely at the Virginia
Tech-Delores Stafford relationship later.)
Tech asserts in its defense, “Neither DoE nor the Clery Act defines ‘timely.’ However, DoE’s
compliance guidelines illustrate 48 hours as an acceptable timely notification
procedure. Other Clery guidelines as well as industry practices, call for
notices to be released within several hours or days. The University actions
were well within these guidelines and practices.”
Again, the reader is told only part of the story.
The rebuttal fails to address the
statements in the DoE letter pointing out that portions of the school took the
initiative, warned and locked down within an hour of the double homicide at
West Ambler Johnston Hall. Those actions were consistent with the Clery Act.
Hincker also fails to mention that Tech took the initiative during the Morva
incident several months earlier, when the killer wasn’t even thought to be on
the campus, and locked down.
The school claims that it is being held to
unrealistic standards. “It is
inconsistent with regulatory process to hold Virginia Tech to standards that
did not exist at the time or, as portions of this preliminary report do, to
hold Virginia Tech to a new Clery Act standard that was developed after—and in
response to—the tragic events that took place on our campus.”
Once again, key information is left out. There is
no mention of the fact that while
portions of the university were adhering to warning standards the university
itself had set several months earlier, the main school administration was
violating those standards.
Virginia Tech quotes the Federal Register 59 FR
22314-01 (Exhibit 2), as part of its appeal, writing:
“The Secretary (of Education) does not
believe that a definition of ‘timely reports’ is necessary or warranted.
Rather, the Secretary believes that timely reporting to the campus community
for this purpose must be decided on a case-by-case basis in light of all the
facts surrounding a crime, including factors such as the nature of the crime,
the continuing danger to the campus community, and the possible risk of
compromising law enforcement efforts. Campus security authorities should
consult the local law enforcement agency for guidance on how and when to
release ‘timely reports’ to the campus community.”
This quote, however, far
from helping the school appears to damn the Steger administration’s actions.
The double homicide at West Ambler Johnston Hall was not a routine campus
crime. Two people were dead and there were bloody footprints leading away from
the crime scene. A killer was on the loose. Because of the seriousness of the
crime, the “case-by-case” evaluation demanded an immediate warning.
Tech asserts that immediately after the tragedy
the school discussed with the Governor of Virginia the university’s desire for
a panel to be appointed to review the response to the events that occurred on
April 16, 2007. Virginia Tech’s President and Rector of the Virginia
Polytechnic Institute and State University Board of Visitors sent an official
request for a panel review to the Governor on April 19, 2007. The letter
stated: ‘Today we are writing to request that you appoint a panel to review the
actions taken in response to the events that occurred on April 16, 2007, to
include the actions of all agencies that responded that day. While we believe
it would be most beneficial to have an independent review, we offer full
assistance of all personnel and resources at Virginia Tech to assist a review
committee.”
The above sounds good,
but the fact of the matter is that from the outset, the Steger administration
tried to manipulate and spin the tragedy to the benefit of the school. Tech
hired a public relations firm to do just that. The school
engaged in heavy-handed tactics in dealing with the faculty—often insisting
that an administration representative be on hand when faculty and staff met
with panel members (see Lucinda Roy’s book, “No Right to Remain Silent”). The
net result was to intimidate and stifle the flow of information and evidence. Staff
and faculty appear to have been afraid for their jobs because of the school’s
heavy-handed tactics.
Tech also asserts: “In the 27 month period between Virginia Tech’s response to the DoE’s
limited request for information and the issuance of the Program Review Report,
the DoE has not at any time requested additional information or clarification
from the university. However, the DoE continued to solicit information from the
complainants until a month before issuance of the Program Review Report. Virginia
Tech requested review of the DoE administrative file, but this request was
denied. Therefore, Virginia Tech is unable to comment on the information (upon)
which DoE relies, thereby jeopardizing Virginia Tech’s ability to prepare a
comprehensive response.”
Virginia Tech does not
have much room to cry foul when it comes to the flow of information. There is
evidence that the school tried to keep the families of the deceased from
communicating with the families of the survivors, and vice versa. Also, remember
that Professor Lucinda Roy, one of the most knowledgeable faculty members about
Cho and his problems, was denied access to President Steger. In her book she
says Steger’s office said he was too busy with the families to meet with her.
But the family members we have talked to scratch their heads, asserting that he
was too busy with other “things” to spend time with them. Indeed, as I have
pointed out earlier in this chapter Steger appears to have intentionally waited
until the parents were not at the children’s bedside when he visited the
hospitals. For Virginia Tech to complain about lack of communication doesn’t
hold much water.
Tech counters the DoE findings by arguing, “The facts known at the time did not support
a conclusion that any continuing threat existed and certainly did not indicate
that any further act of violence was likely.”
It is with this statement that Virginia Tech’s
case most closely parallels Eastern Michigan University. There, a girl lay dead
with a pillow over her face and semen on her thighs, and the police said they
saw nothing suspicious. In this letter, Virginia Tech said that two students
shot to death with no weapon found and bloody footprints leading away from the
scene gave no indication that any further act of violence was likely.
In perhaps one of the weakest explanations for the
school’s inaction, Tech contends that “there
were no reported sightings of unusual activity on campus following the WAJ
shooting, a person of interest was identified, and his vehicle was not on campus
and he was believed to be off campus.”
The holes in this argument are big enough for the
Virginia Tech band to march through. The school uses passive voice sentence
construction to obscure. Who believed
he was off campus? We need to talk to him or her to understand the basis for
that belief. In fact, the police did make a quick sweep of the campus looking
for Karl Thornhill’s truck—some 15 or 20 minutes to cover a 2,600-acre campus.
That was hardly a detailed search for “unusual activity on campus.”
Tech asserts: “The (Governor’s) Review Panel
consulted with various police agencies (all of whom) opined that a lock-down
for a campus like Virginia Tech was not feasible on the morning of April 16,
2007.” What was so special about the morning that a lock down was not possible?
After all, a lock down had been very successfully conducted several months
earlier, as in the Morva case.
Virginia Tech challenges the DoE’s assertions that
evidence indicated the shooter was still at large and posed a clear and present
danger to the campus community, and that since the person of interest was
identified 46 minutes later than originally reported, having a suspect could
not be used as an excuse for not sending out a warning.” The school challenges
these findings by writing, “The evidence
at the crime scene was presented as an act of targeted violence.”
The whole concept of targeted violence in
connection with the West Ambler Johnston Hall shootings is puzzling. What evidence of targeted violence? As I
discussed earlier, there was no such evidence. I challenge the whole idea of
“targeted violence.”
Tech asserts: “Experience and training teach law
enforcement officials, as conveyed by a representative of the Virginia State
Police to the families, that perpetrators of a homicide will place time and
distance between themselves and the location of the crime. All the evidence
indicated that a crime of targeted violence had occurred, a person of interest
had left the campus and there was not an ongoing threat. This was not the
conclusion of one police department, but three independent agencies.”
Again, Virginia Tech engages in word games. The use of the word “will” is misleading. It
implies that perpetrators always put distance between themselves and the crime
scene. The correct word should be “sometimes.” There is basis in fact in
the saying, “the killer often returns to the scene of the crime.” In fact, experience and training teach law enforcement
professionals not to assume anything. Again, this is an attempt to justify
wrong decisions. Police professionals are taught not to assume anything or rule
out anything. There was no evidence that
this was a targeted homicide. Tech accuses the DoE of applying current
thinking to the situation on April 16, 2007, and then turns around and does
exactly the same thing. (To be continued)
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