The U.S. Department of Education’s Program Review Report, dated January 21, 2010, found Virginia Tech violated the Clery Act in not warning the campus of the imminent danger the school faced following the double homicide at West Ambler Johnston Hall on April 16, 2007. If this decision stands, the school could face heavy fines, and federal funds for the university programs could be jeopardized.
The findings of the Department of Education (DoE) are a powerful indictment of the bureaucratic bumbling that appears to have paralyzed university President Charles Steger’s administration on that terrible day. There is simply no way to sugar-coat or gloss over the school’s colossal errors in judgment made at almost every turn on April 16, 2007.
The following is an examination of some aspects of Virginia Tech’s response to the Department of Education’s findings. The school’s response is, unfortunately, an exercise in circular reasoning, double-talk, and a wholesale retreat from the truth.
Hinckler’s Remarks
May 18, 2010
The response begins with two pages of written remarks by Larry Hinckler, associate vice president for university relations, and chief spokesperson for the school.
Hinckler 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.”
Comments: 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 the school’s failure to react promptly cost lives.
Hinckler asserts: “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.”
Comments: President Steger’s policy of “full transparency” and to “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 faculty members were afraid to interact with Roy for fear of reprisals from the school administration. That is hardly and 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, to put the school, President Steger, and Chief Finchum 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.)
Monies paid to Burson-Marsteller totaled $663,006.48. Virginia Tech has a university public relations office staffed by highly competent officials, courses in public relations taught by outstanding faculty members, yet the school paid nearly $700,000.00 to a public relations firm to spin the shooting tragedy. Burson-Marsteller came to prominence in the 1990s for organizing a campaign in support of Philip Morris and the tobacco industry focused on smokers’ rights. (Do I see a tie to some of the most powerful groups in Virginia?) Later, they played spin-doctor again for Dow-Corning’s campaign on behalf of silicone breast implants. Some silicone implants developed leaks and caused serious health problems. Can there be any other conclusion that Burson-Marsteller was engaged by Virginia Tech to continue working the magic of misdirection in their client’s favor?
Compare the $663.006.48 of taxpayers’ money spent on public relations with the $100,000.00 awarded to each of the dead victims’ families. A paltry $100,000.00 compensation for the loss of a child is a disgrace and an insult. Paying a huge amount of money to a public relations firm only makes it worse. The math is lousy; the math says it all. The school’s judgment and priorities were badly misplaced. The nearly $700,000.00 would have been better spent had it been given to the grieving families to help in the recovery process, such as for counseling. Or, the money should have been spent on school security as a tribute to the victims.
THE INTRODUCTION
Perhaps the most damning part of Tech’s response comes on the first page of the Introduction: “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.”
Comments: Virginia Tech paid Stafford $9,028.00 for that opinion, and has agreed to pay her $8,594.90 for each two training courses. In addition, the school has 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. In other words, Stafford is being paid tens of thousands of dollars by Virginia Tech. There is a conflict of interest in her accepting money for an opinion and then taking thousands of dollars in pay to do an audit. Despite Stafford’s well-deserved reputation as an expert, she showed poor judgment in accepting money from Virginia Tech. The impartiality of her opinion cannot be believed because of her willingness to take thousands of dollars from the school—thousands of dollars she probably would not have gotten had she opined that the school was in violation of the Clery Act.
Tech asserts: “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.”
Comments: Hinckler fails to mention 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. Hinckler 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.
Tech asserts: “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.”
Comments: Again, Hinckler fails to mention 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.
THE RESPONSE
Tech asserts: “It is the University’s position that Virginia Tech complied with the Clery Act during the events that occurred on April 16, 2007.”
Tech further presses its argument by stating: “DoE’s determination that Virginia Tech’s warning was not timely and inadequate is based on DoE’s knowledge now that a threat existed on April 16, 2007. However in context, this finding does not fit the know facts early in the morning on April 16, or the law that existed at the time.”
Comments: This point still does not explain the inconsistencies in Tech’s response on the morning of April 16, 2007. Again, the school’s position avoids mentioning that segments of the campus, operating in accordance with the Clery Act, did warn and did close down.
Tech: Quoting the Federal Register 59 FR 22314-01 (Exhibit 2), the Tech response includes this”
“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 fats 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.”
Comments: This quote, in and of itself, would appear to damn Tech’s response. 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. Because of the seriousness of the crime, the “case-by-case” evaluation demanded an immediate warning.
Tech asserts: “Immediately after the tragedy, Virginia Tech 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 (Exhibit 11). 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.”
Comments: 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. (See the earlier section on Burson-Marsteller) 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). The net result was to intimidate and stifle the flow of information and evidence. People may have been afraid for their jobs because of the school’s heavy-handed tactics.
Tech 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 o 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.”
Comments: Virginia Tech does not have much room to complain about the flow of information. 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. (The family members I have talked to scratch their heads, feeling he was too busy with other “things” to spend much time with them.) To complain about lack of communication doesn’t hold much water.
Tech asserts: The DoE findings state: “Virginia Tech failed to issue adequate warnings in a timely manner in response to the tragic events of April 16, 2007. There are two aspects to this violation: …First, the warnings that were issued by the University were not prepared or disseminated in a manner to give clear and timely notice of the threat to the health and safety of campus community members. Secondly, Virginia Tech did not follow its own policy for the issuance of timely warnings as published in its annual campus security reports.”
Comments: The Virginia Tech response (on page 12) quotes from the Review Panel Report, and in so doing underscores some of the weakness of that report. For example: The Policy Group was informed that the residence hall was being secured by Virginia Tech police, and students within the hall were notified and asked to remain in their rooms for safety.”
Neither the report, nor Virginia Tech’s response, indicates that the failure to lock-down West Ambler Johnston Hall cost the lives of two students, who were allowed to leave that building only to be murdered in their classrooms. This fact—coupled with the slaughter of 30 people at Norris Hall—is an indictment of Tech’s failure to act.
Tech asserts: Virginia Tech (and the Review Panel Report) keeps repeating that the first two shootings appeared to be isolated. “In the preliminary stages of the investigation, it appeared to be an isolated incident, possibly domestic in nature.”
Comments: There was absolutely no evidence at the crime scene that the murders were of a domestic nature. Such conjecture was and is wishful thinking. In fact, the university was probably hoping against hope that the murders were the result of a lovers’ triangle—that would have been much easier to deal with and to explain.
Virginia Tech claims it was concerned about causing a panic. The school falls back on the so-called “panic” during the Morva incident. What is the school’s definition of panic? I find no references to panic during the earlier closing of the school—concern, anxiety, confusion, yes—but no panic.
Tech asserts: “The facts know 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.”
Comments: How can Tech possibly assert this? For example, how does the school explain the bloody footprints leading away from the double homicide? A killer was on the loose; that had to be clear to any and all. Did the school expect some sort of notice by the killer that he was about to slaughter 30 people?!
Tech, in its response to the DoE report, limited it crime scene description “to the comments found the Review Panel Report: ‘the female victim was shot with a young man in her room under the circumstances found’ and ‘The last person known to be with female victim was her boyfriend who owned a gun and cared greatly for her.’”
Comments: Owning a gun and caring for someone do not equate to suspicion of murder. In southwestern Virginia, it may be more of a challenge to find someone who did not own a gun and care for another. The reasoning is at best flimsy.
Tech asserts: “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.”
Comments: This is the passive voice. Who believed he was off campus? We need to talk to him or her to understand the basis for this belief.
Tech lists eight instances of schools issuing warnings after shootings. In one instance no alert was apparently issued.
Comments: One school’s failure to issue an alert after a shooting does not mean Tech was right in not issuing one.
Tech asserts: “The (Governor’s) Review Panel consulted with various police agencies (all of whom) opined that a lockdown for a campus like Virginia Tech was not feasible on the morning of April 16, 2007.
Comments: Which police agencies and what was their reasoning? Was SUNY contacted, and are there police agencies that believe a lockdown was feasible?
The report further states: ‘The analogy to an elementary or high school, however is not very useful. The threat to elementary schools usually is not from students, the class rooms have locks, they have voice communications systems to teach … and the people at risk are located in one building, not 131 buildings.”
Comment: This point raises a serious question. Why didn’t the Review Panel take a closer look at what happened at the Appalachian School of Law? The parallels between the killers’ profiles, the schools’ failure to heed warnings, and the bungling responses to the shootings are staggering.
Tech cites DoE assertions:
“These facts strongly indicate that the shooter was still at large, and therefore, posed an ongoing threat to the health and safety of Virginia Tech’s students and employees and other members of the campus community.”
“Moreover, it is now clear that the ‘person of interest’ often cited as a diversionary factor affecting the investigation and as a delaying factor in terms of issuing timely warnings, was not identified and questioned until at least 46 minutes later than originally reported.”
Tech responds by saying “The evidence at the crime scene presented as an act of targeted violence.”
Comments: What evidence of targeted violence? There was absolutely no evidence of targeted violence—only wishing thinking that the crime was the result of a love triangle.
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.”
Comments: 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 “usually.” Experience and training teach law enforcement professionals not to assume anything. Again, this is hindsight, wishful thinking in 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—that is Monday morning quarterbacking to cover-up. 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. The police are batting “0” in good judgment when it comes to school shootings in Virginia. At the Appalachian School of Law, they participated in a judgment that the most seriously wounded student could not be saved—as a result Angela Dales bled to death while others were evacuated. Had the police followed correct triage rules she would have been the first to be evacuated and would have had a 50-50 chance of survival. My experience and training have taught me that police judgments in Virginia do not account for much when it comes to school shootings.
The DOE findings assert: “University and public records, including the email traffic of Virginia Tech employees, also demonstrate that even before the release of the 9:26 A.M. message to the campus community, University officials were taking steps to provide for their own safety and that their staff members and to inform family members.”
Tech responds with: “This statement in the Program Review Report is incorrect. The Review Panel Report states: ‘About 8:15 a.m. Two senior officials at Virginia Tech have conversations with family members in which the shooting on campus is related. In one conversation, by phone, the official advised her son, a student at Virginia Tech, to go to the class. In the other, in person, the official arranged for extended babysitting.”
Comments: We do not have the full text of those conversations. But, to advise family members of a shooting on campus is by its very nature—a warning. To provide for extended babysitting clearly indicates a problem is at hand that needs to be dealt with.
DOE states: “It is likely that the warning would have reached more students and employees and may have saved lives if it had been sent before 9:05 A.M. classes began.”
“Based on all the information available at this time, we agree with the conclusion of the Review Panel that the University cannot reasonably explain or justify the two hours that elapsed between the time University officials learned of the first two homicides and the issuance of the first vague warning.”
Tech’s response: “Within the Program Review there is an inevitable underlying current of hindsight and observational bias. Rather than evaluating the circumstances and facts contemporaneous with the incident, this hindsight and observational bias creates the tendency (after the fact) to view events as more predictable than, in fact, they were at the time of, and preceding, the event in question. Hindsight bias has a demonstrated adverse impact on retrospective investigations of catastrophic events.”
“The effects of hindsight bias are natural and understandable human reactions. Nassim Taleb has written powerfully about this effect in his book The Black Swan: The Impact of the Highly Improbable. Taleb defines Black Swan events as having the following characteristics:”
1) “The event is quite rare and nothing in the past points to its possibility;
Comments: All the more reason to take precautionary measures when you do not know what is going on. The phrase “nothing in the past points to its possibility” is simply not true in view of Cho’s previous actions and threats—This does not qualify as a “Black Swan.”
2) The event has an extreme impact; and, (Comment: A truth that can be said of many things)
3) After the event, we concoct explanations for its occurrence, making it appear more explainable and predictable, when it is not.”
Comments: This point is not valid for the Virginia Tech tragedy. Take a look at the analysis of Virginia Tech’s response to Cho’s warning signs done by internationally known and respected mental health expert, Dr. Gerald Amada. Dr. Amada is the former director of the Mental Health Program, City College of San Francisco:
“Even a cursory review of the events that led up to the massacre, as delineated in the report of the governor’s panel, indicates the university’s abiding faith in three general approaches that it abortively used for dealing with his behavioral waywardness. (First), was to resiliently accommodate his strange and offensive behavior by, for example, arranging to have him individually tutored by a department chairperson, an arrangement that was evidently endorsed by the university’s so-called care team, a diverse group of staff representing the Counseling Service, Residence Life, Legal Counsel, Judicial Affairs, and Student Life, that investigated the case of Mr. Cho and provided guidance to instructors who were struggling to deal with his misconduct. This accommodation of providing individual instruction was, please keep in mind, adopted after Mr. Cho’s menacing presence in her class had caused an English instructor such terrible anguish that she threatened to resign.”
“The (second) tack repeatedly taken by Cho’s instructors and others was to prod, cajole and shoehorn him into psychotherapy; to the point that one instructor actually offered to chaperone him to the service. This particular tack of championing psychological treatment to Mr. Cho, although no doubt well-intentioned, should have been, in my view, recognized by someone at the university as terribly misguided and worse, doomed to fail with adverse consequences of some kind in its wake.”
“The third (and most dangerous) tack taken by the university in dealing with Mr. Cho was to eschew using the disciplinary system of the school to admonish, warn and if necessary discipline him for his chronic and flagrant violations of the code of student conduct … When Cho stalked (harassed), he was given a tempered warning by a police officer but no direct admonition or warning came from Judicial Affairs or a designated administrator with disciplinary authority, ordinarily the offices most responsible and effective in meting out discipline. When Mr. Cho took impermissible photographs of female students in the class, he was reported to a dean, who clearly stated in an email message to the instructor that Cho’s behavior fell under the rubric of disorderly conduct, meaning, I would assume, that it should meet with some form of discipline. What was the response to this incident? The Judicial Affairs officer agrees with a plan to once again refer Cho to the counseling program, suggests nothing about the use of discipline and limits her remarks to (and I quote), “I would make it clear to him that any similar behavior in the future will be referred.” Presumably, she means referred to the Judicial Affairs office or to counseling. Once again Cho walks away with impunity by not being held accountable for his misconduct. … the university was fixated, it seems, on getting Mr. Cho repaired in the psychological service rather than on harnessing and correcting his disruptive and frightening behavior through the use of disciplinary measures. …”
“Dr. Amada also adds the following: ‘In his book called Moral Mazes the author, sociologist Robert Jackal, points out that one of the greatest fears that plague corporate managers is that they will be caught in the wrong place at the wrong time and will not be able to outrun their mistakes when blame-times arrive.’”
Tech President Charles Steger and his administration were caught in the wrong place at the wrong time—clearly, the school is twisting and turning everyway possible to explain its failure to act decisively when confronted with Cho’s threatening behavior.”
Tech asserts: “The paramount concern in this administrative process is how the review proceeds going forward, and how established hindsight bias is overcome. Jonathan Baron and John Hersey write in the article, Outcome Bias in Decision Making:
“Because evaluations are made after the fact, there is often information available to the judge that was not available to the decision maker, including information about the outcome of the decision. It has often been suggested that such information is used unfairly, that reasonable decisions are criticized by Monday-morning quarterbacks who think they might have decided otherwise, and that decision makers end up being punished for their bad luck. Results suggest that people may confuse their evaluations of decisions with the evaluation of the consequences themselves. Mere understanding that such confusion contaminates these evaluations is not enough to eliminate it. When decisions turn out badly, it may sometimes be useful to reanalyze them from the decision maker’s viewpoint at the time of the decision, both for judging the decision maker and for the promulgating standards for the future.”
“The opinion of Baron and Hersey are echoed by many others. There is a need when conducting true root cause analysis to move beyond outcome biases, (Comment: that is exactly what Steger and company had—outcome bias. They wanted the double homicide to be the result of a love triangle) to realize that decision making is not a simple linear process and to become immersed in the process from the perspective of the decision maker. Without this kind of effort, review and evaluation will be encumbered with hindsight and observable biases.
In the article, Virginia Tech Lesson: Rare Risks Breed Irrational Responses, security expert Bruce Schneier writes: Our brains need to find someone or something to blame, but sometimes there is no scapegoat to be found, sometimes we did everything right, but just go unlucky, we simply can’t prevent a lone nutcase from shooting people at random, there is no security measure that would work.”
Comments: Sometimes our brains don’t work at all because we have a bias—in Tech’s case, the bias was that the double homicide was the result of a love triangle. According to Morgan Jones in his book, The Tinker’s Toolkit, “The trouble with biases is that they impose artificial constraints and boundaries on what we think.” President Steger and the police wanted to blame the other member of a nonexistent love triangle and therefore violated crime scene analysis 101. For all practical purposes, in the critical hour after the initial shooting they found a scapegoat. Jones also adds, “The reason biases can so easily lead us astray is that the mind doesn’t rigorously test the logic of every new piece of information it receives.” Chief Flinchum and President Steger did not rigorously examine the evidence they had—much less look at the other very real possibilities. Specifically that the killer was on the loose and would kill others on the campus.
Tech asserts: “On April 16, 2007, the university had a system in place for resident advisors to physically knock on doors in residence halls if necessary. After the shooting in WAJ, resident advisors did knock on the doors in WAJ. Police also knocked on the doors in WAJ during this time to collect information and talk to students.”
Comments: Tech fails to mention that had the school at least locked-down West Ambler Johnston Hall two students would be alive today. The were allowed to leave the dormitory, one called her family to tell them there had been a shooting, but she was ok. Both were slaughtered at Norris Hall.
The DoE findings state: “Virginia Tech’s failure to issue timely warnings of the serious and on-going threat on April 16, 2007 deprived students and employees of vital time-sensitive information and denied them the opportunity to take adequate steps to provide for their own safety. In addition, Virginia Tech’s failure to develop and implement an adequate and appropriate timely warning policy and to even adhere to its own published policies effectively nullifies the intent of this disclosure requirement. Accordingly, Virginia Tech violated the Clery Act and the Department’s regulations.”
Tech asserts: “Virginia Tech has overwhelmingly demonstrated that a finding by the DoE that there was a ‘timely warning’ violation is not supported by the evidence. The intent of “timely warning” and the interpretation of timely warning proffered by DOE and those providing interpretation guidance to institutions of higher education did not consider a timely warning as an emergency notification.” Look at what else Tech asserts: “The guidance provided The Handbook for Campus Crime Reporting, published in 2005 … is found in Chapter 5, page 62 in the section entitled “The issuing of a timely warning 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.”
Comments: These words prove the case against Tech. Timely warnings should be decided on a case-by-case basis, depending on the nature of the crime and the continuing threat. How many times does Tech have to be reminded that two students were killed at WAJ and all evidence (bloody footprints) pointed to the fact that the killer was on the loose, on campus, and might strike again?
