[authors: Ellen Wetmore and Scott Warner]
On August 30, 2012, Secretary of Education Arne Duncan issued an order ruling that, during its handling of a 2007 mass shooting on campus, Virginia Polytechnic Institute and State University (Virginia Tech) committed two violations of the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). In so ruling, Secretary Duncan reinstated a $27,500 fine against the University for one violation and remanded a portion of the case for determination of another fine for a second violation.
The Clery Act requires colleges and universities to issue timely warnings to their campus communities when a crime has occurred that is considered to be a threat. The Virginia Tech matter arose out of the April 16, 2007 shootings that occurred on Virginia Tech’s campus in which a student killed 32 people and wounded 17 others. Two alleged violations of the Clery Act are at issue in this agency action: (i) Virginia Tech’s alleged failure to issue a timely warning alerting the campus community about the first two shootings that morning; and (ii) Virginia Tech’s alleged failure to follow its published crime reporting procedures.
Following the shootings, the Department of Education (Department) investigated Virginia Tech’s handling of the situation and issued a report in 2010 finding that the University had indeed violated the Clery Act. In 2011, the Department’s Office of Federal Student Aid (FSA) imposed a total fine of $55,000 for the two violations. Virginia Tech appealed the fine. In March of 2012, an administrative law judge vacated the fine, finding that the University had acted in accordance with the Clery Act with respect to both alleged violations. The FSA appealed that decision, and Secretary Duncan reversed the judge’s findings, ruling that Virginia Tech had committed the two alleged violations of the Clery Act.
Failure to Issue a Timely Warning
Virginia Tech argued both that it had no duty to issue a warning in this instance and that the warning it ultimately did issue was timely. Secretary Duncan rejected both arguments in no uncertain terms. In holding that Virginia Tech had a duty to warn, Secretary Duncan stated, “it is alarming that Respondent [Virginia Tech] argues that it had no duty to warn the campus community after the Police Department discovered the bodies of two students shot in the dormitory, and did not know the identity or location of the shooter. Indeed, if there were ever a time when a warning was required under the Clery Act, this would be it.”
Secretary Duncan went on to rule that the warning issued by Virginia Tech’s University Relations Office was not timely because Virginia Tech did not issue a warning until more than two hours after it learned of the first two shootings. (The other shootings occurred minutes after the warning was issued.) Although the Clery Act does not contain a definition for timeliness, Secretary Duncan ruled that the delay between the discovery of the initial shootings and the warning was not appropriate. He reinstated the previously awarded $27,500 fine (the statutory maximum) and noted that any doubts should have been resolved in favor of a duty to provide a warning.
Failure to Follow Published Procedures
Institutions subject to the Clery Act must publish their crime reporting procedures in an annual security report. At the time of the shootings, Virginia Tech had three crime reporting policies in place: a policy in its annual security report, an internal policy, and an emergency management plan. Secretary Duncan found that these policies were not consistent with one another and that the internal policy had not been disseminated to the community. On the day of the shooting, Virginia Tech essentially followed the requirements of the policy contained in its annual security report.
Nevertheless, Secretary Duncan held that Virginia Tech violated the Clery Act, explaining that “[p]ostsecondary institutions should not have multiple timely warning policies – only some of which are disclosed to the campus community – that are inconsistent with each other. University policies and procedures provide vital assurance of informing students, faculty, and staff of the specific procedures followed by the institution in the event of criminal activity on campus that may threaten the safety of members of the campus community.” Secretary Duncan ruled that Virginia Tech should not be fined for failing to follow the procedure in its annual security report, but that it “should be fined for having inconsistent policies and failing to disclose one of them.” Secretary Duncan remanded this portion of the matter for calculation of an appropriate fine.
Virginia Tech has expressed its disagreement with the ruling, as well as a possible intention to appeal it at the federal court level. This long-fought legal battle underscores the scrutiny that an institution may be subjected to after a crisis involving criminal conduct. As Secretary Duncan emphasized, any doubts as to whether such a situation may create a duty to disseminate a timely warning should be resolved on the side of issuing a timely warning. More complicated, however, is the other issue highlighted by the ruling: that colleges and universities must have clear, consistent, and widely disseminated crime reporting policies that must be followed in times of crisis. Institutions, particularly those with multiple campuses or locations, may have multiple or inconsistent policies, or they may not publicize these policies to campus employees with a need to know. Secretary Duncan’s ruling is a reminder that institutions should review their crime reporting policies to ensure that they (i) comply with the Clery Act, (ii) are either consolidated or consistent with one another, and (iii) are followed – and capable of being followed – in times of emergency.