Secretary of Education Decides Virginia Tech Violated Clery Act during 2007 Shootings

by Franczek Radelet P.C.
Contact

[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.

Background

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.

Next Steps

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.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.