U.S. Secretary of Education Should Weigh in on Virginia Tech Shooting Fine Reversal

Last week an administrative law judge for the U.S. Department of Education (ED) relieved Virginia Tech of their obligation to pay a $55,000 fine for "an alleged failure to follow the timely warning requirements of the Clery Act" during the April 16, 2007 shootings on their campus. This case, however, long ago ceased being merely about payment of a fine, and this decision should not be the final word on this matter, not because of the money but because of what it means for keeping campuses as safe as possible. ED guidelines permit a final appeal, by either the school or ED enforcement officials, to the U.S. Secretary of Education, and this case should run its course with the Secretary weighing in.

This will offer much needed additional guidance about how colleges and universities should issue warnings "on crimes considered to be a threat to other students and employees." When, in 2007 as a then advocate for the non-profit Security On Campus, Inc. (SOC) organization, I called for the ED investigation that ultimately led to the $55,000 fine it was not only to help get the victims' families much needed answers about what happened that day but also to obtain clear information about how ED would hold colleges and universities accountable for warning their campuses. I argued that issuing a warning two hours after police determined there was an unknown campus shooting suspect at-large was not consistent with a requirement that such warnings be issued as soon as the "pertinent information" was available. ED reviewers subsequently agreed with this position.

While painfully long for everybody involved, the review has indeed proven instructive. The recent Judge's ruling, for example, makes it clear that in evaluating cases ED may apply a reasonableness test to whether or not a timely warning should be issued. In fact the Judge held that with respect to the first two students shot, both of whom subsequently died, at West Ambler Johnston Hall (WAJ) "it was not reasonable for Virginia Tech to conclude that the shootings at WAJ did not represent a threat to the campus community." This is a precedent setting ruling.

Where he differed from the ED enforcement division seeking to impose a fine was in holding that the statement issued about the shooting approximately two hours later reasonably satisfied the requirements of the law as they were understood at the time, when many institutions were issuing warnings one or more days after incidents. Shortly after that warning went out a shooting rampage by the same killer ensued, killing 30 more innocent students and faculty as well as wounding more than a dozen others before the shooter killed himself.

As we approach the 5th anniversary of this tragedy, the lessons of April 16, 2007 have made college and university campuses profoundly safer, including Virginia Tech. Virginia Tech, following the recent Judge's ruling, issued a statement saying "we know that higher education changed on April 16, 2007. New laws, protocols, practices, policies, and technologies grew from our tragedy." Warnings now come in minutes not days or hours, and after a shooting at Virginia Tech last year five separate alerts and updates were issued in less than two hours, the first in about seven minutes.

Following the decision, the VTV Family Outreach Foundation (VTV), created by the survivors and the families of those killed and wounded at Virginia Tech on April 16, 2007, also issued a statement. They said that they were "hopeful that the review of this case will continue, and that the final outcome will result in significant policy change in American higher education, with colleges and universities nationwide continuing to strengthen their commitment to the safety and well-being of their campus communities."

Unlike a recent civil verdict awarding the families of two of the students killed in the second shooting $4 million each, and an earlier settlement entered into by most of the families, this case ultimately doesn't come down to the payment of money or the answering of questions about what happened on April 16, 2007, the latter of which was a primary driver of those legal actions.

The $55,000 fine, if it is ever paid, will go into the United States Treasury and won't directly benefit any person, including the victims, or organization, such as SOC or VTV, involved in the case. The key will be the guidance found in the Secretary's decision about how ED should enforce the Clery Act's timely warning requirements, including whether or not the type of timeframe involved in a case like this one is reasonable for issuing a timely warning. That is why it is so important that this case be allowed to run its full course.