In the first trial of its kind, Virginia Polytechnic Institute and State University is challenging a $55,000 fine levied by the Department of Education over the university's handling of the April 16, 2007, massacre that left 33 people dead.
Education Department Administrative Chief Judge Ernest Canellos heard opening arguments Wednesday morning from attorneys for the university and the Department of Education. The department is holding the high-profile trial in the ceremonial courtroom of the U.S. District Court for the District of Columbia.
The department found Virginia Tech violated two provisions of the federal Clery Act, which requires universities to disclose crime information on campus and also maintain security plans and procedures. University officials, according to the department, failed to disclose an accurate version of the campus security policy to students ahead of time and then failed to issue a timely warning to the community on the day of the shooting.
The university appealed, arguing that it followed Clery Act guidelines in deciding when to notify the campus of a security threat. Since the Clery Act doesn’t specify a time-frame for what constitutes a “timely warning” of a threat, the university claims the department can’t impose a standard after the fact. Officials also said that they followed the rules in disclosing the security plan to the campus community.
This case marks the first ever trial for a Clery Act violation. Any precedent set in the Virginia Tech case could affect a pending Education Department review of whether Pennsylvania State University complied with the Clery Act in its handling of rape allegations against former football coach Jerry Sandusky.
On April 16, 2007, Virginia Tech student Seung-Hui Cho shot and killed 32 students and wounded 17 others before committing suicide. Following an investigation, the Education Department fined (PDF) the university $55,000, representing the maximum fine of $27,500 for each of the two Cleary Act violations.
At around 8 a.m., campus police first responded to a report of two students in critical condition in a dorm room. According to the department’s report on the shooting, Cho is believed to have shot the two students at around 7:15 a.m. The campus community was first notified of a shooting at 9:26 a.m.
Brian Siegel of the Education Department’s Office of General Counsel said in his opening statement that he would show that the university had an obligation to notify the campus community as soon as police learned that two students had been shot and the suspect was unknown and presumably on the loose.
On the second violation, Siegel said that the university failed to disclose the full extent of its procedure for notifying the campus of a threat. The community was told that the chief of police decides when to send out a notification, but Siegel said that in reality other officials have to be consulted, adding another level of bureaucracy.
Peter Messitt, a senior assistant attorney general for Virginia, arguing for the university, said in his opening statement that when campus police first arrived to the dorm room, they had reason to believe the shooting was targeted at the two students and that the rest of the campus community was not at risk.
The first witness was David Bergeron, a deputy assistant secretary for the Department of Education. Bergeron testified that he oversees data collection under the Clery Act. Bergeron said the department intentionally left out a definition of “timely” because it depends on the situation. The department provides guidelines to the universities that include examples of scenarios, he said, but universities are expected to use discretion.
On cross-examination, Messitt pointed out several examples that were included in the department’s guidelines of how universities responded to incidents in the past. On several occasions, the examples showed university officials waited several days in some cases to notify the campus of a threat.
Bergeron acknowledged that those examples were included in the guidelines, but added later that they were used to spotlight different types of scenarios and were not always clear on how long it took for universities to respond.
The trial is expected to last several days.