Va. Tech's federal appeal could set precendent

By Tonia Moxley

Issues surrounding the April 16, 2007, shootings at Virginia Tech are set to continue to play out this week during a hearing in Washington.

Tech officials will present their side of the story of what happened that day and why they think the university should not be fined for violations of the federal Clery Act at a hearing scheduled to start Wednesday.

The university, with help from the Virginia attorney general's office, is appealing $55,000 in fines levied against it by the U.S. Department of Education in March 2011. The three-day hearing is part of that appeal, which will be handled by Chief Judge Ernest Canellos of the department's Office of Higher Education Appeals.

The hearing itself is precedent setting, said Daniel Carter of Security on Campus, a nonprofit that advocates for Clery compliance.

"There has never been a Clery Act hearing," Carter said.

But it may not be the last. Investigators have been on the Penn State campus for a Clery Act investigation into whether the university failed to report incidents of sexual abuse in connection to allegations against former assistant football coach Jerry Sandusky. An Education Department spokesman said the department is also reviewing whether a similar investigation will take place at Syracuse. Three men, including two former ballboys, have accused former assistant basketball coach Bernie Fine of molesting them as minors.

In the Virginia Tech case, the rare hearing is expected to last two or three days.

After hearing testimony from a number of witnesses next week, Canellos will issue a final ruling in writing, department spokeswoman Jane Glickman said.

But that ruling may not come immediately, and further legal challenges could follow.

Canellos, an administrative law judge who considers appeals of civil fines levied against higher education institutions by the Education Department, has never held an evidentiary hearing in a Clery case, Carter said.

Tech's appeal relates only to the amount of the fine levied by the Education Department. The findings of violations of the Clery Act were upheld last year on a previous appeal and cannot be reversed, according to a letter issued by the Education Department.

The Tech case has attracted great interest in higher education circles, given the high profile nature of the crime and the chance to learn how the department applies the law. The 1990 law was named after Lehigh University student Jeanne Clery, who was raped and murdered in her dorm room by another student in 1986.

During this administration, the Education Department has conducted more random Clery Act audits and has worked at times with the FBI. Six schools this year alone are facing fines, which is the same number that paid fines in the first 18 years of the law, Carter said. Security on Campus, the organization he directs, was formed by Clery's parents.

The maximum fine per violation under the law is $27,500. Colleges and universities can also lose the right to offer federal student loans, but that's never happened. In the highest fine issued under the Clery Act, Eastern Michigan University agreed in 2008 to pay $350,000 for covering up the rape and killing of a student in her dorm room by telling reporters and her parents there were no signs of foul play.

The department had earlier found Tech guilty of two violations of the Clery Act for failing to immediately warn the campus of a shooter on the loose after two students were fatally shot in a dormitory.

"This case is about responsibility," the Education Department said in a court filing. "Specifically, it's about an institution's responsibility to provide vital information to its students and employees as required by federal law."

Tech officials notified the campus of a "shooting incident" nearly two hours after the dormitory attack. Minutes after the notification, shooter Seung-Hui Cho opened fire in Norris Hall classrooms, killing 30 more and wounding more than a dozen before shooting himself.

Tech officials have argued that they followed, and even exceeded, federal campus emergency notification standards as they were practiced at the time, and have promised to continue to appeal their case.

Virginia's attorney general, Ken Cuccinelli, said in a statement earlier this year that the appeal was filed to compel the department to treat Virginia Tech fairly. The university contends the department is holding it to a higher standard than what was in place at the time of the shootings.

"There are important principles and policies at stake here that affect not just Virginia Tech, but colleges and universities all across the country," Cuccinelli said in the statement.

Dolores Stafford, a Clery Act expert hired by Tech to review its actions, will testify on the university's behalf, according to a list of witnesses provided by the Education Department.

Several Tech employees will also testify, including James Hyatt, a former executive vice president. President Charles Steger is not included on the list of witnesses.

Tech spokesman Larry Hincker said the university chose to present witnesses it thought could most directly speak to the issues in the case.

Hyatt and Steger are defendants in a wrongful death lawsuit brought by the families of Erin Peterson and Julia Pryde, who were both killed in the shootings.

A jury trial in that case is set for March 2012.

The Associated Press contributed to this report.