Virginia Tech seeks to block fine in shooting case

By Kimberly Hefling

Associated Press

Published: Saturday, Dec. 3 2011 10:16 p.m. MST

In this April 16, 2009, file photo Virginia Tech student Kevin Sterne, who was injured in the Virginia Tech shooting two years ago, looks up at balloons released in remembrance of the victims of the 2007 Virginia Tech shootings.

Steve Helber, File, Associated Press

WASHINGTON — Virginia Tech University says it acted appropriately in alerting the campus that bloody spring day in 2007 during what turned out to be the deadliest mass shooting in modern U.S. history.

The government disagrees and has levied $55,000 in fines, contending the school was too slow in notifying students, faculty and staff and therefore in violation of a federal law requiring timely warnings when there are safety threats.

The university gets a chance Wednesday to begin making its case before an Education Department administrative judge, Ernest C. Canellos, in hopes of erasing a fine that isn't hefty but can leave a black mark on an institution's record.

The fines were levied under a law known as the Clery Act, which requires colleges and universities to provide warnings in a timely manner and to report the number of crimes on campus. During the Obama administration, there's been a ramping up in enforcement under the act, which has gotten recent attention because of scandals at Penn State and Syracuse universities.

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. It probably won't end with an immediate ruling and further legal challenges could follow. Virginia Tech hasn't indicated it is backing down even though experts say schools found in violation of the law typically accept a fine and agree to changes or negotiate a settlement.

This 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, said S. Daniel Carter, director of public policy at Security on Campus Inc., a Wayne, Pa.,-based organization 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.

In the Virginia Tech case, the university opted to exercise its right for an appeals hearing before an Education Department administrative judge. Larry Hincker, a university spokesman, said in an email that the actions taken by Virginia Tech were well within the practices in effect then on campuses.

Virginia's attorney general, Kenneth 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.

The university is facing charges of failure to issue a timely warning and failure to follow its own procedures for providing notification.

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