Seung-Hui Cho shot two students in a Virginia Tech dormitory at 7:15 a.m. April 16, 2007. The university communications office sent an email two hours later to warn students. But some of them were killed shortly thereafter, when the shooting resumed about 9:45 a.m in Norris Hall. That email had come too late, the Department of Education ruled at the end of 2010. It asserted Virginia Tech had breached the Clery Act, which stipulates how universities receiving federal financial aid should respond to criminal activity. Part of the Clery Act requires universities act in a "timely" manner. This sanction against Virginia Tech and its accompanying fine of $55,000 was overturned when a judge ruled Thursday the two-hour email delay "was not an unreasonable amount of time," nearly five years after the event.
This judge was Ernest Canellos, the chief administrative judge of the Department of Education. He ruled the university had upheld the Clery Act by notifying students in good time. "If the later shootings at Norris Hall had not occurred, it is doubtful that the timing of the email would have been perceived as too late," he said. This counterfactual reasoning is distracting - whether or not the shootings would have occurred at Norris Hall is irrelevant - but we can't use the same tactic against Judge Canellos and ask how this case would have turned out if he had reasoned otherwise.
This ruling is significant for various groups in the state, especially coming weeks after a jury found Virginia Tech negligent in a civil suit filed by two victims' family members. There are thus two court cases which are legally unrelated but center on the alleged lapse in communication. The VTV Family Outreach Foundation, created in memory of those who were wounded or killed, is upset at the latest ruling. Virginia Tech, which has defended itself by tracking how fast other universities have responded to violent activities, views the new verdict as legitimizing. And both parties look to appeal the rulings which have gone against them. And everybody is still mourning.
Virginia Tech said the emergency notification provision added to the Clery Act in 2008 was largely a result of the tragedy on its own campus, and therefore should not have been retroactively considered when judging the university's prudence. Certainly, using new standards to make condemnations in hindsight can be unfair and unhelpful. Virginia Tech has argued new standards of timeliness which arose from its own school's tragedy were now being used against it. While this claim is valid, this new ruling is not merely concerned with setting the past straight. Canellos' interpretation of the Clery Act also informs the law by setting a precedent which leaves the definition of the "timely" reporting of criminal activity uncertain.
It has taken a half decade of deliberation by judges and agencies to get to this point. Universities don't have this kind of time, and instead of being put to rest the tragedy continues on trial. To address security on campus, administrators and lawmakers should meet outside the courtroom to discuss what responses are adequate. We don't want to be alarmist, but in the meantime how should universities act? They must respond as quickly as possible.
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