In December 2010, the Department of Education (DOE) released the Final Program Review Determination (FPRD) as the last say on its earlier ruling that Virginia Tech University violated the Clery Act's requirement for issuing a timely warning during the events of April 16, 2007.
The FPRD findings bring clarity to how DOE views the mandate of "timely notification" as articulated in the Clery Act. This decision places more scrutiny on school and university officials and their management of emergency events and dangerous situations. School leaders face challenges an need the tools provided by industry to respond to the need for timely notification.
The Department of Education does not set specific time requirements for emergency notification. Early drafts of Higher Education Opportunity Act 2008 (HEOA 2008) cited 30 minutes as a warning window, but in the end the more vague term "within a reasonable and timely manner" was used. Also there is no definition of what constitutes an emergency event or dangerous situation requiring notification of the campus population. By not setting a finite measure of time or defining what emergency events are, the law has left it to be determined after the fact as to whether or not timely notification was properly executed.
According to DOE, "The determination of whether a warning is timely is determined by the nature of the crime, the continuing danger to the campus community and the possible risk of compromising law enforcement efforts among other circumstances surrounding the event in question." By definition, DOE has made it clear that the determination will be decided on a case-by-case basis. This vagueness in the law poses a conundrum for education. What is good enough?
DOE's December ruling changes the nature of campus police responsibility and response. In order to meet this obligation, universities will be forced into more elaborate scenario planning so that there is less contemplation when an emergency does occur. Quicker decisions means less time to notification. When the decision is made to notify the population, the notification system in place needs to deliver as simply and quickly as possible.
Suzanne Grimes, mother of one of the Virginia Tech victims, a former teacher and a vocal advocate for school safety says there should be more teeth in the law.
"The DOE really needs to define what 'immediate' means. Does it mean there is an imminent danger — a double homicide, a fire, a chemical spill? While you can't expect them to account for every situation, they can create classifications that require immediate notification. They didn't do that in the Clery Act, but I would hope that in the future it will be defined more specifically to give these schools some guidance," says Grimes. "What it means for universities is that they have to step up to the plate. They have to make sure their emergency plans are up to date, they have to practice and prepare better."
Responding to DOE's initial June 2010 report, Virginia Tech argued that because Clery Act legislation does not define "timely notification," the university's efforts on April 16, 2007, were sufficient. In December, DOE disagreed saying that the basic facts of the situation — one person killed, one injured, no suspect in custody and no weapon found at the scene — defined the sense of urgency. It was reasonable, said DOE, to assume there was an armed and dangerous suspect at large who posed a danger to the campus community. A timely warning should have been issued even if the law has not set a specific timetable. In this case, the DOE determined that two plus hours was too long.
Active shooting events have happened on K-12 and higher education campuses in the past. However, the frequency has increased from 1 per decade to 30 since 2000. While those numbers may reflect greater accuracy in news reporting, it is also clear that the active shooter has become an American cultural dynamic.
The Clery Act embodies more than just shootings. There are 11 distinct categories that campus police must report on to be in compliance. These include robbery, assault, rape and hate crimes among others. Going forward, the mandate to notify the campus population is now framed in terms of one individual posing a threat to other individuals.