Wednesday, April 27, 2011

Cuccinelli finds the actions of the Department of Education appalling

RICHMOND (April 27, 2011) – Statement from Attorney General Ken Cuccinelli:

The tragic images of the mass shootings on the Virginia Tech campus on April 16th, 2007, are still vivid four years later. We continue to mourn, and we continue to learn from this unprecedented crime as we take new steps to make campuses across the country safer.

As you know, the federal Department of Education (DOE) recently concluded that the school administration failed to issue a “timely warning” during the shootings to alert those on campus of what was happening and also failed to follow internal Virginia Tech policies. The DOE has fined Virginia Tech $55,000 for these violations.

Today, with the support and encouragement of my office, Virginia Tech is appealing that decision.

The relatively small monetary penalty is not the reason for this appeal. The university has already expended millions as a result of the tragedy. In addition, the Tech community donated millions more to the Virginia Tech Foundation’s Hokie Spirit Memorial Fund, and those millions were turned over to the school to distribute to the survivors and to the victims’ families.

The main purpose of the appeal is to compel the DOE to treat Virginia Tech fairly and to apply a very poorly defined and subjectively applied federal law consistently and correctly. There are important principles and policies at stake here that affect not just Virginia Tech, but colleges and universities all across the country.

Having personally examined the conduct of the federal bureaucrats at the Department of Education, I must tell you I find their actions appalling.

First, let us never forget the real culprit here was Seung-Hui Cho. He committed a mass murder on a college campus without precedent or parallel in American history. The DOE’s attempt to make scapegoats out of dedicated law enforcement officers and the Virginia Tech administration will not solve anything.

Second, what we are witnessing, four years after the fact, is Monday-morning quarterbacking at its very worst. No one denies that it is possible in hindsight to imagine scenarios where things might have transpired differently on April 16th. But that is not the point—and it is not the way people react to events in the real world.

In the real world, events unfold quickly, and the full context often becomes clear only later. That is what happened on April 16th:

a) What first appeared to be an isolated, domestic-related shooting on one part of campus later proved to be connected to a subsequent mass killing on another part of campus; and

b) What first appeared to be the act of an intruder who fled the campus later proved to be the act of a campus insider with access — a deeply disturbed student who was determined to kill as many of his fellow students as possible.

Based on what they knew at the time, law enforcement officers and the Virginia Tech administration acted appropriately. They did the best they could under the circumstances as they understood them. And that is the only fair standard by which their actions can be assessed.

Indeed, federal law has since been amended and practices on college campuses all across the country have changed since April 16th, 2007, because of what everyone learned on that awful day.

Third—and most importantly—I see troubling signs of bad faith on the part of Virginia Tech’s detractors in the federal bureaucracy.

Let me connect the dots for you.

First, there is the matter of timing. It is four years after the crime in question. A civil trial against the school and some of its officers is now only a few months away. And the U.S. Department of Education has chosen this strange time to issue its fine and publicly hype its action. This is an extraordinarily odd coincidence.

Second, there is the lack of thoroughness. It is not just that federal bureaucrats are engaging in Monday-morning quarterbacking—it is that they have had four years’ worth of Monday mornings. Yet, in all that time, they have not once gotten into the car and driven down to Blacksburg to talk to the police chief or the university president or to anyone else who had to deal with these events in real-time. Their investigation—if you can call it that—appears deeply flawed, and their indifference to the facts on the ground is shocking.

Third, there is the issue of transparency. Virginia Tech has repeatedly requested access to the DOE case file so that it can respond to the factual premise and allegations on which the agency bases its findings. Basic due process requires that access. Yet, all those requests for access have been denied or ignored. Multiple FOIA requests have been filed. Responses were promised. The department’s legal obligation is clear. Yet not one single document has been provided. And this stonewalling has gone on for more than a year.

Even as we prepared the documents for this appeal, we – the attorneys for Virginia Tech – were denied access to the information on which DOE has based its hindsight-based fault-finding.

These federal bureaucrats have no problem harshly judging the decisions others had to make in a two-hour period of unimaginable crisis and stress. Yet in the comfort of their Washington offices, they take four years to arrive at a conclusion and cannot manage to comply with federal FOIA law while doing it.

And, this is not just my opinion. Let me share with you what Vice President Terry Hartle of the American Council on Education recently wrote in the Chronicle of Higher Education. He said the Department of Education decision:

“… represents the height of federal overreach, using hindsight and a flawed process to achieve a desired ending. This is a great disservice not only to Virginia Tech, but also to the entire higher-education community. What college or university will next be subject to a federal “star chamber” that runs roughshod over due process and bends federal law to reach predetermined conclusions? What recourse, other than an expensive and distracting legal appeal, does Virginia Tech have to clear its reputation of this unwarranted finding?

“It is difficult to piece together the key elements of the bureaucratic train wreck that led to this unfair decision. First, it took the department four years to complete its investigation and issue a ruling. Let us put that in perspective. It took the Warren Commission 10 months to investigate the assassination of President John F. Kennedy and issue a report in 1964. It took the Rogers Commission five months to complete its investigation of the Challenger explosion and the loss of seven space-shuttle crew members in 1986. And it took the 9/11 Commission 20 months to issue its findings regarding the terrorist attacks that cost nearly 3,000 lives. What about the Virginia Tech investigation could possibly have taken the department so long?

“More egregious is the fact that Virginia Tech had no chance to discuss the case with investigators, no chance to provide context or additional data, no chance to even see the material that the department’s officials were considering as part of their deliberations.”

In sum, here is what we face:

a) We know the DOE investigation was shoddy at best. No one from the department ever went to Virginia Tech to investigate firsthand and to hear from those who made the decisions.

b) We know the department inexplicably waited four years to issue its finding.

c) And we know that our efforts to determine the basis for DOE’s findings have been thwarted because the department continues to violate federal law by stonewalling Virginia Tech’s repeated FOIA requests.

All in all, it amounts to an outrageous denial of due process.

My office will work closely with Virginia Tech, not only on this very well-grounded appeal, but to hold the federal Department of Education to basic standards of accountability, due process, fair dealing, and obedience to the law.

Additionally, I want to touch on one more thing. I previously mentioned the civil litigation against Virginia Tech. In the complaint from the lawyers suing the school and its officers, page after page is devoted to the outrageous allegation that Virginia Tech was more concerned with its public image and fundraising than with the safety of students. They even said the decision-makers at Virginia Tech that day were divided into two camps—the “image group” and the “safety group”—and the image group prevailed.

Yet just this month, during the discovery phase, the plaintiffs’ lawyers now admit that they have no documents and no witnesses to support that central allegation in their complaint against Virginia Tech. Their April 11th response to our Request for Admissions contains these stunning admissions. It is a public document, and copies are available here: Request for Admissions. Response to the Request.

I am telling you this to let you know that the claims of putting image and money ahead of safety are baseless, but also in the hope that these admissions by these lawyers will cause every journalist to inquire very carefully before repeating their reckless claims in the future. The good name of Virginia Tech and the memory of the victims of that dark April day require no less.

The formal appeal letter to the Department of Education – CLICK HERE.

Posted By Valerie Garner

Categories: Education, Politics, State Politics

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