Residence Halls Issue at San Jose State University

Noel Fernandez

MA in Higher Education Administration and Leadership, CSU Fresno

HEAL 227

November 24, 2022

RESIDENCE HALLS ISSUE AT SAN JOSE STATE UNIVERSITY 2

Executive Summary

Santa Clara County District Attorney charged four San Jose University first-year students

with battery and hate crimes stemming from interactions with another first-year student who

were all roommates living in an eight-person dormitory suite who moved in on August 16, 2013.

The District Attorney added hate crime enhancements in so far as the investigation by the

University Police Department determined that the four assailants were Caucasian and the victim

African American. All the evidence gathered from the several incidents reflects racial targeting

from the Suspects' behavior. All the evidence gathered illustrates this was an ongoing situation

throughout the Fall 2013 semester, and the big concern is how this could have been ongoing for

months without any reports.

Incidents

The student would be harassed regularly by his white roommates calling the black student

“3/5,” which refers to the “Three-fifths compromise.” This compromise was an agreement

between delegates from the Northern and the Southern states at the United States Constitutional

Convention (1787) that every five enslaved people in a state would count as three free people to

determine direct taxation and representation in the House of Representatives (Rael, 2016). When

the black student objected, the white students called him “Fraction.” The white students even

put-up photographs of Hitler, and the Confederate flag and wrote racial words on the whiteboard

in the suite they shared in the common area. They would barricade the student in his room since

the doors to the bedrooms opened outward into a narrow hallway. The Suspects attempted to lure

the Victim into the closet to retrieve his shoes since they hid them in the closet, and they took off

the handle inside so the student couldn’t open it. The taunting of the black student became

physical at times, with the white students placing a bicycle lock around the neck of the black
RESIDENCE HALLS ISSUE AT SAN JOSE STATE UNIVERSITY 3

student, and they succeeded once but attempted during other occasions. The Suspects wrote a

note of “apology’ to the Victim when they were caught by the Victim’s parents. Still, the letter

contained a sarcastic reference to Martin Luther King and language that the Victim and others

perceived as a veiled warning against further complaints by the Victim.

Awareness of Incident

The University was notified on October 13, 2013, by the black student’s father, who

visited his suite and saw the photo and writings displayed in the common area. The Victim was

17 years old when the harassment started, and the others were 18 years old or older. The parents

reported the observations to the Resident Assistants on duty. The Victim was contacted the

following day by the RA’s supervisor, and he was encouraged to submit the report to the

University Police. The Victim didn’t file a report with the Police. The supervisor still went ahead

and filed the complaint on the Victim’s behalf and notified the University Police. The University

Police Department started an investigation after they received the report.

There is a statement by the Victim that he didn’t want to bring the inappropriate conduct

or concerns to the attention of anyone outside the suite. It seems as if the Victim was aware of

the resources on how to report the misconduct but chose not to use those resources. The Victim

was also not hindered from having access to the campus resources, and the University did not

have a reputation for not taking incidents seriously. The University became aware of the

Victim’s situation late on the evening of October 13, 2013. Before October 13, 2013, there was

no complaint to the University by the Victim or any other person regarding the incidents

occurring in the suite. The Victim was encouraged by his roommate and other students to report

the behavior of his roommates, but the Victim declined to do so and asked them all to say

nothing. They all respected his decision and didn’t report anything.
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Process of the University

The University Police Department initiated an investigation on October 14, 2013. The

UPD visited the Suspects and Victim on October 15, 2013, and based on all the finds, such as the

depictions of the “SS” symbol associated with Nazi Germany, a picture of Adolph Hitler, a

confederate flag with a walking skeleton with words saying “the South will Rise Again.” The

Suspects were moved to other housing locations.

This was then reported to the University’s student Conduct and Education Department

(“Student Conduct”) and Title IX/ Department of Human Resources (Title IX/DHR), and Crisis

Assessment Intervention Team (“CAIT”). Student Conduct initiated an investigation according

to its policies. Title IX/DHR initiated an investigation that concluded on November 18, 2013,

after receiving the final report of the investigation from UPD.

Final Report

When the first incidents came to light, the Residential Living Coordinator asked the

Victim if he felt safe staying in the Suite. The Victim mentioned that he felt good about the

situation after the meeting between his parents and his roommates, and the situation was fine.

Under Housing policy and practices, a student will not be removed from campus housing unless

the student has been suspended after the conclusion of the disciplinary process. Housing will

remove a student from campus housing before the conclusion of the disciplinary process in

certain circumstances where it is determined that the student poses a threat to themselves

(Kinney, 2021, p. 44). The choice in this situation was to let the Suspects remain in campus

housing.

The University Policies state that a student may not be expelled or otherwise disciplined

until the steps of the student Conduct disciplinary process have been completed. The Vice
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President of Student Affairs (“VPSA”), on the other hand, has the authority to direct an interim

suspension under limited circumstances, for example, when there is reasonable cause to believe

that separation of a student is necessary to protect the personal safety of a person within the

University community or University Property that will ensure the maintenance of order. The

VSPA directed interim suspension of the four Suspects on November 21, 2013, based on the

final report completed by the UPD. This suspension should have been done earlier as there was

enough evidence to act on the interim suspension.

The University staff complied with the policies and past practices, but the campus

leadership did not follow its usual procedure in its executive oversight of the incidents. The

University policy provides that staff will investigate allegations of misconduct or violations and

University policy and take appropriate action to investigate the incident and to take further

corrective or disciplinary action as warranted by the circumstances. When the University became

aware of the issues involving the Victim, appropriately investigate and corrective actions were

undertaken. Still, the Leader of the University wasn’t notified until October 26, 2013, when the

VPSA disclosed to the President allegations of placing a bike lock on the Victim’s neck and the

discovery of Nazi references in the dormitory room but it was a brief conversation and the

President didn’t get the final report till a month later. The President should have been the first

person notified of the incidents regardless of if the investigation was completed because there

were enough witnesses and evidence to inform the President from the first day the incidents were

reported.

The UPD completed its investigation on October 29, 2013, on the incidents that occurred

ad indicated that the four students be charged with crimes ranging from assault with a deadly

weapon to hate crimes against the Victim. The President didn’t get this report till November 20,
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2013. The President did not receive any further report from the Vice President of Student Affairs

or the Vice President of Finance and Administration, who received the report from the Police

Chief. The University’s Chief of Staff was not informed of any incidents or the ongoing

investigation until November 20, 2013. There was a lack of communication, and the University

could not respond promptly to the incident. The University followed the policy regarding

administrative issues for which the University staff was responsible, but leadership failed in

internal communication. This led to the University missing the opportunity to address

institutional concerns related to ensuring the security of the students, which would include the

Victim, Suspects, and any other residents on that floor.

A violation of the “Standards of Student Conduct” for the California State University

system, which was outlined in section 41301 Title 5 of the California Code of Regulations, can

be found in Appendix A. This standard indicates that students are expected to be good citizens

and engage in responsible behaviors that reflect well upon their University, and that would look

like being civil to one another and others in the campus community and contribute positively to

student and University life and students who violate these standards should be disciplined.

Conclusion

The University did follow protocol when it came to investigating the incidents, but there

was poor communication from leadership. Leadership should be updated immediately in an

email on any incidents the UPD investigates. The Victim should have also been moved into new

housing, as the Suspects knew precisely where the Victim was staying. They knew they were

familiar with the building they were staying at, so they could have just walked into the building

if they wanted to cause any harm to the Victim in retaliate for them being removed from their

suite. The University should be more descriptive in orientation on what bullying looks like and
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how to empower friends and individuals to report it because it is something that can stop.

Students shouldn’t have to be in an uncomfortable environment when the University housing is

always pitched to parents as the safer option for students since the University oversees student’s

wellbeing and safety but didn’t occur in this situation.

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References

Jaschik, S. (2013, November 22). Outrage at San Jose State.

https://www.insidehighered.com/news/2013/11/22/3-white-students-san-jose-state-

charged-tormenting-black-roommate

Kinney, K. (2021, February). Community Living Handbook. University Housing Services.

https://www.sjsu.edu/housing/docs/2122CommunityLivingHandbookWebfile.pdf

Moye, M. D. (2014, February 4). Independent Fact-Finding Report Concerning Incidents in

Student Housing Fall 2013. https://www.sjsu.edu/diversity/docs/Fact-Finding-Report-

SJSU-Fall-2013.pdf.

Rael, P. (2016, December 18). A compact for the good of america? slavery and the three-fifths

compromise. Black Perspectives. https://www.aaihs.org/a-compact-for-the-good-of-

america-slavery-and-the-three-fifths-compromise/
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APPENDIX A
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Appendix A

41301, Title 5, California Code of Regulations

STANDARDS FOR STUDENT CONDUCT
The University is committed to maintaining a safe and healthy living and learning environment for
students, faculty, and staff. Each member of the campus community must choose behaviors that
contribute toward this end. Student behavior that is not consistent with the Student Conduct Code is
addressed through an educational process that is designed to promote safety and good citizenship
and, when necessary, impose appropriate consequences.
(a) Student Responsibilities
Students are expected to be good citizens and to engage in responsible behaviors that reflect well
upon their university, to be civil to one another and to others in the campus community, and
contribute positively to student and university life.
(b) Unacceptable Student Behaviors
The following behavior is subject to disciplinary sanctions:

§ Dishonesty, including:
1. Cheating, plagiarism, or other forms of academic dishonesty that are intended to
gain unfair academic advantage.
2. Furnishing false information to a University official, faculty member, or campus
office.
3. Forgery, alteration, or misuse of a University document, key, or identification
instrument.
4. Misrepresenting oneself to be an authorized agent of the University or one of its
auxiliaries.
§ Unauthorized entry into, presence in, use of, or misuse of University property.
§ Willful, material and substantial disruption or obstruction of a University-related activity, or any
on-campus activity.
§ Participating in an activity that substantially and materially disrupts the normal operations of the
University, or infringes on the rights of members of the University community
§ Willful, material and substantial obstruction of the free flow of pedestrian or other traffic, on or
leading to campus property or an off-campus University related activity.
§ Disorderly, lewd, indecent, or obscene behavior at a University related activity, or directed
toward a member of the University community.
§ Conduct that threatens or endangers the health or safety of any person within or related to the
University community, including physical abuse, threats, intimidation, harassment, or sexual
misconduct.
§ Hazing, or conspiracy to haze, as defined in Education Code Sections 32050 and 32051:
“Hazing” includes any method of initiation or pre-initiation into a student organization, or any
pastime or amusement engaged in with respect to such an organization which causes, or is
likely to cause, bodily danger, physical harm, or personal degradation or disgrace resulting in
physical or mental harm, to any student or other person attending any school, community
college, college, university or other educational institution in this state; but the term “hazing”
does not include customary athletic events or other similar contests or competitions.
A group of students acting together may be considered a ‘student organization’ for purposes of
this section whether or not they are officially recognized. Neither the express or implied consent
of a victim of hazing, nor the lack of active participation while hazing is going on is a defense.
RESIDENCE HALLS ISSUE AT SAN JOSE STATE UNIVERSITY 11

Apathy or acquiescence in the presence of hazing is not a neutral act, and is also a violation of
this section.
§ Use, possession, manufacture, or distribution of illegal drugs or drug-related paraphernalia,
(except as expressly permitted by law and University regulations) or the misuse of legal
pharmaceutical drugs.
§ Use, possession, manufacture, or distribution of alcoholic beverages (except as expressly
permitted by law and University regulations), or public intoxication while on campus or at a
University related activity.
§ Theft of property or services from the University community, or misappropriation of University
resources.
§ Unauthorized destruction or damage to University property or other property in the University
community.
§ Possession or misuse of firearms or guns, replicas, ammunition, explosives, fireworks, knives,
other weapons, or dangerous chemicals (without the prior authorization of the campus
president) on campus or at a University related activity.
§ Unauthorized recording, dissemination, or publication of academic presentations (including
handwritten notes) for a commercial purpose.
§ Misuse of computer facilities or resources, including:
1. Unauthorized entry into a file, for any purpose.
2. Unauthorized transfer of a file.
3. Use of another’s identification or password.
4. Use of computing facilities, campus network, or other resources to interfere with
the work of another member of the University Community.
5. Use of computing facilities and resources to send obscene or intimidating and
abusive messages.
6. Use of computing facilities and resources to interfere with normal University
operations.
7. Use of computing facilities and resources in violation of copyright laws.
8. Violation of a campus computer use policy.
§ Violation of any published University policy, rule, regulation or presidential order.
§ Failure to comply with directions of, or interference with, any University official or any public
safety officer while acting in the performance of his/her duties.
§ Any act chargeable as a violation of a federal, state, or local law that poses a substantial threat
to the safety or well-being of members of the University community, to property within the
University community or poses a significant threat of disruption or interference with University
operations.
§ Violation of the Student Conduct Procedures, including:
1. Falsification, distortion, or misrepresentation of information related to a student discipline
matter.
2. Disruption or interference with the orderly progress of a student discipline
proceeding.
3. Initiation of a student discipline proceeding in bad faith.
4. Attempting to discourage another from participating in the student discipline
matter.
5. Attempting to influence the impartiality of any participant in a student discipline
matter.
6. Verbal or physical harassment or intimidation of any participant in a student
discipline matter.
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7. Failure to comply with the sanction(s) imposed under a student discipline

proceeding.
§ Encouraging, permitting, or assisting another to do any act that could subject him or her to
discipline.
(Students residing in university Residence Halls are responsible for additional and contractual
community standards as published in the Student Housing License Agreement)
(c) Application of this Code
Sanctions for the conduct listed above can be imposed on applicants, enrolled students, students
between academic terms, graduates awaiting degrees, and students who withdraw from school
while a disciplinary matter is pending. Conduct that threatens the safety or security of the campus
community, or substantially disrupts the functions or operation of the University is within the
jurisdiction of this Article regardless of whether it occurs on or off campus. Nothing in this Code may
conflict with Education Code section 66301 that prohibits disciplinary action against students based
on behavior protected by the First Amendment.
(d) Procedures for Enforcing this Code
The Chancellor shall adopt procedures to ensure students are afforded appropriate notice and an
opportunity to be heard before the University imposes any sanction for a violation of the Student
Conduct Code.
Source: http://www.sa.sdsu.edu/srr/judicial/StudentConductCode.html