Two months after an Earl Warren College student was evicted from his Galbraith Hall apartment for an alleged marijuana violation, a judicial board hearing this week cleared him of all charges. However, administrators have indicated no plans to reinstate the student’s residency or issue a formal apology for the mistake.
At a May 27 hearing before the Warren College Council Judicial Board, Warren College sophomore Cody Born presented hair follicle and urine tests confirming that he had not consumed any illicit substances on the night that Residential Security Officer Michael Roake accused Born and his girlfriend ‘mdash; fellow Warren College sophomore Kathy Chou ‘mdash; of smoking marijuana in Chou’s Douglas Hall apartment.
Born received the eviction notice from Warren College Residential Life on March 16 ‘mdash; the Monday of finals week ‘mdash; a few days after Roake confronted Born and Chou at Chou’s apartment.
Born was given 30 days to vacate his residence.
The two students said they were watching a movie in Chou’s room on the evening of March 9 when Roake knocked on the apartment door at around 11:30 p.m. When Chou opened the door, Roake claimed to detect the odor of burnt marijuana from inside the apartment.
According to Born and Chou’s write-up notices, Roake also said the two students had bloodshot eyes and flushed faces.
Born and Chou both denied the accusations, and after the pair received write-up notices two days later, Born met with Warren College Assistant Residential Dean Cesar Figueroa to discuss the incident. Figueroa allegedly told Born ‘mdash; who, at the time, was on nonacademic probation for an unrelated alcohol violation that had occurred several months earlier ‘mdash; that there was a good chance he would be evicted from his apartment.
‘At first I thought that it was just a misunderstanding,’ Born said. ‘I e-mailed Cesar and said, ‘It’s just a mistake, right? This is going to be taken off? I asked him a bunch of questions and he just said ‘No, this eviction notice is final, there’s nothing I can do about it.’ That’s all he said.’
Born attempted to take the question up with Warren College Residential Dean Claire Palmer. However, when he met with Palmer, she told him the decision to terminate his tenancy would stand.
‘She was kind of sympathetic toward me,’ Born said. ‘She was like, ‘Yeah, I’m really upset about this, too, but there’s nothing we can do about it.’ I was kind of shocked that there are no checks and balances. Just because one guy is power-tripping, now nobody else can fix what his mistake is. I just don’t see how that’s right.’
Additionally, Chou’s roommate signed a statement claiming responsibility for the marijuana odor. She said that Born and Chou should be cleared of any charges.
‘Someone actually stepped forward and took responsibility for everything that that happened that night,’ Chou said.
Despite Chou’s roommate’s testimony, Figueroa told C
hou and Born that the citations would not be revoked.
After opting to appeal the decision, Born and Chou underwent hair-follicle and urine tests to prove their innocence. According to medical records provided by the pair, the results of the tests came back negative, confirming that Born and Chou had not consumed marijuana on the night that Roake confronted them at Chou’s apartment.
Born said he spent over $100 on the two tests. The hair-follicle test that Born took is regularly used by the Federal Bureau of Investigation and can detect any marajuana consumption that has occurred in the three months prior to the test.
‘I specifically went to the drug testing place and asked them, ‘What is going to prove that I’m innocent?” Born said.
According to the WCC Judicial Board’s record of Born’s case, Warren College Assistant Residential Dean Sean McCarty attended Born’s hearing last week, acting as UCSD’s representative and the complainant in the case.
McCarty ‘mdash; who at the time of the hearing was unaware that Born had undergone the two drug tests ‘mdash; accused Born of being under the influence of marijuana on the night he and Chou were written up by Roake.
Later in the hearing, Roake ‘mdash; also unaware of Born’s drug tests ‘mdash; further alleged that Born’s breath had smelled of marijuana during their March 9 encounter. This detail was not included in the write-up that Roake submitted on March 14 regarding the incident.
‘What’s funny is that he didn’t know I had the drug test taken,’ Born said. ‘So it’s kind of like he’s just trying to go along with the stories and kind of make up more just to ensure that I’m held responsible, that I’m guilty.’
After A.S. Associate Vice President of Student Advocacy Frank Carroll ‘mdash;who was acting as Born’s representative ‘mdash; produced the drug test results, McCarty questioned their validity.
‘He said that the urine test had too much variance,’ Chou said. ‘Then Cody said, ‘Well, I have a hair test.’ For the hair test, he questioned how he could tell it was really Cody’s hair in the sample.’
Later in the trial, McCarty changed his position to claim that Born may have been a guilty party despite not having consumed any illicit substances.
‘At the very end of the hearing he resorted to saying, ‘Oh, I’m not trying to say that Cody smoked weed,” Chou said. ‘He said it could be possible that Cody was aiding someone in smoking weed or he was just about to light up. They just kind of pointed at a bunch of other things that had nothing to do with what they were charging him with, because the drug test pretty much proved that he didn’t do anything.’
Born was officially charged for violations of the controlled substances agreement contained in section 22.16.10.30 of the UCSD Student Conduct Regulations and the residential smoking policy within section 22.16.10.16 of the same document.
Though the violations were removed from his record, the university refuses to reinstate Born’s residency.
The housing contract all UCSD students sign when moving onto campus contains a clause that allows the university to terminate a student’s tenancy at any time, without cause, provided the student is allowed 30 days to vacate the residence.
The contract also gives the university the right to terminate a student’s residency with only three days’ notice ‘under any circumstances allowed by law.’
‘That termination has nothing to do with whether or not the student actually did anything,’ Student Legal Services attorney Jon Carlos Senour said. ‘That’s really the issue. ‘hellip; Because of the fact that the language doesn’t require finding a violation of the legal code, legally speaking it’s OK.’
Senour said this type of arrangement is common in most tenant-landlord relationships within the commercial housing sector.
‘The one concern that students typically have is that obviously there’s an unequal bargaining power between the student and the university,’ Senour said.
Born said the contract should be altered to require more investigation into the circumstances surrounding a student’s eviction.
‘It shouldn’t be up to just one person, one person’s opinion, whether you’re guilty or not, whether you should be evicted or not,’ Born said.
A.S. Associate Vice President of Student Advocacy Frank Carroll said students should be entitled to a fair hearing before being evicted.
‘There’s no due process,’ Carroll said. ‘In our system of values and our system of justice, the idea that you can get kicked out before you’re even given an opportunity to have your case heard makes no sense. Everything in the student conduct code and the housing contract should be based on a presumption of innocence. That’s a fundamental value in the whole American system of justice.’
A.S. Campuswide Senator Bryant Pena ‘mdash; who himself was evicted from his Warren College apartment in April ‘mdash; said Born’s case indicates a fundamental flaw in the campus housing contract.
‘There are no ifs, ands or buts,’ he said. ‘There’s nothing in this contract that requires the university to prove anything; it just says the university can terminate this contract. What that essentially allows for is punishment without due process.’
During his bid for a senatorial position on the A.S. Council this spring, Pena promised to work toward a more just housing contract for students. He said he will use Born’s case as a starting point for this effort.
‘This is a landmark in our fight for student rights,’ he said. ‘It shows that this is a flawed system that allows for unjust punishment.’
However, Associate Director of Housing Services Jana Severson said the contract is fair in its current form.
‘A contract is a contract,’ she said. ‘It allows for a series of [conditions] that either can be broken by the university or by the resident. ‘hellip; Our contracts are fairly standard in landlord-tenant law ‘hellip; so I think the contract stands as a document and serves well.’
Carroll said the university should attempt to foster a better relationship with students than one based solely on contractual obligation.
‘You need to have it one way or another,’ Carroll said. ‘If you’re going to be a landlord, then get the RAs out of there, get the RSOs out of there, and start trusting people to abide by the code of conduct. If you’re going to be a parent ‘hellip; then you need to start acting that way. … You’ve got people transitioning from structured life to independent life ‘hellip; It needs to be better than a landlord-tenant relationship, because it’s a relationship of student and their institution, their school.’
Director of Student Policies and Judicial Affairs Tony Valladolid said that though he was unfamiliar with the details of Born’s case, he thought Warren College Residential Life officials’ handling of the case ‘mdash; as opposed to the contract language ‘mdash; could be the source of the complaints.
‘It may very well not be a result of a flawed policy,’ he said. ‘The policy could have been implemented in a flawed way.’
Valladolid said that if Born’s proof of innocence was conclusive, some form of restoration for his punishment may be suitable.
‘If he was found not in violation of the housing contract, then it seems to me that it would be appropriate for there to be some restorative justice in this sense,’ Valladolid said. ‘There should be some attempt to ameliorate the consequences.’
Valladolid added that the university’s current eviction procedures allow for certain checks on administrative decisions.
‘There is review built into that process,’ he said. ‘There is review up to the provost. Each of them can look at the totality of the circumstances and weigh in on whether or not the decision is a fair one, if it followed appropriate due process and if there wasn’t something that was overlooked. ‘hellip; It is not entirely the resident dean and no one else that has an opportunity to look at this.’
However, Valladolid said that a
situation such as Born’s ‘mdash; in which the case review took place several weeks after he had been evicted from his campus residence ‘mdash; may be unavoidable given the time constraints surrounding this process.
‘That’s unfortunately just because there are specific requirements as to timing,’ he said. ‘To set up a meeting, to go in, to talk about it ‘mdash; in that interim, lots of things happen, including a student leaving campus upon being evicted.’
Chou’s violations were not removed from her record after her own judicial board hearing on April 30, despite the fact that her drug test proved she did not use any illicit substances on the evening that Roake confronted her and Born. The board ruled that she should be held responsible for the actions of her roommate’s guest.
‘My roommate’s coworker smoked weed,’ Chou said. ‘I didn’t know anything about what was going on and I’m being held responsible for it. I don’t think that’s fair. ‘hellip; Do I have to set up surveillance cameras to make sure nothing out of the ordinary is happening while I’m not there?’
Chou is now appealing her case before Warren College Provost Steven Adler.
Former campuswide senator Chris Westling, who serves as the A.S. representative to the campus housing and dining committee, said the clause could be altered if the changes were agreed upon by the other committee members and Director of Housing and Dining Services Mark Cunningham.
‘From my understanding, this clause in the contract gives the administration a tremendous amount of power,’ Westling said. ‘We need to scrutinize not only this clause, but others that give a disproportional amount of power to one entity on campus.’
Severson said the UC General Counsel’s office would also have to approve any changes to the contract.
All representatives from the Warren College residential life office and the Warren College administration declined to comment for this article.
Readers can contact Reza Farazmand at [email protected].