In 2022, the California State University system was rocked by a series of sexual harassment scandals. In response, the CSU system contracted with the law firm of Cozen O’Connor to conduct a full investigation of the CSU’s harassment policies, both system-wide and for individual campuses. The report on SDSU was thorough and made numerous recommendations, including (of course) hiring more administrators.
But one recommendation especially stood out: “Responding to Other Conduct of Concern” (OCC). I had not heard this strange phrase before, but the report helpfully defines it:
- Conduct on the basis of protected status that does not rise to the threshold of a potential policy violation because it is not severe, persistent, or pervasive
- Conduct not based on protected status, but that may implicate other policies (e.g., professionalism)
- Conduct that may not be subject to discipline because of free speech or academic freedom principles.
You might think that if conduct “does not rise to the threshold of a potential policy violation,” it does not rise to the threshold of a violation. If you are going 60 mph and the speed limit is 65, you don’t get a ticket. Not anymore.
The Cozen report urges “San Diego State [to] work closely with the Chancellor’s Office to develop a formal process to address reports of other conduct of concern,” and for two years, we heard nothing about “Other Conduct of Concern.” I assumed the Administration realized the over-reach and quietly decided to cashier this suggestion.
I was wrong.
On Nov. 21, the CSU’s Human Resources department distributed a draft of the “CSU’s Systemwide Guidance on Other Conduct of Concern” policy. Following the Cozen report, the CSU states that even though “OCC refers to behaviors that do not violate CSU policies or local, state, or federal laws and are therefore not subject to disciplinary action,” they are now subject to “disciplinary action.” That’s bad enough, but then, the draft goes even further.
While the CSU defines “Other Conduct of Concern” to include such obviously wrong acts as “bullying,” “verbal abuse,” and “hostile language” (all of which are forbidden under present CSU rules), the draft includes this item: “Microaggressions that are not persistent, pervasive, or severe.”
The problem is that calling something a “microaggression” is entirely subjective. It does not require intent on the speaker’s part, or even evidence. If someone claims you have committed a microaggression, then you are automatically guilty. There is no adjudication, no determination of whether the accusation is valid or not.
So to make a “microaggression” a cause for discipline is a terrible idea. Even worse, the proposed policy says that the “microaggression” doesn’t have to be “persistent, pervasive, or severe.” The slightest slip can land you in serious trouble. And by including microaggressions, the draft report opens up “OCC” to include almost anything since almost anything can be called a “microaggression.”
Nonetheless, the CSU Administration wants to set up a complicated system to police “OCC,” and everyone is under surveillance: “Individuals who experience or witness OCC” can report it. Nor does the proposal grant the accused much in the way of rights or defense. The draft states that upon receiving a complaint, “the supervisor or professional should schedule a meeting with the reporting individual to discuss supportive measures and learn all relevant details.”
Note that the supervisor or professional does not meet with both parties. Only the complainant. The draft further states that “Those who report OCC should be treated with care and provided with appropriate support”; there is nothing about informing the accused about the specifics of the charges against them or their right to a defense.
Not that the accused would need a defense, because they cannot be found innocent. The draft seems to grant that the complaint the CSU will look into whether the behavior might “potentially violate” CSU policy.
But then, “potentially” quickly drops out:
“…if it is found the behavior(s) are not based on a protected status or were not ‘persistent, pervasive or severe’ enough to be considered a violation of the Nondiscrimination Policy, the concern will — with sensitivity and care — be referred back to the initiating individual or appropriate office to address the OCC.”
Note that the draft does not say that the complaint will be dismissed as unjustified. That doesn’t seem to be a possibility.
It’s astonishing how tone deaf this is. At a time when America has shifted to the right, when a growing number of people in the US have little to no confidence in higher education in good part because of rampant violations of free speech, when the President-elect has vowed to issue an executive order punishing colleges and universities that do not support free speech, the CSU proposes an Orwellian policy in which everyone is under suspicion, the accused have next to no rights, and almost anything you say can land you in deep trouble.
For all these reasons, “Other Conduct of Concern: Systemwide Guidance” should be rejected immediately.
Peter C. Herman is a professor of English literature at San Diego State University. He has published books on Shakespeare, Milton and the literature of terrorism, and essays in Salon, Newsweek, Inside Higher Ed, and Times of San Diego. His latest book is “Early Modern Others: Resisting Bias in Renaissance Literature” (Routledge).
