December 30, 2024

Wenda Fong, Chair

Committee on University and Faculty Personnel
c/o Office of the Board of Trustees of the California State University
401 Golden Shore
Long Beach, CA 90802

Sent via Electronic Mail (trusteesoffi[email protected])

Dear Chair Fong,

I am writing from FIRE,1 a nonpartisan nonprofit dedicated to defending freedom of

speech, to express our concerns about systemwide guidance being considered by the
California State University Board of Trustees to address “other conduct of concern.”2

The guidance aims to address “behaviors that do not violate CSU policies or local, state, or
federal laws and are therefore not subject to disciplinary action,” but nevertheless may
subject individuals to investigations and, potentially, “corrective action, such as training,
mediation or restorative processes.” Such outcomes are unacceptable when the
“behaviors,” when those facts alleged are assumed true, constitute speech protected by the
First Amendment. We urge you to reconsider this guidance and ensure no members of the
CSU systemwide community are subject to investigations or discipline for engaging in
constitutionally protected expression.

I. Other Conduct of Concern (OCC): Systemwide Guidance

The relevant policy language reads:

OCC refers to behaviors that do not violate CSU policies or local, state, or federal laws
and are therefore not subject to disciplinary action but nevertheless disrupt CSU’s

1
For 25 years, the Foundation for Individual Rights and Expression (FIRE) has defended freedom of
expression, conscience, and other individual rights on America’s university campuses. You can learn more
about our expanded mission and activities at thefire.org.
2
Minutes of the Meeting of the Committee on University and Faculty Personnel, CAL. STATE UNIV. (last
updated Nov. 20-21, 2024), https://www.calstate.edu/csu-system/board-of-trustees/past-meetings/2024
/Documents/nov-20-21-2024-UFP-binder.pdf. The recitation here reflects our understanding of the
guidance currently under consideration. We appreciate that you may have additional information to offer
and invite you to share it with us.
510 Walnut Street, Suite 900 Philadelphia, PA 19106
Phone: 215-717-3473 Fax: 215-717-3440
thefire.org
 2

learning, living, or working environments and hinder students, employees, and other
community members from thriving. OCC may include behaviors considered abusive
under California law. Examples of OCC include:

• Verbal abuse
• Intimidating behavior
• Microaggressions that are not persistent, pervasive, or severe
• Bullying
• Hostile language
• Acts of bias, intolerance, or harassment that do not violate CSU’s Nondiscrimination
Policy
…
Principles of the CSU’s Guidance on Other Conduct of Concern
…
• All members of the CSU community are expected to communicate with sensitivity
and care. Individuals are responsible for their words and actions and should be
mindful of how their behavior impacts others.
• Disruptive behaviors do not have to violate formal policies to require attention;
even minor inappropriate actions and behaviors can negatively impact work and
learning environments.
…
• How OCC is addressed will depend on the nature of the behavior(s). Potential
outcomes could include education, counseling, coaching, mentoring, training and
restorative processes.
• CSU will not discipline individuals for engaging in legally protected activities
provided they comply with university policies, including any applicable CSU Time,
Place and Manner policies. However, the impact of such actions on the community
will not be ignored and should be addressed through non-disciplinary measures.
…
After reporting Other Conduct of Concern (OCC), employees and students (reporting
party) can expect the following actions:
…
• Initial review. A supervisor or administrator will assess the reported behavior(s)
and determine if immediate action or referral is needed. They will also determine
who should address the behavior(s).
…
• Factfinding. Depending on the situation and where a supervisor cannot address the
behavior, an objective factfinder may be assigned to conduct interviews and gather
information. This may involve speaking with the reporting party, respondent and
witnesses to evaluate the situation impartially. Factfinding may not be necessary if
there is no dispute over facts.
…
• Action. A supervisor, student affairs professional or administrator will recommend
appropriate corrective action, such as training, mediation or restorative processes.
Supervisors will continue monitoring the environment to prevent any recurrence of
the behavior.
…
In all instances of OCC, CSU Universities will:
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…
• Assess the report. Initial considerations may include:
o Is the behavior(s) protected by principles of free speech or academic
freedom?
§ If yes, consult with General Counsel before taking next steps.

II. OCC Guidance is Overbroad, Impermissibly Chills Expression

It is deeply concerning that this CSU systemwide guidance explicitly targets “behaviors
that do not violate CSU policies or local, state, or federal laws and are therefore not subject
to disciplinary action.” This necessarily means that the overwhelming majority of
behaviors that will be the subject of this scheme are protected under the First Amendment.

The systemwide guidance attempts to evade this issue in two ineffective ways. First, the
policy seems to suggest that, because OCC does not subject respondents to the standard
disciplinary process, investigations and potential “corrective action” are permissible under
the First Amendment. However, the policy under consideration by the CSU System will
surely chill campus speech by imposing investigations, training, and mediation on students
merely for expressing themselves.3

The U.S. Court of Appeals for the Ninth Circuit has established that investigations cross the
threshold from permissibly gathering information to impermissibly chilling speech when
the process “would chill or silence a person of ordinary firmness from future First
Amendment activities.”4 In White v. Lee, the Ninth Circuit held that, even though the
government “did not ban or seize the plaintiffs’ materials, and officials in Washington
ultimately decided not to pursue either criminal or civil sanctions,” an eight-month
investigation into protected speech, coupled with questioning and requests to produce
documents, had unquestionable chilling effects that violated the First Amendment. This
holding is binding on the CSU system.

The scheme here similarly contemplates investigations, including tasking a factfinder with
conducting interviews, speaking with the respondent, and gathering information. The
guidance also discusses “corrective action, such as training, mediation, or restorative
processes,” a significant step further than the impermissible First Amendment violation
described in White. Critically, as was the case in White, the guidance recommends such
actions and processes in cases where reported behavior as alleged is constitutionally
protected. A policy scheme that subjects protected speech to investigation and corrective
action will have an unquestionable chilling effect on speech. This is true even if it does not
subject protected speech to “disciplinary action” as defined or understood by the policy’s
authors.

Confusingly, the systemwide guidance directs CSU institutions to “consult with General
Counsel” when behaviors are “protected by principles of free speech or academic
freedom.” Given that the policy is specifically designed to address expression that does not

3
Adam Steinbaugh, The Chilling Effect of Investigations, FIRE (May 11, 2016),
https://www.thefire.org/news/chilling-effect-investigations.
4
White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000).
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violate CSU policy or laws, it is unclear what steps are taken following consultation with
General Counsel, and whether action still may be taken when it is determined that
reported behavior is constitutionally protected.

Regardless, even if every report that included protected speech were referred to General
Counsel and the matter were then closed, the explicit solicitation of reports of protected
speech would still have a chilling effect on speech. Members of the campus community
simply have no way of knowing if their preliminary OCC cases will ultimately subject them
to investigation. Therefore, this directive to consult with General Counsel fails to cure the
fundamental defects with the systemwide guidance.

III. OCC Guidance is Unconstitutionally Vague

The proposed guidance provides a list of OCC examples, but key terms on the list are
undefined and therefore fail to give students reasonable notice of which conduct may
subject them to investigations or corrective actions. Regulations must “give a person of
ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may
act accordingly,” or else they are unconstitutionally vague.5 Vague laws and regulations are
particularly suspect “where the challenged statute affects First Amendment rights.”6 State
university rules that do not give “adequate warning of the conduct which is to be
prohibited” fail to comport with due process.7

When parsing through the guidance, students are left wondering the meaning of terms
such as “microaggressions,” “bullying,” “bias,” “intolerance,” “verbal abuse,” and
“intimidating behavior.” Furthermore, the guidance implores community members “to
communicate with sensitivity and care” while not elaborating on what those terms mean.

A student could interpret “sensitivity and care” as not raising their voice during an
altercation, even if their words are direct and accusatory. The student on the opposite side
of the altercation may interpret any criticism as careless or insensitive, and further regard
any criticism as “bullying” or a “microaggression.” Absent any clarification in the text of
the guidance, there is simply no way of divining the meaning of this exceedingly-vague
language. As a result, the language of the guidance cannot survive constitutional scrutiny.

IV. Conclusion

We understand that this systemwide guidance follows a systemwide review into how CSU
handles Title IX and Nondiscrimination Policy violations. After conducting separate
audits, the Cozen O’Connor Institutional Response Group and the California Joint
Legislative Audit Committee had independently recommended establishing processes for
addressing OCC and disruptive behaviors that did not result in corrective action. We also
understand that the JLAC requested that CSU establish these policies and procedures by

5
Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).
6
UWM Post v. Bd. of Regents of the Univ. of Wis. Sys., 774 F. Supp. 1163, 1178 (E.D. Wis. 1991).
7
Id.; see also Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1184 (6th Cir. 1995) (finding university racial
harassment policy prohibiting “negative” and “offensive” speech unconstitutionally vague and
overbroad).
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January 2025. However, in reforming its policies, the university must not abandon its dual
obligations to respond to discriminatory harassment and protect students’ free speech
rights.

The CSU System must reject this proposed systemwide guidance and clarify that expressive
activity, when it does not otherwise violate CSU policies or local, state, or federal laws, is
protected speech under the First Amendment. Outside of narrow, clearly defined
exceptions to the First Amendment, CSU cannot subject protected expression to
investigations, corrective action, or discipline. To be sure, this does not prevent
institutions from addressing discriminatory or harassing conduct, or complying with
obligations under federal regulations. FIRE would be pleased to assist the CSU System in
revising this systemwide guidance to ensure the campus community’s First Amendment
rights are protected.

Sincerely,

Ryan Ansloan
Senior Program Officer, Policy Reform