New Developments in the Cal State University Caste Lawsuit

January 1, 2022: CSU institutes Caste in its anti-discriminatory policy

On January 1, 2022, California State University (CSU) instituted an anti-discrimination policy that added "caste" to the list of categories. By doing so CSU intentionally or implicitly targeted members of the Indian/South Asian community and adherents of the Hindu religion wrongly and unfairly for disparate treatment under the policy. The intent was not the laudable goal of broadly protecting individuals from discrimination based on, for example, social or economic status in all its forms, but instead singles out students and teachers of Indian/South Asian origin and especially those who identify as, or are perceived to be, practitioners of the Hindu religion.

Significantly, the policy does not define "caste" among its 44 specifically defined terms. "Caste" is not a term understood easily in America, as observed by authors, in various discussions with lawmakers, human rights commissioners and university bodies; indeed, many of the CSU employees, professors and students who will be governed by the policy are unfamiliar with the term or its meaning or contexts. Since this policy is unconstitutionally vague- and in violation of the Due Process Clause of the Fourteenth Amendment, two Indian American Professors at CSU went to Federal court, Central District of California, to challenge this policy as unconstitutional. 

In December 2022, just before Christmas, there was a public hearing regarding this policy and one of our key arguments against the quoting of the Equality Labs survey was the demand for proof. Anonymous anecdotes do not justify this policy. If Equality Labs survey is true, then CSU campuses should be rife with police cases of caste-based rapes and murders as suggested by the survey. In fact, there are none.

In Caste resolutions passed by the California Faculty Association and Cal State Student Association, CSU takes the position that caste is integral to the Hindu religion. No religion other than Hinduism is treated in this manner by the CSU Interim Policy.

Hindu American Foundation Executive Director, Suhag Shukla, Esq. and Managing Director Samir Kalra, Esq. explained that the CSU move to institutionalize caste as part of ethnicity in university policy violates the First Amendment’s Free Exercise and Establishment Clauses as well as the Fifth and Fourteenth Amendment’s Due Process and Equal Protection Clauses. The complaint alleges that CSU is constitutionally barred from dictating the beliefs of any religion.

October 2022: CSU Professors file Lawsuit to oppose addition of Caste

As reported by the Washington Post on October 24, 2022, "Two Hindu professors are suing the head of their university system to oppose the addition of caste to an anti-discrimination policy amid a broader battle over whether colleges should explicitly call out caste-based bias." The CSU professors argued that naming caste as a protected characteristic unfairly targeted American Hindus and wrongly suggested that oppression and discrimination are among Hinduism's core tenets. In the complaint, the two CSU Professors contended that Hinduism is about compassion and equanimity—principles directly opposed to a discriminatory caste system. The professors expressed concern that they are left to guess—at their peril—what constitutes reportable conduct. Similarly, an employee or student who is unfamiliar with "caste" could be accused of violating the policy despite the lack of definition.

CSU and its policy classify caste as a nationality, race, or ethnicity, but fail to elaborate how or why this is an understanding shared by anyone. While class and social status discrimination are terms readily understandable in the United States, caste is not. Because the policy fails to define caste, it is unconstitutionally vague. CSU fails to explain how one responsible for enforcement of the policy can distinguish caste discrimination from race or ethnicity discrimination. Can a member of one Indian caste discriminate against another Indian of a different caste when they are of the same race and ethnicity but belong to different religions? Who determines what caste is ascribed to them if they do not identify with any caste? Will CSU assign a “Hindu Brahmin Oppressor/Dominant/Upper caste" label to them as was done to the Indian American Cisco Engineer who had publicly declared that he was irreligious by the California Civil Rights Department (CRD) in the Cisco lawsuit? 

The threat to civil liberties and religious rights is real and there is already a precedent in the Cisco case that no one is paying heed to. Author of Caste bill, Senator Wahab is dismissive and claimed nonchalant ignorance regarding the Cisco lawsuit, in one of our meetings with her while discussing SB 403. 

CSU claims the policy is neutral toward, and unrelated to religion and that one can look up the Merriam-Webster Dictionary for clarification. But Merriam-Webster’s first (and primary) definition of caste is "one of the hereditary social classes in Hinduism that restrict the occupation of their members and their association with members of other castes."

The dictionary includes four definitions, confirming that there is no single definition of caste, much less one that is understandable by most Americans (or the employees, professors, and students at CSU), as required under the Constitution. CSU claims that the policy provides fair notice of prohibited conduct, but there can be no fair notice of what is prohibited if the policy does not define caste. 

As such, "caste" is a foreign concept in the United States, recognized largely through prejudicial stereotypes. Without a definition, those who fall under the policy have no way of determining what violates its strictures. 

 All of this leads to one simple question (which CSU cannot answer): How is someone to know whether they are engaged in caste discrimination? Caste could, under the first and primary dictionary definition, apply only to historical Hindu castes (of which there are thousands, not including castes of other religions) but to no other "caste system." Thus, at best, CSU is attempting to prohibit only members of the Hindu faith from discriminating against anyone. 

Whether in India or the USA, post-World War II and the new world order demanded that racial classification of people be banned and thus Caste was banned out of census exercise in both countries to decolonize and support human rights. Now America bringing back Caste in policy is a case of grave concern to South Asian immigrant population.

No court anywhere has endorsed an anti-discrimination policy directed to a class of purported discriminators rather than a class discriminated against. 

July 25, 2023: The CSU Lawsuit moves forward

On July 25, 2023, the Federal court, Central District of California, allowed the CSU lawsuit to move forward to a bench trial by agreeing with the two CSU professors that they have adequately asserted their Establishment Clause and Due Process Claims. The court noted that the two Professors have demonstrated a concrete and personal injury in fact by arguing that the CSU policy stigmatizes Hinduism by including the term "caste." Importantly, the court also noted that CSU had the option to either remove the term “caste” or replace it with neutral terms like “class” or “social status”, but CSU chose not to do so, thereby intentionally linking their policy to Hinduism and targeting American Hindus. The court went on to say that the word "caste" is susceptible to numerous meanings rendering the policy vague. Subsequently, the court trial is scheduled for October 31, 2023, for a final decision.

August 1, 2023: Cisco throws a gauntlet—refuses out-of-court settlement with Doe

In the other Cisco lawsuit which reached an impasse, instead of further mediation and reaching a settlement, Cisco will now challenge CRD’s claims to clear its name of any wrongdoing. As per a court document dated August 1, 2023, Cisco is expected to file a motion for summary judgment or summary adjudication to have the lawsuit dismissed. It may be recalled that on April 10, 2023, after being threatened with a Motion for sanctions by the two Indian American Cisco engineers for fabrication of evidence, the CRD withdrew their complaint against both with Prejudice, which means that CRD cannot, in the future, accuse these two Indian American Cisco engineers again, of practicing caste discrimination at Cisco. 

This withdrawal and dismissal were in stark contrast to the earlier tactic of CRD using the media to broadcast the identity of the two Indian American engineers, thereby subjecting them to a three-year brutal witch hunt and trial by media and causing significant damage to their reputation.

The inclusion of caste as a protected category in any policy is unfair and discriminatory to Hindu Americans, which is why Hindu American foundation filed a Motion to intervene in the Cisco case.On September 20th the Hindu American Foundation sued the California Civil Rights Department in United States District Court for violating the civil rights of Hindu Americans residing in the state. It is based on the false assumption that all members of the Indian/South Asian community and all Hindus either practice or are subject to caste discrimination. The inclusion of caste in any policy has the potential to harm the Indian/South Asian community and the Hindu religion. It could lead to increased discrimination against these groups, caste-based workshops, and a perception that they are inherently discriminatory. 

August 16, 2023: How Does This Relate to SB403 as it Marches to the Finish Line?

For starters, the term "caste" itself is intertwined with Hinduism and vague, therefore unconstitutional. Secondly, there are other options to address all forms of discrimination by using terms like "inherent social status or class" which are neutral. Thirdly, there are no parameters, guidelines, or frameworks to identify and adjudicate cases of caste discrimination. 

California should remove "caste" from SB-403 as this would be the fair and just thing to do considering that existing categories of ancestry, ethnicity, and national origin already cover caste discrimination. It would also be in line with California’s stated goal of protecting all individuals from discrimination, regardless of their race, ethnicity, religion, or any other protected characteristic.