Today on Jan. 16, the 9th U.S. Circuit Court of Appeals is reviewing two cases on what is a somewhat novel issue for the U.S. legal system: caste anti-discrimination provisions.
First, a panel of judges in Pasadena, Calif., is reading briefs in Bagal v. Sawant. Then, the same panel is hearing oral arguments in Kumar v. Koester. In both cases, the plaintiffs lost their challenges to anti-caste discrimination policies. Let’s take them in turn.
The Bagal case comes from Seattle, where in 2023, the city passed an ordinance barring caste discrimination by employers. The lead defendant is Kshama Sawant, the only Indian American on the Seattle City Council. Abhijit Bagal sued, alleging that inclusion of the term caste in Seattle’s anti-discrimination ordinance “unfairly singles out and targets” a specific group of Americans — either Indian or Hindu Americans. Bagal brought a 14th Amendment Equal Protection Clause claim, a Due Process Clause claim, a First Amendment Free Exercise Clause claim and a First Amendment Establishment Clause claim.
But here’s the kicker. Bagal lives in North Carolina and last resided in Seattle in 1997. So, Bagal has not lived in Seattle for about 27 years. The ordinance does not injure him because he is not an employer or employee who would be affected by this specific ordinance. He doesn’t have an injury-in-fact and, therefore, lacks standing to sue. And that is exactly why the district court dismissed his case. His only allegation in favor of standing is “reputational injury.” In other words, Bagal alleges that adding caste to anti-discrimination provisions maligns him and his class. Therefore, he can sue a city on the other side of the country. But this doesn’t hold up either, because he doesn’t have a particularized injury-in-fact that distinguishes him from any other Hindu American or perceived Hindu American in the United States. So, his appeal is solely on standing grounds. Bagal should lose his appeal outright.
I should note that Bagal authors a blog called Castefiles that tracks caste-based discrimination news in the states, advocating against the use of the term caste and for a “meritocracy.” Bagal claims to be a legal analyst because he is also a part-time law student at the unaccredited Purdue Global Law School. Castefiles is pretty good at keeping up with some of this news, though the clear slant and misinterpretations of most legal doctrine is apparent. Bagal basically helms the Breitbart or InfoWars for Indian American news.
Moving on to the blockbuster and more serious Kumar v. Koester. In 2022, California State University (Cal State) added caste to its anti-discrimination policies to describe a specific type of ethnic-based discrimination. That means student organizations cannot discriminate on the basis of caste, and neither can professors in the classroom, just as they cannot discriminate on the basis of sex, race, color, national origin or religion. Arguably, the First and 14th Amendments, Title VI and other anti-discrimination provisions require that caste discrimination be prohibited. This is because caste discrimination is essentially ethnoreligious discrimination, as this Harvard Law Review article initially argued, followed up by this NYU Law piece. So, Cal State can argue that it clarified its anti-discrimination provisions rather than designating an entirely new protected class. Everywhere Cal State sees the word “race” or “ethnicity,” it may rationally interpret that to include “caste,” it can argue.
After all, in 2024, California Gov. Gavin Newsom vetoed SB 403, a bill adding caste to California’s anti-discrimination laws, saying that “discrimination based on caste is already prohibited under … existing categories; this bill is unnecessary.” California’s Department of Fair Employment and Housing sued Cisco Systems over alleged caste discrimination, arguing the same, under California state law. So, at least according to state actors in California, caste discrimination is already unlawful. You may also remember my debut blog about the BAPS temple in Robbinsville, N.J., being sued for, among other things, caste discrimination under federal and state anti-discrimination provisions. Just this week, Rutgers University interpreted its anti-discrimination provisions the same way. For some reason, detractors seem to only dislike that caste is explicitly prohibited. For instance, Bagal wrote a law school paper saying that existing case law — none of which explicitly lists “caste” — should be used to tackle caste discrimination.
Enter Cal State Professor Sunil Kumar, who identifies as Hindu and Indian American. Kumar and another professor sued Cal State, alleging Free Exercise, Equal Protection, Establishment Clause and Due Process Clause violations. Kumar has alleged the same as Bagal, but with a little more specificity. Kumar contends the same reputational harm as Bagal for his Equal Protection and Free Exercise claims. So, those were accordingly dismissed early on. But Kumar’s Due Process and Establishment Clause claims were kept alive because he’s a professor who would be affected by a judgment. Bagal’s lawyers (or Bagal himself) could take some notes.
As to the Establishment Clause claim, Kumar alleged that adding caste to Cal State’s anti-discrimination policies effectively defines a core tenet of Hinduism, which a government actor is prohibited from doing. Of course, this would be true if the caste system was doctrinal rather than historical or objective. Caste and its creation are affiliated with Hinduism; what exact castes exist and how people should treat them is a doctrinal matter that Hindus can fight over themselves. However, prohibiting caste discrimination does not take a doctrinal preference at all, no more than prohibiting Shia-Sunni discrimination or Protestant-Catholic discrimination. So, Kumar’s Establishment Clause claim was properly dismissed, too. I should note that Kumar’s complaint alleges that the plaintiffs are against caste discrimination, but don’t like that it is explicitly added. So somehow, their injury comes only from explicitly prohibiting caste discrimination, but winning their claims would prohibit any anti-discrimination provisions protecting caste — implicit or explicit.
It kills me to say an Establishment Clause claim should be dismissed, particularly given the Supreme Court’s aversion to it. But church-state separation does not mean one has to be history-blind and miss objective truths. Kumar’s Establishment Clause claim is just that: characterizing an objective truth as a doctrinal matter in order to prohibit government actors from detailing the obvious. Contrast that with Louisiana trying to rewrite the Ten Commandments as a historical matter or Ryan Walters trying to force the bible on kids as a historical text rather than a purely doctrinal one. Those trying to exclude religious-discrimination protections argue that such discrimination is doctrinal and thus the government cannot touch it. Those trying to include religious doctrine in our public schools argue that it’s historical, so the government can teach it.
The result of Kumar winning would be revolting: Could white Christians then rewrite race discrimination as a “doctrinal matter,” integral to their faith, and challenge Title VII as being against the Establishment Clause? Well, Kumar’s logical conclusion is just that. Then, every anti-discrimination provision in America, including against sex discrimination, national origin discrimination, or persons with disabilities, would arguably be unconstitutional. That’s absurd. That would hurt people like Kumar more than being told not to engage in caste discrimination. His arguments have to be rejected because there is no real limiting principle.
Then, we move on to the Due Process claim. Under Due Process protections, the government must write clear regulations, provisions, and laws so that citizens know exactly what conduct is prohibited and what is allowed. Kumar claims that because caste is an amorphous concept without a singular definition, he does not know what it means and, therefore, does not know what conduct is prohibited.
That claim cuts against his other arguments. He argues that adding caste to anti-discrimination provisions maligns Hindu Americans and Indian Americans and, therefore, violates the Free Exercise, Equal Protection and Establishment Clauses. But then he argues that he does not know what caste means, despite being a Hindu and Indian American, the only people he thinks are affected. So, no wonder, the district court dismissed that too. All four of Kumar’s claims were dismissed — two for lack of standing, the other two on the merits.
Let’s just be honest: Those who push back against caste being explicitly added to anti-discrimination laws just want to discriminate on that basis. There is no real logic in saying that it injures the soul, is doctrinal rather than historical, or is vague. This is about whether caste discrimination should be illegal or not. Some say yes, and some say no. Cal State and Seattle said yes — and dissenters just don’t like that.
Just know that the side in these cases sounding ridiculous and dishonest, unfortunately, is the one arguing the merits of a First Amendment Establishment Clause claim. While FFRF is fighting Christian nationalists from casting their religious doctrine as historical, know that there exist organizations and people trying to alter history by labeling it as religious doctrine — all to escape fair criticism and accountability.
Disclaimer: The views in this column are of the author and do not necessarily reflect those of the Freedom From Religion Foundation.
One Response
There are a lot of factual errors and underlying biases in this article. To start with, Hirsh Joshi’s assertion that Purdue Global Law School is “unaccredited’ is simply wrong, and a simple Google web search would have provided the correct information to Joshi. The fact of the matter is that Purdue Global Law School is fully accredited by the State Bar of California, and students graduating with a JD degree can sit for the California Bar Exam and, upon passing the Bar exam, can get the California Bar license to practice. Additionally, JD graduates from the Purdue Global Law School can also sit for the bar exams in the states of Connecticut and Indiana, and upon passing, they can get the bar license for those states, instead of California. Further, after passing the Bar exam in any one of these three states and getting a license, students can either sit for the Bar exam in some other states (like North Carolina and Wisconsin), OR, students can submit a comity application based on reciprocity that will allow them to bypass the bar exam and be admitted to the bar in North Carolina or other states.
As mentioned before, a simple Google web search would have divulged the above information but perhaps Joshi was too biased or too lazy to write an objective and neutral article supported by facts.
As I get time, I will point out the many other fallacies Joshi’s article in the future.