​In an effort to combat discrimination and harassment based on caste, numerous colleges and universities have amended their nondiscrimination policies to explicitly prohibit misconduct based on caste. Institutions of higher education are joined in this effort by some states and municipalities, including Seattle, which earlier this year became the first city in the United States to ban caste discrimination. The implications of these policies and laws are still emerging. But, early clues—including a California district court opinion released just last month—suggest that institutions should take care to balance a variety of difficult and competing issues as they consider whether to adopt similar policies.

What You Need to Know:

• A trend is emerging among colleges and universities to explicitly prohibit discrimination based on caste, and the adoption of these policies has not been without controversy.  
• Case law and guidance from regulatory bodies is scant, but early developments suggest institutional policies may face state or federal constitutional challenges.
• Institutions should carefully consider the adoption of such policies, including supporting any such policies with robust training.

In the past few years, several prominent institutions of higher education have amended their nondiscrimination policies to explicitly prohibit discrimination based on caste. At most of these institutions, "caste" was simply added to a list of protected categories or classes, while at some, it was folded into an existing category, such as "national origin (including caste or perceived caste)," or "Race or Ethnicity (including color, caste, or ancestry)."

These developments have not been without controversy. While lauded in many corners as the next natural frontier in diversity, equity, and inclusion regarding a common, yet underreported, form of discrimination, these policies have at the same time attracted resistance from some members of the large and diverse Hindu and South Asian communities, who believe such policies to be not only insulting and demeaning, but unlawful.

Existing Legal Guidance

Whether caste is a component of categories or classes already protected by law, such as race, religion, national origin, or ancestry, or whether it is genuinely unique and different, is hotly disputed. Legal guidance on this topic is scant: neither the United States Department of Education nor the Equal Employment Opportunity Commission has weighed in, and there is limited relevant case law.

In 2005, the United States District Court for the Eastern District of Michigan considered claims brought by a faculty member who had filed an internal complaint of discrimination on the basis of immigration status, race, religion, and caste, which was not a protected category under his university's nondiscrimination policy. In granting summary judgment to the defendant, the Court acknowledged, but did not resolve, this issue, observing:

While the concept of caste may "relate to"  . . .race, ethnicity, ancestry, and national origin, it does not comprise one of those protected classes under Title VII or [state law]. Because two similarly-situated individuals who are of a different caste may well be of the same race, religion, gender, national origin, and ethnicity, any disparate treatment between those individuals would be on the basis of caste, the only differentiating characteristic.

See Mazumder v. Univ. of Michigan, Case No. 03-CV-71775-DT, 16 n. 8 (E.D. Mich. Mar. 28, 2005); aff'd 195 F. App'x 320 (6th Cir. 2006). The Court considered that caste may be "tantamount to socio-economic status, an unprotected characteristic," but ultimately concluded that "for purposes of addressing Plaintiff's discrimination claims, the Court need not and does not determine whether caste is a protected category under Title VII or [state law]." Id.

Current Litigation

Litigation currently pending in the Central District of California—where, for important context, an effort to include caste as a component of ancestry in California's nondiscrimination law is underway—may prove to be instructive. In that case, Kumar, et al. v. Koester (2:22-cv-07550-RGK-MAA), two California State University professors have challenged their university's policy, which prohibits discrimination based on "Race or Ethnicity (including color, caste, or ancestry)." The plaintiffs have argued that the policy:

• uniquely targets those who are or are perceived to be South Asian or Hindu;
• defines Hinduism as including caste, which they describe as inaccurate and unconstitutional;
• fails to define caste, which they say is not a well-understood term;
• is unnecessary, as the university already precludes discrimination based on ethnicity and religion, and as neutral and generally applicable alternatives pertaining to social or economic status are available; and
• will necessitate the university ascribing a caste to individuals such as the plaintiffs, who do not identify as being members of any caste, in the event they are involved in an allegation of discrimination based on caste.

On July 25, 2023, the Court ruled on the defendant's Motion for Judgement on the Pleadings. The Court dismissed the plaintiffs' equal protection claims, holding that the plaintiffs lacked standing because abstract stigmatic injuries—here, that the policy would promote a stereotype of South Asians and Hindus participating in and reinforcing a discriminatory hierarchy—do not confer standing in equal protection cases. The Court rejected the plaintiffs' argument that the policy was constitutionally defective because it did not cover individuals who were affected by class or social status discrimination, but who were not Hindu or South Asian, because this was not the source of any injury to the plaintiffs themselves, as they were Hindu and South Asian. The Court also dismissed the plaintiffs' free exercise claims, because the policy's prohibition on discrimination based on caste was concededly consistent with, not in opposition to, the plaintiffs' religious beliefs.

The plaintiffs' establishment and due process claims will proceed to trial. As to the plaintiffs' establishment clause claims, the Court determined that under the relaxed pleading standard for First Amendment claims, abstract stigmatic injury is sufficient to confer standing. As to the adequacy of those claims, the Court stated that "[a] government practice that unevenly impacts religion may nevertheless be constitutional if it is supported by history and tradition," and that while "there is a long history of preventing racial discrimination in education," the Court was not satisfied that "there is a history or tradition of incorporating words with religious connotations to curb racial discrimination." The Court also determined that the plaintiffs' due process claims would proceed to trial because they had adequately made out a vagueness case, with the Court observing that it was hard for the defendant to argue that the term "caste" was not susceptible to many meanings, as numerous meanings had been proposed by the parties to the litigation themselves.

These rulings lend support to some of the plaintiffs' core arguments against the adoption of the policy: that alternatives to combat discrimination based on caste were available, and that by adopting a term unfamiliar to many members of the university community, the university would need to adopt a clear definition, supported by training—which could then lead to further stigmatization by defining a discriminatory practice of substantial enough concern to warrant inclusion in university policy as uniquely contextualized within Hindu or South Asian identity.

Looking Ahead

While the implications of the Kumar case are more substantial for public institutions as government actors with rigid constitutional bounds, the concerns raised by the plaintiffs are important to consider for all institutions. A private college or university will not find itself in court defending an establishment clause claim, but could face a Title VII claim brought by an employee who (unlike the plaintiffs in Kumar) is not Hindu or South Asian and asserts that their institution's policy protects some individuals, but not others, from class- or status-based discrimination. Other theories, such as a claim that an institution has, in the course of an investigation of alleged discrimination, assigned caste to an individual contrary to their self-identification, could also be viable, as could claims brought under different laws, such as a shared ancestry claim under Title VI. Given the various arguments in favor of construing caste discrimination as a component of discrimination based on race, religion, national origin, and/or ancestry, any law protecting such classes could be in play.

Colleges and universities considering adding caste to their nondiscrimination policies should carefully consider the implications of striking out in a landscape with few guideposts from case law or regulatory guidance. Questions for consideration should include the following:

• Is caste-based discrimination and/or harassment known to be an issue at the institution requiring this kind of institutional response? Has the institution undertaken any steps to determine this?
• If such an incident of discrimination or harassment arose, would the institution be able to address it under existing nondiscrimination policy?
• Has the institution undertaken any steps (e.g. survey, focus group, town hall) to assess community response to such a change, both broadly and relative to groups which may be more affected by such a change?
• Along the same lines, has the institution accounted for potentially strongly divergent perspectives within primarily affected groups, and considered how it would navigate a deeply sensitive, culturally complex scenario in which some individuals may feel targeted and assailed by a policy intended to protect individuals who share the same racial identity, religious affiliation, and/or national origin?
• Are neutral, more generally applicable alternatives available and of substantially equal effectiveness?
• Does the state, municipal, or jurisdictional legal landscape play a role in the institution's decision? 
• If adopted, what would the institution's plan be to define caste, educate the college or university community about the significance of the policy, and ensure its appropriate application?

 The Higher Education Industry Group at Saul Ewing will continue to monitor this complex and evolving area of the law.