Why California adding "caste" as a protected class will increase discrimination

Opinion

California is well known today for aspiring to be the national model for progressive politics. Yet we often forget about the state’s long history of institutionalized xenophobia.

In 1850, the State of California passed the Foreign Miners' Tax, imposing what today would amount to a $700 monthly fee on California-born Mexicans and foreign immigrants for the right to mine. San Francisco instituted the Cubic Air Ordinance of 1870, directly targeting Chinese immigrants living in the city’s overcrowded Chinatown by requiring 500 cubic feet of air for every person in a given living quarter. The California Alien Land Laws of 1913 and 1920 sought to dispossess "aliens ineligible for citizenship" of agricultural land and long-term leases, impacting Japanese, Chinese, Korean and Indian immigrant farmers throughout the state.

These discriminatory laws passed by nativist Californians preceded the U.S. Constitution’s 14th Amendment, which conferred to all people the rights to due process and equal protection under the law. Today, it would be hard to imagine California passing blatantly discriminatory laws, not least because of how progressive politics ostensibly prioritize diversity and inclusion. 

But California's dark history is repeating itself. This time, it's not the nativists but rather California progressives who have placed Californians of Indian origin in the crosshairs. 

Earlier this year, California State University (CSU) joined the University of California, Davis and the California Democratic Party in adding “caste” to the list of protected classes in their non-discrimination policies. The addition came after activists insisted that South Asians, most of them Indian and Hindu, are discriminating against other South Asians based on their perceived place in a “caste hierarchy.”

 “Caste” is a term of Portuguese origin that is today associated nearly exclusively with historical social dynamics in Indian society based on distinct social markers like traditional occupation, clan, tribe, or kin. Scholars disagree on how best to define “caste” or a caste system, and even on whether a single hierarchical system of its kind existed—but if it is taken to be based on one’s birth or social standing, then existing CSU policy could already protect against caste discrimination under the category of national origin, which encompasses factors such as ethnicity, ancestry, birthplace, culture, and even tribe. The category of national origin is especially useful because it is facially neutral; in other words, it allows us to fight various kinds of discrimination without unfairly singling out any one group. But rather than taking advantage of the policies that already exist, CSU and other California schools have decided to add caste to its list of protected classes. This policy is facially discriminatory because caste is almost universally equated with people of Indian origin and with followers of Hinduism.

Perhaps the assumption is that caste-based discrimination is so prevalent that it warrants a special category of its own, to prevent a unique harm perpetrated only by people of Indian origin. This seems to be supported by the 2016 survey that CSU cites to justify the policy change. The survey, however, is riddled with confirmation bias and intentionally inflates the problem.

The notion that caste-based discrimination is widespread is also disproven by data from the largest, scientifically validated study on Indian American attitudes. Researchers from the Carnegie Endowment, University of Pennsylvania, and Johns Hopkins University, in partnership with data analytics firm YouGov, found that nearly 50% of Indians surveyed reported facing discrimination on the basis of color, gender, religion and national origin. Caste discrimination, however, was reported by only five percent of respondents, half of whom reported incidents that involved a non-Indian perpetrator (the survey authors suggest that these could be cases where “respondents interpreted caste discrimination as a stand-in for other forms of discrimination,” meaning that the percentage of actual caste-based discrimination is even lower that five percent).

Now that caste has been added to CSU’s policies, faculty of Indian origin are asking how caste complaints will be adjudicated. There are no caste certificates in the United States, and there is no name or surname that reliably indicates which caste one might belong to. The Carnegie survey showed that most Indians in the United States don’t even know their supposed caste. CSU offers no guidance as to what actions would actually constitute caste discrimination, or how to legally determine who belongs to which caste. This legal ambiguity leaves it to CSU faculty and students to figure it out themselves. For example, the activist entity that originally proposed the new caste policy has erroneously claimed that sacred Hindu holidays like Diwali and Holi, and common practices like temple attendance or vegetarianism, are indicators of casteism. 

Ending inequality in society, including discrimination and prejudice based on caste or social hierarchy, is a goal shared by Hinduism’s spiritual leaders and most American Hindus. We are allies in the struggle to live up to the highest ideals of Hinduism: ekatva and samadrishti, the oneness of and equal regard for all beings. However, CSU and other California state institutions are deeply misguided in creating a new protected class category that is facially discriminatory and so ill-defined as to make it impossible to adjudicate claims—all while existing laws already effectively cover caste-based discrimination.

The addition of “caste” as a protected class is an appalling throwback to an era when California created and enforced policies that explicitly discriminated against entire groups of people based on their immutable characteristics. If California hasn’t learned from the lessons offered by its dark history, the US Constitution’s 14th Amendment should serve as a reminder.

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The opinions expressed here do not necessarily reflect those of the Foundation Against Intolerance & Racism or its employees.

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