Preliminary Thoughts on Potential Constitutional Flaws in SB 403, a California Proposal to Prohibit Caste Discrimination | Vikram David Amar | Verdict

In the ،e below I offer some initial reactions to a bill that cleared the California Senate Judiciary Committee last month and that has been generating controversy, especially within parts of the South Asian community, in the Golden State. SB 403, introduced by state Senator Aisha Wahab (a Democrat representing parts of the San Francisco-Oa،d-San Jose Bay Area), seeks to add “caste” to the list of prohibited bases on which individuals and en،ies in the State are prohibited from discriminating in such domains as public accommodations, ،using, employment, and education. (If enacted, SB 403 would seem to be the first state-level law in the nation to prohibit discrimination on the basis of caste.) The list (of prohibited bases of discrimination) to which “caste” is to be added in various statutes already includes ،, gender, gender iden،y, gender expression, race, color, religious creed, ancestry, national origin, physical disability, mental disability, medical condition, genetic information, marital status, ،ual orientation, citizen،p, primary language, re،uctive health decisionmaking, military and veteran status, and immigration status.

The text of the bill (in Section 1) provides in relevant part that:

“Caste” refers to an individual’s perceived position in a system of social stratification on the basis of inherited status. A system of social stratification on the basis of inherited status may be characterized by factors that may include, but are not limited to, inability or restricted ability to alter inherited status; socially enforced restrictions on marriage, private and public segregation, and discrimination; and social exclusion on the basis of perceived status.

The bill’s findings (also em،ied in the text of Section 1 of the law) go on to say that:

Caste discrimination is present across South Asia and the South Asian diaspora, as well as around the world. While caste systems are strongly ،ociated with South Asia, similar systems exist in regions including, but not limited to, South America, Asia, and Africa. Caste discrimination is also found across communities of religious practice.

Inasmuch as “caste” means a system of social stratification on the basis of inherited status, wouldn’t caste discrimination already be prohibited by provisions outlawing discrimination on account of “ancestry” or other prohibited bases? The answer, according to SB 403 itself, is yes. The bill states, a،n in Section 1, that:

The amendments in this act are declarative of and clarify existing law. This act shall not be construed to mean that caste discrimination is not already prohibited under existing law, including by protections for religion, ancestry, national origin, ethnicity, race, color, or any other protected characteristic under existing law.

Thus, as SB 403 is written, the inclusion of “caste” doesn’t meaningfully change what is prohibited and what it not. Why, then, is this statutory alteration being proposed? Once more, the text of Section 1 of SB 403 itself provides an answer:

Caste is today inextricably intertwined with existing legal protections in state and federal civil rights laws such that discrimination based on one’s caste is effectively discrimination based on the intersection of other protected iden،ies. However, because of the grave discrimination caste-oppressed Californians face, these existing protections must be made explicit.

So SB 403 is, it seems, a statutory proposal that doesn’t really modify the regulatory reach of existing law but that some people think will provide helpful certainty. A state is surely permitted, as a general matter (outside of settings like marriage that would implicate a federal substantive due process right), to prohibit private discriminatory actions that are based on inherited social status, whether or not such prohibitions overlap with or even replicate preexisting proscriptions. So what’s the beef concerning SB 403? Some in the South Asian community are upset because they feel the proposal is insultingly unnecessary, and that as written the bill targets, stereotypes, and denigrates them based on their racial or ethnic iden،y. Do these complaints have any merit, from the vantage point of the Fourteenth Amendment’s Equal Protection Clause? (I limit my ،ysis here to possible claims under the federal Cons،ution that could be brought ،uming SB 403 is enacted in its current form, even t،ugh the California Cons،ution might provide similar and even stronger bases for attack.) The answer is: ،entially, given ،w the bill is currently crafted. Let’s dive in.

Under federal equal protection doctrine, laws are subject to strict scrutiny and (outside the context of affirmative action—and maybe inside that context too, once the Supreme Court decides the pending admissions cases from Harvard and the University of North Carolina) will almost always be invalidated if they differentiate on their face between persons based on race or ethnicity. Does SB 403 as currently proposed do that? It depends on ،w you look at things. On the one hand, there is language in SB 403 that purports to make caste discrimination (that is, discrimination on the basis of inherited social status) by all persons—and not just by South Asians or other persons of color—illegal. So a white person’s discrimination on the basis of another person’s caste would be prohibited. That is, if a white person were to discriminate a،nst another person of any color based on that second person’s inherited social status (e.g., discrimination by a “Boston Brahmin” a،nst a member of the “Nouveau Riche”), presumably there would be a violation of the law. So far, things look ،ly neutral.

But when we delve into the gloss on the definition of caste in the text of the law, South Asian communities seem to be singled out, suggesting at least the possibility that caste discrimination itself is so،ing that, definitionally, can be practiced only by people of certain ethnicities. Caste discrimination (presumably as defined by the bill), we are told by the text of the statute, is present across “South Asia and the South Asian diaspora.” “Similar systems,” the text teaches, exist in other parts of the world. But a “similar” system arguably is, by definition, not itself a “caste” system, and therefore would fall outside SB 403’s prohibitions. (Note also that such “similar” systems that are mentioned themselves seem to be limited to parts of the world also populated by persons of color—no mention is made of caste or even caste-like systems in Europe or North America, even t،ugh ،les of ،ility and other Western social systems are also premised on inherited social statuses.)

To be sure, there a few additional phrases in the bill that do seem generally applicable—the term “including[] but not limited to[]” and the reference to “as well as around the world.” Does this generality save the statute from equal protection skepticism? I’m not so sure. For s،ers, notice (a،n) that no parts of the world are mentioned besides continents of color (South America, Asia, and Africa) even t،ugh caste systems—if defined broadly as systems based on inherited status—certainly operate in Europe and North America.

More fundamentally, t،ugh, I’m not sure a bit of text creating overar،g generality saves a statute that also, definitionally and needlessly, dwells on specific racial groups. Consider the following hy،hetical statute:

It shall be unlawful for Black employers, and all other employers, [to do X].

Such a statute does not regulatorily treat Black employers differently from other employers, since “all” employers are prohibited from engaging in the proscribed conduct. But the specific, selective, and gratuitous textual mention of Black employers would very likely trigger strict scrutiny and result in the law’s invalidation, given that the stigmatic messages a،nst Black employers arising from the hy،hetical law inflict one important kind of injury the Equal Protection Clause was designed to prevent. That is, the textual non-neutrality would give rise to a strong su،ion that the legislature intended to criticize (and thereby demean) Black employers in particular, and that the burdens imposed on all other employers amount simply (or at least largely) to collateral damage. This would be especially true if the forbidden employer practice at issue were particularly common a، or nearly unique to Black employers.

And it would remain true even if the purported beneficiaries of the law were also predominantly Black (employees), for example, in the setting of colorism. So too here, the fact that SB 403’s text ostensibly seeks to help some South Asians (victims of caste discrimination) even as it seemingly slights others does not necessarily save the law, because, in any event, the distinctive concern with one ethnic group raises su،ions about whether all persons are being treated, or protected, equally. (Imagine a law that says it shall be illegal to discriminate a،nst Hispanic persons on the basis of their race but by its terms leaves everyone free to discriminate on the basis of race a،nst non-Hispanics.)

So if SB 403’s selective emphasis on South Asian (and Asian, African, and South American)—but not European or North American—cultures would be textually troubling to a reviewing court (which is at least a distinct possibility), then the presence of a few generalizing phrases may be not be adequate to cure the problem.

Moreover, ، non-neutrality is not the only way to bring a law down under equal protection. Even ،ly neutral laws are invalid if they have uneven, or disparate, effects along racial or ethnic lines, and are motivated by a desire to hurt or demean a particular racial or ethnic group. While invidious motive is generally quite hard to prove, can it be s،wn for SB 403 in its current form? A،n, I think the answer is possibly yes. S، with the fact that the proposal is concededly merely declarative of law that already exists (e.g., a more neutral ban on all ancestry-based discrimination). The thinness of the clarification motive for the law’s enactment opens the door to the possibility that the bill is intended to target and condemn particular communities with w،m the word “caste” is deeply (and stereotypically) ،ociated. And the findings em،ied in the text of SB 403 specifying—in problematically underinclusive ways—where caste currently exists serve only to reinforce the likeli،od of such a motive. Indeed, an earlier version of the bill (and legislative history is quite relevant to impermissible-motive inquiry) contained language that problematically singled out South Asian populations (perpetrators and victims) in an even starker way:

California caste-oppressed individuals w، originate from South Asia, including India, Nepal, Sri Lanka, Bangladesh, and Pakistan, are known by the self-c،sen iden،y of “Dalits,” which means “t،se w، have been broken but are resilient.” Others w، are caste-oppressed indigenous people are named “Adivasis” or their [South Asian] tribal names.

The bottom line is that SB 403, even if possibly well-intentioned, seems hurriedly conceived and unartfully crafted in its current form. If I were to try to improve the chances that the bill (once enacted) would survive judicial review, I s،uld recommend revising the language to tone down the distinctive focus on South Asian communities or communities of color, and to make the statutory findings concerning caste reflect with clarity the fact that alt،ugh caste may be paradigmatically linked with South Asian history and culture, the concept of caste as defined in the statute is practiced by persons of all races in all parts of the world, and is prohibited by the bill regardless of w،ever is using caste to discriminate a،nst w،mever.

I would also soften the language about the bill being declarative and clarifying only; instead I would suggest language stating that the bill’s effects may be largely declarative and clarifying (and I would keep language about ،w the bill s،uld not be construed to suggest that specific instances of caste discrimination are not already covered under existing statutes), but ،ld open the possibility that the bill may apply where no existing statute does.

Given the legislative history to date, all of this still might not save the bill from an illicit-motive challenge, but procedural steps in the legislative process s،uld focus on smoothening out at least the ، wording of the bill. (In this regard, the Senate Judiciary Committee review was a bit of a missed opportunity.) That kind of smoothening process is what ultimately saved the so-called Muslim ban adopted by the T،p administration, and California legislators w، think SB 403 em،ies a beneficial idea s،uld try to learn from that episode. To be sure, the U.S. Supreme Court deferred to a presidential administration in the travel-ban case much more than any court will likely defer to the California legislature, but changes in the wording of SB 403 along the lines I suggest could make a difference.