Abstract
Excerpted From: Kevin Brown and Sukhadeo Thorat, Distinguishing the Caste--Race Debate in the United States from South Asia, 66 Arizona Law Review 915 (Winter 2024) (397 Footnotes) (Full Document)
While caste systems exist all over the world, the caste system is primarily associated with South Asia, where it has existed for thousands of years. Though the caste concept may have originated from the religious practices on the Indian subcontinent, caste is separate from religion. It is practiced by many different faiths in South Asia, including Christianity, Hinduism, Islam, and Sikhism.
Over the past 35 years, South Asians have immigrated to the United States in large numbers. According to the U.S. Census Bureau, there were more than 6.5 million people of South Asian descent in the United States in 2022. Like all immigrants, when South Asians migrate halfway around the world to reside in the United States, they do not journey solely as “biological entities” but bring their socio-cultural understandings as well. Among those understandings are the ones associated with the caste system. Those historically most victimized by caste are the Dalits, formerly known as ““untouchables” or “outcasts.” They suffer from caste discrimination based on untouchability. This stems from a belief that they are infected with a sort of permanent religious pollution that is contagious. To avoid this pollution, it is necessary for a person not only to avoid physical contact but also to maintain a safe distance from them.
As a result of South Asian immigration, American universities, employers, courts, and legislative bodies are increasingly encountering caste discrimination against Dalits. For example, in 2020, Brandeis University became the first university in the United States to ban caste-based discrimination. Brandeis's actions were followed by Harvard University, the California State University system, the University of California at Davis, and Brown University. An employment discrimination case alleging that high-caste supervisors at Cisco Systems, Inc. (“Cisco”) discriminated against a Dalit subordinate because of caste has been pending in California state court since October of 2020. On October 7, 2023, the Governor of California, Gavin Newsom, returned SB 403 to the California Legislative Assembly without his signature. SB 403 overwhelmingly passed both houses of the Assembly. It would have clarified that under various antidiscrimination provisions in California law, the protected trait of “ancestry” included “caste.” In his message returning SB 403, however, Newsom stated that the Bill was unnecessary because California law already prohibits discrimination based on several protected traits relevant to caste discrimination--including race, ancestry, and national origin--which are to be liberally construed. After Newsom's action, the trial court in the Cisco case agreed that caste discrimination is covered under California's anti-discrimination laws.
It may surprise most observers, but scholars in the United States have compared caste discrimination on the Indian subcontinent to discrimination against Black people for both legal and political purposes. Abolitionists began to analogize the treatment of Black people to the South Asian caste system as early as the 1830s. The caste-race analogy remained central to discussions about racial discrimination against Black people throughout the nineteenth century, including in debates surrounding the enactment of the Civil Rights Act of 1866, Congress's first race-based anti-discrimination measure, and the ratification of the Fourteenth Amendment. This history has raised the legal question of whether caste discrimination is a form of race discrimination currently covered under federal antidiscrimination laws.
For purposes of federal law, the legal schemes that are most relevant to discussing whether caste discrimination is a form of race discrimination are 42 U.S.C. § 1981 (banning discrimination against all persons in public and private contracts) and 42 U.S.C. § 1982 (banning discrimination against all citizens in housing). These two provisions are derived from the Civil Rights Act of 1866. Also, several titles from the Civil Rights Act of 1964 could apply to caste discrimination if it is a form of race discrimination, including Title II (banning discrimination in access and service at various categories of business establishments), Title III (banning discrimination in public facilities, such as park and recreation facilities, libraries, and prisons), Title VI (banning discrimination by recipients of federal funds), and Title VII (banning employment discrimination). The largest number of contract claims filed under § 1981 are for employment discrimination. Thus, it is common for victims of race discrimination in employment to pursue both § 1981 and Title VII claims. Because of this, courts became accustomed to looking to § 1981 when addressing legal issues under the 1964 Civil Rights Act.
In addition to race, Titles II, III, and VII under the Civil Rights Act of 1964 include religion and national origin as protected traits, and Title VI includes national origin. While discrimination based on religion or national origin are also possible bases for caste discrimination, the reason we limit the scope of this Article to race is due to the historical understanding of race at the time Congress passed the Civil Rights Act of 1866. In 1987, in Saint Francis College v. Al-Khazraji, the Supreme Court expounded on the meaning of “race” for § 1981. In an opinion involving whether a person of Arab ancestry could bring a claim of race discrimination under § 1981 against a white person, the Court stated that the definition of race was to be drawn from how it was understood by Americans in the nineteenth century. In recognizing that the concept of race then was much broader than it is today, the Court held:
Based on the history of § 1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory.
As the Court would state in a case dealing with the Fifteenth Amendment, “[i]n interpreting the Reconstruction Era civil rights laws this Court has observed that racial discrimination is that which singles out 'identifiable classes of persons ... solely because of their ancestry or ethnic characteristics.”’ While the purpose of the Civil Rights Act of 1866 was directed at preventing race discrimination, the concept of “race” included what we would commonly refer to as race, national origin, ethnicity, and/or ancestry. Thus, these concepts may have different meanings in different contexts, but it appears that for purposes of the Reconstruction Era civil rights laws, these concepts are all included within the definition of “race.”
The caste-race analogy is still prominently used today in debates about racial discrimination. Most of those who have employed this analogy in the United States, however, were not aware of the intricacies of how the caste system functioned in South Asia. For those in the United States, it has been enough to see caste as a hierarchical system of social stratification on the basis of inherited status characterized by factors that may include socially enforced restrictions on marriage, social exclusion on the basis of perceived status, public segregation, and discrimination. In this hierarchical system of social stratification, Black people occupied the lowest rung of the American caste system.
The caste-race analogy was first hinted at in South Asia in the late eighteenth century but did not flourish into a substantive debate until the middle of the nineteenth century. In contrast to the experience with the caste-race analogy that was tied to the development of anti-discrimination measures in the United States, the genesis of the discussions of this issue in South Asia was inextricably entwined with British colonialism. Eleanor Zelliot, who has written extensively about India, noted that the Indian languages have no general word for “race” as it is used in the West. Before British colonialism, those who we now think of as practitioners of Hinduism were not thought to have a collective unified religious identity. But the British were not only colonizers, they and other Europeans wrote a great deal about what they perceived or misperceived to be the social and cultural life of the South Asian people, including the caste-race issue.
One of the theories these scholars advanced during the second half of the nineteenth century about the origins of the caste system stems from the “Aryan Invasion Theory.” Indian historian Romila Thapar called the “Aryan question ... probably [the] most complex, complicated question in the Indian history,” and the theory continues to generate scholarly disputes. It posits that one group of white Aryans, whose original homeland was either in Central Asia or the Arctic Circle, migrated into Europe, and another drifted into northern India. In northern India, these Aryan invaders conquered the indigenous people, eventually spreading their domination south to encompass much of South Asia. The Aryans created the caste system to maintain their control over the native population. Under this theory, high-caste South Asians can trace their roots to a different racial group than the indigenous people who became the low caste and Dalits. Thus, caste was perceived as reflecting racial differences. In addition, the shared Aryan ancestry allowed the high caste to argue for a genuine and real equality with their British colonizers. As Keshab Chandra Sen put it, high-caste Indians could assert to their British colonizers that they were long-lost “parted cousins.”
Starting in the 1870s, however, some activists for low-caste and Dalit groups embraced the Aryan Invasion Theory but turned it on its head. They argued that the high caste were the descendants of foreign invaders who imposed their hegemony on the indigenous inhabitants. As such, caste and Hinduism were merely religious trickery that allowed Brahmins and other high-caste members to maintain an unlawful domination over the true inhabitants.
The Aryan Invasion Theory came under increasing attacks as the twentieth century unfolded. The framers of India's Constitution rejected the Aryan Invasion Theory and its assertion that caste is a form of race. They viewed caste and race as distinct concepts and wrote that into the Indian Constitution. After all, to view caste discrimination as race discrimination would equate the treatment of low caste and Dalits by the upper caste to the treatment inflicted by the British during colonialism to all of those on the Indian subcontinent. The Indian government reiterated its rejection of the caste-race analogy during debates about whether caste was a form of race during the United Nations' (“U.N.”) World Conference Against Racism, Racial Discrimination, and Xenophobia (“WCAR”), held from August 31 to September 7, 2001, in Durban, South Africa.
In addressing the issue of whether caste discrimination based on untouchability is a form of race discrimination under federal law, U.S. courts may question how the history of caste discrimination in South Asia impacts the interpretation of anti-discrimination law in United States and whether caste discrimination is viewed as race discrimination under anti-discrimination law in India. Anyone who does transnational inequality scholarship, however, quickly learns that legal issues are not resolved on a universal or global basis but on a local one. As Professor Prema A. Kurien has put it: “'[U]niversalistic’ frames can obscure crucial particularities, making it harder to address the issue at hand.”
When examining the legal treatment of issues such as subordination and oppression, each group in each society is dealing with how legal concepts like equality, liberty, freedom, and discrimination are defined and applied for a particular group at a particular place during a particular time. To demonstrate, take the historical treatment of Black people throughout the world, which has included both discrimination and remedies for such discrimination. Whether a person should be viewed as a victim of discrimination or a beneficiary of remedies because of discrimination depends on the understanding of who is a “Black person” at a given place and at a given time. For most of the twentieth century, the United States used the one-drop rule to determine Blackness. Under this rule, one drop of Black blood made a person Black. The one-drop rule replaced the older way to determine a person's race by looking at blood fractions, appearance, and associations. With the unfolding of the twenty-first century, however, Americans are witnessing the demise of the one-drop rule. Since the 2000 census, documents that are used to collect and report racial and/or ethnic data to the federal government have increasingly allowed individuals not only to self-identify their race but also select all their racial and/or ethnic categories. As a result, many individuals who would have been considered Black under the one-drop rule or earlier criteria are now viewed as multiracial or fitting into the “Two or More Races” category. José Cabranes has recounted the confusing attempts to apply conventional notions of race in the United States to the population of Puerto Rico during the early years of the twentieth century when the United States came into possession of the island after the Spanish-American War. Puerto Ricans, mainland census administrators, and interpreters operated with different concepts of how to determine a person's race. As pointed out above, on the mainland at the time, a drop of “Negro” blood made a person Black, but in Puerto Rico, a drop of white blood made a person white. And, during the Apartheid Era in South Africa, the government recognized three dominant racial groups: Black, white, and colored.
In this Article, we compare the broad features of the caste-race issue under federal anti-discrimination law in the United States with how the same issue was handled under anti-discrimination law in India, particularly in the Indian Constitution. As we perform this comparative study to highlight the caste-race issue under federal anti-discrimination law, it is best to keep in mind the Supreme Court's admonition about the uses of scholarly writings to resolve legal issues:
Historians and other scholars who write ... will have a different purpose and more latitude than do we. They may draw judgments either more laudatory or more harsh than the ones to which we refer. Our more limited role, in the posture of this particular case, is to recount events as understood by the lawmakers, thus ensuring that we accord proper appreciation to their purposes in adopting the policies and laws at issue.
Thus, in our discussions of the caste-race issue under these two countries' legal systems, we focus on what Professor Justin Desautels-Stein called the functionalist interpretation of race and ask “not what race is, but rather, what purpose does the articulation of race serve? What is the interest in using the idea of race as legal category? What is its function?”
No one can deny that the history and cultures of India are vastly different from those of the United States. There is little question that the struggles of Black people in the United States against racial oppression are qualitatively different from the struggles of Dalits in India against caste discrimination based on untouchability. Yet sometimes the concepts addressing the struggle against oppression of one group in a particular place at a particular time are given a local meaning, and they are later applied to a different group at a different time. A prime example of this phenomenon is the caste-race issue in the United States that occurred at different places, times, and for very different reasons than it did in South Asia.
For an American legal mind, approaching the issue of caste in South Asia can be a baffling and bewildering intellectual exercise. The primary purpose of this Article is to simplify that exercise by distinguishing how the caste-race issue is understood under federal anti-discrimination law in the United States from how it is understood under anti-discrimination law in India. For purposes of applying U.S. anti-discrimination law, it is the history of the legal question of whether caste discrimination is a form of race discrimination that is relevant. While the legal treatment of the caste-race issue in South Asia is certainly of great interest to those addressing caste discrimination in the United States, it is, ultimately, a discussion that occurred at very different times and places, and for very different purposes, in South Asia than it did in the United States. The debates surrounding the caste-race issue in South Asia should not interfere with or supersede how the caste-race issue is understood under U.S. federal anti-discrimination law. Indeed, such discussions are largely irrelevant. For federal anti-discrimination law in the United States, there are very cogent arguments that caste discrimination is a form of race discrimination. However, under the Indian Constitution, these are two distinct concepts. Thus, the caste-race issue can and does have a different resolution in India than it does under federal anti-discrimination law in the United States
The central question that U.S. courts need to resolve under federal antidiscrimination law, in order to determine if a person is a victim of race discrimination because of their membership in a particular caste, is whether a victim of caste discrimination is subjected to intentional discrimination because of their ancestry. If the answer is “yes,” then there almost certainly is what would be considered race discrimination under 42 U.S.C. § 1981 and § 1982 (and probably what would be considered race discrimination under the various titles of the Civil Rights Act of 1964). If the answer is “no,” then there is no claim for race discrimination.
Part I of this Article briefly discusses what caste and caste discrimination are in South Asia, with a special focus on discrimination based on untouchability, because it is the most severe form of caste discrimination. Part II discusses how the caste-race issue was resolved for anti-discrimination law in India's Constitution, its first federal measure establishing India's anti-discrimination scheme. India rarely needs to confirm that caste discrimination is different from race discrimination; however, such a situation arose during the conversations that surrounded the 2001 WCAR in Durban, South Africa. There, the government of India emphatically reaffirmed its position that caste discrimination is not race discrimination. Part II also covers this discussion. For purposes of the caste-race issue in the United States, the assumption that caste was a form of race is inextricably tied to the first race-based anti-discrimination measure passed by Congress. Part III discusses the origins of the caste-race issue for purposes of the Civil Rights Act of 1866. This history of the caste-race issue strongly points to the conclusion that caste discrimination based on untouchability is a recognized form of discrimination in the United States under the protected trait of race. Part IV discusses the caste-race issue for purposes of the Civil Rights Act of 1964. While this analysis is more complicated than it is for the 1866 Act, it also appears that caste discrimination is a form of race discrimination under the 1964 Act. This Article concludes that in determining the meaning of caste discrimination for federal anti-discrimination law in the United States, simply put, courts do not need to understand the baffling and bewildering uses of caste in India or under Indian law. They only need to address whether the discriminator's actions toward the victim were motivated by caste considerations due to the victim's ancestry.
[. . .]
Immigration of South Asians to the United States has exploded since 1990. In 2022, more than 6.5 million people of South Asian descent resided in the United States. Like all immigrants, they carried with themselves their socio-cultural understandings of how society operates, including the caste system. Those historically most victimized by caste are the Dalits, formerly known as “untouchables” or “outcasts.” They suffer from caste discrimination based on untouchability.
Because of this immigration, more and more caste discrimination based on untouchability is occurring in the United States. Several universities have already banned caste discrimination on their campuses. Additionally, in California state court, a Dalit employee has alleged a case of caste discrimination against his high-caste supervisors. Motivated by Dalit activists, the California Legislative Assembly overwhelmingly passed SB 403, which would have clarified under California law that the protected trait of “ancestry” included “caste.” However, Governor Newsom returned the Bill to the Legislative Assembly unsigned. In so doing, he called the Bill “unnecessary” because California law already prohibits discrimination based on several protected traits relevant to caste discrimination, including race, religion, ancestry, and national origin. Afterwards, the trial court in the Cisco case concluded that caste discrimination was covered under California's employment discrimination law. These examples illustrate that due to the significant increase in immigration from South Asia over the past decade, caste discrimination is becoming a larger issue in U.S. legal circles.
Caste discrimination also has a unique history in this country. For nearly 200 years, the treatment of Black people in the United States has been analogized to caste discrimination in South Asia. The caste-race analogy was also instrumental in discussions about the passage of Congress's first anti-racial discrimination law--the Civil Rights Act of 1866--as well as the Fourteenth Amendment.
Most of those who used the caste-race analogy in the United States were not aware of the intricacies of how the caste system historically functioned in South Asia. For those in this country, it was enough to see a caste system as a hierarchical system of social stratification on the basis of inherited status-- characterized by factors that may include socially enforced restrictions on marriage, social exclusion on the basis of perceived status, and private and public discrimination. In this hierarchical system of social stratification, Black people have occupied the lowest rung of the American caste system.
Due to the long connection between the caste system and both discrimination against Black people and the origins of U.S. federal anti-discrimination law, caste discrimination against Dalits has sparked interest in whether caste discrimination is a form of race discrimination under federal anti-discrimination law. The legal schemes most relevant to Dalits attacking caste discrimination as a form of race discrimination are 42 U.S.C. § 1981 and § 1982, which were originally enacted in the Civil Rights Act of 1866. In addition, if caste discrimination is a form of race discrimination, a few titles from the Civil Rights Act of 1964 would also apply--namely, Title II, Title III, Title VI, and Title VII. This Article has pointed out that there is a very strong likelihood that caste discrimination is a form of race discrimination under these federal anti-discrimination provisions.
In addressing the issue of caste discrimination for purposes of federal anti-discrimination law, lawyers and U.S. courts may be tempted to look to how caste discrimination is understood in South Asia, or more particularly under Indian anti-discrimination law. South Asia also addressed the caste-race issue, starting around the same time as it was first discussed in the United States. The origins of discussions on the caste-race issue there, however, were not linked to anti-discrimination law, but to British colonialism. During the second half of the nineteenth century, European scholars began to embrace the Aryan Invasion Theory, which posits that one group of white Aryans, whose original homeland was in either Central Asia or the Arctic Circle, migrated into Europe, while another group migrated into northern India. In northern India, these Aryan invaders conquered the indigenous people, eventually spreading their domination south to encompass much of South Asia. The caste system was a product of the desire of these Aryans to maintain their control over the native population. Under this theory, the members of the high caste are from a different racial group than those who are low caste or Dalits. The Aryan Invasion Theory presumed that there was a familial connection between high-caste individuals and their British colonizers. As a result, colonialism provided the incentive for the high caste to adopt the Aryan Invasion Theory. However, in the latter decades of the nineteenth century, activists for the low caste and Dalits also embraced the theory but argued that as descendants of the native inhabitants of South Asia, they were the rightful heirs of the subcontinent. Over the past 100 years, the theory has come under scholarly and political attack, and it continues to generate scholarly disputes. The theory was rejected by the framers of India's Constitution, including several anti-discrimination provisions and viewing caste discrimination as distinct from race discrimination. In addition, the Constitution of India provides for reservations, or what U.S. law would call “quotas,” for Dalits, OBCs, and Scheduled Tribes, but not for race. The Indian government reiterated its objection to the notion that caste discrimination based on untouchability is a form of race discrimination in 2001, during the U.N.'s WCAR in Durban, South Africa. Since the founding of the Republic of India, it has been clear that for legal purposes, caste is not viewed as a form of race.
Understanding how caste functions in South Asia can be a dauting task for an American legal mind. For example, at a bare minimum, one will run into a number of unfamiliar terms and concepts including Rigveda, Purusha Sukta, Ramayana, Mahabharata, Dharma Shastras, Manusmriti, Aryans, Dravidians, Brahmins, Kshatriyas, Vaishyas, Shudras, Ati-Shudras, jatis, Chandalas, karma, forward castes, high castes, OBCs, Scheduled Castes, and Scheduled Tribes, just to name a few. The primary purpose of this Article is to simplify that exercise by distinguishing how the caste-race issue is understood under federal anti-discrimination law in the United States from how it is understood under anti-discrimination law in India. For purposes of applying U.S. anti-discrimination law, the history of the legal question of whether caste discrimination is a form of race discrimination in this country is what is relevant. Certainly, the legal treatment of the caste-race issue in South Asia is of great interest to those addressing caste discrimination in the United States. Ultimately, however, that was a discussion that occurred at very different times and places and for very different purposes in South Asia than it did in the United States.
The central question that courts in the United States need to resolve under federal anti-discrimination law to determine if a person was a victim of race discrimination due to their membership in a particular caste is whether that person was subjected to intentional discrimination because of their ancestry. If yes, then a claim for race discrimination almost certainly exists under § § 1981 and 1982, and probably exists under the various titles of the Civil Rights Act of 1964. If not, then there is no claim for race discrimination.
Kevin Brown, Mitchell Willoughby Professor of Law, Joseph F. Rice School of Law, University of South Carolina & Richard S. Melvin Professor Emeritus, Indiana University Maurer School of Law, B.S. 1978, Indiana University, J.D., 1982 Yale Law School.
Dr. Sukhadeo Thorat, Professor Emeritus, Jawaharlal Nehru University; Former Chairman, University Grant Commission of India; Chairman, Indian Institute of Dalit Studies, New Delhi; & Chairman, Institute for Social and Economic Change, Bangalore; B.A. from Milind College of Arts, Aurangabad, Maharashtra, M. Phil and Ph.D. Jawaharlal Nehru University.
