[00:00:04] Speaker 03:
Good morning, Your Honor.

[00:00:05] Speaker 03:
Michael Tversky from Fox Rothschild on behalf of the plaintiffs and the appellants here.

[00:00:10] Speaker 03:
I'd like to reserve three minutes for rebuttal if that's acceptable to the court.

[00:00:15] Speaker 01:
Yes.

[00:00:15] Speaker 03:
Thank you.

[00:00:17] Speaker 03:
In January 2022, California State University amended its non-discrimination policy to include the word CAST as a protected status.

[00:00:26] Speaker 03:
The issue in this case is whether the inclusion of that word violates the constitutional rights of the plaintiffs.

[00:00:32] Speaker 03:
Plaintiffs argued below and again here that the term cast in the policy violates the due process clause because it's unconstitutionally vague.

[00:00:40] Speaker 03:
And they also argued that the term cast in the policy violated both the establishment and free exercises clauses of the First Amendment.

[00:00:47] Speaker 03:
The trial court initially ruled in granting defendants motion for judgment on the pleadings that plaintiffs failed to assert a claim under the free exercise clause.

[00:00:57] Speaker 03:
The trial court subsequently, in a trial on the briefs,

[00:01:01] Speaker 03:
granted judgment for defendant on the establishment clause and due process claims.

[00:01:05] Speaker 03:
As to the due process claim, the court determined that plaintiffs lack standing.

[00:01:09] Speaker 03:
And as to the establishment clause claim, the court found that plaintiffs had standing but failed on the merits.

[00:01:16] Speaker 03:
Respectfully, as our briefing discusses, we believe the court earned in those decisions.

[00:01:22] Speaker 03:
Just as an initial matter, plaintiffs wouldn't be here if the policy used neutral terms like social status or economic status instead of caste.

[00:01:30] Speaker 04:
but the use of the word cast and the evidence of record on how it how that came about is the reason planners brought this loss the only evidence of record without regard to the comments by some of the commentators to the task force committee what is it about the word cast in the policy that you alleged to be discriminatory

[00:02:02] Speaker 03:
discriminatory under the establishment clause or vague under the due process clause?

[00:02:07] Speaker 04:
Either.

[00:02:07] Speaker 04:
I mean, the problem I'm having with your theory here is that because caste is not defined, I don't see any government comment one way or the other, other than to forbid discrimination on the basis of caste without defining it.

[00:02:25] Speaker 04:
And your clients allege that as they believe in their Hindu faith,

[00:02:32] Speaker 04:
there is no discrimination with regard to caste.

[00:02:37] Speaker 04:
So I'm grasping here for help and trying to determine what is it about the word caste that you think amounts to some kind of government endorsement or explication of what caste means.

[00:02:56] Speaker 03:
Yes.

[00:02:57] Speaker 03:
Thank you, Your Honor.

[00:02:59] Speaker 03:
The language itself, the word itself, is not despicable.

[00:03:03] Speaker 03:
As the Supreme Court found in Lakumi, facial neutrality is not determining.

[00:03:09] Speaker 03:
And I'll quote from that case, it's at page 534 of the opinion, quote, the free exercise clause, like the Establishment Clause, extends beyond facial discrimination.

[00:03:20] Speaker 03:
The clause forbids subtle departures from neutrality and converts suppression of particular religious beliefs.

[00:03:29] Speaker 03:
So we need to look beyond the term, Your Honor,

[00:03:32] Speaker 03:
And so how we do that, exactly as the court did in Lakumi, is to look at the circumstances surrounding the enactment of the policy, the change by adding caste to the policy.

[00:03:47] Speaker 03:
And the only evidence of record

[00:03:50] Speaker 03:
that CSU relied on in adding cast are the resolutions from the California Faculty Association, the CFA, California Student Association, CSSA, and the Associated Students, Inc., which is a student association, California Polytechnic State University.

[00:04:10] Speaker 04:
I thought there were 20 commentators and you've listed three.

[00:04:14] Speaker 03:
Yes, your honor.

[00:04:15] Speaker 04:
What did the other 17 say?

[00:04:17] Speaker 03:
We have no idea, Your Honor, because there is nothing in the record and there was nothing produced in discovery as to the position that those quote unquote stakeholders took as to the addition of CAS to the policy.

[00:04:31] Speaker 04:
So when the- Even if we were dealing with the enactment of a legislative statute, we would look to the committee report.

[00:04:42] Speaker 04:
And as I understand it, all we have here is a task force

[00:04:46] Speaker 04:
that made a recommendation to the chancellor to add the word cast.

[00:04:53] Speaker 04:
The fact that there were three commentators who basically endorsed the addition of the word cast because people can be discriminated on that basis isn't really part of what I would consider to be the legislative history

[00:05:14] Speaker 04:
in the same way that we would look at a committee report, is it?

[00:05:18] Speaker 03:
I would disagree respectfully, Your Honor.

[00:05:20] Speaker 03:
If you look at Lakumi, what Lakumi relied on were statements that were made by members of the public.

[00:05:27] Speaker 03:
And it's not just that these were comments made by stakeholders.

[00:05:31] Speaker 03:
The record indicates that those resolutions by CFA, CSSA, and ASI were the impetus for adding caste to the policy.

[00:05:42] Speaker 03:
And that's exactly what you did.

[00:05:46] Speaker 01:
Did CSU ever say where we're adopting those statements or were endorsing those statements or incorporating them by reference in any way?

[00:05:54] Speaker 01:
I mean, they didn't officially say they agreed with those statements, did they?

[00:06:00] Speaker 03:
There's nothing in the record of that, Your Honor, but that's the only evidence in the record that shows what the impetus was for this.

[00:06:09] Speaker 03:
There's nothing else to base this on.

[00:06:12] Speaker 03:
What the testimony of the defendant's designee is is that caste discrimination became an issue for CSU through the CFA and CSSA resolutions.

[00:06:25] Speaker 03:
She testified

[00:06:28] Speaker 03:
This is,

[00:06:51] Speaker 03:
We don't have any evidence, one way or the other, of what the reason CSU adopted the policy, other than Ms.

[00:06:58] Speaker 03:
Anson's testimony.

[00:07:00] Speaker 03:
That's the only information we have, that they heard about CAS through the resolutions, and that as a result of that, they were going to do something, to take it seriously and prohibit it.

[00:07:12] Speaker 04:
Now, the question- But, Council, if the policy prohibits discrimination on the basis of CAS,

[00:07:20] Speaker 04:
and your clients believe that their faith prohibits discrimination on the basis of caste, then where's the conflict here that causes injury to your clients?

[00:07:37] Speaker 03:
Yes, Your Honor.

[00:07:38] Speaker 03:
The injury here is the self-censorship.

[00:07:41] Speaker 03:
Professor Kumar testified that he no longer celebrates, or rather he's reluctant to celebrate holidays such as Diwali, which is considered by some or has been branded by some as a castis holiday.

[00:07:56] Speaker 03:
He doesn't discuss Hindu text anymore for the very same reason.

[00:08:03] Speaker 01:
The question- Can I ask you what makes that reaction rational?

[00:08:08] Speaker 01:
So, I mean, what the policy prohibits is harassment and discrimination, you know, actually hurting someone's job prospects.

[00:08:17] Speaker 01:
What makes it rational for him to be worried about celebrating those holidays?

[00:08:22] Speaker 03:
Your Honor, I would say if you look at, again, in the record, if you look at, there was a Board of Trustees meeting in January 2022 after the policy was enacted.

[00:08:34] Speaker 03:
And it was sort of an open forum where students and faculty and anyone really could ask questions or raise issues about the policy.

[00:08:42] Speaker 03:
Now that occurred after the policy was amended to include CAS.

[00:08:45] Speaker 03:
So that meeting had nothing to do with why CAS was added or what CAS meant when it was added.

[00:08:51] Speaker 03:
that there are statements in and that's in the record add-on five se are thirteen thirty seven thirteen fifty six and when you look at those comments there are comments that talk about the wally being a cast us holland so the the the the issue and and this goes back to dry house it's a standing issue your honor that was discussed in trying to cancel on this point do you agree

[00:09:16] Speaker 00:
that someone who engages in self-censorship in this context only has standing if they have an actual and well-founded fear that the provision, in this case not a law, but the policy, will be enforced against them.

[00:09:38] Speaker 03:
I don't know if I would use that.

[00:09:43] Speaker 03:
I think the language in Dry House is whether the conduct is arguably prescribed by the law.

[00:09:52] Speaker 00:
Well, I'm talking specifically about self-censorship, and I'm talking about Virginia versus American booksellers.

[00:10:00] Speaker 00:
So you would quarrel with there has to be an actual and well-founded fear that the law- I wouldn't quarrel with that.

[00:10:07] Speaker 03:
I think there has to be a well-founded fear.

[00:10:10] Speaker 00:
And to me that goes to Judge Friedland's question, which is no one, I think, can dispute if your client says he has this fear.

[00:10:23] Speaker 00:
No one can dispute that it's a subjective fear.

[00:10:26] Speaker 00:
But I don't see anything here that would indicate to me that that subjective fear of enforcement is well founded.

[00:10:37] Speaker 00:
And so once you continue, but to me on this point, I would want to hear what you think in the record shows that the subjective fear of your client of enforcement against him is well founded.

[00:10:54] Speaker 03:
Okay.

[00:10:55] Speaker 03:
Thank you, Your Honor.

[00:10:56] Speaker 03:
So there's two things.

[00:10:57] Speaker 03:
One, I would point to that open forum that I've already cited to the record as to people in the CSU communities' views on, for example, celebration of Diwali.

[00:11:11] Speaker 03:
The other thing I would say is, we sort of have two different sort of questions, maybe same side of the coin.

[00:11:21] Speaker 03:
Whether he has a legitimate fear that he's going to be accused of discrimination or harassment under the policy, and whether the policy is going to be enforced against him.

[00:11:35] Speaker 03:
Sort of two separate things.

[00:11:37] Speaker 03:
With regard to whether the

[00:11:39] Speaker 03:
uh... policy is going to be enforced against him as this court is held

[00:11:46] Speaker 03:
The failure to disavow enforcement is sufficient grounds to provide that well-founded fear.

[00:11:57] Speaker 03:
So the policy hasn't been disavowed.

[00:11:59] Speaker 03:
In fact, quite the opposite.

[00:12:00] Speaker 03:
As Ms.

[00:12:01] Speaker 03:
Anson testified, CSU is going to do something about this perceived problem with caste.

[00:12:10] Speaker 01:
Well, if someone actually fires someone because of their caste, then yes, but I don't understand at all the idea that celebrating a holiday amounts to what counts as harassment or discrimination under the policy.

[00:12:26] Speaker 03:
Well, again, I would refer the court to the open forum where people in the CSU community spoke directly about that issue.

[00:12:36] Speaker 01:
I mean, if someone might wear a t-shirt that says something very offensive, and maybe they would say that t-shirt shows something offensive.

[00:12:43] Speaker 01:
But that doesn't mean the person wearing the t-shirt fired anyone or harassed anyone.

[00:12:48] Speaker 01:
So I'm just still missing the link.

[00:12:50] Speaker 01:
Can you explain what about the forum you're talking about suggested that attending

[00:12:55] Speaker 01:
a holiday celebration would count as either harassment or discrimination under the policy.

[00:13:02] Speaker 03:
Sure.

[00:13:04] Speaker 03:
So let's take the celebration of a holiday or discussing Hindu texts, right?

[00:13:10] Speaker 03:
If Professor Kumar is in a class and he wants to talk about Diwali or he wants to talk about one of the Hindu texts that he wants to just discuss his religion, and there's a student in the class that believes that that's casteist behavior because they don't believe, and again, I would

[00:13:29] Speaker 03:
I would say to the court, just look at this open forum, but there are people that believe that that sort of behavior is casteist.

[00:13:36] Speaker 03:
And that would be, that could be seen as harassing conduct, not discriminatory, not losing a job.

[00:13:41] Speaker 03:
But if a professor starts talking about a holiday that a student believes is casteist, the problem that we have is that student can then make a claim.

[00:13:54] Speaker 00:
Would that similarly be true?

[00:13:56] Speaker 00:
If, for example, a professor were giving a historical lecture on the Crusades and talked about some of the alleged bad actions that the Crusaders performed in the Middle East, and a student complained that this demonstrated anti-Catholic or anti-Christian conduct,

[00:14:26] Speaker 00:
Is that, would that work too?

[00:14:33] Speaker 03:
I don't think that is, I don't think that's, I'm sorry, yes.

[00:14:37] Speaker 00:
Go ahead, go ahead.

[00:14:39] Speaker 03:
Well, I don't think it's analogous because there's nothing in the policy that talks about, that is anything tied to, it's just religion is a neutral term.

[00:14:51] Speaker 03:
It's not related to Catholicism, it's not related to Judaism, it's not related to Hinduism.

[00:14:56] Speaker 03:
This is different if policy includes the term cast.

[00:15:00] Speaker 03:
And I would say like the words in Lakumi with ritual and sacrifice,

[00:15:05] Speaker 03:
Those are both secular and religious terms, just like kosher in the Comap case.

[00:15:12] Speaker 03:
So one of the problems we have here is what does, and Your Honor, I would say your example is an apt one.

[00:15:19] Speaker 03:
What does we know from case law what discrimination based on religion looks like?

[00:15:24] Speaker 03:
What does discrimination based on caste look like?

[00:15:28] Speaker 03:
So this gets to the vagueness issue in the policy.

[00:15:33] Speaker 03:
We don't know what discrimination looks like based on caste because we don't know what caste means.

[00:15:40] Speaker 03:
If you just take the dictionary definition of caste, for example, the Oxford English Dictionary defines

[00:15:53] Speaker 03:
cast um many different ways okay so one way is um each of the hereditary classes of hindu society distinguished by relative degrees of ritual purity or pollution and of stat and of social status

[00:16:10] Speaker 03:
So if we take that definition, and again that's the dictionary, it's one of the dictionary definitions, we believe that would violate the Establishment Clause because it clearly ties this into Hinduism.

[00:16:24] Speaker 03:
Now, if, and I want to, and I want to, sorry Your Honor.

[00:16:28] Speaker 04:
Council, would it matter whether or not the professor was teaching a comparative religion class?

[00:16:36] Speaker 04:
Would he be permitted to discuss the history of caste discrimination, as it might have been practiced in past times?

[00:16:48] Speaker 03:
I think, Your Honor, the answer to that question is yes, based on Torlakson.

[00:16:52] Speaker 03:
But that's not the conduct that we're alleging is the problem here.

[00:16:58] Speaker 03:
Let me sort of, let me, so here's the question.

[00:17:01] Speaker 04:
Well, I'm struggling with trying to find endorsement here.

[00:17:05] Speaker 04:
I just don't see where the neutral word test without a definition in the policy is inherently discriminatory.

[00:17:20] Speaker 03:
Well, I would argue, Your Honor, I don't think endorsement is the test.

[00:17:24] Speaker 03:
after Kennedy.

[00:17:27] Speaker 03:
But the problem is the use of the word caste and the fact that it's not defined.

[00:17:36] Speaker 03:
That's where we get into the problem.

[00:17:39] Speaker 03:
What does caste discrimination look like?

[00:17:42] Speaker 03:
How does somebody govern their lives so that they don't discriminate based on caste?

[00:17:48] Speaker 01:
So can I just ask this again, because I just want to make sure that if you have a specific example that I understand it.

[00:17:53] Speaker 01:
So the policy says that an adverse action is something that has a substantial and material adverse effect on the complainant's ability to participate in the university program activity or employment.

[00:18:05] Speaker 01:
And then there's harassment, which is unwelcome verbal, nonverbal, or physical conduct, epithets and slurs that

[00:18:13] Speaker 01:
it creates this bad environment.

[00:18:15] Speaker 01:
So what can you just give me, if there is something your client is refraining from doing because he's worried that it would be one of these things, can you explain what it is?

[00:18:27] Speaker 03:
Yes, Your Honor, and again, it's in our papers.

[00:18:30] Speaker 03:
If there are people at the university who believe Diwali is a casteist holiday, okay, and

[00:18:41] Speaker 03:
Professor Kumar is in class and he starts discussing, now I think Professor Kumar is an electrical engineering professor.

[00:18:50] Speaker 03:
And if he starts, would have nothing to do with his course, but in the way professors sometimes talk about things outside of the subject matter, he discusses Diwali, where he discusses something in a Hindu text.

[00:19:01] Speaker 03:
And there's a student in the class who believes that that is casteist behavior.

[00:19:05] Speaker 03:
And he feels, he or she feels that I'm being harassed.

[00:19:08] Speaker 03:
This professor is talking about something that is casteist and is unacceptable to me, to my beliefs.

[00:19:16] Speaker 03:
Then that harassment, that is, that is, that it would be an allegation of harassment that would be brought under the policy.

[00:19:23] Speaker 03:
We don't know.

[00:19:24] Speaker 01:
So if someone, if someone is Catholic and says,

[00:19:28] Speaker 01:
you know, I celebrated ex-Catholic holiday and someone in the class is gay, could they say this is harassment?

[00:19:34] Speaker 01:
I just don't understand how that's plausible.

[00:19:36] Speaker 03:
And again, I think there's a difference.

[00:19:40] Speaker 03:
If the policy had said, the policy clearly can

[00:19:47] Speaker 03:
anti-discrimination policy is based on sexual orientation, completely acceptable.

[00:19:52] Speaker 03:
But if instead of using the term sexual orientation, CSU decided to use a different term.

[00:20:01] Speaker 03:
And the policy said something like, you shall not discriminate against one who uncovers the nakedness of another of the same sex.

[00:20:08] Speaker 03:
It's a biblical term.

[00:20:10] Speaker 03:
That would be different because it is not a neutral term.

[00:20:14] Speaker 03:
So when we're dealing with terms that aren't neutral or that have multiple meanings like TAS does, we have to look behind the curtain, so to speak, to decide what was the motivation?

[00:20:23] Speaker 03:
What was the impetus for passing this policy?

[00:20:25] Speaker 00:
Council, I'm not sure that this would really matter to my analysis, but did your client testify in his deposition that in teaching electrical engineering, he typically talked about Diwali?

[00:20:39] Speaker 03:
No, Your Honor.

[00:20:41] Speaker 03:
He did testify that he refrains from talking about Diwali or other holidays that are branded as casteist and that he also doesn't talk about sacred texts.

[00:20:55] Speaker 00:
In his electrical engineering teaching?

[00:21:01] Speaker 03:
you know what i don't think there was that level of specificity your honor but it it doesn't have to be in the classroom could be anywhere on campus mean if he sees a student in his classes used to not in his class and he wants to talk about it were in the same situation and is exactly the same

[00:21:18] Speaker 03:
It doesn't matter whether, for purposes of this litigation and purposes of the constitutional analysis, it doesn't matter whether he's in the classroom discussing it or grabbing lunch with a bunch of students to discuss.

[00:21:32] Speaker 03:
The same would hold true, as it would for any of the other categories of discrimination.

[00:21:40] Speaker 01:
We take you over your time, so I think we should cut you off.

[00:21:43] Speaker 01:
I'll still give you three minutes for rebuttal, but let's hear from the other side.

[00:21:45] Speaker 03:
Thank you, Your Honor.

[00:21:50] Speaker 01:
Oh, you're muted, I think.

[00:21:53] Speaker 02:
Good morning.

[00:21:55] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:21:57] Speaker 02:
Jeff Michalowski for Chancellor Kester, the California State University defendant in this case.

[00:22:05] Speaker 02:
I think it's important to note from the outset that this case comes to this court after a full trial on the merits based on a full evidentiary record and completion of full fact discovery and expert discovery on both sides.

[00:22:20] Speaker 02:
And the district court below made a series of factual findings that there was no hostility towards religion, no targeting of Hinduism, and it found as well that plaintiffs didn't have standing on some of their claims.

[00:22:34] Speaker 02:
And there are multiple ways here that the court can and should affirm.

[00:22:39] Speaker 02:
It can do so based on standing, and as we've argued, that can dispose of the entirety of the case, or if the court disagrees with us on standing, it can still find in CSU's favor

[00:22:49] Speaker 02:
on the merits of the constitutional claims.

[00:22:53] Speaker 02:
So I want to start by focusing in on the question of whether there was any evidence of hostility toward religion because that's an overarching question that goes to several of the claims.

[00:23:04] Speaker 02:
There was contention that there was such hostility that I think in the remarks as well as in the briefing, but that's not what the district court found based on the evidentiary record.

[00:23:14] Speaker 02:
That's a factual issue and that district court's findings as to hostility is reviewed under a substantial evidence standard.

[00:23:22] Speaker 02:
So where is the evidence of hostility by any decision maker at CSU?

[00:23:27] Speaker 02:
As the questions have suggested, there's no evidence of

[00:23:31] Speaker 02:
by the Chancellor, by anyone in the Title IX working group that made the recommendation.

[00:23:37] Speaker 02:
Plaintiff is really only relying on resolutions by entirely separate entities, the California Faculty Association, which is essentially a labor union of faculty members that's often adverse to the university issues and student groups as well.

[00:23:54] Speaker 02:
But the question has to be whether there's evidence of animus by the chancellor.

[00:23:59] Speaker 02:
And there's nothing there.

[00:24:01] Speaker 02:
So there's a default of evidence.

[00:24:03] Speaker 02:
But even more than that, Your Honors, there's affirmative evidence by the chancellor's designee, Laura Anson.

[00:24:11] Speaker 02:
She's in charge of Title IX.

[00:24:14] Speaker 02:
That the policy was intended to be totally neutral towards religion.

[00:24:18] Speaker 02:
She testified, our policy is religion neutral.

[00:24:21] Speaker 02:
It's not, we don't associate caste with any specific religion.

[00:24:26] Speaker 02:
We also have her declaration to ER 388.

[00:24:30] Speaker 02:
She says the intent behind the policy was not to target any particular religion or religion more generally.

[00:24:37] Speaker 02:
The district court was entitled to rely on this as evidence of not just a lack of hostility towards religion, but of affirmative neutrality.

[00:24:47] Speaker 02:
So in that sense, on the merits, it's actually a fairly simple case because we have evidence of neutrality, which disposes of the great bulk of the claims.

[00:24:59] Speaker 01:
For the Establishment Clause, whose perspective do we use to evaluate neutrality?

[00:25:07] Speaker 01:
Like, if someone would read this and think, oh, it says caste, that must be talking about Hinduism.

[00:25:14] Speaker 01:
Is that relevant?

[00:25:17] Speaker 02:
That's an interesting question.

[00:25:19] Speaker 02:
And of course, the Kennedy versus Bremerton decision says that we're not going to have the lemon test anymore.

[00:25:27] Speaker 02:
So I do think we still need to look at that.

[00:25:30] Speaker 02:
When we're asking the question of whether there's hostility towards religion, that can't be a purely subjective question, right?

[00:25:36] Speaker 02:
There needs to be at least an objective element to it.

[00:25:40] Speaker 02:
So it's not just what the plaintiff sees there.

[00:25:42] Speaker 02:
I think there needs to be an objective component to that test.

[00:25:46] Speaker 02:
And here, objectively, we have a word, caste, that doesn't carry with it any hostility towards religion.

[00:25:55] Speaker 02:
And so for the Establishment Clause on the merits, we, again, feel at the very outset because there's no evidence of hostility.

[00:26:04] Speaker 02:
We would then turn to the history and tradition prong.

[00:26:08] Speaker 02:
And on that front plaintiff would fail as well because they didn't come forward with any expert historical evidence or any evidence that would suggest that this sort of policy would be historically disfavored.

[00:26:21] Speaker 01:
So for standing for the Establishment Clause, is it enough that it's plausible that someone might think caste is related to Hinduism and so asserts an injury that the government is creating stigma against my religion?

[00:26:38] Speaker 02:
We have, I think it's from the Catholic League decision.

[00:26:44] Speaker 02:
We have some discussion of there being, there needs to be evidence of stigma and there needs to be evidence that the plaintiff is a member of the allegedly stigmatized community.

[00:26:55] Speaker 02:
And the problem here is that there is no such evidence.

[00:27:00] Speaker 02:
This case went to trial.

[00:27:02] Speaker 02:
Plaintiff had an opportunity to put on declarations indicating that this policy stigmatized me.

[00:27:08] Speaker 02:
But what we see from the evidence that's actually been presented is that the concern was stigma on account of these resolutions that were passed by student organizations and faculty organizations.

[00:27:20] Speaker 02:
So we don't have any evidence, not by playing the student and putting in a declaration at trial, right?

[00:27:28] Speaker 02:
So there's no evidence that they were stigmatized by this policy.

[00:27:32] Speaker 02:
We also have to look at causation and redressability and

[00:27:38] Speaker 02:
this court, any court can't do anything to redress allegedly stigmatizing comments that were made by private student organizations or by faculty organizations.

[00:27:49] Speaker 01:
I mean, usually there's some sort of lower threshold for what is required for standing than what's required for the merits.

[00:27:56] Speaker 01:
So I don't know if you're arguing that for the Establishment Clause, they are exactly the same.

[00:28:00] Speaker 01:
It would seem to me that if there's a lower threshold for standing,

[00:28:06] Speaker 01:
the plaintiff probably does meet that lower threshold for the establishment clause because it's not crazy to think that caste has to do with Hinduism and that there's some sort of stigma.

[00:28:16] Speaker 01:
I think you have a lot of arguments that on the merits they haven't shown that this policy actually does what they fear, but I'm struggling with why they don't have standing to try to make this argument.

[00:28:26] Speaker 02:
I understand that concern and I think the key to this analysis is the procedural posture of the case.

[00:28:32] Speaker 02:
which is that this case went to trial at trial.

[00:28:36] Speaker 02:
So standing is a concept where the plaintiff's burden

[00:28:41] Speaker 02:
advances throughout the case.

[00:28:43] Speaker 02:
At the pleading stage, all they have to do is allege facts sufficient to support standing.

[00:28:48] Speaker 02:
So they could allege that stigma, and that could be sufficient.

[00:28:50] Speaker 01:
Maybe I'm confused about where the testimony, I know I read testimony, maybe it was a deposition and not at trial, so maybe correct me, but didn't the plaintiff testify in some relevant way in this proceeding about fear of stigma, which would be the same as the allegations in the complaint?

[00:29:06] Speaker 01:
And I'm not sure there was a lack of proof of what the allegations were, was there, in terms of the testimony?

[00:29:11] Speaker 02:
There was testimony that I can recall.

[00:29:14] Speaker 02:
I don't know if the term stigma was used.

[00:29:16] Speaker 02:
There was certainly a reference to fear of ridicule.

[00:29:19] Speaker 02:
The question though is, is there any reasonable fear of ridicule by the relevant defendant, by CSU?

[00:29:28] Speaker 02:
As your honor noted, there could be private actors, students, other faculty members who

[00:29:34] Speaker 02:
who are critical of the plaintiffs.

[00:29:38] Speaker 02:
There's no evidence of that happening.

[00:29:39] Speaker 02:
But if that were the case, that still wouldn't link back to the university.

[00:29:45] Speaker 02:
So there's no evidence of a causal connection between any stigma and the university's actions here.

[00:29:56] Speaker 01:
And you think that's a standing argument, not a merits argument?

[00:29:58] Speaker 02:
I think it's both.

[00:29:59] Speaker 02:
And I think that in the Establishment Clause, and actually in the free exercise front, the standing arguments are pretty closely linked to the merits piece.

[00:30:12] Speaker 02:
There's additional components to the merits analysis as well.

[00:30:14] Speaker 02:
We have the history and tradition burden that plaintiff must carry.

[00:30:19] Speaker 02:
But yes, there's definitely an overlap between standing and

[00:30:22] Speaker 02:
merits on both those religious claims.

[00:30:24] Speaker 04:
Counsel, your argument, as I understand in response to Judge Freeland's question, was that after a full trial on the merits, we have to view the evidence in the light most favorable to the district court's decision.

[00:30:36] Speaker 04:
The fact that the plaintiffs so testified does not mean the district court had to find them credible or even give it much weight in assessing all the other evidence that it considered in making its factual findings.

[00:30:51] Speaker 04:
that there was no evidence of discrimination or stigma attributable to the university from the policy.

[00:30:59] Speaker 04:
Isn't that your point?

[00:31:01] Speaker 02:
I think that's correct, Your Honor.

[00:31:03] Speaker 02:
And I point out that the district court's analysis on the standing side, it did not hold plaintiff to his burden of coming forward with evidence at trial.

[00:31:15] Speaker 02:
The district court simply reiterated that it had previously found at the pleading stage

[00:31:20] Speaker 02:
that there was an allegation of stigma and didn't require evidence, which is the burden that the district court should have held the plaintiffs to that.

[00:31:31] Speaker 04:
But then found that after listening to all the evidence that they didn't meet their burden to show either standing or an establishment clause violation.

[00:31:43] Speaker 02:
On the Establishment Clause piece, the District Court found standing and then interjudgment on the merits.

[00:31:52] Speaker 02:
On the merits, okay.

[00:31:54] Speaker 02:
And our contention is that this Court could do either.

[00:31:57] Speaker 02:
Either route would be appropriate.

[00:32:00] Speaker 02:
By that I mean the Court could find a lack of standing the Court could find that could affirm on the merits.

[00:32:05] Speaker 00:
Or, I mean, a third alternative would be the court maybe could assume standing and proceed to the merits, but that has its own problems doing that.

[00:32:21] Speaker 02:
Yes, that is the third alternative.

[00:32:27] Speaker 02:
I would like to address the question of vagueness.

[00:32:33] Speaker 02:
And unless there are further questions on standing, I will, actually there is some information I'd like to discuss about standing because we've heard this contention that Kumar is worried about attendance at religious festivals or about talking about his Hindu faith.

[00:32:53] Speaker 02:
That's not sufficient because that sort of conduct is not something that's governed by the policy.

[00:33:00] Speaker 02:
As Judge Friedland's question acknowledges, the policy in a sense is quite modest.

[00:33:06] Speaker 02:
It protects a lot of protected categories, but it extends only to the educational and employment setting, right?

[00:33:13] Speaker 02:
So there needs to be some materially adverse action taken against a student or a faculty or a staff member.

[00:33:22] Speaker 02:
in order for the policy to come into play.

[00:33:26] Speaker 02:
The harassment inquiry is likewise

[00:33:30] Speaker 02:
limited, right?

[00:33:32] Speaker 02:
It's not just any form of harassment.

[00:33:34] Speaker 02:
It's harassment that's so sufficiently severe or pervasive that it's going to have a materially adverse impact on the educational experience or the employment experience.

[00:33:45] Speaker 02:
And I think that my use of language there was a little bit imprecise in describing the policy, but that policy is in the record.

[00:33:51] Speaker 02:
And it's not across the board, all behavior is regulated.

[00:33:54] Speaker 02:
It's really only the employment and

[00:33:58] Speaker 02:
and educational context.

[00:34:06] Speaker 02:
Is there a likelihood of confusion to a person of ordinary intelligence based on the inclusion of the term caste in this policy?

[00:34:16] Speaker 02:
That's something that needs to be proved at trial through evidence.

[00:34:19] Speaker 02:
And we don't have any survey evidence here indicating that anyone was confused.

[00:34:25] Speaker 02:
There's been no declarations from any students or faculty saying they're confused, they don't know what this means, so they don't know how to behave.

[00:34:32] Speaker 02:
There's no declarations even from plaintiffs indicating they don't know what caste means.

[00:34:37] Speaker 02:
And in their own advocacy efforts, they would consistently use the term caste and not define it.

[00:34:44] Speaker 02:
They knew what it meant.

[00:34:46] Speaker 02:
The problem here is that plaintiffs are offended by the policy.

[00:34:50] Speaker 02:
They don't like the policy.

[00:34:51] Speaker 02:
The problem is not that they don't understand the policy, which is fatal to the due process vagueness claims.

[00:35:00] Speaker 02:
Again, the vagueness claims should be looked at in context.

[00:35:05] Speaker 02:
This isn't an all-cross-the-board ban on caste discrimination.

[00:35:10] Speaker 02:
It's limited to that educational context.

[00:35:12] Speaker 02:
And in that context, it's very understandable how you need to behave.

[00:35:17] Speaker 02:
You cannot give a student a poor grade because of their cast.

[00:35:20] Speaker 02:
You cannot recommend against hiring a faculty member because of their task.

[00:35:25] Speaker 02:
These are the sorts of decisions that in the context of the policy, any person of ordinary intelligence should understand.

[00:35:37] Speaker 01:
I have a question about thinking about the due process argument and the vagueness.

[00:35:41] Speaker 01:
So if these categories

[00:35:45] Speaker 01:
of speech are not protected anyway, like harassment and discrimination say that in general category is not protected.

[00:35:52] Speaker 01:
Is there an argument that within that category just a particular kind of discrimination can't matter because the whole category is not protected anyway?

[00:36:04] Speaker 01:
Like even if there's vagueness around some subcategory, it doesn't matter.

[00:36:09] Speaker 02:
Well, you can clearly discriminate.

[00:36:11] Speaker 02:
You can discriminate on people based on the quality of the paper that they write, right?

[00:36:15] Speaker 02:
That's a form of discrimination that we want there to be distinctions on.

[00:36:20] Speaker 02:
What we don't want to have is discrimination based on and caused by certain specified protected categories.

[00:36:28] Speaker 02:
So it's essential that those be listed, named, and

[00:36:34] Speaker 01:
And what happened here was... I mean, this is a subcategory of race, though, the way it's written, right?

[00:36:38] Speaker 01:
So if you can't discriminate or harass based on race, does it matter within race whether we understand exactly what the subcategories are?

[00:36:48] Speaker 02:
Yes, I think it's important as a illustration and clarification.

[00:36:53] Speaker 02:
And the analogy that I think of here is it's long been the law in California that you can't discriminate based on race.

[00:37:03] Speaker 02:
But the legislature nonetheless made an addition that said you can't discriminate based on certain hairstyles that are associated with race.

[00:37:11] Speaker 02:
So the afro would be the classic example, or dreadlocks, right?

[00:37:17] Speaker 02:
Was it already there?

[00:37:18] Speaker 02:
Yes, it was already implicit in the statute, but calling it out helps it make it more understandable.

[00:37:25] Speaker 02:
And the other quality that you- It didn't help.

[00:37:28] Speaker 01:
Say it doesn't help.

[00:37:29] Speaker 01:
Is that a due process problem?

[00:37:31] Speaker 01:
My point is,

[00:37:33] Speaker 01:
If you already know you can't discriminate against race and then you add something about racial hairstyles and then people don't understand what the hairstyle issue is, does that actually make it vague that you can't discriminate against race?

[00:37:46] Speaker 02:
I'm not sure I understand the hypothetical because in that instance it seems to be something that would add additional

[00:37:55] Speaker 02:
clarity, and we have our linguist from USC, Camille Rich, and what she said in her expert report is that calling out through incremental change in a statute and saying, you know, it's not just sex discrimination, we're going to specifically name now pregnancy, and in California we also name, for example, breastfeeding, right?

[00:38:20] Speaker 02:
Was that implicitly there already?

[00:38:22] Speaker 02:
Yes.

[00:38:24] Speaker 02:
Is it

[00:38:24] Speaker 02:
Is it helpful to add that information?

[00:38:27] Speaker 02:
Camille Rich, the only testimony on this point is it actually adds clarity to the statute to be specifying terms in that way.

[00:38:43] Speaker 02:
I am nearing the end of my time.

[00:38:46] Speaker 02:
Are there any other questions that the court has?

[00:38:54] Speaker 01:
It looks like no, so we could turn to our three minutes for rebuttal.

[00:38:59] Speaker 02:
Yes.

[00:38:59] Speaker 02:
Sorry, go ahead.

[00:39:00] Speaker 02:
We'll submit.

[00:39:01] Speaker 02:
Thank you.

[00:39:04] Speaker 02:
And we'll submit.

[00:39:05] Speaker 02:
Thank you.

[00:39:06] Speaker 01:
Thank you.

[00:39:10] Speaker 03:
Thank you, Your Honor.

[00:39:11] Speaker 03:
To address the standing issue for the due process claim, I'd say we need to start with the proposition that this Court articulated in Tingle, and that's, quote, the unique standing considerations in the First Amendment context tilt dramatically toward a finding of standing when a plaintiff brings a pre-enforcement challenge.

[00:39:34] Speaker 03:
That's 47 at 4th at 1066.

[00:39:39] Speaker 03:
That's what this was.

[00:39:40] Speaker 03:
This was a pre-enforcement challenge to the policy.

[00:39:48] Speaker 03:
Yes, there was a trial on the briefs.

[00:39:50] Speaker 03:
So I think there was a lot of question of what testimony the district court heard.

[00:39:55] Speaker 03:
It was through depositions and other things.

[00:39:59] Speaker 03:
And in that situation, on the standing issue, as the US Supreme Court held in Easley versus Cromartie, where the evidence in the case is largely expert reports

[00:40:12] Speaker 03:
and documents and extensive review is required.

[00:40:15] Speaker 03:
And I would suggest the same extensive review is required here of the district court's findings.

[00:40:20] Speaker 03:
The district court, with regard to the standing issue, the district court earned, as we lay out in our papers, we meet all of the prongs of the standing test for a pre-enforcement challenge.

[00:40:37] Speaker 03:
And we spell that out in our papers.

[00:40:40] Speaker 03:
I don't want to belabor the point here.

[00:40:42] Speaker 04:
Council, who were your witnesses other than the plaintiffs and the university officials who were deposed?

[00:40:51] Speaker 03:
Those were the only witnesses, Your Honor.

[00:40:53] Speaker 04:
So we don't have any expert testimony here?

[00:40:56] Speaker 03:
No, and so if we take, we don't, Your Honor, but if we take the vagueness issue, okay, just the vagueness issue for just a moment,

[00:41:06] Speaker 03:
Neither Ms.

[00:41:07] Speaker 03:
Anson nor the experts could determine what or could come up with one definition of what caste meant.

[00:41:17] Speaker 03:
In fact, the defendant has provided at least two different definitions of caste, one in the motion for judgment on the pleadings and another via Ms.

[00:41:26] Speaker 03:
Anson.

[00:41:30] Speaker 03:
um... doctor rich uh... who opposing counsel had mentioned testified that when you ask her what cast means she's a little bit short of water was was the way she defined by the way she explained her inability to define cast

[00:41:45] Speaker 03:
If CSU can't define the term, how can they enforce discrimination or harassment claims when they're based on tests?

[00:41:53] Speaker 03:
I mean, that leads to the exact type of arbitrary enforcement.

[00:41:56] Speaker 04:
Is there any evidence in the record that the policy has been enforced at all since it was enacted?

[00:42:02] Speaker 03:
no your honor it seems to be taking at the time it was a brand new policy i don't know if it's been enforced but again i don't i don't think that matters under the circuits law uh... this is a pre-enforcement challenge and and of course were entitled to bring such

[00:42:18] Speaker 03:
uh... and and i would argue that and you know my time is just about up but but one thing i would argue is if the if ms and sin can't define cast and or if she defines cast a certain way and the experts to find cast another way or they can't find it at all uh... one of plaintiffs experts said that the definition the dictionary isn't even right we don't need to we don't need an expert to show that the term is vague

[00:42:44] Speaker 03:
We can just rely on defendants experts and Ms.

[00:42:48] Speaker 03:
Anson.

[00:42:49] Speaker 03:
None of them come up with the same definition of caste.

[00:42:52] Speaker 03:
If it's meant to be social status, if it's meant to be economic status, those are neutral terms to say those words.

[00:43:01] Speaker 03:
Those are words that we all have in our lexicon.

[00:43:04] Speaker 03:
Those are words that could have been used.

[00:43:06] Speaker 03:
That's not the words they used here.

[00:43:08] Speaker 03:
they use the word cast it is a loaded term for the reasons we explain and i know i'm a minute over my time i apologize for going beyond thank you thank you both sides for the helpful arguments this case is submitted