have no parent corporation and no stockholders.

non-discrimination policy (“Policy”) to add the word “caste” to target

practitioners of the Hindu religion and people from the Indian

subcontinent. CSU may claim that “caste” is used solely in a secular

sense to prohibit discrimination based on ethnicity, religion,

socio-economic status, or some other label. But if that was true, it

and faculty associations passed resolutions telling CSU that Hindu

practitioners discriminate based on caste and needed to be stopped.

There is no other evidence in the record as to why CSU added the word

caste to the Policy except for those resolutions.

Appellants (Plaintiffs below), Sunil Kumar, and Praveen Sinha

(“Plaintiffs”), are professors at CSU and practitioners of Hinduism.

CSU claims that the Policy does not conflict with Plaintiffs’ religion, but

the Policy contains no definition of caste and CSU has consistently

waffled on the term’s meaning. Thus, without a clear definition,

Plaintiffs are left self-censoring their religious practices to avoid

running afoul of the Policy’s unconstitutionally vague scope.

Consequently, the amended Policy violates Plaintiffs’ Free Exercise,

regardless of whether Plaintiffs support caste discrimination—they do

not—the mere fact that CSU took a position on religious doctrine

requires reversal.

constitutional violations at every step. Its decisions contradict

controlling law, ignore record evidence, and require reversal. Holding

otherwise will enable universities to define religious doctrine

unilaterally and silence religious beliefs.

pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1331, and 28 U.S.C. § 1343,

and over Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. The

judgment, this Court has jurisdiction pursuant to 28 U.S.C. § 1291.

1

contemporaneously with Plaintiffs’ brief contains Defendant’s Answer to

the Amended Complaint and Defendant’s Motion for Judgment on the

Pleadings. Both the Answer and the Motion for Judgment on the

Pleadings contain voluminous exhibits, which if included would swell

the Excerpts of Record to [Volumes]. To avoid unnecessarily burdening

the Court with such a large Excerpts of Record, Plaintiffs have included

only those exhibits to Defendant’s Motion for Judgment on the

She admitted that the working group “reached out to th[e CSSA] ...

before putting the Policy in effect.” [ECF 114-3].

provided—for the first time—her definition of caste. [ECF 114-3]. She

defined caste as “a system of social stratification or ranking based on

inherited status and linked to race or ethnicity.” [ECF 114-3]. That

definition—which does little to clarify the meaning of caste under the

caste” and at least one definition that expressly ties caste to Hinduism.

[ECF 114-3]

its community understood the term caste, and acknowledged that the

students and faculty who raised concerns about caste “may have had

different understandings of what it meant under the Policy.” [ECF

114-3] She also admitted that CSU considered—and rejected—several

definitions of caste and, for reasons that remain unclear (and which Ms.

Anson would not explain), decided ultimately “not to include a definition

in the [P]olicy. [ECF 114-3; ECF 114-11].

first (and primary) definition of caste contained in the Merriam-Webster

Dictionary, which defines caste as “[o]ne of the hereditary social classes

114-8]. For example, CSU produced a “Q&A” for the inclusion of caste

in the Policy, which strikingly demonstrates that CSU cannot define the

term:

amended Policy, further confuse it and do little to explain “caste.” One

expert was asked a simple question during her deposition: “what is

caste?” In response, she rambled: “What is caste, you leave me a little

bit short of rudderless because those terms always get defined in a

functional sense in relation to what it is that particular legal provision

is attempting to do ... when you ask me more generally what is caste, I

say, you know, what is caste, how is caste operating within a particular

regime, and is there enough there to help us define what is meant by

that?” [ECF 120-5].

Subramanian—admitted in her deposition that caste “is not derived

from Hinduism, but yes, it is often associated with Hinduism.” [ECF

120-7]. She also noted that while “caste” has a Western European

origin, it is synonymous with the Hindu term “jati” which means birth

in Hindi and refers to an expansive hierarchical classification in South

Asia based on descent. [ECF 120-7]. Finally, CSU’s Establishment

district court issued an Order to Show Cause Re: Standing to Assert

Due Process Clause Claim requiring Plaintiffs to show cause in writing

why their Due Process claim should not be dismissed for lack of subject

matter jurisdiction. [ECF 123]. Plaintiffs timely responded. [ECF 124]

On November 21, 2023, the district court entered an order dismissing

Plaintiffs’ Due Process Claims for lack of subject matter jurisdiction and

entering judgment for Defendant on Plaintiffs’ Establishment Clause

claims. [ECF 125]. This appeal followed.

Process Claims for lack of standing, finding that Plaintiffs did not have

a “well-founded fear that the Policy would be enforced against them.”

the law to hold that “[n]o reasonable reader would conclude that the

Policy defines Hinduism to include a caste system.” [ECF 125]. That is

not the standard for evaluating whether an Establishment Clause

violation exists; in fact, that standard was disavowed by the Supreme

Court in Kennedy v. Bremerton, 597 U.S. 507 (2022). Instead, courts

must consider the motivation underlying a policy’s adoption, not how it

would be interpreted. See Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 534 (1993). The district court failed to do so

here, ignoring the only evidence of record as to what CSU considered

when it adopted the Policy targeting and defining the Hindu religion.

Pleadings, the district court improperly dismissed Plaintiffs’ Free

Exercise claims following CSU’s Motion for Judgment on the Pleadings.

Free Exercise rights as a direct result of the unconstitutionally vague

Policy.

Clause of the Fourteenth Amendment. The district court dismissed

Plaintiffs’ claims for lack of subject matter jurisdiction after finding

Plaintiffs lacked standing. This Court should reverse because Plaintiffs

suffered—and continue to suffer—the constitutionally recognized harm

of self-censorship to avoid violating the Policy.

novo. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1186 (9th Cir. 2001).

(2) causation, and (3) a likelihood that a favorable decision will redress

plaintiff’s injury.” California Pro-Life Council, Inc. v. Getman, 328 F.3d

1088, 1093 (9th Cir. 2003). To show that injury in fact, “[c]ourts have

long recognized that ‘[o]ne does not have to await the consummation of

threatened injury to obtain preventive relief.’” Id. at 1094 (second

alteration in original) (quoting Ariz. Right to Life Pol. Action Comm. v.

Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003)). “First Amendment

challenges” like those asserted by Plaintiffs here, “present unique

standing considerations such that the inquiry tilts dramatically toward

finding of standing.” Libertarian Party of Los Angeles County, v. Bowen,

709 F.3d 867, 870 (9th Cir. 2013) (quoting Bayless, 320 F.3d at 1006).

Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988) (recognizing that

self-censorship is “a harm that can be realized even without an actual

prosecution”). In Getman, the Ninth Circuit held that a nonprofit had

standing to assert a pre-enforcement facial challenge to a law on the

grounds that the law’s definition of “independent expenditure” was

unconstitutionally vague. Getman, 328 F.3d at 1095. This Court

determined the nonprofit group “suffered the constitutionally sufficient

injury of self-censorship” because it decided against making

expenditures, fearing that it might fall within the regulatory ambit of

the law, even though (like Plaintiffs here) the nonprofit did not

understand what conduct was prohibited by the law given its vagueness

and undefined terms. Id. at 1093.

engaging in expressive activity for fear of prosecution under the

challenged statute, such self-censorship is a constitutionally sufficient

injury as long as it is based on an actual and well-founded fear that the

challenged statute will be enforced.” Id.; see also Index Newspapers

LLC v. U.S. Marshals Service, 977 F.3d 817, 826 (9th Cir. 2020)

(explaining that a “chilling of First Amendment rights can constitute

cognizable injury, so long as the chilling effect is not ‘based on a fear of

future injury that itself [is] too speculative to confer standing.’” (quoting

Munns v. Kerry, 782 F.3d 402, 410 (9th Cir. 2015))).

they intended, but declined, to engage in constitutionally protected

conduct due to the Policy. Professor Kumar testified that he serves as

an advisor to a CSU Indian Hindu club that celebrates certain

needs “to be very careful” practicing his religion and no longer discusses

his religious beliefs in public because of the Policy. He specifically

declines to discuss the Bhagavad Gita—a Hindu text—at CSU because

of the Policy, and even fears he needs to change his beliefs. [ECF

124-2]. He chooses “not to talk about [his] religious beliefs and keep[s]

them very private”—when he has every right to speak openly under the

v. City of Seattle, 91 F.4th 1318, 1329 (9th Cir. 2024) (quoting Cal.

Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1149 (9th Cir. 2001).

The same applies to religious freedom rights found in the First

Amendment. See Kennedy, 597 U.S. at 523 (“[T]he Free Speech Clause

provides overlapping protection for expressive religious activities....

That the First Amendment doubly protects religious speech is no

accident. It is a natural outgrowth of the framers’ distrust of

at 1329 (quoting Cal. Teachers Ass’n, 271 F.3d at 1150). In Tuscon, this

Court reversed the dismissal of a facial challenge because the district

court failed to employ the requisite analysis required by the facial

vagueness doctrine. Id. at 1330. The Court explained that instead of

focusing on whether the ordinance is not vague, the district court

speculated about possible vagueness in hypothetical situations that

were not before it. Id.

a vagueness claim on the merits, the same improper analysis exists

here with respect to Plaintiffs’ standing. Instead of focusing on the

harm of self-censorship that Plaintiffs did suffer (and are suffering),

the district court focused on CSU’s Policy of preventing racial and

challenge must show that: (1) he intends to engage in conduct that

implicates his constitutional rights; (2) his intended future conduct is

arguably proscribed by the challenged provision; and (3) he faces a

credible threat of prosecution. Arizona v. Yellen, 34 F.4th 841, 849 (9th

Cir. 2022) (citing Driehaus, 573 U.S. at 159). Here, the district court

found that Plaintiffs had not satisfied the second and third factors.

“Plaintiffs’ intended conduct—practicing their religion—is protected

rather than proscribed by the Policy” because it bars discrimination

based on religion. [ECF 125]. But the district court’s conclusion only

underscores Plaintiffs’ vagueness claim. The mere fact that Plaintiffs’

Consequently, there is no way the district court could have found that

Plaintiffs’ religion is protected by the Policy now that it includes caste.

Hence, Plaintiffs must engage in self-censorship until the Policy’s

boundaries have been determined. That is all Plaintiffs must show

under Driehaus’s second factor, yet the district court concluded

otherwise.

to demonstrate a well-founded fear of enforcement for several reasons:

(1) Plaintiffs’ religious freedom is protected by the Policy; (2) CSU has

practices were protected by the Policy before caste was added does not

mean that their Hindu practices are not now curtailed by the Policy’s

inclusion of the undefined term caste. In fact, Plaintiffs’ fear is more

than well-founded given the plain language of the CFA, CSSA, and ASI

Resolutions, coupled with the Letter addressed to the Chancellor, which

describe caste as a “structure of oppression in Hindu society.” [ECF

114-4; 114-5; 114-6; ECF-120-8]. The Resolutions confirm that certain

CSU faculty, staff, and students believe Hinduism contains an

oppressive and discriminatory caste system. Because the Resolutions

and Letter are the only record evidence of what the Chancellor

considered before adding caste to the Policy, that is the only evidence

the district court should have considered. Instead, the district court

allegations of discrimination. [ECF 125]. But the fact that there is no

history of enforcement “carries little weight when the challenged law is

relatively new.” Tingley, 47 F.4th at 1069 (cleaned up). The Policy also

never included caste. So unless the district court itself is assuming

caste is part of Hinduism or Plaintiffs’ race or ethnicity (which presents

its own constitutional concerns), it is entirely irrelevant whether

Plaintiffs have faced any discrimination in the past. Moreover, the

mere fact that CSU prohibits discrimination based on race or ethnicity

has little to do with whether the term “caste” is unconstitutionally

vague. Nor does it make it any less likely that Plaintiffs will be

perceived as engaging in caste discrimination by CSU’s faculty and staff

for participating in Hindu practices.

to eliminate the plaintiffs’ credible fear of enforcement when other facts

pointed toward the possibility of liability. Id. So too here: CSU has an

active Policy, with consequences for violation, that CSU has never

disavowed. Further, the mere fact that a university “typically” does not

respond in a “draconian or punitive manner” does not justify the Policy’s

chilling effect on protected speech and expression in this specific case.

See Cramp v. Bd. of Pub. Instruction of Orange Cnty., 368 U.S. 278, 287

(1961) (“The vice of unconstitutional vagueness is further aggravated

where, as here, the statute in question ... inhibit[s] the exercise of

individual freedoms affirmatively protected by the Constitution”);

Gammoh v. City of La Habra, 395 F.3d 1114, 1119 (9th Cir. 2005) (“A

greater degree of specificity and clarity is required when First

Amendment rights are at stake”). Any enforcement of the Policy that

the district court’s judgment should be reversed and Plaintiffs

permitted to litigate their Due Process claims.

by adopting an official position that caste is part Hinduism. Indeed, the

its Policy was as a response to the CSSA, CFA, and ASI Resolutions

(and the Letter attached to the ASI Resolution) that targeted caste as a

Hindu practice. By adopting that position under the guise of facial

neutrality, CSU violated the Establishment Clause.

documentary evidence under the clearly erroneous standard.

Mondaca-Vega v. Lynch, 808 F.3d 413, 425 (9th Cir. 2015) (en banc).

court’s findings for clear error may be particularly “extensive.” Easley

v. Cromartie, 532 US 234, 243 (2001); Miller v. Thane Int’l Inc., 519 F.3d

879, 888 (9th Cir. 2008). As part of that extensive review, this Court

will reverse factual findings when it has “definite and firm conviction

that a mistake has been committed.” Lentini v. California Ctr. for the

Arts, Escondido, 370 F.3d 837, 843 (9th Cir. 2004). The district court’s

legal conclusions are reviewed de novo. Bertelsen v. Harris, 537 F.3d

1047, 1056 (9th Cir. 2008).

manner neutral toward and tolerant” of citizens’ “religious beliefs.”

Masterpiece Cakeshop Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 638

(2018). The Establishment Clause requires “neutrality between religion

and religion, and between religion and nonreligion.’” Johnson v. Poway

Unified Sch. Dist., 658 F.3d 954, 971 (9th Cir. 2011) (quoting McCreary

County v. ACLU of Ky., 545 U.S. 844, 860 (2005)).

Clause must be interpreted by ‘reference to historical practices and

governments must draw between permissible and the impermissible

has to accord with history and faithfully reflect the understanding of

the Founding Fathers.” Id. (cleaned up).

Amendment “requires the state to be a neutral in its relations with

groups of religious believers and non-believers; it does not require the

state to be their adversary. State Power is no more to be used so as to

handicap religions, than it is to favor them.” Sch. Dist. of Abington

Twp. v. Schempp, 374 U.S. 203, 218 (1963) (quoting Everson v. Bd. of

Ed. of Ewing Twp., 330 U.S. 1, 18 (1947)); see also Everson, 330 U.S. at

15-16 (recognizing a law may not, among other things, permit the

government from “openly or secretly[] participat[ing] in the affairs of

any religious organizations or groups and vice versa”). Nor may the

government become “embroiled, however innocently, in the destructive

religious conflicts of which the history of even this country records some

dark pages.” Schempp, 374 U.S. at 219 (quoting McCollum v. Bd. of Ed.

of Sch. Dist. No. 71, 333 U.S. 203, 229 (1948) (Frankfurter, J.,

S. Ct. 2049, 2069 (2020). As James Madison concluded, the idea that a

government official “is a competent Judge of Religious truth” is “an

arrogant pretension” that has been “falsified.” Memorial and

Remonstrance Against Religious Assessments, in Selected Writings of

James Madison 21, 24 (R. Ketcham ed. 2006); see also Presbyterian

Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church,