Intersectional Cohorts, Dis/ability, and Class Actions

Abstract

This Article occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district brought under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and Latinx students in poor, violence-torn inner-city communities by characterizing the students as having disabilities. The Article disagrees with legal scholarship thus far, which posits that using disability law to help these students both stigmatizes them and ignores current disability law’s focus on individual claims. Instead, this Article asserts that concerns about stigma are outweighed by the potential to assist distressed students. Doctrinally, it contends the concern for individual claims is overstated because * William S. Boyd Professor of Law and Co-Director, Workplace Law Program, University of Nevada, Las Vegas William S. Boyd School of Law. ** William S. Boyd Professor of Law and Director, Program on Race, Gender & Policing, University of Nevada, Las Vegas William S. Boyd School of Law. We dedicate this Article to our friend and mentor, Nancy Dowd. We thank Liz Manriquez, David McClure, and James Rich for helpful research and Dean Dan Hamilton for supporting our scholarship. Additional thanks to Seth Cooper, Daniella Courban, Jonathan Glater, Micky Lee, Thomas Main, Lydia Nussbaum, Nicole Porter, Claire Raj, and Pat Reeve, Jeff Stempel, and Mark Weber, as well as the Fordham Urban Law Journal, particularly Maura Tracy and Kaitlyn A. Laurie, for careful reads of the paper. Extra thanks to Devon Carbado for multiple reads. All remaining errors are our own. 294 FORDHAM URB. L.J. [Vol. XLVII one major goal of disability law is to remove social barriers that inhibit the flourishing of people with dis/abilities. By analyzing the social construction model of dis/abilities implicit within current law, this Article shows that group-based claims like those of the Compton students are a valid use of the class certification power. This Article’s key contribution to the dis/abilities studies and critical race literatures is the creation of a theory of “intersectional cohorts.” Members of intersectional cohorts share similar selfidentities, attributed identities, and identity performances to the extent that it is appropriate to think of them as a discrete and cohesive group in relation to a particular issue. This is a way to explore the meso-level of discrete and cohesive social groups who share multiple identities without devolving into a micro-level theory of each individual or essentializing identities through a macro-level theory of broad social groups. Understanding poor Black and Latinx students in violence-torn neighborhoods as an intersectional cohort presumes that they have shared experiences and responses to their environment sufficient to constitute a class that should be certified in the Compton suit and in other similar lawsuits. This approach is supported by the scientific research on Adverse Childhood Experiences (ACEs) and their relationship to complex trauma and disability. We hope this analysis will serve as a model for future theoretical and applied analysis of intersectional cohorts, especially with respect to dis/abilities. Introduction ............................................................................................. 295 I. Moonlight and the Compton Case ..................................................... 305 II. The Scholarly Debate ........................................................................ 309 A. Current Debate ....................................................................... 310 B. Why Use Dis/ability? .............................................................. 314 i. Stigma .................................................................................. 315 ii. Doctrinal Disability Law or a Dis/ability Framework? ..................................................................... 317 III. Social Construction Theory and Dis/abilities ................................ 321 IV. Why the Compton Students Should Get Class Status as “Persons with Disabilities” .............................................................. 326 A. Intersectionality Theory and Cohorts ................................... 326 B. Why the Concept of Intersectional Cohorts Requires a Remedy in Compton ............................................................. 334 Conclusion ................................................................................................ 34