Intersectional Cohorts, Dis/ability, and Class Actions

38 Pages Posted: 8 Jan 2020 Last revised: 30 Jan 2020

See all articles by Ann McGinley

Ann McGinley

University of Nevada, Las Vegas, William S. Boyd School of Law

Frank Rudy Cooper

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: January 6, 2020

Abstract

This Essay 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 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 disabled.

The Essay 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. It 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 one major goal of disability law is to remove social barriers to the flourishing of people with dis/abilities. By analyzing the social construction model of dis/abilities implicit within current law, this essay shows that group-based claims like those of the Compton students are a valid use of the class certification power.

This Essay’s key contribution to the dis/abilities studies and critical race literatures is the creation of a theory of “intersectional cohorts.” The members of intersectional cohorts share similar self-identities, attributed identities, and identity performances to such 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 shows they have sufficiently shared experiences and responses to their environment to presume they 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.

Keywords: Race, Disability, Intersectionality, Intersectional, Education, Kimberle Crenshaw, Patricia Hill Collins, Adverse Childhood Event, ACEs; Class Actions, Americans with Disabilities Act, ADA, Federal Rules of Civil Procedure 23(a), Self Identity

Suggested Citation

McGinley, Ann and Cooper, Frank Rudy, Intersectional Cohorts, Dis/ability, and Class Actions (January 6, 2020). 47 Fordham Urban Law Journal, 2020, Forthcoming; UNLV William S. Boyd School of Law Legal Studies Research Paper . Available at SSRN: https://ssrn.com/abstract=3514902 or http://dx.doi.org/10.2139/ssrn.3514902

Ann McGinley

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Frank Rudy Cooper (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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