Intersectional Cohorts, Dis/ability, and Class Actions

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 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 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. 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 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.” 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

Cultural Context Matters: Terry\u27s Seesaw Effect

This Article investigates why the enforcement of a given legal doctrine may vary with changes in the cultural context in which it is applied. It argues that officials apply the law along an enforcement practices continuum in accord with changes in the prevailing articulations of the meaning of cultural identity norms associating particular groups with crime. Terry v. Ohio doctrine allows police officers to make stops and frisks of limited scope upon reasonable suspicion of crime rather than requiring the higher standard of probable cause. The Article contends the officer discretion resulting from this scope continuum approach permits cultural identity norms to influence enforcement practices. While scholars have noted that the discretion permitted under Terry encourages racial profiling, this Article identifies a larger problem: Terry\u27s seesaw effect. That is, the cultural context in which law enforcement occurs will sometimes swing from (1) support for extreme racial profiling; to (2) a popular shift against racial profiling; to (3) a responsive depolicing of potential crime in racial minority communities. For example, in the mid-1990s, cultural identity norms supported Mayor Rudolph Giuliani\u27 s implicitly race-based campaign to maximize Terry stops. In the late 1990s, the media began criticizing the NYPD, identifying racial profiling as an underlying cause of police brutality. Consequently, the NYPD refrained from policing racial minorities at the Puerto Rican Day Parade in June 2000, resulting in sexual assaults of at least fifty-seven women

Post-racialism and Searches Incident to Arrest

For 28 years the Court held that an officer\u27s search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court\u27s requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court\u27s requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil liberties, Professor Frank Rudy Cooper sees it as a failure to fully address racial profiling. Racial profiling lives on in the post-Gant era because the Court failed to prohibit pretextual searches. Cops may leave suspects near a car in order to satisfy Gant\u27s first prong. More importantly, they will often be able to characterize the crime of arrest as suggesting there could be evidence in the car. For instance, if a distracted driver turns without signaling, what is to stop an officer from claiming she suspected the crime of Driving Under the Influence and was searching for beer cans? Nothing in the Gant decision. The Gant Court fails to address pretext because it takes a post-racial approach to racial profiling. That is, it acts as if race never matters by trying to address a problem of racism through a broader category of analysis. In Gant, that means ignoring former Justice Sandra Day O\u27Connor\u27s warning in her Atwater v. City of Lago Vista dissent that the search incident to arrest rule is used for racial profiling. The Gant Court thus remedies only the general problem of officers searching for weapons after they have eliminated any safety concerns but not the specific problem of racial profiling through searches incident to arrest. Prior to Gant, scholar Donald Dripps identified an Iron Triangle of cases that made search incident to arrest doctrine inimical to civil liberties; Professor Cooper extends that metaphor and argue the problem of racial profiling stems from a Mindless Square of cases. Dripps points to the combination of New York v. Belton\u27s presumption that a car may be searched, Whren v. United States\u27s bar on considering officer motivations, and Atwater\u27s approval of arrests for de minimis crimes. He points out that these cases draw on the earlier United States v. Robinson case\u27s refusal to consider whether the officer actually had the state of mind that Chimel says justifies the search incident to arrest rule. Together, Robinson, Belton, Whren, and Atwater remove the officer\u27s mind from analysis of search incident to arrest doctrine. In order to address post-Gant racial profiling, we must address the mindlessness of present doctrine. That means reinvigorating Chimel by excising the Rabinowitz prong from the search incident to arrest of vehicles rule. It also means explicitly asking whether it is overall reasonable to allow a search incident to arrest while considering if the arrest was a pretext for racial profiling

Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, and Hierarchy

In this article, Professor Frank Rudy Cooper contends that popular representations of heterosexual black men are bipolar. Those images alternate between a Bad Black Man who is crime-prone and hypersexual and a Good Black Man who distances himself from blackness and associates with white norms. The threat of the Bad Black Man label provides heterosexual black men with an assimilationist incentive to perform our identities consistent with the Good Black Man image. The reason for bipolar black masculinity is that it helps resolve the white mainstream\u27s post-civil rights anxiety. That anxiety results from the conflict between the nation\u27s relatively recent determination that some black men merit inclusion into the mainstream and its longer-standing and ongoing belief that most black men should be excluded. Bipolar black masculinity addresses that anxiety by clearly demarcating which black men merit inclusion - only those who fit the assimilationist ideal. Bipolar depictions justify the status quo of the exclusion of most black men into jail or the lower-classes and the inclusion of only a token few white-acting black men into the mainstream. He draws his conclusions by utilizing Critical Race Feminism\u27s intersectionality theory - analysis of the interplay between race and gender narratives. Intersectionality theory is usually applied to the multiply subordinated, such as women of color, rather than the singly subordinated, such as middle-class heterosexual black men. Extending intersectionality theory to heterosexual black men is justifiable when we consider the shared interests of the multiply and singly subordinated in defeating the Western epistemological system of the scaling of bodies. The scaling of bodies is the assumption that we must rank identity characteristics against a norm and organize society according to those hierarchies. Bipolar black masculinity seeks to seduce heterosexual black men into accepting the right to subordinate others as compensation for our own subordination. If heterosexual black men are to disrupt bipolar black masculinity, we must refuse to accept the right to subordinate others and construct an antihierarchical black masculinity

Understanding Depolicing : Symbiosis Theory and Critical Cultural Theory

Doctrinal analyses help us understand what law does. Identity theory helps us understand why law operates in certain ways. Cultural studies can help us understand that where law operates is crucial to both how it operates, and on whom. Nancy Ehrenreich\u27s Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems is especially valuable because her symbiosis theory expands identity theory. Ehrenreich turns our attention to the subjectivities of those who are partly subordinated but mostly privileged-those who accept their own oppression in return for the compensation of being able to use the law to subordinate others. Nonetheless, symbiosis theory cannot fully explain why a practice develops in some places but not others even though the relevant identities are the same. To understand the difference context makes, we must use cultural studies to analyze how discourses were constructed and translated into practices in particular contexts. We need a critical cultural theory methodology that synthesizes doctrinal, identity theory, and cultural studies tools. In this article, Professor Frank Rudy Cooper advocates for a doctrinal analysis that reveals implicit assumptions about identity, as a beginning to a critical cultural theory methodology. He argues that we should use identity theories to show how enforcement practices vary when applied by particular social groups and/or to particular social groups. We should then use cultural studies to show how a particular context led to a particular social consensus about the appropriateness of a particular enforcement practice. Those analyses should be organized by considering the construction ( encoding ) and reception ( decoding ) of the discourses about the relationship between law and identity that were in play in a specific cultural context. In Part I of this essay Professor Cooper defines and analyzes the practice of depolicing -the withdrawal of proactive crime investigation in racial minority neighborhoods. In Part II, he reviews insights gained from Nancy Ehrenreich\u27s symbiosis theory of identity and applies them to depolicing. In Part III, he argues that we need to join cultural studies analysis to identity theory in order to form a more comprehensive critical cultural theory methodology. He then briefly applies the methodology to the practice of depolicing. In Part IV, Professor Cooper concludes

Surveillance and Identity Performance: Some Thoughts Inspired by Martin Luther King

In this article, Professor Frank Cooper explores self-actualization, the process whereby people create their own identity by means of experimenting with different behaviors, in the context of Martin Luther King, Jr. and the FBI surveillance he was subjected to in the time leading up to his death. He argues that it is possible for people to live in an environment that is more or less alienating to the way in which they perform their identities. Performativity scholars such as Devon Carbado and Mitu Gulati say that people can have an internal sense of self that is distinct from the identity that others attribute to them. Kenji Yoshino emphasizes that individuals may self-actualize but only when they are generally free to perform their external identity in ways that are consistent with their internal senses of self without fear of repercussions. Professor Cooper argues that while the internal sense of self is not more real than the performance of the self, allowing people to make their internal and performed selves consistent will make people feel more self-actualized. Our government is at its best when it maximizes the ability of individuals to self-actualize through identity performance

Hyper-incarceration as a Multidimensional Attack: Replying to Angela Harris Through The Wire

In this article, Professor Frank Rudy Cooper responds to a symposium article by Angela Harris, arguing mass incarceration should be understood as hyper-incarceration because it is targeted based on multiple dimensions of identities. He extends Harris\u27s analysis of the multidimensionality of identities by means of a case study of how class operates during the drug war era, as depicted in the critically acclaimed HBO drama The Wire

We Are Always Already Imprisoned: Hyper-Incarceration and Black Male Identity Performance

In this Essay, Professor Frank Rudy Cooper recenters the experiences of men of color, particularly those of black men, in light of Reagan\u27s War on Drugs and recent scholarship illustrating the over-representation of men of color in prison for petty drug use. The mainstream\u27s depiction of black men as always already imprisoned disciplines us into the never-finished quest to prove we are a Good Black Man, rather than a Bad Black Man. In order to propose greater empathy for black men\u27s imprisonment, this article proceeds in the following manner. In Part I, Professor Cooper sets the stage for considering the impact of drug-war racial profiling on black men\u27s senses of self and the identities attributed to them by summarizing the components of the circuit of identity. In Part II, he considers black men\u27s attributed identities by demonstrating that drug-war racial profiling has naturalized the idea that black men deserve to be disproportionately imprisoned. He also argue that Rosin\u27s end of men thesis suffers from this assumption and identifies a similar lack of empathy in Supreme Court jurisprudence on strip searches. In Part III, he explicates his theory of the bipolarity of black men\u27s attributed identity in relation to hyper-incarceration. Professor Cooper concludes with some personal thoughts about black men\u27s internalization of the possibility of imprisonment into our self-identities

Always Already Suspect: Revising Vulnerability Theory

Martha Fineman proposes a post-identity vulnerability approach that focuses on burdens we all share; this article argues that theory needs to incorporate recognition of how invisible privileges exacerbate some people\u27s burdens. Vulnerability theory is based on a recognition that we are all born defenseless, become feeble, must fear natural disasters, and might be failed by social institutions. It thus argues for a strong state that takes affirmative steps to insure substantive equality of opportunity. While vulnerability theory might help explain and remedy situations like Hurricane Katrina, it also might be susceptible to an argument that racial profiling is a necessary sacrifice of those overrepresented in arrest statistics for the greater good of protecting the majority from vulnerability to crime. In this article, Professor Frank Rudy Cooper argues that acknowledging relative privilege can help us analyze practices such as racial profiling. Privileges are invisible, unearned assets that automatically attach to people because an aspect of their identity is made socially normative. Because privileges can make the impact of racially targeted policing of others invisible to their holders, vulnerability theory needs to incorporate this concept if it wishes to address racial profiling. A revised vulnerability theory could then use the fact of our shared vulnerabilities and its justification of a strong state to call for extensive federal monitoring of policing. Linking vulnerability theory to analysis of privilege is a necessary precursor to such a conversation