Queer Youth v. the State of California: Interrogating Legal Discourses on the Rights of Queer Students of Color

Abstract

For nearly 2 decades, lawsuits filed on behalf of students who have endured anti‐queer bias in schools have resulted in favorable verdicts and settlements for the plaintiffs, thus spurring an increasing number of school districts across the United States to establish antidiscrimination policies and other initiatives to protect students from homophobic harassment. While these legal victories mark an important turn toward creating safe schooling environments for all students, they also reveal an inattention to the intersections of multiple identities and oppressions that can mediate the harassment experienced by queer students. Drawing upon critical scholarship on queers of color, or a queer of color critique, this article interrogates the absence of race in legal discourses on the rights of queer students in California. Through its focus on the intersections of race and sexual orientation, this article considers new forms of knowledge on queer youth of color that not only may inform legal protections on their behalf, but also may shape the efforts of school districts and community stakeholders to improve the educational experiences of queer students of color.

Notes

Notes

1. “Queer” is used in this article to describe “same‐sex attractions and identities, as well as an associated set of gender nonconformities, that are marked in similar fashion as deviant by heteronormative power structures, but that do not necessarily reflect a shared identity politics among the subjects who are marked as such” (Brockenbrough, , p. 742).

2. “Femiphobia” refers to the disdain for displays of feminine characteristics among men. Accounts of the days leading up to King’s death describe the contempt that McInerney and others at E. O. Green Middle School harbored toward King’s flamboyantly effeminate gender expression (Setoodah, ), making his death a manifestation of homophobia as well as femiphobia.

3. See the introduction to this special issue for a further discussion of critical scholarship on queers of color.

4. See Delgado Bernal’s () description of cultural intuition in Chicana feminist epistemology, Somerville’s () description of speculation in her analysis of the intersections of racial and queer social formations in late‐19th‐century America, and Nardizzi, Guy‐Bray, and Stockton’s () explanation of how speculation has informed queer historiography.

5. The analysis of Lawrence King and Brandon McInerney in the introduction of this article models how we use speculative knowledge production. Our speculation about the racial dynamics between King and McInerney was supported by references to scholarship on the salience of race in American schools and society. As educational researchers who focus on the intersections of race and sexuality in schools (Brockenbrough, ; Grady, Marquez, & McLaren, ), our speculations about race are rooted in our scholarly understandings of its significance, particularly in the lives of queer youth of color, and in our scholarly critiques of how mainstream queer cultural and political discourses have traditionally omitted considerations of race.

6. The Models of Pride conference (see http://www.modelsofpride.org), which celebrated its 20th anniversary in 2012, is an example of the sustained outreach by colleges and universities in the state to queer high school students.

7. See http://www.gsanetwork.org and http://www.casafeschools.org for more information on the Gay‐Straight Alliance Network and the California Safe Schools Coalition, respectively.

8. In the majority of the cases mentioned in this article, the plaintiffs used the Equal Protection Clause of the Fourteenth Amendment in the U.S. Constitution to build their cases of discrimination based on students’ actual or perceived sexual orientation. The Fourteenth Amendment states that no state shall “deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. Amend. XIV, §1). How, when, and to what extent an individual’s rights have been violated must then be decided and litigated by the courts. U.S. courts apply different levels of rigor, or scrutiny, to equal protection cases, and to determine the level of scrutiny applied to a case, the plaintiffs must prove that harm or discrimination was motivated by their affiliation with a group designated by the courts as historically vulnerable to discrimination. At the federal level, classification for the highest level of scrutiny applies to people who can prove discrimination based on race, national origin, alienage, or sex, while classifications based on other affiliations such as age, disability, or sexual orientation currently receive lower levels of consideration (Yoshino, ). At the state level, however, states may apply higher levels of scrutiny to groups that do not receive those higher levels of scrutiny at the federal level. This is the case in California where sexual orientation receives the highest level of scrutiny and thus is protected to the fullest extent of the law (Powers, ; Yoshino, ). However, as cases of discrimination must be narrowly defined and argued to qualify for any level of scrutiny and protection, it is difficult, if not impossible, for plaintiffs to successfully claim a case of multiple or intersecting forms of discrimination.

9. Title IX is a portion of the federal Education Amendments enacted by Congress in 1972 which states that no student “shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” (20 U.S.C. Sections 1681–1688). In 1999, via the U.S. Supreme Court, it was expanded to include protections from student‐on‐student sexual harassment (526 U.S. 629 1999). Under Title IX students can file a grievance if they feel that they have been harassed due to their sex or gender identity by the institution and other students. Self‐identified or presumed queer youth who are harassed for not conforming to stereotypical gendered norms of masculinity or femininity, particularly when participating in school sports, may file a complaint of discrimination.

10. The documents reviewed on all the cases listed in this article included official legal complaints filed by the plaintiffs, subsequent appeal documents filed by the schools or districts, official press releases from the American Civil Liberties Union and the National Center for Lesbian Rights (who represented many of the students), and local newspaper accounts describing the cases and/or their settlements.

11. Three steps were taken to determine the racial/ethnic backgrounds of student plaintiffs. First, we looked at students’ surnames or pseudonyms and found several that are commonly associated with Latina/o or Asian cultural backgrounds. Second, we searched for images of students in press coverage of their court cases to look for visible physical signs of their race and ethnicity. Third, we looked at district data on the racial and ethnic demographics of the schools that students attended for additional clues on their racial and ethnic backgrounds. Based on these efforts, we determined that the following cases likely involved plaintiffs who were students of color: Colín vs. Orange Unified School District, Flores v. Morgan Hill Unified School District, Ramirez v. Los Angeles Unified School District, Rochelle Hamilton v. Vallejo City Unified School District, and Nguoun v. Wolf.

12. While litigation on behalf of student victims of anti‐queer bias have succeeded in getting the courts to acknowledge peer sexual orientation harassment as a form of sexual harassment prohibited under Title IX (Meyer, ), the reliance on Title IX in such cases obviously works against a recognition of discrimination seen as unrelated to sex. Gaining recognition for the impact of intersecting oppressions can also be challenging in cases that rely on the Equal Protection Clause (see Scales‐Trent, ). As the National Center for Lesbian Rights and the Gay Lesbian Straight Education Network (n.d.) note, lawsuits using Title IX and/or the Equal Protection Clause to redress student victimization based on sexual orientation increasingly have been successful for plaintiffs and costly for school districts. Thus, it makes sense that legal counsels and plaintiffs would continue to rely on these strategies despite their limited focus on sexual orientation harassment. Nevertheless, the analysis of court cases in this article will point to the benefits of bringing a more intersectional understanding of identity and oppression to legal discourses on the educational experiences of queer youth of color.

13. The lead defendants in the Flores case were Alana Flores and Freddie Fuentes, and the lead defendants in the Ramirez case were identified with the pseudonyms David Ramirez and Maria Gomez. The surnames of all four students indicate that they were of Latino/a racial/ethnic heritage. A photograph taken of Flores and Fuentes at a press conference (Figure ) also indicates that these two students were Latino/a.

14. While queer youth of color are not the only victims of anti‐queer bias, the remainder of the article will focus on the implications of our analysis for queer youth of color specifically.