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Queer Youth v. the State of California: Interrogating Legal Discourses on the Rights of Queer Students of Color RIGOBERTO MARQUEZ University of California, Los Angeles Los Angeles, California, USA ED BROCKENBROUGH University of Rochester Rochester, New York, USA

ABSTRACT For nearly 2 decades, lawsuits filed on behalf of students who have endured antiqueer 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.

On February 12, 2008, Brandon McInerney fatally shot Lawrence King, an openly queer1 and effeminate classmate, at E. O. Green Junior High School in Oxnard, California (see Figure 1). King’s death fueled renewed attention to the plight of queer kids in schools, sparking candlelight vigils in his honor (Saillant, 2008) and pleas for acceptance of queer youth by prominent figures like Ellen DeGeneres (Silverman, 2008). That year’s National Day of Silence, an annual remembrance of victims of anti-queer violence, was dedicated to King, and a Newsweek article declared King’s death “the most prominent gay-bias crime since the murder of Matthew © 2013 by The Ontario Institute for Studies in Education of the University of Toronto Curriculum Inquiry 43:4 (2013) Published by Wiley Periodicals, Inc., 350 Main Street, Malden, MA 02148, USA, and 9600 Garsington Road, Oxford OX4 2DQ, UK doi: 10.1111/curi.12021

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FIGURE 1. Lawrence King, left, and Brandon McInerney. Family Handout/Ventura County Star. From “Boy Who Shot Classmate at 14 Will Be Retried as Adult,” abcnews.go.com.

Shepard 10 years ago” (Setoodah, 2008). After the initial criminal case against McInerney ended in a mistrial, a second trial in which hate crime charges were dropped resulted in a guilty plea and a 21-year prison sentence (Saillant, 2011). By all accounts, King’s death became a weighty symbol of the continued vulnerability of queer and gender nonconforming youth in America’s schools. While reminding us of the plight of queer students, the murder of Lawrence King also raises several concerns that generally were not considered in popular discourses on the case. In particular, there are a number of important questions surrounding the role of race in mediating the homophobic and femiphobic2 interactions that led to King’s death. For instance, given allegations that King, a young man of color, made flirtatious advances toward McInerney, a White male (Setoodah, 2008), in what ways were their interactions possibly fueled by—and to what extent was King’s death possibly a repudiation of—interracial desire? In light of allegations that surfaced during court proceedings of McInerney’s association with White supremacist groups (Saillant, 2011), how might White anxiety toward an encroaching racial difference, along with masculine and heteronormative anxieties, account for the unease that McInerney may have felt in King’s non-White, effeminate, queer presence? With dual historical legacies in the United States of positioning queer and non-White Others as sexual predators (Blount, 2005; Collins, 2005), how should we make sense of court testimonies that positioned King as a sexual aggressor toward McInerney? Finally, situated in California, a state with a history of contentious legislative initiatives and judicial rulings on race (Delgado & Stefanic, 1999; HoSang,

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2010), how might the racial discourses surrounding King and McInerney account for the failure of the jury during the first trial to reach a verdict, thus leading to a second trial in which hate crime charges were dropped? All of these questions suggest that in addition to sexual orientation and gender expression, race may have influenced the relationship between King and McInerney, as well as the conclusions and decisions that were made about that relationship by school officials, judicial systems, popular media, and the public at large. Rather than constructing the King tragedy as a symbol of the costs of homophobia, we may develop a better understanding of how this tragic event came to pass—and how to prevent its future reoccurrence—by focusing on the intersections of race, sexuality, and gender expression in King’s schooling experiences as a queer youth of color. The preceding consideration of the King and McInerney case exemplifies the type of analysis for which this article calls—a scholarly focus on the intersections of multiple identities and oppressions that may help us to make sense of the experiences of queer youth of color like Lawrence King in schools throughout the United States. Research by the Gay Lesbian Straight Education Network (GLSEN), has found that queer youth of color nationwide often experience hostile schooling environments not only because of their sexual orientations and gender expressions, but also because of their race (Diaz & Kosciw, 2009). GLSEN’s findings echo assertions made in a burgeoning body of scholarship which, as described later in this article, reveals the intersectional relations of race, sexuality, gender, and other nodes of difference in shaping the educational experiences of queers of color. While it is imperative to acknowledge the homophobic nature of the violence committed in schools against Lawrence King and other queer youth of color, a critique of homophobia may not be enough to fully understand and prevent that violence. In educational contexts where multiple forms of oppressive power concurrently function to produce and marginalize the Other, it is crucial that a recognition of multiple oppressions informs initiatives to disrupt the multilayered marginalization of queer students of color. This article seeks to expand the scholarship on the educational plights of queer youth of color by presenting a critical analysis of legal discourses on their rights and protections as students. Focusing specifically on court cases and educational policies in California that provide protections for queer students, this article will examine the reasons for, and the costs of, the limited attention in these legal discourses to the intersections of multiple identities and oppressions that shape the lived experiences of queer youth of color. Drawing upon analytic frameworks from critical scholarship on queers of color—specifically, the focus on intersectionality and a speculative mode of knowledge production—this article will consider the new forms of knowledge on queer youth of color that could emerge from intersectional analyses of their identities and experiences during legal

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proceedings and policy-making initiatives. While the focus of this article is limited primarily to legal proceedings and discourses in California (for reasons to be discussed later), the analysis presented here can serve as a model for further attempts to fully understand the experiences of queer students of color in educational contexts across the nation. Given the potential impact of legal precedents on district-level policies and practices to ensure inclusive schooling environments, it is crucial for teachers, administrators, scholars, and other educational stakeholders and advocates to consider how greater attention to multiple and intersectional identities during legal proceedings may improve efforts to protect the rights of queer youth of color in schools.

INTERSECTIONALITY AND SPECULATIVE KNOWLEDGE To complicate legal discourses on the educational experiences and rights of queer youth of color, this article draws upon what Ferguson (2004) has dubbed “a queer of color critique” for its theoretical framework. Building upon intersectional analyses of identity and power from Black feminist scholarship (Collins, 1991; Crenshaw, 1991), a queer of color critique considers how race, sexuality, gender, class, religion, region, and other forms of difference variably intersect across social and historical contexts to generate myriad narratives of what it means to be queer of color, and to produce shifting relationships among queers of color to systems of power. The result of this analytic heuristic has been a rich body of work that destabilizes the heteronormativity and gender normativity of discourses on racial difference, as well as the presumption of whiteness and class privilege in queer discourses, all of which have traditionally obfuscated the specificities and complexities of how queer people of color embody their identities, navigate their social worlds, and define their own sense of freedom in the face of multiple oppressions.3 That a queer of color critique has been taken up across multiple academic disciplines to explore the lives of individuals and communities across racial, regional, gender, sexual, and socioeconomic positionalities (Ferguson, 2004; Gopinath, 2005; Johnson & Henderson, 2005; Manalansan, 2003; Muñoz, 1999; Rodriguez, 2003; Somerville, 2000) attests not only to the diversity of queer of color experiences, but also to the need for nuanced modes of analysis to understand the intersectionalities that constitute queer of color communities. An emergent body of scholarship has brought a queer of color critique to bear on analyses of the educational experiences of queers of color (Blackburn, 2005; Brockenbrough, 2012; Cruz, 2001, 2011; Grady, Marquez, & McLaren, 2012, Kumashiro, 2001; McCready, 2004, 2010; Quinn, 2007; Valadez & Elsbree, 2005). Through its dual attention to the intersections of multiple identities and the operation of multiple forms of oppressive power across educational contexts, this work has broken the

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silence around the presence of queers of color in schools, and it has initiated important conversations around the diverse and collective educational agendas of queers of color. Still a burgeoning corpus of literature, the educational scholarship on queers of color has yet to fully venture into analyses of legal discourses on queer students of color and the protection of their rights. Thus, this article seeks to make an important contribution to this body of literature by exploring how legal discourses on queer students’ rights may or may not imagine the intersectional realities that shape the daily lives of queer youth of color. In addition to its attention to intersectionality, this article draws upon Harper’s (2005) work on queers of color and “speculative knowledge” to frame its analysis of legal discourses on queer youth of color. Harper’s work belongs to a broader field of scholarship that has used speculation and intuition as critical modes of knowledge production on minority experiences.4 As Harper explains, the experiences of marginalized sexual subjects traditionally have been absent from historical records, thus forcing scholarly analyses of these sexualities to rely to some degree on speculation over what is missing. This speculative form of knowledge production may deviate from positivist frameworks of scholarship, but it is not arbitrary. As Harper notes, speculative knowledge is rooted in the lived experiences of minority groups like queers of color who often must rely on speculation and intuition to make daily decisions about circumstances which, if assessed incorrectly, could place them in danger. Harper also points out that speculative analyses in fields like Black queer studies rest upon and speak to the material conditions that obfuscate and endanger marginalized sexual subjects and thus produce the need for speculative knowledge production. In this article, speculative knowledge as described by Harper is employed to raise questions about the racial politics that are currently absent from legal discourses on queer students’ rights. As authors, we ground and support this speculation with references to scholarship on the social and historical contexts of race in school and society, as it is our awareness of these racial contexts that leads us to question the absence of race in the legal discourses that are examined in this article.5 By relying on our “felt intuition” as queer scholars of color to pose questions about “the evidence of things not seen” (Harper, 2005, p. 115), we raise concerns that can hopefully be explored through various means of knowledge production in future scholarship on queer youth of color.

THE CALIFORNIA CONTEXT California has been an influential backdrop for efforts in the United States to support queer youth in schools. In 1984, Project 10, founded at Fairfax High School in Los Angeles, became the first program in the country to provide support services for queer youth in a public school, and it has been

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credited as the precursor to the Gay-Straight Alliance (GSA) movement that subsequently spread across American high schools (Uribe & Harbeck, 1992). By the early to mid-1990s, universities and colleges across California had well-established queer student organizations and began organizing community events reaching out to queer youth in high schools.6 With an emerging queer visibility in colleges and universities across the state, queer youth in high schools started to form more of their own clubs and organizations, thus increasing access statewide to school-based supports for queer youth. Today, over 900 queer student clubs and organizations are active in schools across California (Gay-Straight Alliance Network, 2012), representing one in three middle and high schools in the state. In addition, organizations such as the Gay-Straight Alliance Network and the California Safe Schools Coalition have provided almost 2 decades of support and resources for queer youth, from trainings and workshops for schools and districts to directly influencing statewide policy reform.7 In 2011, Governor Jerry Brown signed a landmark bill requiring all public schools in California to include the contributions of lesbian, gay, bisexual, and transgender (LGBT) people in the social sciences curriculum (McGreevy, 2011). These myriad efforts to combat homophobia and support queer students, along with the litigation and policy-making efforts discussed later in this article, make California an important site for the movement to protect queer youth in our nation’s public schools. Efforts to protect the rights of queer students in California are now unfolding amid significant demographic shifts across the state. While students of color are projected to comprise the majority of K–12 students nationally by the next decade, they already comprise the majority in California’s schools, with Latinos alone accounting for 52% of the state’s K–12 population (California Department of Education, 2012b). Based on these percentages, queer students in California’s schools will increasingly be students of color—and more specifically, Latino students—for whom queer identity, community, and experience may be intimately mediated by racial, cultural, and linguistic differences. The capacity of lawsuits and policy initiatives in California to address the needs of queer students of color can provide valuable lessons for other states that will soon experience, if they have not already, increasing numbers of students of color in their queer student populations.

SECURING PROTECTIONS FROM ANTI-QUEER BIAS: A QUEER OF COLOR CRITIQUE Litigation on behalf of victims of school-based homophobic harassment has been an influential strategy for securing and reinforcing protections in K–12 schools against anti-queer bias. In his book, The Right to Be Out, Biegel (2010) documents evolving legal efforts to protect the rights of queer

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students in American schools. As he notes, queer students’ court challenges against harassment in K–12 schools have generated an expanding body of case law in favor of queer students’ rights. This case law has been reinforced “by the legal obligations of school districts regarding campus safety” and “in certain states by specific mandates requiring equal treatment for everyone on the basis of actual or perceived sexual or gender identity” (p. 23). While legal mandates from above may not always produce full compliance on the ground level, they are still vital for encouraging school districts to implement measures to protect students from anti-queer bias, and for holding districts accountable when those measures fail. The success of litigation on behalf of student victims of homophobic harassment can be traced back to Nabozny v. Podlesny, the 1996 case in which Jamie Nabozny sued the Ashland Public School District in Wisconsin for failing to disrupt the ongoing and torturous harassment he had experienced in school as a queer student. Citing the Equal Protection Clause of the Fourteenth Amendment, this landmark verdict marked the first time that a U.S. court ruled that public schools had a constitutional obligation to protect students from homophobic abuse.8 This verdict, along with the nearly $1 million settlement that Ashland subsequently paid to Nabozny, sparked more legal actions by student victims of anti-queer bias, motivating states across the nation to pass legislation that included sexual orientation and gender identity as protected categories in antidiscrimination policies in schools (Biegel, 2010). The Nabozny decision illustrated the capacity of judicial verdicts to spotlight homophobic injustice in schools and spur policy making to protect students who identified or were perceived as queer. In California, the impact of Nabozny could be seen in 2000 in two court cases that resulted in settlements or verdicts that held school districts accountable for homophobic bias. In Colín v. Orange Unified School District, Anthony Colín and fellow student, Heather Zetin, sued their school district for infringing upon their rights to start a GSA in their school. This case made national headlines as the first in the country to cite the Federal Equal Access Act—a 1984 federal law outlawing discrimination against extracurricular groups, and originally intended to protect school Bible Clubs—to successfully justify a queer-oriented student group’s presence in a high school (Lambda Legal, n.d.). In Ray v. Antioch Unified School District, eighthgrader Daniel Ray sued his school district for failing to intervene in harassment that stemmed from peers’ perceptions of him as queer, and that resulted in severe physical injuries for Ray. This case was one of the first in the country to successfully use Title IX to classify acts of anti-queer bias between students as a form of sexual harassment, and to hold schools accountable for failing to protect students from it (Meyer, 2010).9 Importantly, in the same year as the Colín and Ray cases resulted in settlements or verdicts that held school districts accountable for acts of anti-queer bias, the state passed the California Student Safety and Violence Prevention Act, or

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TABLE 1 Court Cases in California on Homophobic Bias in Schools, 2000–2009 Case Title Colín v. Orange Unified School District (2000)* O.H. v. Oakland Unified School District (2000) Ray v. Antioch Unified School District (2000) Gay-Straight Alliance Network and Loomis v. Visalia Unified School District (2002) Flores v. Morgan Hill Unified School District (2003)* Massey v. Banning Unified School District (2003) Ramirez v. Los Angeles Unified School District (2004)* Donovan and, Ramelli v. Poway Unified School District (2005) Nguoun v. Wolf (2007)* Rochelle Hamilton v. Vallejo City Unified School District (2009)*

Basis for Legal Claim Equal Access Act 14th Amendment, Title IX Title IX 14th Amendment, California Education Code 14th Amendment, Title IX 14th Amendment, California Education Code 14th Amendment, Title IX 14th Amendment, Title IX 14th Amendment 14th Amendment, California Education Code

*Cases with students of color among plaintiffs.

AB 537, which amended the state Education Code to prohibit discrimination on the basis of sexual orientation or gender identity. As this concurrence of verdicts and legislation suggests, court decisions and policy initiatives have worked in concert to protect students from anti-queer harassment in post-Nabozny California. While greater accountability for protecting students from homophobic discrimination in California’s schools has certainly been a welcomed development, the legal strategies for achieving these gains come with some constraints. Table 1 lists 10 lawsuits filed on behalf of students in California over the past decade who claimed that their school districts failed to protect them from discrimination or harassment based on actual or perceived sexual orientation. A review of documents on all of these cases revealed no mentioning of the racial identities of the students involved.10 The absence of race from available documents belies several factors that suggest that half of these cases had lead plaintiffs who were students of color.11 As demonstrated by the speculative analysis on the murder of Lawrence King in this article’s introduction, it is not at all beyond the realm of possibility for White supremacy and racial difference to mediate the homophobic bias experienced in schools by students of color. The extant research on the educational experiences of queer youth of color also points to the intersections of racism, homophobia, and other forms of oppression that marginalize these young people in educational contexts (Blackburn, 2005; Diaz & Kosciw, 2009; McCready, 2010; Quinn, 2007). Yet despite the importance of understanding the coexistence of multiple forms of discrimination, the salience of race appears absent in available documents describing the court

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cases listed in Table 1. These cases may have spotlighted homophobic harassment and discrimination in California’s schools, but they seem to have left any accompanying racial injustices in the dark. The apparent absence of an explicit attention to race in the court cases listed in Table 1 is not surprising given previous analyses of the fate of intersectionality in the American legal system. Crenshaw (1991) has famously described how antiracist and feminist legal discourses have struggled to transcend single-axis understandings of discrimination to address the intersections of racism and sexism in the lives of Black women. Building upon the work of Crenshaw and other intersectional legal theorists, Hutchinson (1997, 1999, 2000, 2001) has brought a queer of color critique to legal studies by critiquing the heteronormative blinders of antiracist legal discourses and the omission of race and class from gay and lesbian legal strategies. Hutchinson (1997, 2000) also warns that the inattention in gay and lesbian legal strategies to the multidimensional natures of identities and oppressions may produce results with limited benefits for queers whose racial or socioeconomic marginality are not accounted for in essentialist gay and lesbian legal and political discourses. The works of scholars like Crenshaw, Hutchinson, and others (Scales-Trent, 1989; Valdes, 1995) point to a broader dilemma—the inattention to intersectionality in legal discourses on discrimination—that appears to have shaped the legal discourses on queer students and discrimination in California’s schools. Despite the general inattention to intersectionality in dominant legal discourses, some efforts have been made to pursue claims against discrimination based on multiple forms of bias. Unfortunately, these claims appear to have low success rates. Kotkin (2009) examined 26 cases of employment discrimination brought forward by women of color who claimed that they were discriminated against based on their race and sex; only 4% of the plaintiffs in these cases were successful in their claims. Similarly, Best, Edelman, Krieger, and Eliason (2011) conducted an extensive analysis of equal employment opportunity cases in U.S. federal courts and found that individuals who brought claims of intersectional discrimination had significantly reduced odds of a victory. By contrast, Hutchinson (1997) has described how one of the lawsuits against the police department and the City of Milwaukee in the aftermath of the Jeffrey Dahmer murders drew upon the Equal Protection Clause to charge the city with discriminatory practices based on both race and sexual orientation. Hutchinson cites this case as he makes his argument for why multiple identities and oppressions should be recognized in litigation like this. However, the low overall success rates of this legal strategy may help to explain why many plaintiffs file discrimination claims based on only one group affiliation. The unresponsiveness of the courts to intersectional discourses emerges as a major deterrent to potential claims of intersectional forms of discrimination.

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To be clear, the concerns raised above do not obviate the importance of judicial verdicts and legislative initiatives in California in favor of queer students’ well-being. Court decisions and educational policies that hold districts accountable for protecting students who identify or are perceived as queer clearly signal an important turn toward ensuring safe schools for all. Given the successful track record in California and elsewhere of using Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to hold districts accountable for “deliberate indifference” toward sexual orientation harassment, it is easy to understand why legal counsels and plaintiffs would stick with these winning strategies, even if they may work against a recognition of intersectional identities and oppressions.12 However, if court victories against homophobic discrimination continue to compel school districts to respond with revised antidiscrimination policies and mandatory sensitivity trainings, how can we be sure that such measures will benefit all queer students if the differential impact of multiple oppressions is not taken into account? It is because of this relationship between court decisions and district-level policies and initiatives that teachers, administrators, scholars, and other educational stakeholders and advocates should look critically at the blinders to intersectional identities and oppressions in legal discourses on queer students’ rights. A queer of color critique, as demonstrated in more detail below, offers one strategy for questioning how legal victories over the past decade may or may not attend to the multifaceted experiences of queer students of color.

FLORES AND RAMIREZ: THE (UNSPOKEN) RACIAL CONTEXTS Drawing upon frameworks from a queer of color critique—specifically, the focus on intersectionality and a speculative mode of knowledge production—we now turn to two court cases in California that sought redress for the violence endured by students of color who identified or were perceived as queer.13 While the grievances in these two lawsuits were filed as incidents of harassment based on sexual orientation, a closer look at both cases raises questions about the potential impact of multiple forms of bias directed at the students who were plaintiffs. This section explores how the harassment and violence that led to these two court cases may have been fueled by more than just homophobic bias, and it offers a consideration of the potential costs of failing to investigate the multiple systems of oppression that produce the marginality of queer students of color. The first case to be considered is Flores v. Morgan Hill Unified School District. Settled in 2003, this case initially was filed by Alana Flores, Freddie Fuentes, and four other students in 1998 against their school district on the outskirts of San Jose, California. The plaintiffs in this case charged school district employees with being resistant or unresponsive to complaints of the

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anti-queer bias they suffered between 1991 and 1998. According to complaints filed for the case, lead plaintiff Flores endured harassment that included finding homophobic obscenities scratched onto her locker’s door and pornographic pictures stuffed in or taped to her locker. One picture was of a bound and gagged naked woman with her throat slashed, and another picture included a handwritten message stating “Die, die? Dyke bitch, fuck off. We’ll kill you.” Frightened by the handwritten message, Flores reported the threat to an assistant principal who responded by saying, “Don’t bring me this trash anymore, this is disgusting,” and then asked Flores, “If you’re not gay, why are you crying?” (American Civil Liberties Union, 2004). Fellow plaintiff Fuentes reportedly faced similarly disparaging circumstances as teachers witnessed anti-queer peer bullying of him in school and refused to intervene. One student threatened Fuentes by stating, “I want to beat you up after class but I need a baseball bat to hit you because I don’t want to get AIDS.” In another incident, Fuentes was brutally beaten one morning at a school bus stop by peers who called him “faggot.” The bus driver who arrived at the scene let the attackers board the bus, ignored Fuentes, and left him lying on the ground as he drove away. Fuentes was later taken to a hospital, and the school took disciplinary action against only one of the attackers. After school officials claimed that they could not ensure his safety, Fuentes transferred to another school. For Flores, Fuentes, and other plaintiffs in this case, homophobic peer harassment was persistent, violent, and sanctioned by teachers and administrators who repeatedly failed to intervene. Parents of several students complained about the bullying and harassment that their children endured, but staff and administrators continued to do little to disrupt the homophobic institutional cultures of their schools (American Civil Liberties Union, 2004). Disturbing accounts of hostile school environments also surfaced in Ramirez v. Los Angeles Unified School District, the second case being considered in this analysis, which was filed and settled in 2004. The complaint filed for the case on behalf of two students, David Ramirez and Maria Gomez, along with a school guidance counselor and the school’s GSA described a homophobic institutional culture at Los Angeles’s Washington Preparatory High School. Incidents recounted in the complaint included teachers and administrators addressing students perceived to be queer as “faggot” and “sinner,” teachers “outing” students to their parents as punishment for being queer, and one teacher refusing to intervene in a physical assault against a queer student because that student needed to “toughen up.” The case complaint also accused administrators of suspending students for claiming harassment or for having same-sex partners, and it alleged that administrators refused to utter the word “gay” to announce a meeting of the school’s GSA. School officials also reportedly harassed Ramirez specifically after seeing him kiss another male student, taunting

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him with comments such as “Who is the girl in the relationship?” and “You are not supposed to be like this” (Ramirez, 2004). The Flores and Ramirez cases shared several important similarities. Both cases were harrowing reminders of how homophobic harassment can pervade an entire school culture when teachers and administrators fail to intervene—and in some cases, actively participate—in the bullying of students who identify or are identified by others as queer. Mirroring the outcomes of other legal actions in the post-Nabozny era, the Flores and Ramirez cases led to subsequent policy initiatives in their respective school districts. After settling with Flores and other plaintiffs for $1.1 million, the Morgan Hill Unified School District created mandatory annual trainings for district staff on preventing harassment based on actual or perceived sexual orientation and gender identity, and it required that all district policies and student handbooks be amended to state explicitly that discrimination based on actual or perceived sexual orientation or gender identity was prohibited (Agreement, n.d.; Finz, 2004). Similarly, after reaching a financial settlement in the Ramirez case, the Los Angeles Unified School District agreed to mandatory trainings for teachers, staff, and students at Washington Preparatory High School, as well as for middle school students slated to enroll in South Los Angeles High School (Rathi 2005). Both Flores and Ramirez represent the power of litigation to hold school districts accountable for protecting students against anti-queer harassment and bias.

FIGURE 2. Freddie Fuentes, left, and Alana Flores at American Civil Liberties Union press conference announcing the settlement of their case. Retrieved December 12, 2012, from http://www.sfgate.com/bayarea/article/Settlementin-gay-suit-Ex-students-claimed-2816020.php#photo-2214329.

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Although the Flores and Ramirez cases were important legal victories against anti-queer harassment in California’s schools, the focus in both lawsuits on sexual orientation appears to have worked against full inquiries into other forms of difference that may have shaped the circumstances experienced by the plaintiffs. A speculative mode of knowledge production, as modeled in the introduction of this article, is used here to highlight questions specifically about the potential intersections of racial and sexual differences in these two cases. Looking first at Flores, because Alana Flores and Freddie Fuentes were Latina/o students in a predominantly White school and school district (California Department of Education, 2012a), how did they experience the school as racial minorities, and in what ways could racial difference account for their marginalized status and ostracism? What was the institutional climate of the school on matters of racial and cultural differences, and how frequently (if at all) were students of color the targets of harassment and acts of violence? What were the racial identities of Flores and Fuentes’s attackers, and did any of them—as alleged in the case of Brandon McInerney (Saillant, 2011)—demonstrate signs of racial hatred toward their Latina/o or nonWhite peers? Did the unresponsive teachers and administrators cited in the case have a history of not only disregarding the complaints of queer students and their parents, but also of dismissing the concerns of students of color and their parents? Given the potential impact of peer networks among students of color in shaping their navigation of identity politics and power structures in schools (Ginwright, Noguera, & Cammarota, 2006; Tatum, 1997), what types of relationships did Flores and Fuentes have with other students of color in their school, and did these relationships mitigate or exacerbate the anti-queer harassment that they experienced? Were there any supports in the school for students of color, and if so, how accessible were they to Flores and Fuentes? Given the importance of GSAs in forging safe spaces from anti-queer bias (Meyer, 2010), were there any antihomophobic supports like a GSA at the school, and if so, how accessible were those supports to Flores and Fuentes? Were there differences between how Flores and Fuentes were positioned in their school versus any White co-plaintiffs? These are just some of the questions that point to the myriad ways in which race could have mediated the circumstances surrounding Flores and Fuentes’s educational experiences, and the answers to these questions could lead to very different strategies for addressing the injustices they faced. A number of questions about the racial contexts of the Ramirez case deserve consideration as well. These questions point to a different set of identity politics from the Flores case, revealing the shifting positionalities of queerly identified people of color across various social and educational contexts, and thus underscoring the importance of acknowledging their multiple identities. In contrast to Alana Flores and Freddie Fuentes, David Ramirez and Maria Gomez, the student plaintiffs in Ramirez, recounted

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anti-queer bias that unfolded within a predominantly Black and Latino/a school (California Department of Education, 2012a). Given the politics of racial authenticity that can shape the schooling experiences of students of color (McCready, 2010; Tatum, 1997), to what extent were those who became targets of anti-queer bias perceived by their peers as racial insiders or outsiders? In other words, for students of color who were queer or were perceived as such, could a more successful performance of racial authenticity shield them from homophobic harassment? Also, did blackness and Latinidad (Rodriguez, 2003) mediate anti-queer identity politics similarly or differently? What about maleness and femaleness, especially given gender-specific anxieties toward queerness in Black and Latino/a communities (Johnson & Henderson, 2005; Rodriguez, 2003)? All of these factors could have affected the nature of anti-queer bias at Washington Preparatory High School, the site of the harassment recounted in the Ramirez case. Additionally, given perceptions in some communities of color of queerness as a White phenomenon (Hutchinson, 1997), were there any White students among those who belonged to the GSA (listed as a plaintiff in the case) or who became targets of anti-queer bias at Washington Prep? If so, how did their presence shape attitudes toward queerness within the predominantly racial minority school setting? At a school where most of the employees were Black or Latino/a (California Department of Education, 2012a), what were the racial identities of any staff members who tried to advocate for queer acceptance, and how (if at all) did their race shape the institution’s responses to them? Delving even deeper, to what extent was the harassment and violence recounted in Ramirez attributable to what Collins (2005) has described as the pressure in communities of color to defend heteronormative constructions of Black and Latino respectability? How can district mandates for antihomophobic sensitivity trainings succeed in predominantly racial minority settings if parents, guardians, and other community members, as in similar cases (Snyder, 2006a, 2006b), oppose queer inclusion in schools? As all of these questions suggest, it is not at all unreasonable to suspect that the anti-queer bias recounted in the Ramirez case could have been part of a larger racial project, one that delimited the boundaries of racial authenticity through homophobic surveillance. Legal discourses that have framed this lawsuit around sexual orientation have ineluctably precluded deeper investigations into the racial politics that may have helped to define this case. The racial positionalities of the student plaintiffs in Flores and Ramirez, along with the racial demographics of the schools and school districts cited in the cases, influenced the decision in this section of the article to pose speculative questions about the unspoken racial politics behind each lawsuit. Of course, further speculation could be devoted to other forms of difference and other systems of oppressive power that may have shaped the circumstances encountered by student victims of anti-queer bias, especially queer youth of color.14 Since queer youth of color negotiate multiple forms

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of difference—and may do so in any number of ways across any number of educational contexts—it is crucial that we start to question whether legal discourses on queer students’ rights are accounting for the complexities of the lived experiences of these youth. Failing to do so may leave intact a set of legal discourses that articulate queer students’ rights while reproducing the invisibility of queer youth of color.

ADDRESSING THE NEEDS OF QUEER STUDENTS OF COLOR Since the 1996 decision in Nabozny v. Podlesny, litigation against anti-queer harassment in schools has steadily spurred more and more districts across the nation to establish protections for students against discrimination on the basis of actual or perceived sexual orientation. The success of these lawsuits may help to explain the seemingly absent concern for the intersections of homophobia with multiple oppressions, focusing primarily on student victimization based on sexual orientation works. New legal precedents, hefty monetary settlements, revisions of district antidiscrimination policies, mandatory staff sensitivity trainings, and greater public concern for bullying prevention all speak to the favorable impact of efforts to use the courts to enforce student protections against homophobic harassment. Without dismissing these legal victories, this article questions whether these victories can benefit all queer students equally if those students are positioned differently within schools and society. Queer communities of color have repeatedly challenged antihomophobic political discourses that purport to serve the needs of all queers yet fail to acknowledge how those needs differ and diverge along race, class, and other axes of difference (Boykin, 1996; Hutchinson, 2000; Manalansan, 2003; Rodriguez, 2003). Similarly, this article raises questions about legal discourses on queer students’ rights to produce a fuller understanding of the potential needs of queer students of color. If race mediates these students’ encounters with homophobia as some of our questions suggest, then antidiscrimination policies and mandatory staff trainings may fall short of addressing these students’ needs if they do not account for the intersectional nature of multiple identities and multiple oppressions. Bringing an intersectional analysis of difference and power to legal discourses on queer students’ rights may also help to build stronger coalitions in support of these rights. As Hutchinson (1997, 2000) has noted, by failing to fully incorporate the multiplicity of identities that comprise queer constituencies, gay and lesbian legal discourses have constructed a queer subject that is ostensibly White and middle class. This White, middle-class queer subjectivity has been reinforced by comparisons in gay and lesbian legal discourses between Black civil rights struggles and gay civil rights struggles—comparisons which situate Blacks and gays as separate entities and, thus, cast gays as White. As Hutchinson asserts, the construction of a

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White, middle-class subject in gay and lesbian legal discourses has reinforced Black perceptions of gays as White, socioeconomically privileged, and for all intents and purposes, members of the ruling class. An intersectional analysis of difference and power in legal discourses on queer students could help to disrupt this divide by acknowledging that these students come from diverse racial, class, and cultural backgrounds—or in other words, that they belong to all of us—and therefore could benefit from the support of their multiple communities. Throughout this article, the case for considering the salience of race in legal discourses on queer youth was made through a speculative mode of knowledge production. It should be noted that this speculation was supported by frequent references to scholarly sources that describe the social and historical racial realities that inform the questions that were posed about the potential significance of race. Reiterating Harper’s (2005) contention, the type of speculative knowledge that is used in fields like Black queer studies is not arbitrary, but rather responsive to the material conditions that have obfuscated other forms of knowledge production on marginalized sexualities. This article’s speculations over the intersections of race and sexuality were rooted in careful considerations of social and historical contexts. Still, it is possible that in some of the legal cases reviewed in this analysis, race may not have been a major factor. While extensive bodies of scholarship across multiple academic disciplines would protest any assertion of race’s complete irrelevance in the experiences of queer students of color, it is imaginable that in some instances of in-school harassment, the homophobic contempt for queer difference may be a stronger driving force than the White supremacist contempt for racial difference. Unfortunately, we cannot determine if this is the case unless we actually ask questions about homophobia, White supremacy, and other forms of power that may converge in acts of discrimination against queer youth of color. This is perhaps the biggest contribution of this article—the suggestion that it is important to ask questions about the intersections of identities and power that seem to have been overlooked in legal discourses of queer students’ rights. Only when educational stakeholders begin to ask questions about these intersections will we begin to develop a clearer picture of what forces shape the discrimination experienced by queer students of color, and what legal strategies, policy protections, and institutional practices may help us to effectively address those forces so that we can serve the needs of all queer youth in America’s schools. 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, 2012, p. 742).

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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, 2008), 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 (1998) description of cultural intuition in Chicana feminist epistemology, Somerville’s (2000) 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 (2009) 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, 2012; Grady, Marquez, & McLaren, 2012), 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, 2011). 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, 2010; Yoshino, 2011). However,

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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-onstudent 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, 2010), 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, 1989). 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.

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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 2) 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.

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