Law is intensifying within economically advanced democracies across the globe (Reference GalanterGalanter 1992; Reference DeweesDewees et al. 1991). As Reference KaganKagan (2001:6) has noted, this growth stems from deep-seated features of modern industrialized societies—technological change, global competition, geographic mobility, and environmental degradation—that produce unforeseen social and economic dislocation, threats to health and job security, and clashes among cultural and ethnic identities. These risks, in turn, often generate conflicting political demands, as those who embrace change seek rights of inclusion, political access, and economic opportunity, while others who fear change demand legal shelter from new threats and harms. Legislatures and courts both in the United States and abroad have tended to respond to both sets of demands, providing layer upon layer of rights and legal protections (Reference KaganKagan 1995, Reference Kagan2001; Schuck 2000:42).
The social consequences of this intensification of law, however, are unclear. They depend on the extent to which all this law filters into the nooks and crannies of social life. And as several decades of law and society research have shown, the relationship between law on the books and law on the streets is almost never straightforward. The proliferation of legal commands, then, returns us to one of the classic questions in sociolegal studies: how does law change society?
This article takes a fresh look at this question, bringing together two lines of research that have often ignored one another: one in political science on the mobilization of the law, the other in sociology on the diffusion of organizational practices. We draw our insights from six original case studies of the response of diverse public and private sector organizations within a single community to the accommodation regulations in the Americans with Disabilities Act (ADA; 1990) and related state laws, as well as interviews with lawyers, architects, consultants, and disability rights advocates.
We found that, despite differences in the specific rules governing the organizations in our study, key interpreters of the law within these organizations articulated a similar understanding of the rules: namely, the ADA and related state laws required them to make reasonable accommodations to people with disabilities. When pressed, they demonstrated little detailed understanding of the rules, including possible exceptions or defenses to the ADA's broad accommodation mandates.
While personnel across organizations shared a similar conception of the law, their organizations encountered the ADA in different ways. Some were forced to respond to an ADA-based complaint, others had to fulfill ADA regulations in order to receive a building permit, and still others experienced the ADA only as a generalized legal threat or a potential source of litigation. We found that these different modes of exposure to the law combined with the organizations' resources to produce different styles of response to the ADA. We label these styles rights practices. These practices varied across two dimensions: (1) the degree to which the organizations were proactive (anticipating problems) versus reactive (addressing problems as they arose), and (2) the degree to which the organizations were cooperative (attempting to work with claimants to find solutions to access issues) versus minimalist (seeking to meet only the basic legal requirements as they understood them). The diversity of organizational responses underscores the importance of combining political science and sociological perspectives on law and social change and the need to gain a subtler understanding of how law is both mobilized and internalized.
To develop these arguments, this article situates our approach in the literature, explains the case selection, and sets forth our findings. It concludes by sketching out some of the broader implications of our cases and suggesting several lines of future inquiry.
Law and Social Change
Under what conditions does law change society? For many years, this question was framed as an issue of social control through individual compliance. The “deterrence” model, rooted in economics, suggests that people obey the law when the perceived costs and probability of punishment outweigh the cost of compliance (Reference Paternoster and SimpsonPaternoster & Simpson 1996; Reference NaginNagin 1998). Norms-based models, grounded in social psychology, suggest that people comply when they find the law's commands to be fair and appropriate (Reference Tyler and HouTyler & Hou 2002; Reference TylerTyler 1990; see also Reference Kagan, Skolnick, Rabin and SugarmanKagan & Skolnick 1993). But for the law we are interested in, the ADA in particular, and more generally the proliferation of legal rules that has characterized post-industrial societies, these approaches seem limited.
First, both approaches attempt to explain individual-level behavior in a world in which most law is aimed at organizations. The ADA, for example, regulates businesses, nonprofits, and government agencies; individuals are affected only through their roles in these organizations. Because organizational behavior is not simply the sum of individual behaviors, and because organizations have properties that do not easily map on the self-interest/norm dichotomy, theories of organizational response to law are required (Reference Edelman and SuchmanEdelman & Suchman 1997).
Second, these approaches tend to focus on formal compliance: the extent to which individuals adhere to the letter of the law. To understand the social response to complex statutes such as the ADA, though, formal compliance is a limited concept. It suggests that the statute has a single, clear, and unimpeachable meaning, so that we can easily judge compliant and noncompliant behavior. But legal texts are notoriously indeterminate, and one major feature of the intensification of law is conflict over their meaning. Title III of the ADA, for example, requires places of public accommodation to remove physical barriers to access for people with disabilities if this is “readily achievable” (42 U.S.C., Sec. 12182(b)(2)(A)(iv))—a phrase that obviously allows multiple interpretations. Moreover, in the United States' fragmented system of governance, no single entity has a monopoly on interpretation; courts, agencies, and local officials all have a voice in saying what the law is. Outside of government, organizations and individuals offer their own interpretations, which themselves have social impact (Reference Burke, Miller and BarnesBurke 2004). (The literature on “legal pluralism” and “legal consciousness” beyond the formal institutions of law is vast; see, e.g., Reference Ewick and SilbeyEwick & Silbey 1998.)
Under these circumstances, it would be arbitrary to pick one interpretation and label all competing interpretations as “noncompliant.” Moreover, even if measuring formal compliance were unproblematic, it would not capture the full range of responses to law. Some organizations respond by mounting a political or legal campaign against the law, others ignore it, others comply in symbolic but not substantive ways, and still others still take measures that go “beyond compliance” (Reference GunninghamGunningham et al. 2003). Theories of social response to law must take into account the full range of organizational actions. Thus both deterrence and norm-based theories of compliance are insufficient for understanding how (and why) organizations respond to law.
The political science literature on the mobilization of the law is more immediately useful. It treats the law as a tool to achieve social change and evaluates legal effectiveness against goals articulated by advocacy groups or researchers. The aim of this literature has been to identify the conditions under which law is successfully mobilized, with some disagreement about what constitutes “success” (compare Reference McCannMcCann 1996 with Reference RosenbergRosenberg 1996).
Perhaps the most prominent example is Reference RosenbergRosenberg's widely cited book The Hollow Hope (1991). Although typically noted for its controversial conclusion that the Supreme Court's desegregation and abortion decisions achieved little, Rosenberg's chief goal is to identify conditions under which litigation is likely to affect significant social change. He points to the existence of (1) well-established legal precedent, (2) substantial support from the other branches of government and the relevant local communities, and (3) positive incentives for compliance, such as opportunities for government funding, or (4) the substantial likelihood of sanctions for noncompliance, such as a credible threat of administrative action or litigation.
Other political scientists have added to this list, detailing further conditions under which litigation is likely to affect significant social change. Some stress how litigation can be used as a tactical resource in combination with other activities, such as grassroots organizing, to build pressure for change. The standard version of this argument sees rights as a means by which political entrepreneurs, such as the National Association for the Advancement of Colored People, can bypass captured and unresponsive branches of government to obtain favorable policy reforms (Reference PeltasonPeltason 1955; Reference VoseVose 1959; Reference KlugerKluger 1975; Reference Feeley and RubinFeeley & Rubin 1998; Reference FrymerFrymer 2003). Others maintain that the threat of litigation—and the resulting uncertainty—can reshape the political landscape in specific policy areas by redefining the understanding of the underlying issues (Reference McCannMcCann 1994; see also Reference CasperCasper 1976; Reference MuirMuir 1973) or shifting the playing field among the relevant interests (Reference MelnickMelnick 1994). These changes, in turn, can result in opportunities for political mobilization and coalition-building, which can be parlayed into progressive action.
Taken together, this literature suggests that the law is likely to have little social effect without organized and effective mobilization (Reference EppEpp 1998, Reference Epp2001)—though debate persists on which strategies are most likely to be effective.Footnote 1 Because the cost of mobilization for individuals is often high and the rewards unclear, it is not surprising that most potential litigants forego claims and “lump it” (Reference Miller and SaratMiller & Sarat 1980–81). Indeed, in one study of the ADA, of 60 people with disabilities interviewed, not one had brought a formal claim, even though the interviews disclosed many instances of rule violation (Reference Engel and MungerEngel & Munger 2003). Even where individuals do bring claims, their efforts are likely to be clumsy and disorganized, dissipating the potential for social change—a dynamic reinforced by the decentralized and internally fragmented nature of the American civil justice system (Reference RosenbergRosenberg 1991). Those individuals who do achieve success in mobilizing the law are often bought off by defendants in confidential out-of-court settlements, limiting the impact of their victories. Laws are only likely to have social impact where potential claimants organize into “repeat-player” groups that can advance claims strategically (Reference GalanterGalanter 1974; see also Reference Kritzer and SilbeyKritzer & Silbey 2003).
Political scientists who write about the mobilization of law rarely even cite research from neo-institutionalist sociology.Footnote 2 Neo-institutionalist sociologists return the favor. Yet in some respects these two lines of research usefully complement each other. Political scientists have tended to focus on the mobilizers of law, while neo-institutionalist sociology (now in fact more than two decades old) looks at diffusion from the receiving end, examining the ways in which organizations absorb technological innovations, managerial techniques, changing social norms, and legal mandates.
Neo-institutionalism, then, confronts fundamental issues of stability and change within social organizations that are central to our inquiry. It is particularly interested in isomorphism, the tendency of organizations in the same field to adopt similar practices and structures (Reference DiMaggio and PowellDiMaggio & Powell 1983; Reference Powell and DiMaggioPowell & DiMaggio 1991). DiMaggio and Powell find three mechanisms of isomorphism. Coercive isomorphism occurs when organizations respond to direct demands or pressure from outside actors. Normative isomorphism occurs when organizations draw on large cultural or value orientations, often taken from professional bodies or associations, as a model for activity. Finally, mimetic isomorphism occurs when organizations duplicate—or mimic—the behavior of others within their sector.
Law is only one of many homogenizing forces that neo-institutionalists reckon with, and the treatment of law in some institutionalist work is formalistic; law is often conceived simply as a set of definitive commands and thus a source of coercive isomorphism. But in the hands of Edelman and her colleagues, neo-institutionalism becomes a much more supple approach to understanding organizational responses to law. Law, Reference Suchman and EdelmanSuchman and Edelman argue, does exert pressure on organizations, but “primarily by redefining the normative value of old practices or by creating the cognitive building blocks for new ones” (1996:929–30). Accordingly, law does much more than coerce otherwise involuntary behavior; law facilitates and constitutes practices, providing a “cultural toolkit” that organizations use in figuring out, for example, how to hire and fire employees and what represents “good” practices (Reference Edelman and SuchmanEdelman & Suchman 1997). Here, Suchman and Edelman join neo-institutionalism to the older institutionalism embodied in the work of Reference SelznickSelznick (1949, Reference Selznick1957), who also took a strong interest in the role of norms in the life of organizations as against bureaucratic procedures and material interests.
This conception of law has naturally led these scholars to focus on noncoercive modes of rights diffusion. Thus Edelman and her colleagues published a series of articles describing ways in which organizations have responded to antidiscrimination laws, even in the absence of enforcement actions (Reference EdelmanEdelman 1992; Reference EdelmanEdelman et al. 1999; see also Reference Scheid, Suchman, Schutt and HartwellScheid & Suchman 2001). Confronted by civil rights laws, with their uncertain mandates, some early responders hit on the idea of creating specialized “Affirmative Action Offices” and “Equal Employment Opportunity (EEO) Policies.” This response was then diffused as professionals within these offices talked about them at conferences and professional journals. Mimetic isomorphism ensued; later responders found it safe to simply copy the formal practices of early responders. And courts recognized these responses as legitimate, thus cementing their acceptability (Reference EdelmanEdelman 1992). The creation of EEO officers, meanwhile, constructed a new kind of professional who embodies and develops new norms and at least attempts to diffuse them through the organization. In this process of normative isomorphism, professionals are not just passive receptacles of law but active agents, who construct its meaning (and its ends) as well as advocate for change within the organization (Reference EdelmanEdelman et al. 1999). Institutionalism, then, moves beyond political science accounts of social change through law to investigate the ways in which law lives within organizations, even in the absence of external mobilization.
This article seeks to combine insights from political science and neo-institutionalism to provide a fuller account of how law can promote social change. This is a daunting task, and the current article is only a first step, one that seeks to explore uncharted empirical territory and generate new hypotheses. The main contribution is to show how different pathways of diffusion combine with organizational attributes to shape rights practices, organizational behaviors, and procedures that reflect decision makers' understanding of rights and legal obligations.
Case Selection
Why study the ADA? Why study a specific community? And why choose specific organizations within that community for exploring patterns of diffusion and rights practices? We address each question in turn.
Why Study the ADA?
The ADA provides a promising vantage point from which to study what rights do, simply because it tries to do so much. Enacted in 1990, the ADA is a remarkably broad, ambitious statute. It prohibits discrimination against people with disabilities in a vast array of social settings, from bars and bakeries to parks and zoos. According to one estimate, the ADA regulates more than 600,000 businesses, 5 million places of public accommodation, and 80,000 units of state and local government (Reference WestWest 1994).
The ADA is probably most noted for its role in regulating employment, but this article focuses on its provisions governing access to facilities and programs. Title II covers access to governmental programs, requiring states and localities to make their programs and services equally available to disabled and nondisabled people. Title III regulates accessibility in places of public accommodation operated by nongovernmental entities. It requires “readily achievable” removals of physical barriers and “reasonable modifications” to programs and services that would otherwise screen out people with disabilities. In addition, both titles create accessibility guidelines for the construction or remodeling of facilities. Both titles also have an array of defenses and exceptions, making the application of the law to particular facilities complex—and subsequent federal court rulings have added further complexity.Footnote 3
At least for the disability activists who campaigned for it, the ADA does not stop at physical and program requirements; it also seeks to promote the sweeping goal of consciousness change, an objective that for the disability rights movement is just as important as the formal regulations in the law. For these activists, the ADA is premised on a “social model” or “rights model” of disability, which stands in stark contrast to the dominant view, which sees disability as a tragedy for the individual, one that inevitably limits one's life chances. (Disability theorists label this the “medical model” of disability because, as with sickness, it locates the problem of disability in the individual.) Under the social model, people with disabilities are disabled not by their impairments, but by structural barriers and prejudicial attitudes. Thus the basic, taken-for-granted arrangements of society should be seen as discriminatory because they fail to take into account the full diversity of human beings—the fact that some of us get around on legs, and others on wheelchairs, for example (Reference Gliedman and RothGliedman & Roth 1980; Reference Hahn, Gartner and JoeHahn 1987; Reference KempKemp 1981; Reference BickenbachBickenbach 1993). The activists who helped draft the ADA hoped it would create an inclusive society by inspiring judges and other implementers of the statute to redistribute resources, restructure institutions, and transform attitudes about disability.
Of course, the members of Congress who voted for the law likely had more modest ambitions, and there is no reason to take the activists' views as authoritative. Indeed, there is an ongoing struggle over the meaning of the ADA (Reference KriegerKrieger 2003; Reference Burke, Miller and BarnesBurke 2004). But the fact that at least some viewed the law as a tool for changing consciousness makes the ADA a particularly enticing case for exploring the diffusion of rights.Footnote 4 It means that, in assessing organizational response to the ADA from the perspective of activists, we must go beyond merely judging brute physical facts—whether a ramp has been installed, or a doorway widened—to consider the ways in which organizational interpreters think and act as they encounter disability.
Why Choose “Shady Grove”?
To begin to explore how the ADA's formal requirements filter into organizational practices, we sought to study a wide range of organizations within a single community. This allowed us to roughly hold constant a number of community- and state-level variables that the literature suggests may exert an influence on the mobilization of rights and diffusion of organizational practices, such as local demographics, the presence of political entrepreneurs, political culture, local and state legal policies, and the concentration of lawyers (see generally Reference EppEpp 2001).
When considering specific sites, we sought a community in which a high level of rights activity was likely, so that we might observe rights at work across a variety of organizational environments within the community. We selected a small city, “Shady Grove,”Footnote 5 which is wealthy, well-educated, liberal-leaning, mostly white, and professional. Shady Grove's prosperity is boosted by a local university, Shady Grove University, and by a range of high-technology companies. According to the Martindale-Hubbell lawyer index, Shady Grove has at least 30 law firms that specialize in civil rights and at least two that specialize in litigation under the ADA. (These are lower-bound estimates because not every firm is listed in Martindale-Hubbell, but it is the best available index at the city level.) In addition, Shady Grove is located in a region with many supports for disability litigation, including two nationally prominent disability law organizations. Finally, Shady Grove is in a state with strong disability rights statutes that supplement the ADA and so make disability rights litigation easier and potentially more rewarding than in states with weaker laws.
We would never claim that Shady Grove is representative of American communities. To the contrary, we sought out a community that is most likely to have active rights practices because we were interested in the variance in rights practices and modes of diffusion across diverse types of organizations. As a result, the distribution of rights practices observed in our cases may be skewed toward more coercive modes of rights diffusion. However, at this stage in the project, we were not interested in recording the relative frequency of patterns of diffusion or rights practices. We were seeking to identify patterns of diffusion at the community level and tracing how these distinct patterns of diffusion interact with organizational attributes to shape rights practices.
Why Choose Specific Organizations?
To observe the contours of the landscape of the diffusion of rights and rights practices, we wanted to select organizations in which the likely paths of diffusion would vary the most. Neo-institutionalist research has shown that the degree to which an organization participates in the public sector affects its responsiveness to new rules. Because government agencies or entities that receive government funding are more exposed to state pressure, more dependent on public support, and more imbued with the culture of rules, they are said to respond most aggressively to new laws. Less “exposed” organizations, such as small businesses that do not contract with the government, are likely to lag (Reference EdelmanEdelman 1990).
We were also interested in how differences in capacity affected response to law, so we included both large and small businesses. Finally, the neo-institutionalist literature suggests that practices are diffused through professional networks (Reference Dobbin and SuttonDobbin & Sutton 1998), so we picked businesses that varied from highly isolated to highly networked, either through professional associations, franchise agreements, or local business groups.
Given these criteria, we studied the following six organizations, listed in order from the largest, most well-connected organizations with close ties to the public sector to the smallest, most isolated, privately owned businesses:
1. Shady Grove University, which is a large, privately owned institution that employs thousands of workers and has strong linkages to the public sphere through its reliance on federal and state research grants.
2. The city government of Shady Grove, which, as a municipality, is both a mobilizer of rights and a target of rights claims.
3. The Snow White Motel, which is owned by a family that runs several motels, including at least two motels that are in national chains, and that is a member of a range of professional associations and social networks related to the hotel business. (We refer to these properties collectively as the Snow White Motel Group.)
4. The Superstar Motel, which is part of a national chain with strong ties to its corporate office but whose manager reportedly has few associations with local or professional groups.
5. Silver Rentals, an independent, family-owned truck rental business, which is a member of the local Chamber of Commerce and several professional associations, but is largely a stand-alone operation.
6. The Mayflower Motel, which is owned individually and run by a manager, who reportedly has little contact with professional or community associations and few contacts with social networks related to the hotel business.
(An Appendix briefly lays out our approach to studying each organization and describes our data sources.)
Findings
Overview
Because the ADA has separate rules for governmental and nongovernmental organizations, and because the strictness of the rules is in principle limited by an organization's resources, we might have expected organizational officials to invoke these and other distinctions in explaining their responses to the law. In fact, key interpreters of the law within the organizations shared a common conception of ADA's accommodation requirements. All explained that the law requires their organizations to make reasonable accommodations to people with disabilities. When asked to elaborate, these actors demonstrated little familiarity with the rules beyond this general mandate, including possible exceptions or defenses to these requirements.
So, for example, Shady Grove University had a number of older buildings and sites that were potentially exempt from the ADA as historic landmarks. Instead of explaining that these buildings were potentially exempt, the compliance officials indicated that the older buildings on campus were given the highest priority for renovation because they posed the most difficult access issues. Similarly, city officials never made the distinction between access to public programs and access to public facilities, though Title II, the provision covering states and localities, has strict standards for one and little regulation of the other. Meanwhile, small business owners and property managers did not seem to understand that the law offers potential defenses against particularly costly or difficult accommodations. Rather than invoking these defenses, organizational interpreters invoked the basic principle of reasonable accommodation.
Given this shared understanding of the law across organizations, one might expect to find analogous experiences and responses to the law. But we did not find evidence of similar patterns of mobilization of rights or convergence—isomorphism—in organizational response. Instead we found variation in both how organizations were exposed to law and how they responded to it.
The ADA had stimulated some kind of a response in five of the six organizations, even though only one had been the target of rights-based litigation. What caused the others to react? In all the organizations, individuals perceived the ADA as an ongoing general threat, though they had only a vague sense of the specific requirements of the law and the potential costs of a lawsuit. Some organizations encountered the ADA as a regulatory hurdle that had to be met, typically as part of what they described as a nonadversarial building planning process. And, as discussed further below, the managers of the Snow White Motel Group and the Superstar Motel found the ADA embedded in franchise agreements and enforced by company inspections. Table 1 summarizes the observed exposures to the law.
Table 1. Variation in Exposure to the ADA by Type of Organization
Note: italics = Public or closely linked to the public sphere.
The mode of exposure to the law was apparently significant because it corresponded to how the organization responded. Organizations that had faced explicit, adversarial legal threats—either as rights-based litigation or as a contractual remedy—adopted a proactive style of rights practices, meaning that these organizations created routines that anticipated legal problems. By contrast, those that had not experienced an explicit adversarial threat tended to adopt a reactive style, meaning that they would wait until a specific set of regulatory requirements were triggered or an informal complaint was registered. As detailed below, Silver Rentals was particularly noteworthy in this regard. The company had not been threatened by an ADA lawsuit or any other adversarial threat, and it adopted a reactive style of rights practices on disability access issues. Silver Rentals had, however, been sued in tort and reported a highly proactive style of rights practices on tort-related matters. Table 2 summarizes these findings.
Table 2. Variation in Style of Rights Practices by Explicit Threat
Closer inspection of the specific organizational responses to the ADA suggest that the intensity of rights practices—the extent to which rights practices are cooperative or minimalist—seemed to relate to the resources of the organization. Smaller, less-networked organizations with fewer resources tended to rely on outside expertise to address specific legal problems. They would act on what they were told were the minimum requirements under the law and go no further. Larger, more-networked organizations with greater resources, by contrast, responded to the law by creating internal capacity for dealing with disability issues, which seemed to engender responses that actively sought to help claimants find solutions to access problems. Combining this insight with the earlier findings yielded four distinct organizational/legal mobilization profiles that correspond to four distinct styles of rights practices, which are summarized in Table 3.
Table 3. Four Legal Mobilization/Organizational Profiles and Corresponding Rights Practices
Four Types of Rights Practices: A Closer Look
This framework of rights practices located in specific organizational settings has important consequences for understanding the impact of law at the grassroots level. To understand these consequences, it is useful to examine the texture of the rights practices in each cell of Table 3, beginning with the style of rights practices most likely to advance the ambitious goals of disability rights advocates—proactive, cooperative practices.
Proactive, Cooperative Rights Practices
When the ADA was enacted in 1990, the university reportedly had no written procedures or staff for addressing the concerns of the disabled community. The university had made some effort to comply with Section 504 of the Rehabilitation Act of 1973, but that compliance was described as “minimal.” Soon after the passage of the ADA, the university was confronted with a confluence of external and internal pressures for change. A professor with a disability became a voice for disability access on campus. An organization of disabled students was created; it conducted protests to pressure the administration for improved accessibility. Students filed complaints with the Office of Civil Rights at the U.S. Department of Education. Meanwhile, the University happened to be in the midst of a major renovation project that included some 300 buildings, half of which had been built more than 100 years ago. This renovation project triggered a series of regulatory proceedings under the state and local building codes, which, in turn, involved the university in a constant round of permitting applications and building inspections.
As with the large bureaucracies that Edelman and her colleagues have studied in their research on civil rights law, the university responded by creating specialized offices dedicated to disability access issues. The offices were highly professional. The directors of each office had advanced degrees—one had a law degree, the other a Ph.D. in clinical psychology—and extensive experience in the field. Staff members—almost all of whom had a disability—typically had advanced degrees and specialized skills and expertise, such as training in learning disabilities, translating text into Braille, or media services.
With professionalization came the formalization of procedures. Both offices have detailed written procedures for dealing with access issues, which are available online and by request. Both offices had these materials at their fingertips, and one provided glossy brochures that state the policies and services available on campus.
These professionals, however, went beyond the formalization of practices. Indeed, simply analyzing formal procedures would provide a very limited understanding of the university's rights practices, because the university professionals extended themselves beyond the requirements of their own formal requirements and procedures. They walked through facilities themselves (often with students or staff members with disabilities) to assess whether the needs of the disabled community were being met. They searched the Internet for compliance strategies, although they felt that they were well past “basic” access issues (suggesting that they were on the cutting edge and had little to learn from other organizations). They sought alliances from outside the university. Indeed, one director described working with a disability advocacy group in bringing a lawsuit against the university for greater accommodations in standardized testing.
Most important from the perspective of disability advocates, these actors seemed to have had internalized the social model of the ADA. Throughout the interviews, they described themselves as partners of the disability community who shared the broader goals of disability rights advocates—as opposed to agents of the university, whose job was to minimize compliance costs. As such, they saw their main challenge as not only bringing the university into formal compliance but also changing the attitudes of members of the university community. They wanted the rest of the community to adopt the social model, to see the remaining barriers to access as offensive as the “colored drinking fountains” of the segregated South.
Of course, rights talk is one thing; rights practices are another. Indeed, it is easy to dismiss these claims as self-serving. Nevertheless, the evidence suggests that the university was not merely engaging in cheap talk. At the time the university began professionalizing its staff for dealing with disability issues, it committed $5 million to improve access on campus and had recently spent millions more on a state-of-the-art center for people with disabilities on campus.
In addition, if the university was seeking to minimize its compliance costs, one might expect it to find ways to avoid expensive retrofitting of its older buildings, especially those that might be eligible for historic landmark status and thus exempt from the ADA. However, detailed inspections of key campus facilities—including the main parking lot and entry, the entrances to every building on its historic main quad, the undergraduate library, the bookstore, the main auditorium, the food court, and the church—indicated that the university had made a substantial investment. Most buildings had entrances with ramps, curb cuts or their equivalent that were clearly marked. (Both the accessible entrances were marked and there were indications to accessible entrances at non-accessible ones.) A majority of the buildings on the historic quad—which were the oldest buildings on campus and thus presented significant challenges to providing access—had been retrofitted with automatic doors, and there were unobstructed pathways from designated parking areas, which were located throughout the campus.
The point is not that the university had addressed every issue—it had not. A few buildings lacked easily accessible entrances, and the food court's tables were arranged in a manner that prevented wheelchair users full access. However, especially when compared to the other organizations, the university had clearly made strides toward opening its facilities to those with disabilities and had the staff and organizational capacity to continue to improve access, even if some areas of concern persisted.
The proactive, cooperative style of this organization is clearly the best scenario for the disability advocates who campaigned for the ADA. Indeed, we interviewed one savvy disability rights attorney who had made this scenario the goal of her mobilization strategy. The attorney used a preemptive strategy that has become a model for some civil rights attorneys, of approaching large businesses informally, typically writing letters that offer to work with the organizations to improve their practices (Reference SturmSturm 2001:539).Footnote 6 The threat of litigation and negative publicity, however, is never far from the discussions. The lawyer argued that the key is finding the “right” person inside the organization, meaning someone who will internalize the social model perspective and serve as an advocate within the organization. For example, when this lawyer asked a large bank to install “talking ATMs” for blind people, there was some initial resistance, but the lawyer was able to persuade a human resources officer to accompany a blind person on a bank visit. After the visit, the officer “got it,” meaning that the individual realized that the access issues were significant and that the bank could meaningfully reach out to the disabled community by installing talking ATMs. According to the lawyer, the bank initially agreed to appear at disability conferences to stay out of court. But now, the attorney contends, the bank officer is a leading advocate within the banking community who regularly appears at conferences and conventions arguing that talking ATMs should be the industry standard, even though the customer base that needs these machines is reportedly of negligible size.
Proactive, Minimalist Practices
Some of the businesses we studied experienced the ADA as an adversarial threat, although not necessarily through litigation. Similar to the university, these organizations adopted proactive rights practices but lacked the resources to create a professional staff dedicated to disability access issues. In the absence of a professional staff that could become internal advocates for rights and could import new normative understandings of what are “good” practices, the organizations adopted standards developed by outsiders. They then followed these procedures “by the book” in order to avoid sanctions.
In the cases of the Superstar Motel and the Snow White Motel Group, the legal threat did not directly come from rights advocates or lawyers, as typically envisaged in the political science literature, but rather from the chain structure of ownership, which turns out to be an important medium by which disability rights practices are diffused. Motel and hotel chains typically use a franchise structure; the chain provides services, advertising, and its name to the individual owner. Under this structure, legal commands are filtered through the organizational network. Thus, the central chain provides instruction for meeting legal mandates such as those in the ADA. Chains send out training materials for staff, standards for the assistive devices required under the law, and even checklists for motel managers to follow.
At the local level, the method of enforcement was not litigation. Instead, both managers described a regime of surveillance by the chain that was rooted in the contractual obligations under the franchise agreement. Each year, the president of the chain-owned facility would visit, and the manager said that the president always asked to see one of the “ADA rooms.” Both managers said that chain officials would occasionally conduct surprise inspections, though neither mentioned receiving such a visit themselves. For the manager of the chain-owned facility, the Superstar Motel, surveillance was seen as a matter of monitoring the performance of an employee and was backed by the threat of dismissal. For the manager of the chain-associated facilities, the Snow White Motel Group, surveillance was seen as part of the chain management's strategy to protect the value of its brand. The implicit threat was that the chain management would dissolve the franchise agreement and perhaps pick another facility in the area. This threat always loomed behind the relationship between owner and chain management. As one manager noted, the chain used the threat of dissolving the franchise agreement to “cram [these practices] down our throats.”
As part of this regime, the Superstar Motel manager or his staff inspected rooms each day, checking off required items, such as whether the visual alarms required in the ADA rooms were in working order. The manager evidenced little understanding as to why these items might be important, other than it was “in the book” of standard operating procedures and that the chain placed a premium on literal compliance with its standard operating procedures.
Snow White was not part of a chain, but the group that owned Snow White operated chained motels as well. The manager of this group, who was a professional and had recently received his MBA, noted that information absorbed from his chained motels informed practices in his unchained properties, so that the chain interpretation of the ADA had become an important influence on his operation. This manager, like the other motel managers we interviewed, had never consulted a lawyer for an interpretation of the ADA but had relied on information from the chains and from motel and hotel associations. The manager indicated that he planned to institute these proactive procedures at the Snow White Motel, including disability access review, which the group used at its other facilities. The ultimate issue for him was one of the bottom line: namely, whether it was financially better to raze the Snow White and build a new facility or spend the money to bring it up-to-date and to the level of his other properties. Access issues were merely a part of that cost/benefit analysis.
Reactive, Cooperative Rights Practices
In contrast to the university, the city of Shady Grove reportedly had never faced a rights-based lawsuit, and the ADA coordinator for the city was worried only “a little” about a suit. According to the interviewees, the city's main impetus for responding to the ADA was the promise of federal dollars for providing accommodations; the city had to create an “inventory of needs” in order to file a federal grant application and found a coordinator for the task. In fact, Title II regulations promulgated by the Justice Department require public entities of Shady Grove's size to designate an ADA coordinator (28 C.F.R. 35.107), though this was not mentioned by the interviewees, and we could not determine what role the regulations played in Shady Grove's creation of a coordinator. In any case, the city, unlike the university, did not develop its response in the shadow of litigation or political mobilization.
Instead of hiring a new, professional staff, as the university had done, the city assigned existing staff additional responsibilities. Thus it designated its chief building officer as the city's ADA coordinator and added disability access issues to the list of facility managers' responsibilities, without providing any specific training to these employees. The city had no written policies or procedures specific to disability rights, though federal regulations require public entities of Shady Grove's size to “adopt and publish grievance procedures” (28 C.F.R. 35.107). Nor were there any processes for taking stock of problems or trying to anticipate new ones.
The absence of formal procedures or proactive measures, however, did not mean the city ignored disability access issues. It simply addressed them on a case-by-case basis in response to individual complaints—a finding that resonates with other studies of the provision of public services at the grassroots level (Reference Maynard-Moody and MushenoMaynard-Moody & Musheno 2003). Under this approach, the city officials described themselves as service providers who worked with individual complainants to resolve particular disputes, even if these resolutions required city officials (in their estimation) to make considerable efforts.
A few examples should illustrate the point. In one case, a woman with severe back pain wanted to attend a city theater production but could not sit in the seats provided. The ADA coordinator indicated that they had a standing arrangement with her, in which she would call in advance and they would wheel in a bed. Note that the city did not provide seating that could accommodate people with back pain, and it did not publicize the accommodation; rather, it came to an understanding with an individual willing to take the initiative and make a request.
In another case, a wheelchair user left a complaint in a city facility's suggestion box. The complaint indicated that the wheelchair user's path was obstructed, but it did not indicate the specific barrier. Instead of inspecting the facility personally, the manager posted a general notice on the Internet for the person to make further contact. When the wheelchair user initiated no follow-up, the issue was dropped.
The interviewees did provide one example of the city acting without a specific request, but in that case, the city stumbled on the problem by accident. Specifically, the city's Human Rights Commission scheduled a retreat at a local park, which was supposed to have accessible bathrooms. It did not. The commission moved to fix the bathrooms at the specific location, but it did not act to review facilities at other parks.
Unlike the university officials, the city officials had only partly adopted the social model of the ADA. On the one hand, the ADA coordinator did indicate that some problems involved a lack of understanding within the community and it was part of the city's job to raise consciousness (and to provide access). So, for example, the coordinator described how the children's museum had tried to exclude an autistic child from its facility because the child was seen as too disruptive. The coordinator indicated that the city was willing to hire experts to educate the museum about how to be more aware of the issues involved and cope more effectively.
However, unlike the university compliance officers, the city officials were just as likely to relate stories of what they saw as illegitimate or trivial complaints. The ADA coordinator mentioned by example the disabled person who requested every year to play in the city's competitive baseball league, even though his disability limited his abilities to run, throw, or bat; the individual, the coordinator pointed out, could participate in a recreational league that was open to all.
In this environment, rights practices involved the provision of individual services upon request. From the perspective of the city officials, this mode of rights practices required the city to help find solutions to specific problems. According to key interpreters of the law, officials tried to bend over backward to work out individual solutions—but their case-by-case, individual service model of rights practices fell short of the social model envisaged by the advocates of the ADA.
Again, one might dismiss these descriptions as self-serving. Admittedly, it was difficult to confirm whether city officials were exaggerating their practices in specific cases because the city's rights practices were so ad hoc. However, it would be equally difficult to characterize the city's efforts as only cheap talk. Inspections of a number of city facilities, including the main library, courthouse, and city hall, confirmed that considerable resources had been spent on improving access by providing ramps and lifts for entrances, signage, and compliant bathrooms. Moreover, the library provided extensive access to its programs through the Internet and patron services over the phone, which arguably relieved it from modifying its library buildings. Nevertheless, the city did not stop at improving program access; it spent resources to enhance the accessibility of its main library facilities as well.
Reactive, Minimalist Practices
Like any small city, Shady Grove has a large number of independently owned small businesses—the proverbial “mom-and-pop” establishments—that are not part of a chain. Silver Rentals and the Mayflower Motel fell into this category. Silver Rentals has been operating for more than 50 years in Shady Grove. By all appearances, it was thriving—its facilities were spotless and in good condition, it had recently added 15 vehicles to its fleet, and business seemed brisk. Its owner was a member of the Chamber of Commerce and a number of business associations, which addressed issues of legal compliance (but typically focused on environmental compliance issues).
Silver Rentals offered an interesting case because it had not faced an explicit adversarial threat with respect to the ADA. It had, however, faced tort suits. Its reaction to these different sets of legal requirements was strikingly different. With respect to the ADA, Silver Rentals described what we call reactive minimalist rights practices. Disability rights simply were not a priority. There was no staff with expertise on the ADA or related state laws; there were no written policies, training, or manuals on disability issues. As one interviewee said, “We are not actively pounding the turf looking for things.”
That is not to say that Silver Rentals never confronted access issues or that the law never forced significant behavioral modifications. When the company remodeled its facilities, it was forced to change its plans to include accessible bathrooms. In this sense, the law did coerce Silver Rentals to change its actions. However, these changes were reportedly made as “part of the planning process,” which was described as nonadversarial. Moreover, the changes were based on the advice of an architect and building designer—litigation and lawyers played no direct role in the decision (although the business had a lawyer on retainer). Put differently, whereas the motel owner described the accommodation requirements being forced on him, the owner of Silver Rentals described a process of working with experts to meet a checklist of requirements. After consulting with its planners, the owner made the recommended changes needed to obtain a building permit and moved on. No subsequent efforts were made to improve access beyond these changes or make further accommodations.
The president of the local Chamber of Commerce believed that this experience was typical of its membership: namely, that disability issues were a low priority among the small businesses in Shady Grove and that access issues were typically addressed, if at all, in connection with remodeling and the application of building codes. (The president knew of no cases of litigation and only one dispute that could result in a lawsuit.) When members did inquire about building codes, the chamber referred them to the appropriate city officials and told them that public spaces had to meet accessibility requirements because “that's the way it is” (and not because the rules were needed or advanced important values).
Compare this style of rights practices to Silver Rentals' attitude toward tort law. In the past, the owner had faced a number of tort suits, which resulted from accidents involving the business' rental vehicles. Although Silver Rentals was absolved of any liability in each case, the owner described tort as casting a long shadow over the daily operations, stating that “we spend our lives around here thinking about what's an attorney going to think of this or what's a lawyer going to make of that. … It rules your business.” This suggests that, with respect to tort law, Silver Rentals was proactive, even though its rights practices remained informal.
In contrast to Silver Rentals, the Mayflower Motel seemed to be struggling. Its facilities were in poor condition, the parking lot was empty, and the manager described business as “very bad.” The manager had been asking the owner to renovate “for years” so that it could better compete, but to no avail.
The manager stated that the motel had no designated rooms for the disabled community and had no accessible bathrooms, and that the rooms were not wheelchair-accessible because the doors were elevated six to eight inches from the walkway. If asked for an accommodation, the manager would show the person a room and, if the person was not comfortable, send the person elsewhere. There was no staff with expertise on the ADA or related state laws; there were no written policies, training, or manuals on disability issues. Although the manager had heard of the ADA, she was the least familiar with any lawsuits brought under it, despite the fact that the manager herself was a person with a disability. The motel was the least affected (and most isolated) of all the organizations we studied. It did not have the resources or the immediate need to address its access issues and had no plans to do so. In the words of a leading compliance consultant, this organization was an “ostrich”—it had a fuzzy idea that the law required it to accommodate people with disabilities and was waiting for something bad to happen (with its head in the sand).
Discussion
These case studies have potentially broad implications for the literature on social change through law. Although political scientists emphasize organized mobilization of the law, only one of the pathways we have observed involved adversarial group mobilization. In the other cases, alternative mechanisms of diffusion predominated. The rights practices created by the central offices of motel chains diffused through the industry. Design consultants, hired for remodeling projects, seemed to have significant influence, while lawyers—at least at the level of the regulated organization—seemed entirely absent. Thus chain offices and design consultants may turn out to have more influence than lawyers in interpreting the ADA's accommodation requirements. Further research should explore the process by which chains diffuse their legal understandings and how nonlawyers at the local level develop their interpretations of the ADA.
Even in the absence of litigation or a group mobilization effort, it is clear that organizations responded to the law in significant ways, some costly. Thus, Silver Rentals changed its building plans and now provides accessible bathrooms because of the planning process. The Superstar Motel has daily room inspections to ensure that vital safety and access features are in place; the city has evolved an informal system to respond to a host of individual requests for accommodation and has invested in improving access in a number of buildings. In these ways, the law has mattered, even where litigation was not directly involved.
The finding of organizational response in the absence of litigation is important. In Shady Grove, we found little evidence that groups had tried to mobilize the ADA's accommodation requirements through the courts. Shady Grove may not be alone in this respect. Reference ColkerColker (2000), reviewing published federal ADA cases decided between June 1992 and July 1998, found 620 ADA cases, but only 25 based on Title III. Reference MezeyMezey (2004) found 247 published federal Title III cases through 2001 (see more generally Reference ColkerColker 2005; Reference MezeyMezey 2005).
Of course, published cases represent just the tip of the disputing pyramid; many more Title II and III claims are likely being brought and settled before they even reach filing, as has been documented for Title I cases (Reference MossMoss et al. 2001, Reference Moss2005). But Title I cases, compared to Title II and Title III claims, have the prospect of large monetary awards and so are far more attractive to private litigants.Footnote 7 This means that Title II and III claiming is likely much more dependent on public interest and government-based mobilization. At the national level, there are only a handful of public interest firms that litigate ADA cases. The Justice Department has brought Title II and Title III claims, but like the public interest groups, it has limited resources and many other responsibilities. Numerically, much Title III litigation is conducted by “strike suit” lawyers who bring hundreds of small claims, attracting negative media attention. The strike suit lawyers can make money by using the attorney fee provision in Title III, or by collecting small damage awards under state laws (Reference Van VorisVan Voris 2001; Reference HellerHeller 2005; Reference JohnsonJohnson 2004). Their lawsuits can have influence—several of our interviewees mentioned hearing of strike suits in other parts of the state. But because they are not primarily motivated by social change goals, are often restricted to particular regions, and are not conducted in a systematic way, it is hard to gauge their effect.
The presence of litigation, while not necessary to stimulate an organizational response, still made a big difference. In the case of the university, litigation was an integral part of creating an internal organizational system that created the most proactive and systematic rights practices among our cases.
Equally important, we found that litigation was not the only means of adversarial mobilization of the law's accommodation requirements. The aggressive use of contractual remedies served as an alternative means of pressuring organizations to adopt rights practices. Specifically, for franchisees at the local level, the threat of surprise inspections and the withdrawal of a franchise seemed to engender a vigilant, although formalistic, type of rights practice.
In the absence of specific adversarial mobilization of the law, the impact of the ADA was uneven. Thus the city provided accommodation to individuals but offered little to those unwilling or unable to complain. Planning processes delivered whatever was recommended by architects and planners but little else, and, according to a leading consultant, local architects and planners were often poorly informed about the law's requirements.
We found examples of isomorphism, but in contrast with the neo-institutional literature on diffusion, the cases did not point to an overall convergence in organizational response to the ADA. The mechanisms of isomorphism were most prominent among the motels. The chain structure was an engine of coercive and mimetic isomorphism, diffusing rights practices through the industry in part through the threat that insufficiently attentive operators could lose their affiliation, and giving even nonchained motels a handy template. In the case of the talking ATMs, we found that the explicit threat of rights-based litigation, coupled with a sophisticated organizational strategy, could also be a source of coercive and normative isomorphism.
But in the other cases we had to dig to see examples of mimetic or normative isomorphism as it is described in the literature. The city coordinator's study of the ADA was ad hoc; he never attended professional conferences or publications, and he seemed to consult a variety of sources. Nor was the city likely to be a source of isomorphism. Considering the entirely informal and particularized nature of the city's response to the ADA, it is hard to imagine how others could meaningfully copy its rights practices.
Similarly, the university did not seem to learn from other organizations; it developed its own capacities. Officers had checked the Internet and other sources but determined that they were of limited value because the university, in the judgment of key interpreters of the law on campus, had moved beyond basic access issues. One might argue that the university, with its formalized policies, procedures, and training as well as its immersion in professional and public networks, could be a source of significant isomorphism, an example of the state of the art. Certainly it would be easy for other institutions to copy the university's manuals and policies. But they would have difficulty importing its rights practices. Those practices had become so highly specific to the needs of the university that one wonders whether they could be meaningfully exported. The broader point is that convergence of formal practices may be misleading because, just as the law can take on different meanings in different settings, so too can formal organizational policies.
Conclusion
As Reference GerringGerring has powerfully argued, research designs involve the difficult choice between “knowing more about less and knowing less about more” (2004:348); any design can be both defended and criticized along these lines. Overall, this study chooses to know more about less. It delves into six organizational responses to similar conceptions of the law within a single community. The cost of pursuing analytic depth is an inevitable loss of breadth, which limits the ability to make strong claims about whether the lessons learned from these specific cases will apply with equal force in other settings or even other issues under the ADA and related state laws.
Yet by tracing diverse organizational responses within a single community to a substantively similar understanding of important laws, we have found intriguing patterns. These patterns, in turn, suggest new hypotheses about how different combinations of legal mobilization and organizational capacities relate to specific types of rights practices. Based on these cases, one would expect that when organizations with high internal capacities are faced with adversarial modes of legal mobilization, they are likely to develop proactive, cooperative rights practices over time, meaning practices that seek to anticipate problems and help claimants find solutions to problems. When such organizations do not face adversarial modes of legal mobilization, one would expect reactive practices, although the ad hoc responses to specific problems may be cooperative. When organizations with limited internal capacities face an adversarial threat, the cases imply that proactive rights practices will emerge but the organizational response will tend to be minimalist, reflecting their understanding of the law's minimum requirements. Finally, in the absence of an explicit adversarial threat or high organizational capacities, one would expect the law to have little effect on organizational practices.
Obviously, further research is needed to test and refine these hypotheses. However, even at this stage of the analysis, these findings underscore the need to combine political science and sociological approaches to studying law and social change, and cast doubt on simple dichotomies of compliance/noncompliance, change through deterrence/change through norms, and mobilization/nonmobilization. We think these dichotomies fail to capture what is going on when organizations respond to law. Indeed, even the more supple categories of neo-institutionalists need to be extended and qualified. The presence or lack of a compliance officer, or of written policies, reflects only a small slice of the range of organizational responses to the ADA, and not necessarily the most significant part. Unless we pay attention to these complexities, we will fail to understand—and perhaps even seriously distort—the social impact of laws such as the ADA.
Appendix
In conducting our case studies of organizations, we engaged in the following steps. First, we developed a list of possible organizations and contacts using local phone books and various online sources.
Second, we made initial contacts, asking if they would participate in our study and, if so, who was in charge of access issues for people with disabilities. (In every interview, we asked if there were others within the organization whom we should interview. Through this type of snowball sampling, we were able to identify and interview the network of personnel who may have served as interpreters of the law in these organizations.)
Third, after obtaining appropriate consents, we conducted interviews with our subjects. The interviews were structured on a common set of questions and lasted from 20 minutes to more than an hour (with most interviews lasting about 30 to 40 minutes).
Fourth, whenever possible, we examined the organizational written policies and media accounts of any access issues that may have arisen in the past. To probe the validity of assertions that organizations had adopted proactive and/or cooperative rights practices, we inspected their facilities, especially facilities that posed difficult access issues or might be subject to exceptions to the law's accommodation mandates. Thus the case studies reflect a mix of data sources, including interviews, content analyses of documents, and site inspections.
There were 22 participants in the study. At the university, we were told that two offices were in charge of ADA compliance. One office addressed student and faculty access issues; the other addressed public access issues. We interviewed both officials in charge of these offices and obtained the university's written policies. Unfortunately, we were not able to gain access to the staff of these offices or students or faculty with disabilities. We were, however, able to gain extensive access to its facilities for inspection purposes.
Initial contacts for the city all identified the designated ADA compliance officer as the key figure for the city's access issues. We interviewed that official. In addition, we interviewed the head staff member for the city's Human Rights Commission, which served as an ombudsman for the community and occasionally addresses access issues. We also interviewed personnel who managed a range of city facilities, including office space, parks, a community center for the elderly, and the main library.
In the small businesses, we interviewed either the owner or property manager at the sites. In addition, we interviewed the following subjects: the president of the local Chamber of Commerce; several lawyers who had brought ADA-based lawsuits in the area, including a lawyer for one of the leading disability rights advocates in the country and a solo practitioner; and several leading design consultants.
Finally, in order to develop a list of access issues for inspection purposes, we began with a document on the Justice Department Web site (http://www.usdoj.gov), entitled “Checklist for Readily Achievable Barrier Removal.” Two groups developed the checklist: Adaptive Environments Center, Inc., and Barrier Free Environments, Inc. Using this document, we developed a list of access issues for wheelchair users that would apply to a wide range of facilities. With the help of a leading disability advocacy group in the area, we distributed a list of questions about the relative importance of these items to wheelchair users. These participants were active in the disability rights movement and varied based on the type of chair they used, age, gender, and ethnicity. Once we collected and analyzed their written answers, we convened a roundtable discussion with these wheelchair users, which lasted about 45 minutes. After this discussion, we developed an inspection checklist, which is available upon request from the authors.
