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«167 Making Way: Legal Mobilization, Organizational Response, and Wheelchair Access Jeb Barnes Thomas F. Burke Questions of how and why organizations ...»

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Making Way: Legal Mobilization, Organizational

Response, and Wheelchair Access

Jeb Barnes Thomas F. Burke

Questions of how and why organizations respond to legal rights are analyzed

in several sociolegal research traditions, including studies of legal mobiliza-

tion, regulation, and neo-institutionalist accounts of the diffusion of organiza-

tional structures. Using original qualitative and quantitative data, this article examines the responses of ten organizations to wheelchair access rights that are found in various provisions of the Americans with Disabilities Act (ADA) and related state laws. We find that concepts from each of the research traditions are useful in understanding the sources of variance in response among the organizations in our sample. We focus on four key variables: legal mobilization, commitment, professionalization, and routinization. We contend that these variables offer a relatively parsimonious language for studying organizational responses to the law and for aggregating insights from com- peting approaches in the literature, both of which are essential to advancing our understanding of the conditions under which law changes society.

Is seeking social change through law a hollow hope? This ques- tion has become a kind of crossroads, a potential meeting place for sociolegal scholars working in many traditions. Scholars of legal mobilization see law as a potential political resource and examine how activists use rights-based litigation as tactical leverage to force organizational change (Epp 1998; Frymer 2003; Goldberg-Hiller 2002; McCann 1994; Peltason 1961; Reed 2001; Rosenberg 1991;

Rubin & Feeley 1998; Silverstein 1996; Vose 1957, 1958), or how they use rights claims outside of formal legal settings (Engel & We first wish to thank the participants in this study. Many thanks also to Samuel Bagenstos, Lauren Edelman, Chuck Epp, Bob Kagan, Mark Kessler, and Susan Silbey for their comments during various stages of this project, as well as the participants of various panels on the study of rights who have greatly stimulated our thinking, especially Michael McCann and Jeffrey Dudas. Further thanks are owed to the anonymous reviewers and editors at Law & Society Review, whose insightful feedback significantly improved the manuscript. Any remaining mistakes and shortcomings are entirely our own. Finally, we thank the Robert Wood Johnson Foundation for its generous financial support through its innovative Scholars in Health Policy Research Program, which allowed us to embark on this challenging—but highly rewarding—project. Please address correspondence to Jeb Barnes, Department of Political Science, University of Southern California, Von KleinSmid Center 327, Los Angeles, CA 90089-0044; e-mail: barnesj@usc.edu and Thomas F. Burke, Department of Political Science, Wellesley College, 106 Central Street, Wellesley, MA 02481;

e-mail: tburke@wellesley.edu.

Law & Society Review, Volume 46, Number 1 (2012) © 2012 Law and Society Association. All rights reserved.

168 Making Way Munger 2003; Scheingold 2004). Neo-institutionalists explore how organizations internalize ambiguous legal requirements and translate them into templates for organizational responses, which are then legitimated and diffused (Albiston 2005, 2010; Dobbin 2009;

Dobbin & Sutton 1998; Dobbin et al. 1998; Edelman 1990, 1992;

Edelman 1997; Edelman et al. 1999; Epp 2009; Gould 2005;

Jenness & Grattet 2001; Kalev & Dobbin 2006; Kalev et al. 2006;

Scheid & Suchman 2001; Sutton et al. 1994). Scholars of regulation offer a parallel set of analyses of agencies, examining how enforcement practices affect organizational responses to law and exploring how attitudes toward the law within organizations affect organizational behavior (see generally Bardach & Kagan 1982;

Braithwaite & Ayres 1992; Coglianese 2001; Gunningham et al.

2003; Howard-Grenville, Nash, & Coglianese 2008; May 2004, 2005; May & Winter 1999; May & Wood 2003; Muir 1973; Reiss 1984).

We are enthusiastic readers of each of these strands of research, though we are often struck by their lack of engagement with one another. Perhaps that should not be surprising: scholars in these diverse traditions embrace fundamentally different conceptions of law and so have very different ideas about how to study it. For example, scholars who work on regulation, especially those in the law-and-economics and rational-choice traditions, tend to conceive law as prescriptive rules that legislatures, agencies, and courts send out to various targets. From this perspective, the central questions revolve around “compliance”: Under what conditions do the targets of the law follow the law’s requirements? When do they fall short? And why would rational organizations engage in costly “beyond-compliance” behavior? Many scholars working in the law and society tradition start from radically different premises, however. They embrace a much more fluid view of law, in which law is constantly constructed and reconstructed through human interaction. From this perspective, law is “all over” (Sarat 1990), made not just by formal institutions—legislatures, courts, and agencies— but by every person and organization that encounters it.

We value this fluid, decentered view of law. Law is rarely unambiguous in application; it must be interpreted—and the process of interpretation will inevitably be highly variable across settings and time. But the decentered perspective on law deeply complicates the task of the researcher. From this perspective, cause and effect are difficult to specify, thus rendering a simple, parsimonious account of the effects of law impossible (Burke & Barnes 2008; McCann 1996). Perhaps for that reason, much research in this tradition focuses on consciousness and discourse, downplaying or even eschewing any attempt to assess improvements in concrete social conditions (Did more minorities get jobs? Was the water cleaner?

169 Barnes & Burke Was the company safer?) that originally motivated the proponents of the law in question.

We worry about this tendency, because we believe the study of outcomes, however messy and labor-intensive, lies at the heart of understanding how and why law matters. Thus we would like to see research in this field combine some of the strengths of the varied literatures that contribute to it, retaining the fluid, decentered approach to law championed by law and society scholars and paying attention to the discourses that organizations and individuals use in interpreting law, while also observing the practices they engage in and the outcomes these practices create.

Neo-institutionalist scholarship on law has, to its credit, attempted to walk this line. It takes seriously the construction of law, and it has offered the most elaborate account of how legal rights are translated into organizational practices, as well as how they are diffused in professional and organizational fields. Yet neoinstitutionalism has also struggled with some fundamental issues.

The most prominent and influential studies of law in the neoinstitutionalist literature are analyses of how large organizations respond to civil rights employment law. This research typically relies on surveys or self-reports to measure what goes on inside the organization. This reliance, together with the ambiguity of outcomes in this area of law—what exactly counts as successful implementation of civil rights law?—intensifies the generic problem all scholars face in this area: the measurement of outcomes. From the beginning of neo-institutionalism, scholars have questioned whether the typical responses of large organizations to legal commands—creating offices and policies—are merely symbolic window dressing, “rational myths” that legitimate the organization while protecting it from significant change (Meyer & Rowan 1977).

Neo-institutionalists continue to wrestle with this question, sometimes quite cleverly (Kalev & Dobbin 2006; Kalev, Kelly, & Dobbin 2006), but largely in isolation from the other research traditions in this field of inquiry.

In this article, we seek to demonstrate how insights from the diverse literatures that examine law and social change can be brought together to better understand organizational response to law. We start from the law and society premise that law is constructed and reconstructed as it is diffused, but we believe that these highly contingent processes can give rise to stable practices that can in turn be correlated with specific outcomes related to the underlying goals of the laws. Our empirical focus, disability access rights, allows us to examine simultaneously how organizational leaders understand law alongside the tangible outcomes organizations produce. In probing those understandings and the practices that organizations engage in, we provide a set of variables that can be 170 Making Way incorporated into future studies that we hope will cut across various divides in the literature on law and social change.1 In this article we trace the responses of ten organizations to the right of wheelchair users to access to public facilities, which can be found in various provisions of the Americans with Disabilities Act (ADA) and related state laws. This right applies to public spaces, both governmental and nongovernmental, and requires organizations in some cases to rearrange their spaces so that wheelchair users can operate within them. Our analysis uses original qualitative and quantitative data that encompasses dozens of interviews and inspections of 161 facilities, which allow us to compare the self-reported responses of organizations that faced different levels of legal mobilization under the relevant access laws with the actual levels of accessibility at their facilities. Thus our data allow us to juxtapose what organizations say they do with the results they produce, which is critical to any account of how and under what conditions law matters.

We find that key personnel in organizations across our sample articulated similar understandings of wheelchair access rights, indicating that they believed they were under an obligation to make “reasonable” accommodations. Inconsistent with a rational-choice perspective on law, they demonstrated little understanding of the details of the access statutes, even potential defenses and safe harbor provisions that might have allowed them to avoid the law’s mandates and thus might have reduced the costs of “compliance.” Given their common understanding of the law—and the low cost of many strategies for improving access that applied to all of our cases—one might expect the organizations’ practices and outcomes to converge. Yet the opposite was true: the self-reported organizational responses and results we directly observed varied from those that did next to nothing and offered virtually no access to wheelchair users, to others that had spent thousands of dollars on efforts that clearly went well beyond compliance and resulted in high levels of access.

As discussed more fully below, we explore this puzzle by focusing on the interaction between legal mobilization—which occurs 1 In this attempt to draw from several literatures, we follow in the footsteps of Charles Epp, whose Making Rights Real (2009) traces the emergence of “legalized accountability” within municipal bureaucracies in several policy areas—a socially constructed paradigm for responding to the threat of various types of litigation—and, in a critical move, how legalized accountability and legal mobilization interact to yield tangible improvements in the areas of policing, sexual harassment, and playground safety. Epp’s book demonstrates how a professional field comes to adopt a model of legalized accountability as a response to law. Our project complements Epp’s because we study a field—disability access rights—that has no clearly articulated legalized accountability model. Partly because of this, our analysis focuses on a lower level of analysis, the organizational level, where in the absence of such a model organizations construct their own approaches to access issues.

171 Barnes & Burke when the organization has faced some type of enforcement action based on a legal threat—and three organizational response variables, drawn from the sociolegal literature, that have typically been studied in isolation.2 These variables are commitment, the degree to which organizational personnel who are primarily responsible for interpreting and implementing the relevant law embrace its underlying social goals; professionalization, the degree to which the organization has written procedures and policies related to the law, creates a formal office with responsibility for access law, and interacts with outside groups and experts to learn about the law and best practices; and routinization, the degree to which the organization’s consideration of the law’s underlying goals and purposes permeates the daily practice of the organization, so that planning and management incorporate consideration of those goals. By measuring each of these variables separately and examining their interaction, our data reveal intriguing patterns, although our sample is admittedly small.

In the following pages, we first define our key variables in light of the relevant literature and describe how we operationalize them.

We then set forth our research strategy, describe the range of organizational responses to law we observed, and detail how those responses relate to the accessibility of the organizations’ facilities.

We end by discussing our findings in light of the existing literature and suggesting further avenues of inquiry. We argue that our findings illustrate the promise of combining insights from political science, sociology, and regulatory studies, and of simultaneously studying how organizations interpret law and the tangible outcomes they produce.

Legal Mobilization, Commitment, Professionalization,and Routinization

Why do organizations governed by the same laws act so differently? Perhaps the simplest answer is that formal rules are not self-executing; they must be mobilized. Accordingly, we would expect that organizations facing greater levels of legal mobilization would respond more vigorously to the law’s demands.

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