Legal Mobilization and Policy Enforcement: A Tale of Two Policies and Two Movements?

Scholars have long debated the role of social movements in changing policy outcomes – whether and how do they matter. Policies can also create political opportunities for social movements. Policies empower historically disadvantaged groups and provide them with the tools and resources to mobilize their rights. Indeed, as David Meyer put it, scholars often grapple with the “chicken-and-egg” problem of policy and mobilization; that is, which comes first? Thinking about this alleged paradox raises questions about the role of social movements following legislative “victories.”

“Ambulance chasing” as legal mobilization?

The Americans with Disabilities Act (ADA) is seen as an important victory for the disability rights movement after a long struggle for a comprehensive civil rights law protecting persons with disabilities form discrimination. Unlike the Rehabilitation Act (whose Section 504 was the first truly rights-oriented language in American disability policy), whereby political entrepreneurs had much more to do with constructing and shepherding the policy that subsequently lead to the rise of the modern disability rights movement, key movement figures were much more aware and active in the politics leading up to the ADA. Yet, although the ADA was drafted in 1988, signed into law in 1990 and took effect in 1992, my colleague, Michelle Maroto, and I were surprised to learn that employment rates and economic well-being among persons with disabilities have actually declined over the last 20 years. In drafting a manuscript on the subject, we essentially find two arguments seeking to explain the failure of this law: one claims that the ADA increased the cost of hiring persons with disabilities – unintended harms – so to speak; the other suggests that the ADA was never truly applied due to judicial resistance and narrow, illogical interpretations that favored employers over plaintiffs. Beginning in 2006, both activists and institutional entrepreneurs formally acknowledged the “failure” of the ADA (at least in improving economic conditions) through a set of hearings that would eventually lead to the ADA Restoration Act of 2007/2008. By and large, what was being restored was the intent of the ADA which had been undermined by the courts – the courts have historically not been champions of reasonable accommodation.