Introduction
Rights have been at the core of law and society scholarship since its inception (Scheingold Reference Scheingold1974; McCann Reference McCann2014). Sociolegal scholars have identified social movements as key actors in the definition and implementation of new rights (Scheingold Reference Scheingold1974; Burstein Reference Burstein1991; McCann Reference McCann1994; Epp Reference Epp1998; Skrentny Reference Skrentny2002). This legal mobilization has both encouraged and been fed by fundamental social change, in terms of the changing social status of disadvantaged social groups such as women, racial and sexual minorities, and people with disabilities. Social movements have played a key role in inscribing new rights into law and public policy. They have deployed litigation strategies in order to make sure that these new rights were made effective in court decisions and to gain further rights recognition, and they have contributed to the diffusion of civil and human rights frames internationally (Heyer Reference Heyer2002; Merry Reference Merry2006; Barclay, Bernstein, and Marshall Reference Barclay, Bernstein and Marshall2009; Kelemen and Vanhala Reference Kelemen and Vanhala2010).
Social movements' rights advocacy has been one of the main focuses of sociolegal studies in the past decades (McCann Reference McCann and Sarat2004,Reference McCann2006b). This scholarship has covered a growing diversity of areas, and de-centered its focus from legal institutions, within the context of the development of legal consciousness studies. However, as far as the legal tactics under study are concerned, it remains excessively centered on litigation, to the detriment of the more discreet, day-to-day mobilization around the bureaucratic enforcement of rights.
To tackle this understudied dimension of legal mobilization, some clarifications are needed regarding the role of bureaucracies in relation to rights. In this article, I distinguish between three dimensions of the bureaucratic (non)enforcement of rights: allocation, process, and access. Although social movements' mobilization for due process and access to rights has been analyzed to some extent, their participation in bureaucratic rights allocation remains less documented.
Recent changes in disability policy in France provide us with an interesting opportunity to explore this dimension of movement participation. Disability policy in France has historically been first and foremost a social policy, based on socioeconomic rights, which are a key component of the French welfare state. This policy originated at the turn of the twentieth century, in the form of social rights granted to injured workers in 1898 as well as pensions, readaptation structures, and employment priority for injured soldiers in the aftermath of World War I. The provisions were gradually expanded to all disabled persons regardless of the origin of the disability, resulting in a first major disability law in 1975 (Paterson et al. Reference Paterson, Stiker, Chauvière and Barral2000; Stiker Reference Stiker2009). The law established a system of administrative recognition of the status of “disabled person” by committees at the level of each county (département); this administrative labeling as a disabled person opens access to procedural rights such as priority seating and parking, as well as social rights such as childhood and adult disability benefits. Administrative recognition as a disabled worker opens the right to be employed as part of the 6 percent employment quota, which also enables hiring firms to benefit from public funding in order to provide workplace accommodations.
In 2005, new provisions were added, reflecting a combination of this category-based conception of disability (rights associated with disabled persons identified as a distinct category of people) and the more inclusive model promoting equal rights and pointing to the role of the environment in the production of disability (Oliver Reference Oliver1990; Winance, Ville, and Ravaud Reference Winance, Ville and Ravaud2007). While maintaining disability benefits and employment quotas, the law of February 11, 2005 asserted the right to inclusive schooling, asserted the principles of nondiscrimination and accessibility of the built environment, and created a new right to compensation for the consequences of disability, which translated into a financial compensation of disability-related expenses by means of a disability compensation benefit (Prestation de compensation du handicap, PCH). These provisions can be theoretically analyzed as pertaining to conflictive policy models rooted in different definitions of disability: the individual, category-based definition as a basis for social welfare versus the social model of disability as a basis for antidiscrimination (Heyer Reference Heyer, Nielsen and Nelson2005). These different orientations of disability policy, however, coexist in France (Winance, Ville, and Ravaud Reference Winance, Ville and Ravaud2007). Moreover, because of their embedding in the broader tradition of social policy, measures such as disability benefits are typically seen as rights, rather than welfare provisions that would be contradictory to the expansion of rights.
The administrative implementation of disability policy was also reformed by this 2005 law, with the creation of county-level institutions conceived as one-stop shops, administering all disability-related provisions, the Maisons départementales des personnes handicapées (MDPH). For example, these institutions allocate disability benefits, decide what type of school a child may attend (mainstream school, in some cases with a fixed number of hours of individual or shared human help, or specialized “medical-educational” institutions), whether an applicant may be recognized as a disabled worker, access certain types of training, or apply to a sheltered workshop. Finally, and most importantly for our concern, the governance of rights allocation at the local level was modified by the 2005 reform: disability organization representatives were granted a third of the seats in the MDPH decision-making committees (the CDAPH, Commission des droits et de l'autonomie des personnes handicapées, or Disabled Persons' Rights and Autonomy Committee). The aim of this article is to analyze how members of disability rights organizations define their advocacy role within this institutional context.
This analysis is based on fieldwork I conducted as part of a collective research project on the implementation of disability policy in France. Coordinated by Pierre-Yves Baudot (Baudot et al. Reference Baudot, Duvoux, Lejeune, Perrier and Revillard2013), this project aimed at comparing the functioning of MDPHs in four counties (départements). Each researcher in the project focused on a specific set of actors involved in these complex local institutions (political actors, administrative staff, legal actors, civil society organizations, users). I was in charge of analyzing the participation of disability organization representatives in these institutions. The semistructured interviews I conducted in 2011–2012 with forty-six disability organization actors were mainly aimed at understanding how they practiced and viewed their role as representatives in the MDPH. Thirty-three of them were volunteers and thirteen of them were professionals working for the disability organizations.
The interviews took place on the premises of the different organizations, which helped put participation in MDPH decision making within the context of each organization and its other daily activities. The interview outline included questions regarding the history and local development of each organization, its appointment to the MDPH, and the professional/activist carrier of each interviewee. I then asked more specific questions about taking part in the CDAPH: how often they meet, how the meetings fit in the interviewee's schedule, how the meetings go, how the interviewee makes sense of his or her role in this committee. I coded the interview transcripts using Atlas.Ti. I also observed sessions of the “rights and autonomy committees” in three counties. Combined with these observations, the very open format of the semistructured interviews helped identify emerging themes such as the shift—which is described below—from advocacy on individual cases to a role of scrutiny and control of MDPH decisions.
Based on the observation that scholarship on legal mobilization remains court centered, the first part of the article maps out the role of bureaucracies in relation to rights enforcement, distinguishing between allocation, process, and access, and discusses how social movements intervene at these three levels, drawing on existing literature. The second section focuses on movement participation in rights allocation based on the case of French disability policy. I contextualize this new role allotted to disability organizations in the policy implementation process within the broader history of the institutionalization of these organizations in France. I then analyze the forms taken by rights advocacy within the committees in charge of rights allocation, focusing on the way rights are defined and the dilemmas created, for social movement actors, by the knowledge and experience of the limited means locally available to make rights effective.
Rights Mobilization beyond the Courts
While the research framing of legal mobilization scholarship has evolved from a focus on a movement's effect on rights to the reciprocal study of the effects of rights mobilization on social movements and individuals, the analysis of legal mobilization around rights enforcement tends to be restricted to litigation. De-centering the focus in order to include the bureaucratic implementation of rights sheds light on other aspects of social movements' commitment to making rights effective.
Social Movements, Legal Mobilization, and Rights
The starting point of the interest sociolegal scholars paid to rights and social movements was a very pragmatic one: To what extent and under what circumstances does legal mobilization make rights effective and improve the social status of marginalized social groups? This question was at the heart of Scheingold's preoccupation with the politics of rights: how does political mobilization around rights, notably by means of litigation, help make the “myth of rights” a reality (Scheingold Reference Scheingold1974, 5)? The same type of question was addressed by Burstein in his study of EEO litigation (Burstein Reference Burstein1991). Galanter also questioned the capacity of legal mobilization to reduce social inequalities by showing how “the haves come out ahead” (Galanter Reference Galanter1974). This focus on the effects of legal mobilization was closely connected to the founding question of sociolegal studies on the effects of litigation on social change and the transformation of social inequalities (Stryker Reference Stryker2007).
Research questions then gradually changed, and McCann's Rights at Work was pivotal in this evolution (McCann Reference McCann1994). Based on his analysis of mobilizations around equal pay in the United States, McCann insisted on the need to go beyond a measure of court decisions in order to assess the impact of legal mobilization. He notably stressed the importance of the symbolic effects of legal mobilization, showing thereby how this strategy may have social impact in spite of legal failure. This call reframed the question of the effects of legal mobilization in two main ways.
First, it contributed to opening a new area of research on the effects of legal mobilization on social movements: How does the use of legal mobilization strategies impact the movement and, reciprocally, what movement characteristics favor the use of these strategies? This question was, in a way, closer to the preoccupation of social movement theorists than the first one, which was more strongly influenced by the sociolegal question of the impact of litigation on social inequalities. As McCann stresses, “law provides both normative principles and strategic resources for the conduct of social struggle” (McCann Reference McCann and McCann2006a, xii), and these can be studied at various stages of the mobilization process (McCann Reference McCann and McCann1991). This led to studies of the organizational impact of legal mobilization on social movements, showing, for example, how this legal strategy induced the creation and development of organizations specialized in legal counseling and accompanying victims in filing lawsuits, and favored the leadership of these organizations within the movement (Manfredi Reference Manfredi2004; Levitsky Reference Levitsky, Sarat and Scheingold2006; Vanhala Reference Vanhala2009). Beyond litigation as such, the influence of rights discourse on the framing of social movement claims also was explored, as illustrated, for example, by Merry's research on the international impact of the human rights frame on NGOs' local advocacy (Merry Reference Merry2006) or Pedriana's work on the legal framing of women's movement's claims in the United States (Pedriana Reference Pedriana2006).
Second, McCann's insistence on the symbolic effects of legal mobilization strategies directed closer attention to rights consciousness at the individual and group levels. In Rights at Work, McCann (Reference McCann1994) shows how legal mobilization increases constituents' rights consciousness in spite of the lack of success of the litigation strategy. This attention paid to the impact of the mobilization on individual rights consciousness converged with the growing interest in legal consciousness within sociolegal studies, based on a constitutive perspective on law and society that also led to a de-centering from court actions and outcomes (Merry Reference Merry1990; Sarat Reference Sarat1990; Ewick and Silbey Reference Ewick and Silbey1998). The study of rights consciousness at the individual level, when connected to social movement research (which is not necessarily the case, as stressed by Marshall and Barclay Reference Marshall and Barclay2003), is useful in order to understand both the genesis and the outcomes of legal mobilization.
On the one hand, following a research venue opened by works on framing (Snow et al. Reference Snow, Rochford, Worden and Benford1986) and the emergence of disputes (Felstiner, Abel, and Sarat Reference Felstiner, Abel and Sarat1980), the analysis of the conditions under which individuals frame their difficulties in terms of rights infringements is essential in order to understand how social movements emerge and/or why the use of legal mobilization takes place (Fleury-Steiner and Nielsen Reference Fleury‐Steiner and Nielsen2006b). Following this perspective, studies of the absence of rights consciousness, such as Levitsky's analysis of the weakness of claim making in the field of health care and social welfare rights (Levitsky Reference Levitsky2008,Reference Levitsky2014), provide particularly interesting cases in point for the broader study of social movement dynamics. On the other hand, the study of rights consciousness sheds a new light on the outcomes of mobilization by social movements, showing how collective rights claims by social movements are (or are not) reflected in individual rights consciousness.
For example, Marshall considers employees' perceptions of sexual harassment, analyzing to what extent, among other frames, the diffusion of the feminist framing of sexual harassment is appropriated by individuals in the workplace (Marshall Reference Marshall2003). Engel and Munger analyze how the disability rights movement's promotion of a civil rights frame, which translated into the adoption of the Americans with Disabilities Act, influences the identity construction of people with disabilities, comparing life stories from three different generations of people (Engel and Munger Reference Engel and Munger2003).
As this overview shows, this body of literature focuses more on either the preconditions or the impact of legal mobilization by social movements than on the process of legal mobilization. In other words, both ends of the process have been more studied than the process itself, notably the definition of legal strategies and the choice of legal tactics (Jones and Marshall Reference Jones and Marshall2013). From this perspective, one striking feature of the study of legal mobilization so far is its focus on litigation.
The Court-Centered Study of Legal Mobilization
The growing influence of legal consciousness research in this body of scholarship has tended to shift attention away from legal institutions to issues of individual and group rights consciousness. Significantly, this has often been framed as a shift away from litigation and the courts. For example, when McCann opposes the use of formal legal institutions to the more symbolic dimension of legal mobilization in his seminal 1991 contribution “Legal Mobilization and Social Reform Movements,” he tends to equate “the state-sanctioned legal order” with “judicial confirmation”:
Each of these dimensions [of legal mobilization] involves litigation and other formal legal initiatives to some extent, but each also emphasizes the potential for movement mobilization of legal symbols, normative claims, and procedures as powerful resources that are not necessarily dependent on judicial confirmation. In other words, the approach outlined here emphasizes the way in which reform-oriented legal practices at once build on and yet remain relatively independent of, or even defiant toward, the official state-sanctioned legal order. (McCann Reference McCann and McCann1991, 231)
Similarly, Marshall and Barclay phrase the move from legal institutions to legal consciousness in terms of “decentering the courts,” implicitly associating legal mobilization with litigation (Marshall and Barclay Reference Marshall and Barclay2003, 619). Therefore, the de-centering from legal institutions also reveals their previous connection with the court system, and that of legal mobilization with litigation. Important works have also been devoted to legislative reform movements, for example, in the cases of gender equality (Mansbridge Reference Mansbridge1986; King, Cornwall, and Dahlin Reference King, Cornwall and Dahlin2005; Bereni Reference Bereni2015) and disability rights (Campbell and Oliver Reference Campbell and Oliver1996; O'Brien Reference O'Brien2001; Scotch Reference Scotch2001; Switzer Reference Switzer2003; Erkulwater Reference Erkulwater2006; Bagenstos Reference Bagenstos2009). However, the legal mobilization literature remains mainly focused on the courts.
This can be explained by the institutional and political context in which the study of legal mobilization developed. This body of research emerged in the United States, and prominently focuses on the United States and other common law countries, where the court system is core in both the production and the implementation of legal norms. To be sure, not all of the legal mobilization literature is US based (Israël Reference Israël2009). The call for internationalization has been made on several occasions by prominent authors, and it has been heard (McCann Reference McCann and McCann2006a; Nelken Reference Nelken2014). However, studies of legal mobilization in other contexts still tend to be court centered. For example, studies at the EU level mostly deal with antidiscrimination and EU litigation (Anagnostou and Millns Reference Anagnostou and Millns2013; Anagnostou Reference Anagnostou2014). This reflects the initial framing of this body of research by US-based studies.
This focus on the courts can be explained by their policy role in the United States. Burke convincingly demonstrates how courts have been put at the heart of policy implementation in the United States, taking part in what he calls litigious policy:
Litigious policies are laws that promote the use of litigation in resolving disputes and implementing public policies by (1) creating rights to sue, (2) lowering barriers to litigation, or (3) increasing the rewards of litigation. These policies produce an environment in which lawyers and legal concepts structure everyday practices and where the threat of a lawsuit always looms—even if, as is usually the case, no lawsuit is filed. (Burke Reference Burke2002, 4)
He shows that while they have deep roots in the US constitutional and political tradition, litigious policies have been particularly spurred by the development of tort law, the civil rights movement, and the Warren Court's expansion of habeas corpus rights. This more specific context, especially the 1960s civil rights revolution and its aftermath, was crucial in orienting legal mobilization scholarship toward the courts. Litigation was a prominent tactic of civil-rights-based social movements as of the 1960s, be it the civil rights movement or the feminist, LGBT, or disability rights movements.
The fact that the social movements that inspired this body of scholarship were civil rights basedFootnote 1 hints at another explanation for this litigation focus, which is the type of rights at stake. Defined as “constitutional or statutory guarantees of various protections from unfavorable or harmful treatment by private individuals or state actors,” civil rights, as Fleury-Steiner and Nielsen stress, “typically are enforced in the courts” (Fleury-Steiner and Nielsen Reference Fleury‐Steiner and Nielsen2006a, 1–2).
Civil rights have been at the core of social movement strategies. Moving from the acceptance of discrimination and/or the endorsement of protective legislation to the assertion of civil rights, inclusion, and antidiscrimination has had tremendous leverage in the status transformation of marginalized social groups, such as racial and sexual minorities, women, and people with disabilities (Heyer Reference Heyer2002).
However, civil rights are not the only type of rights, and they are not the only type of rights with which social movements are involved. Rights are not only based on antidiscrimination. As historical works on the genesis of the welfare state have shown (Skocpol Reference Skocpol1992), rights can also be grounded on logics of protection or compensation. The right to a maternity leave created in France at the beginning of the twentieth century was promoted by women's organizations based on a maternalist discourse, and on the part of the government and Parliament, its adoption derived from demographic concerns as well as a logic of (female) worker and children protection (Jenson Reference Jenson1989; Cova Reference Cova2000). Injured workers' rights to public pensions were initially based on a logic of individual compensation for collective occupational risks; the injured workers' organization (Fédération nationale des mutilés et invalides du travail) later argued in favor of the reinforcement of this right based on the idea that it materialized a collective “debt” of the nation toward workers, by analogy with the national debt toward injured soldiers (de Blic Reference de Blic2008).
As these examples suggest, and especially in contexts of strong welfare states such as in France, the enforcement of socioeconomic rights, often deemed “second-generation” rights, actually preceded in several instances that of “first-generation” civil rights for groups such as women and disabled people. For example, women obtained a legally ensured, paid maternity leave in 1913, three decades before they obtained the right to vote and be elected in 1944. Disability can be a source of socioeconomic rights such as disability benefits and the right to financial compensation for disability-related costs, even though the civil right to access the built environment, enshrined in the law of February 11, 2005, has recently been (at least temporarily) wiped out by the government.Footnote 2 This, of course, confirms the salience of the civil rights issue for disabled people in France, but it also shows that rights-based policy did not begin with the promotion of civil rights, but with the enactment and implementation of social and economic rights. While they may be criticized from a disability studies perspective for reproducing a form of segregation by distinguishing disabled persons as a distinct category and pushing them into a “poverty trap” (Stapleton et al. Reference Stapleton, O'Day, Livermore and Imparato2006), these nonetheless are rights, based on formal criteria of entitlement and guaranteed by the state, as opposed to a logic of charity and “favors” that previously prevailed in this sector (Buton Reference Buton2009).
This, of course, does not mean that these rights are automatically enforced. Their enforcement, and the possible discrepancy between the legally enshrined rights and those indeed allotted to individuals, must be subject to sociological investigation. The allocation of these rights represents the day-to-day activity of local administrations, not courts. Therefore, paying attention to other types of rights such as social and economic rights sheds light on other institutional settings in charge of rights enforcement, beyond the courts (Baudot and Revillard Reference Baudot and Revillard2014b). These include, for example, unemployment offices delivering unemployment benefits or social welfare offices allocating family and social welfare benefits (Dubois Reference Dubois2010). The following section maps out this bureaucratic implementation of rights and identifies how social movements mobilize at this level.
Bureaucratic Rights Enforcement: Allocation, Access, Process
The focus of legal mobilization research on litigation tends to let us forget that the rights claims that come to courts are the ones that have not been satisfied by other institutions more commonly in charge of rights enforcement. Rights are implemented by courts when plaintiffs claim they have been infringed. This sets aside the more common working of rights, their realization on a day-to-day basis within corporations, bureaucracies, families, personal relationships, and the like. To be sure, it also sets aside all the cases of rights infringements that do not get to court and/or remain unidentified as such, those that do not achieve the first two steps of the “naming, blaming, claiming” process (Felstiner, Abel, and Sarat Reference Felstiner, Abel and Sarat1980). But in all cases, it reminds us that other institutional settings impact the realization of rights. Social movements have influenced, and in some cases purposely targeted, them. For example, the increased reporting of spousal violence can be connected to its denunciation as an infringement on women's right to bodily integrity by the feminist movement.
The pressure of social movements has also influenced organizational practices, for example, in work organizations, regarding issues such as workplace discrimination and sexual harassment (Edelman Reference Edelman1990; Marshall Reference Marshall2005; Epp Reference Epp2009). Social movements' involvement in the defense of social rights implies that they are targeting bureaucracies, and not just courts: for example, feminist organizations providing legal information to women provide them with counseling not only in cases of employment discrimination, but also regarding how to claim maternity and parental leave and social welfare benefits. Disability organizations, as illustrated by the fieldwork behind this study, not only advise people with disabilities on filing discrimination suits, but also provide them with administrative information on how to submit a file to the local administration in charge of disability rights.
Our focus here is on this more discreet bureaucratic realization and infringement of rights and the way social movements impact them. To map out the role of state bureaucracies in relation to rights, it is important to recall the power relations at stake. Why is the analysis of rights of relevance in view of an understanding of the inequalities and power relations that structure societies and their transformations? One of the major inputs of law and society research lies in the framework it gives us to think about rights sociologically (Scheingold Reference Scheingold1974; Minow Reference Minow1987; McCann Reference McCann1994,Reference McCann2014; Skrentny Reference Skrentny2002; Engel and Munger Reference Engel and Munger2003; Fleury-Steiner and Nielsen Reference Fleury‐Steiner and Nielsen2006b; Merry Reference Merry2014). Rights matter because they impact two types of power relations: between individuals and the state, and between social groups. Rights are tools in the hands of individuals to resist state authority, and they can also function as means of social justice, impacting the redistribution of resources and power between social groups. They are “one vehicle by which groups can challenge structural barriers to advance substantive legal, political, social and economic equality” (Nielsen Reference Nielsen and Sarat2004, 63). These two dimensions are interconnected by means of the state's role in guaranteeing these rights (Baudot and Revillard Reference Baudot and Revillard2015).
Drawing on this dual characterization of rights, it can be inferred that bureaucracies contribute to the realization or infringement of rights in three main ways. First, they are in charge of the allocation of a certain number of rights, which totally depend on state authority for their administration. These include civil rights such as refugee status, citizenship, and voting rights, as well as social rights, such as family benefits or social welfare rights. These rights both empower citizens vis-à-vis the state and change the allocation of power and resources between social groups—defined in terms of class, race, and gender, if we take, for example, the case of social welfare rights or family benefits.
This allocation of rights generally follows a process of rights claiming by individuals: for example, a precondition in order to be granted refugee status is to file a refugee status application. Rights allocation does not necessarily follow: the other side of the allocation process is rights denial. The job of government agencies also consists in denying rights, as significantly summed up by Lovell's title This Is Not Civil Rights (Lovell Reference Lovell2012). This is also the case for some contemporary administrations described as particularly restrictive in terms of rights allocation, such as those in charge of stay permit allocation in France (Spire Reference Spire2008). Even in the case of administrations endowed with a mission of facilitating access to rights, part of their job consists in explaining to applicants why they are not entitled: it was notably the case of the former Médiateur de la République (now Défenseur des droits), which had a whole service devoted to turning down claims (Revillard et al. Reference Revillard, Baudot, Chappe and Ribémont2011).
The second dimension of bureaucracies' contribution to the realization or infringement of rights is procedural, and relates to due process within bureaucratic practices (Minow Reference Minow1987; Epp Reference Epp2009): To what extent are the rights of patients, inmates, welfare recipients, and school students respected throughout the daily proceedings of hospitals, prisons, jails, welfare offices, and schools? Here again, the action and proceedings of these public institutions may either further individual rights or infringe on them, with consequences for both these individuals' relations to the state and the power relations in between social groups. For example, when a child is denied a hearing before being expelled from a school (Minow Reference Minow1987), it is both an act of power on the part of the state against this individual and an expression of a power relation between adults and children in society.
Finally, bureaucracies may favor or block access to these as well as other types of rights. For example, welfare offices in France not only allocate welfare and family benefits in response to individual claims, but they also inform potential recipients regarding their rights and help them file the forms (Dubois Reference Dubois2010). Social workers help asylum seekers file their paperwork (James and Killick Reference James and Killick2012). In doing so, these bureaucracies both entitle and disentitle individuals to rights. Since they are meant to establish a match between an individual claim and a body of legally and administratively coded rights, the action of street-level bureaucrats takes the form of a screening process, opening venues of rights claiming to some and denying access to others. In other words, be it through allocation, process, or access, the realization and the denial of rights go hand in hand in the daily proceedings of state bureaucracies.
How are social movements involved in these three dimensions of bureaucratic rights enforcement? Mobilizations around access to rights and due process have been more studied than movement participation in the allocation of rights. Regarding due process, Epp documents the diffusion of “legalized accountability” within the bureaucracy as a result of the interaction between “activist pressure from the outside and reform ideas from the inside” (Epp Reference Epp2009, 3). Movement participation in access to rights also has been documented in cases such as housing rights, antidiscrimination, and rights for sex workers and undocumented migrants (Fischer Reference Fischer2009; Chappe Reference Chappe2011; Jakšić Reference Jakšić2013; Weill Reference Weill2014). One of the main conclusions of this literature is the proximity in the logics of interventions between social movement and administrative actors. Even though they enter this bureaucratic field with an advocacy perspective, having in mind the defense of individual rights, social movement actors are constrained in adopting the same type of screening logic as administrative actors, entitling some while disentitling others.
Mobilizations around rights allocation have been less studied than these around due process and access to rights. Some current transformations of French social policy, however, offer an interesting occasion to analyze this form of legal-bureaucratic mobilization. Indeed, a participatory system of rights allocation has spread since the 1990s in social policy, described in French sociological literature as social magistratures (Astier Reference Astier2000). In an increasingly individualized social policy system, social rights are to be allocated on an individual basis (Astier and Duvoux Reference Astier and Duvoux2006). Individual situations are to be evaluated based on a plurality of sources of expertise. In this framework, the final decision regarding rights allocation typically is made by a collective body including several different public actors as well as representatives of civil society organizations.
This policy context increases the autonomy of the local levels of government in “administering entitlement” (Rao Reference Rao2012). What has been described in political science as bureaucratic discretion (Lipsky Reference Lipsky1980; Weller Reference Weller1999; Maynard-Moody and Musheno Reference Maynard‐Moody and Musheno2003; Dubois Reference Dubois2010) is reinforced and transformed by these new institutional arrangements, with this unprecedented role allotted to civil society organizations in rights allocation. Civil society disability rights advocates are thus put in a position to influence bureaucratic discretion in the implementation of rights. While these social magistratures have been the subject of several studies, none has specifically focused on movement participation in these bodies (Astier Reference Astier2000; Weller Reference Weller2000; Bertrand, Caradec, and Eideliman Reference Bertrand, Caradec, Eideliman, Bureau and Sainsaulieu2011; Bureau and Rist Reference Bureau and Rist2013).
This is what I offer to do here, focusing on the case of disability rights: What forms does rights advocacy take in these institutional settings? How are these rights defined and promoted by social movement actors and, notably, following a driving question of the literature on legal mobilization, what role do legal norms plays as constraints and resources in defining them? What more specific dilemmas do movement actors face when participating in rights allocation? I address these questions based on a case study of the participation of disability organizations in the allocation of disability rights at the local level in France.
Disability Policy in France: A Case of Movement Participation in Administrative Rights Allocation
Following the 2005 disability policy reform, disability organization representatives were granted a third of the seats in the local committees in charge of the allocation of disability rights on an individual basis. The specific forms of rights advocacy that resulted from this participation cannot be understood without a broader view of the French disability organizations' preexisting institutionalization and their embeddedness in the local context of disability-related service provision. Indeed, unlike the common vision of institutionalization, in which participation in institutional dynamics represents a change from a previous more radical course of action, in the case of the French disability rights movement, participation in rights allocation occurs in the context of an already strongly institutionalized movement, and in the context of a movement also involved in service provision. These features contribute to explaining the forms of rights advocacy that unfold within committee discussions of individual claims, as well as the definition of a new advocacy role following the interiorization of institutional constraints.
Participation in Rights Allocation as a New Step in Movement Institutionalization
Whereas institutionalization is often thought of in terms of a radical, street-action-oriented movement entering institutions, the reality of the French disability movement is quite different. Its trajectory and characteristics must be taken into account when analyzing the role it has been endowed with in rights allocation and how it has endorsed it.
Disability organizations in France developed in the first half of the twentieth century, not as a civil rights, contentious, politics-oriented social movement, but as service providers and self-help groups. They were initially oriented much more toward their members than toward outside activism and confrontation with public institutions (Azéma Reference Azéma1999). Moreover, they offered services and created facilities before the state did. This history had two main consequences. First, when the state started intervening, contracting with associations to fund the existing facilities and services was a main form of intervention. Public authorities did not create their own public network of facilities and services, but relied on the existing ones managed by civil society organizations, in a process similar to that documented in other sectors of social policy (Barral Reference Barral2007; Lafore Reference Lafore2010). This resulted in a strong role devoted to these organizations in policy implementation, via service provision. As Barral stresses: “Combining the roles of founders, administrators, employers and beneficiaries of the institutions, associations manage eighty percent of the equipment, a virtual monopoly that sanctions their partnership with the government” (Barral Reference Barral2007, 220).
Second, forms of rights advocacy emerged in parallel with the movement's institutionalization as service provider. As opposed to the classic tale of social movement institutionalization, where contention and advocacy are followed by de-radicalization as tighter links are established with public authorities, in the case of the French disability movement, rights advocacy and institutionalization unfolded to a large extent in parallel as soon as organizations went beyond a self-help logic (Barral et al. Reference Barral, Paterson, Stiker and Chauvière2000). This history makes the relations between movement and institutions hard to characterize sociologically. The movement's role in service provision, that is, policy implementation and its high professionalization, as well as the strong links between movement leaders and public authorities at all levels of government, hint at an interpretation of movement-institution relations in terms of neocorporatism. However, this does not prevent this same movement from endorsing a more contentious stand at times.
For example, a regrouping of associations called Ni pauvre ni soumis (2008) (Neither Poor nor Submissive, a name that mimics the feminist organization Neither Whores nor Submissive—Ni putes ni soumises) was created in 2007 to demand an increase in the amount of the adult disability benefit (AAH). It organized a street demonstration in Paris on March 29, 2008, after several other demonstrations had taken place at the local level in the two previous months. Therefore, the same organizations may combine discreet lobbying tactics with more confrontational actions. Moreover, the neocorporatist interpretation is limited by the lack of unity of the movement (Baudot and Revillard forthcoming). Disability organizations have historically been impairment specific (with different organizations devoted to physical, visual, mental, and hearing impairments), and efforts initiated by state authorities as of 1975 to regroup them under the umbrella term “disability” had limited effects in counterweighing this logic (Paterson et al. Reference Paterson, Stiker, Chauvière and Barral2000; Stiker Reference Stiker2009).
The current reality of this social movement sector is the result of this specific history, and it impacts the forms taken by advocacy in rights allocation: a sector divided by impairments, dominated by large, highly professionalized, and reform-oriented organizations. They advocate for disability rights while being at the basis of policy implementation and maintaining a close relationship with public authorities at all levels of government.Footnote 3
The inclusion of disability organizations in the rights allocation process was part of a 2005 reform of disability policy. The 2005 “Law on the Equal Rights and Opportunities, the Participation and the Citizenship of Disabled Persons” (Loi pour l’égalité des droits et des chances, la participation et la citoyenneté des personnes handicapées) created a single administrative body in charge of the implementation of disability policy at the local level, the MDPH. Within this institution, conceived as a “one-stop shop,” individual applications are processed by administrative teams, but the final decisions are made by a committee whose twenty-one members include seven representatives of associations.
This disabled persons' rights and autonomy committee (CDAPH) is the final decision maker regarding the allocation of disability-related social rights, as well as applicants' eligibility for specialized institutions or services. For example, this committee makes the final decision regarding what type of school a child can apply to (mainstream school, in some cases with a certain number of hours of individual or shared human help, or specialized medical-educational institutions [institut médico-éducatif]). The committee also decides whether applicants may be recognized as disabled workers, which opens entitlement to workplace accommodations (Reconnaissance de la qualité de travailleur handicapé, RQTH), or whether they may receive disability benefits (Adult disability benefit [AAH], or Child disability benefit [Allocation d’éducation de l'enfant handicapé]).
Among many other responsibilities, the CDAPH is also in charge of defining entitlement to and the amount of a new benefit created in 2005 in order to cover part of the costs linked to disability, the disability compensation benefit (PCH): this benefit can be used, for example, to pay for a wheelchair or other type of technical equipment, for home improvement costs (when work is needed to make the home accessible), or for a home helper. This benefit materialized the introduction of a right to compensation, which was one of the highlights of the reform. While making the final decision regarding individual entitlement or eligibility to a broad spectrum of policy provisions, the MDPH is not in charge of implementing these decisions, which are implemented by other administrations and organizations (e.g., welfare offices, schools, disability services) (Baudot and Revillard Reference Baudot and Revillard2014a). In some cases, the rights notified by the MDPH are entitlements: for example, when a person claims a disability benefit to the local welfare office with a MDPH notification, the benefit has to be granted. In other cases, and notably regarding access to institutions and services, the MDPH only defines eligibility: actual access can be impeded by availability constraints.
The organizations represented in the rights and autonomy committees often are the same from one county to the other, and belong to national federations of associations, which are the most prominent voices of the movement at the national level, for example, Association des paralysés de France (APF), Union nationale des associations de parents, de personnes handicapées mentales et de leurs amis (UNAPEI), Union nationale des amis et des familles de malades mentaux (UNAFAM), Association pour adultes et jeunes handicapés (APAJH), and Association française contre les myopathies (AFM). Most of them manage facilities and services, and their boards are mainly composed of parents and close relatives of people with disabilities, as opposed to the latter themselves (they are organizations for, rather than of disabled people [Vanhala Reference Vanhala2011, 156]).
Exceptions notably include two mobility-impairment organizations, the APF and the AFM, as well as several associations (which often differ from one county to another) in the fields of hearing and visual impairments, in which people with disabilities themselves are more present. Hence association representatives in CDAPHs have very different profiles: some are professionals (none of the ones I encountered had any visible disability), others are volunteers, and include both people with physical or sensorial impairments and relatives (often parents) of persons with disabilities. Self-advocacy organizations in intellectual and psychosocial disability are very recent in France and, to my knowledge, not represented in these committees (the field is dominated by parents' organizations such as UNAPEI and UNAFAM). The committee therefore includes a mixture of volunteers and professionals, service providers and service users, DPOs and NGOs, people with and without disabilities.
Unlike the way the issue of representation has been framed by the disability rights movement in the United States, for example (Nothing About Us Without Us [Charlton Reference Charlton1998]), in the field of disability policy making in France there is strikingly little questioning of the legitimacy of people without any visible disability speaking in the name of people with disabilities. Moreover, the presence of professionals as well as volunteers translates institutionally the idea that the interests of service users could be conflated with those of service providers, which reinforces the observation according to which little institutional attention is paid to the representation of people with disabilities as such. While what follows is an attempt to characterize the participation of these representatives broadly speaking, these differences must be borne in mind, and they help explain different aspects of the forms of rights advocacy within these committees.
Representing one-third of the committee members, disability organizations are indeed in a position to influence the allocation of rights at the local level, even though they do not have decision-making power, being a minority. What forms does advocacy take in this particular context, which is strongly institutionalized and where the main official logic of action is the allocation of rights on an individual basis? This formal definition of the CDAPH's mission first invites us to look at the way disability organization representatives intervene during the discussions of individual applications. But the direct observation of the actual functioning of the committee, as well as the interviews with association representatives, also leads us to move the focus of analysis—as these civil society organizations themselves have changed their form of advocacy—from the involvement in the defense of each individual case to a mobilization aiming at the norms of functioning of the committee. Indeed, because of constraints tied to the number of individual files to process and the limited time spent in committee (constraints that are largely interiorized by association members themselves), only a small number of the applications submitted to the MDPH are actually presented in front of and discussed by the CDAPH. In this context, disability rights advocacy tends to take the form of the defense of a right of oversight on MDPH decisions, making the MDPH accountable, rather than actually participating in the decision-making process on each individual application.
Promoting Disability Rights in the Discussion of Individual Cases
Both the observation of interactions within the CDAPH and organization leaders' accounts of their participation in the committee provide useful elements for characterizing the form of rights advocacy within committee discussions of individual cases. The strong degree of conformity of movement actors to institutional norms (notably behavioral and speech norms) should first be stressed: disability organization representatives do not resort to confrontational, disruptive tactics, and their advocacy remains within the script of institutional participation.Footnote 4
Moreover, the main resource for rights advocacy mobilized by movement actors is not legal norms; it is their expertise on disability. However, fundamental rights also are invoked or referred to implicitly. Legal norms then function as both constraints and resources. Finally, rights advocacy in individual cases also confronts social movement actors with specific dilemmas due to their capacity to anticipate the consequences of their decisions: because they know to some extent whether the rights they allocate will be effective, they are confronted with the question of whether to confer fair or efficient rights.
Expertise in Support of Rights
In the semistructured interviews, when I asked volunteer association leaders about why participating in CDAPH meetings mattered for them, in the answers the switch from the lexical field of rights to that of expertise was very common:
Q: According to you, what does it bring to be present at the CDAPH? What is the interest for associations to be present in this type of instance?
A: The interest is the defense of people with disabilities. Well, I do not mean that they would not be well defended otherwise. If we weren't here, maybe it would work the same way, this is something we cannot say. But, well, we do see that on the applications we intervene on, we do bring in our knowledge, because not everybody is necessarily aware of everything, and it helps a lot. (President of the local branch of a disability organization specializing in physical impairment, January 2012)
Facing what they describe as a lack of expertise by MDPH technicians or other representatives in the CDAPH, association members put forward two types of knowledge. The first one is technical expertise, typically regarding the different types of equipment: for example, why such an expensive wheelchair is needed based on the person's impairment, or how such a hearing aid will help the applicant in his or her daily life. The leader of a local deaf people's organization comments on this technical input:
Within the CDAPH, I think association representatives have brought in skills that were specific to them. Let me give you an example. MDPH technicians, in general, knew very little about deafness. So regarding certain questions, they did not know how to proceed. The [MDPH] director had organized a meeting with us, with associations in the field of deafness, to say: “Here we are, on these issues, what is your opinion? How will we proceed?” (Member of a local organization specializing in hearing impairment, May 2012)
The second type of expertise relates to the social experience of disability: disability organization representatives put forward expertise based on their experience of or closeness to the disability being discussed. In doing so, they may encounter difficulties when put in a position to discuss the medical diagnosis and assessment of the level of the bodily or mental dysfunctions (which partly conditions access to some of the benefits) because of the superior value still put on medical knowledge and because of the very partial access they have to elements of the medical record. This is due both to a reluctance of MDPH medical practitioners, who plead medical confidentiality, and to the limited time spent on each application during the CDAPH.
However, their contribution often turns out more efficient, and is perceived as more legitimate, when it is based on a description of the experience of disability in daily life, the concrete obstacles the applicant may face in terms of mobility and autonomy, and, consequently, the amount of compensation needed. Indeed, the right to compensation asserted in the 2005 law is defined as a “right to compensation for the consequences of disability,” taking into account the specific obstacles a person faces depending on his or her impairment, but also on his or her life situation and project (Winance, Ville, and Ravaud Reference Winance, Ville and Ravaud2007). In other words, the social experience of disability is taken into account, beyond a strictly medical definition.
Disability organization representatives therefore often put forward these arguments based on the experience of disability in daily life in the context of discussions of PCH applications. For example, this president of an association specializing in visual impairment, who himself is blind, demonstrates the consequences of partial visual impairment on daily life in order to argue in favor of better compensation for the disability. He compares the situation to total blindness, which opens access to a fixed rate of PCH (forfait cécité) and therefore is relatively easier to compensate for within the framework of the current administrative procedures:
When you can't see well, it's hard. [For example if] you have retinitis pigmentosa: well, when there is too much light, you cannot see; when you go from light to the shade, you cannot see either. … If you go to a train station, nothing is accessible to the visually impaired. For someone who is visually impaired, when you see the height at which they put the timetables: [you can see] nothing. … We, when one is blind, there is no problem, we have the blindness standard rate [forfait cécité]; and I am lucky enough to have colleagues who come and pick me up, my wife and all, but not everybody is as lucky as I am. … This, this is ground experience. In CDAPH, I explain this to them. And then they tell me: “This is very technical.” I say: “Yes, but it is the ground reality.” (President of a local organization specializing in visual impairment, December 2011)
This excerpt illustrates the varied aspects involved in this account of the social experience of the disability, aimed at making it more understandable to other committee members: a characterization of the impairment in nonmedical terms (“when there is too much light, you cannot see”), a description of the obstacles faced in day-to-day situations (“If you go to a train station, nothing is accessible”), and an evocation of the support provided by family members and friends, on which the CDAPH should not count (“not everybody is as lucky as I am”).
Promoting Disability Rights, with and Without the Law
However, expertise is not the only possible mode of intervention. Association representatives also intervene based on a defense of fundamental principles and rights. For example, in the following excerpt, a volunteer belonging to a disability organization in the field of mobility impairment, himself in a wheelchair, recalls his intervention in a case discussed by the committee. A disabled man, who could not use his arms and had full-time human help at home, was asking for financial compensation for the purchase of an automated garage door with a piece of equipment that would enable him to open the door by himself (using his mouth). Members of the CDAPH argued against the allocation of the compensation benefit for this use based on the fact that he had full-time human help and therefore “the lady” [the helper] could open the garage door if needed. Against this stand, this interviewee argued that compensation was legitimate, based on the principle that compensation should as far as possible enable this person to “do things on his own”:
There was this man who needed an automated garage door, indeed, because he didn't have his arms; he pressed with his mouth. But, there was always someone with him, at his place. So we heard: “But why does he want a door at such a price when there is someone at his place?” So, that is what I explained: the man, even if there is someone at his place, what if he wants to do things on his own?
Q: It's a matter of autonomy.
A: It's a matter of autonomy. And [our organization], we promote this. And then I was told [by other members of the committee]: “No, I don't see why. … There is someone at his place. The lady, she can come and open. …” I said: “No, this is not what we want. Just because someone is there doesn't mean that the lady, she comes [to] open the door. So that's it. In each case when there is someone at home [they say]: ‘The lady, she'll do it.’ No. We already have to bear with our impairment, so if on top of that we cannot do things by ourselves a little. … [But that's the idea:] We won't pay for a garage door because someone else can take care of it.” (Member of the local branch of a disability organization specializing in physical impairment, December 2011)
Here, the principle of autonomy promoted by the organization at the national level (“we promote this”) finds a direct illustration in the defense of an individual case. It is also one of the founding principles of the 2005 reform, which defines autonomy as one of the goals of compensation. Indeed, the section of the law devoted to compensation for the consequences of disability defines this compensation as aiming at “meeting the needs … essential to the fulfillment of [the disabled person's] citizenship and autonomy” (Art. L 114-1-1). Even though no explicit legal reference is made in this excerpt, the context of the implementation of the 2005 law legitimates the use of this type of argument.
In other cases, disability organization members stress human situations in order to allocate rights, even though the legal conditions are not strictly respected. Rights are then advocated for in spite of the law, as opposed to a more rigid application of the texts. For example, the same representative recalls a case discussed by the CDAPH in which the claimant was just about to get out of the hospital within eight days and needed a wheelchair. His claim for disability compensation benefit to pay for his wheelchair had been rejected by the MDPH technical team because he had provided only one estimate, as opposed to the two estimates officially required. Mobilizing his technical expertise, the interviewee stressed the fact that only one provider existed in France for this type of wheelchair. But he also condemned what he described as a too-rigid implementation of the two estimates rule by MDPH teams, which in this case led to an applicant having to stay in bed:
There was a person who was about to come out of the hospital eight days later, they refused the wheelchair. I asked them: “now explain to me how the person is going to do”. I mean, there are some MDPH where they are more flexible. But here, they are pretty much into the legal stuff. They won't deviate even one tiny bit. But then, you know, the applicants, they are in trouble. … Sometimes they say: “No, it can't make it because it is too expensive, because we need two estimates. …” In this particular case, there was only one estimate because only one provider sells this type of wheelchair. And yet they wouldn't accept it. There was a vote by show of hands, and we lost, because we were two voices short; and then I said: “So explain this to me: this man who is going to go out of the hospital, he is going to stay at home laying down because he won't have a wheelchair. Now you explain this to me.”
Q: OK, so in this case, they say: “go and get a second estimate and come back to us”?
A: That's it. Sometimes I even get mad, even though I remain polite, but I really get upset; and they say: “There's no use in getting so upset.” But sometimes, when you see some of the things. … Within the CDAPH, it's complicated. You need to be able to defend yourself. Because it's tough. Even the doctors who are around the table. The time she [the doctor who had assessed the case] refused the wheelchair, in my head, I told myself: “You'd better not get unlucky one day because. …” I mean, when people are affected, you see the difference. But then, what I am saying is, when we are in the CDAPH, it is the law, pure and simple. That's the way I see it. That's the way I feel it. And the doctor always goes: “yes, but the [evaluation] grid doesn't say that.” Well, yeah, maybe the grid doesn't say, but there you go. (Member of the local branch of a disability organization specializing in physical impairment, December 2011)
The comparison of these two excerpts illustrates how legal rules can function as a resource as well as a constraint in rights advocacy, by legitimizing rights claims while defining a strict procedure to define eligibility. In the first case, the legal framework legitimates the rights claim, whereas in the second excerpt, fundamental rights are defended in spite of procedural rules deemed too strict. This last case illustrates the relative autonomy of rights advocacy from legal rules: indeed, in this case, advocacy is based on an appeal to humanity and empathy, while the legal procedures governing the definition of eligibility are distanced by being assimilated to impeding technicalities.
Should Rights be Fair or Effective? Disability Organizations in the Local Dilemmas of Individual Rights Allocation
Even though these two excerpts illustrate a classical advocacy stand in which the user's rights are promoted over any other (procedural, financial) consideration (sometimes with an implicit reference to the recent legal reform as a resource, sometimes claiming a right in spite of legal constraints), association representatives' positioning is often more complex. This is especially the case in decisions where they only define eligibility, and cannot guarantee the actual enforcement of their decision: such is the case regarding access to services and institutions, which often have waiting lists for admission.
Since the action of association representatives unfolds at the local level, they are often aware of the limited locally available means—all the more so since they often manage services and institutions themselves. Hence disability organization representatives are confronted with dilemmas regarding the best way to define eligibility in order for the rights to be enforced. The debate around second-best decisions (orientations par défaut) perfectly illustrates these dilemmas. This takes place in the context of applications to institutions and services. The second-best decisions debate refers to the fact that CDAPH members often make their decisions knowing that the best solution for the applicant currently is not available in the county (département): for example, sheltered employment is considered the best solution for a young adult currently in a medical-educational institute, but there are no positions available in the local facilities, and the waiting lists are already very long. Therefore, they find themselves in a position to allocate a right knowing that this right cannot be enforced.
The dilemma they are faced with is either to make their decision only according to the applicant's needs, but knowing that their decision cannot be enforced, or to make their decision taking into account the constraints of available means, which leads them to decide in favor of a second-best solution. The refusal of second-best solutions is often presented as one of the hallmarks of rights advocacy by disability organizations in CDAPH. However, in the semistructured interviews, representatives express ambivalence when they comment on this dilemma.
Their awareness of the local situation is such that they do not necessarily try to make a point that a decision closer to the applicant's need would be best. A more commonly found argument against second-best decisions is the idea that deciding only based on the applicant's needs, even though it is not necessarily in the applicant's best interest (since the decision might be impossible to implement, as opposed to a second-best decision), helps shed light on the lack of local resources, and can be used as leverage to lobby in favor of the creation of new structures or services.
Finally, a solution commonly used in several counties is the use of “double decisions” (doubles notifications), that is, decisions that include two options, with the one that suits best the applicant's needs listed first, and then the second-best solution with a better chance of being implemented. However, this common solution of the double decision also is subject to criticism on the part of some organization leaders, who point out that institution and service managers may be less prone to implement the first solution if they see that a second-best solution is listed. Therefore, this issue remains a point of controversy and a dilemma among association representatives.
This reveals the very concrete difficulties faced by rights advocates when advocacy takes into account the locally anticipated effectiveness of these rights. The moderation in the definition of entitlement in this case is only partly the consequence of a pressure to conform to institutional constraints. It more clearly results from the capacity to anticipate the chances of effectiveness of the decision. In the context of limited available means to make rights effective, the definition of entitlement implies a difficult choice between fairness and effectiveness.
From Decision Maker to Watchdog: Rights Advocacy Through a Mobilization Around the Committee's Inner Workings
Beyond the analysis of the way association representatives position themselves in CDAPH discussions on individual applications, the meaning of disability organizations' presence in the committee must be analyzed in light of its actual working, which departs from its legal definition. Although according to its constitutive decree (Decree n° 2005-1589 of December 19, 2005), the CDAPH is the MDPH's final decision maker (each individual application is supposed to be subject to a decision by the committee), MDPH practices differ from this requirement. Institutional practices vary from one county to another, as well as in time: in three of the four counties under study, reforms regarding the CDAPH's norms of functioning were being discussed when we conducted the fieldwork, and occasioned mobilization on the part of civil society organizations. The institutional adjustments at stake are interesting both in terms of identifying the way movement advocacy moves from participation in decision making to a mobilization around procedures, and in terms of analyzing the dilemmas of intrainstitutional advocacy for disability rights advocates.
Giving Up on Participation: The Experience of Institutional Constraints
In practice, even though officially each decision is the committee's, the committee only examines a very small number of individual files. Indeed, the creation of the MDPH following the 2005 law quickly led to the shared conclusion that the CDAPH could not examine all the individual files because of the number of applications to be processed. MDPHs in different counties designed various institutional arrangements in order to reduce the number of applications actually presented to the CDAPH (Bertrand, Caradec, and Eideliman Reference Bertrand, Caradec, Eideliman, Bureau and Sainsaulieu2011). From the MDPH's point of view, this change in the process was not a problem in terms of decision making, since decisions are prepared before the CDAPH by multidisciplinary technical teams (Perrier Reference Perrier2013; Borelle Reference Borelle, Baudot and Revillard2015). A certain number of these decisions then happen to be validated without being discussed by the CDAPH.
Procedures designed to limit the number of files discussed by the committee include the creation of subcommittees (commissions restreintes), which are comprised of a limited number of committee members and, more importantly, a system of “list decision” (décision sur liste), also labeled “blocked list” in some counties. According to this procedure, a certain number of decisions by the technical teams are validated without being discussed by the CDAPH; in this case, the committee's decision-making role is materialized by the simple presence, during its meetings, of one or a few paper copies of a long list of individual decisions.
Such was the case in one of the four CDAPHs under study, which meets twice a month over the course of a half-day (9:30 a.m.−12:30 p.m.). The MDPH teams select a limited number of issue-specific files that they wish the CDAPH to discuss (e.g., regarding schooling or the issue of young adults being stuck in children's institutions because of the lack of available positions in adult structures). During a CDAPH meeting observed in June 2012, six applications were discussed. The decisions made by the technical teams on all the other applications were implicitly validated by the presence, on the table, of a few paper copies of a list including, for each claimant, the percentage of impairment, what the applicant claimed, and what the technical team suggested. Another (one-page) table being circulated during the meeting was the meeting agenda, which distinguished between two types of files: those subject to “in-depth examination” (six), and those subject to “simple examination” (598). These 598 files were not mentioned during the discussions, and were implicitly validated by the holding of the meeting.
What do civil society organizations think of such devices, which concretely result in bypassing their decision-making power? Although protest would be expected, they generally acknowledge the need for such procedures. Several elements contribute to explaining their acceptance. First, disability organization representatives are not ready to spend more time on the committee, a time for which they are not compensated. They complain a lot about the time-consuming character of all their “representation” tasks (being on various committees at several levels of government, the CDAPH being only one of them). One of the aspects of working inside the institution is the incorporation of institutional constraints—time constraints in the present case. Association members generally are not willing to spend more time in committee meetings, so increasing committee hours in order to discuss more applications is not an option.
Second, and in the context where increasing committee hours is not an option, association members worry that putting a larger number of files into the discussion process will result in increasing already excessive file-processing delays to the detriment of users in need of quick decisions. Here again, disability rights advocacy faces contradictions in the context of local implementation when advocates perceive users' right to an administrative decision within a reasonable time as going against their right to a decision involving disability organization representatives.
Finally, in some counties, the time gained in suppressing the systematic examination of individual files is partially allotted to an in-depth discussion of specific cases deemed problematic, in which the technical team consults the committee in order to define a form of “jurisprudence” meant to guide them in future similar decisions (Bureau and Rist Reference Bureau, Rist, Bureau and Sainsaulieu2011). In such cases, organization representatives consider it more efficient to spend more time on these difficult cases, knowing that their input will be more broadly taken into account in future similar ones.
Reframing Advocacy: From Full-Fledged Participant in Decision Making to Watchdog
Associations generally acknowledge the need for devices that reduce their actual participation in the decision-making process. Yet they need to make sense of their participation in the committee as disability rights advocates. As a consequence, they are inclined to redefine their role, from participation in decision making to a role of scrutiny and control of MDPH decisions. Derisory though it may seem, the 100-page listing set on the table for CDAPH members to look at symbolizes this watchdog role endorsed by association members. In the county whose CDAPH was previously described, one of my interviewees mentioned this stack of paper, alluding to the possibility of checking, even though it seems hard to do in practice:
The thing is, when the CDAPH meets, we only see the applications that raised some issues within the technical team. It means that there are about six hundred files each week that we don't see. We see between six and eight applications during each session. What I'm saying is, out of the six hundred that are processed without us because the technical team didn't have any issue with them, that's where (then, I don't know how we could do that), but that, maybe, is where we should have. … How could I put it? You know, there is this stack laying there, each Thursday morning, when we go there, a stack with six hundred applications, adults and children altogether, and we should, I don't know, we should arrive there at five in the morning [laughs] to see. Because in fact, they only write down “yes” or “no”, if an adult disability benefit is allocated, yes or no. If a benefit was not granted, we don't know why. What we should do is say, for example, at the beginning of each CDAPH: “ok, let's randomly. …
Q: Yes, “this file, let's check”
A: Yes, that's it.
Q: Do you have the right to ask to look at a given file?
A: Yes, to ask that it be examined [by the CDAPH]. Well, then. … We figure, we trust the technical team. I mean, they are professionals. They are people like you and me, we'll say, doing their job. (Member of a local disability organization, June 2012)
The idea, in this perspective, is to prevent the committee from becoming a mere rubber-stamping assembly, according to an expression that often comes up in the interviews (here, in another county):
[Referring to a recent MDPH proposal to increase the number of files that would be processed through the blocked list system] What I'm saying is, we shouldn't let things like that happen; otherwise what's the use of us going to the CDAPH? They are taking away all the point of civil society organizations being in this committee. If we don't see the decisions anymore—even for children—I'm missing something here. If everything goes directly through, what's the point of us being there? Then we're a mere rubber-stamp. Period.” (President of the local branch of a national disability organization, December 2011)
To avoid this situation, in which the committee becomes a mere rubberstamp, disability organization representatives generally try to keep control, or at least show they have some influence, over the criteria used to enable an application to be processed through the blocked list procedure.
However, this mobilization is not always free from ambiguities, insofar as it does not question the general assumption according to which the number of applications presented in front of the CDAPH must be reduced. This leads to surprising scenes, such as I witnessed in 2012 in another county where CDAPH members were holding a meeting in order to define new procedures for the committee. At the beginning of the session, a representative of the MDPH introduced the criteria that were adopted at the previous meeting, defining applications that had to be examined by the CDAPH. While projecting a slide with the list on a screen, the MDPH representative orally noted that it was decided during the previous session that the number of applications being discussed would be limited to “eight to fifteen files per session,” and that given the fact that the CDAPH meets half a day per week, “we will not be able to examine all the files that match these criteria. We trust the [technical] team to select the fifteen files.”
One of the association representatives, who had missed the first session, asked questions about several of the criteria, and insisted on adding two new criteria (refusal of recognition as a disabled worker [RQTH] and training refusal) to the list. The MDPH representative directly modified the slide to add the new criteria. However, disability organization representatives did not make any comment regarding the statement according to which the number of applications being discussed would be limited to “eight to fifteen files per session.” Even though the introduction of such a limit would seem to make the whole mobilization around the precise definition of the criteria irrelevant, this mobilization makes sense for the organizations as a way to assert their role as watchdogs. While adjusting to institutional constraints through their acceptance of the need to limit the number of files being discussed, association representatives still want to preserve a distinct advocacy stance within the committee by means of the establishment of a right of oversight over MDPH decisions.
Conclusion
The analysis of advocacy in rights allocation usefully complements existing works on legal mobilization to further our knowledge of contemporary rights advocacy by social movements. Just as social movements mobilizing the courts come to interiorize some of the institutional constraints of judicial action, French disability organization members in the local rights allocation committees come to interiorize some of the bureaucratic constraints, notably time constraints and the need to reduce delays in file processing. The way they account for these constraints reveals how the latter are interiorized by experience, rather than as a result of an external pressure to conform. The need to deal with institutional constraints does not, however, lead to association members taking on a purely institutional role, but rather favors a reframing of advocacy in terms of oversight rather than participation in decision making.
Beyond institutional constraints, the study of this particular form of advocacy within street-level bureaucracies points to the specific influence of the movement's embeddedness in a local territory. Mastering information, such as how long the waiting list is for a given service or facility, influences the forms taken by this discreet type of advocacy. Disability organization members face recurring dilemmas: Should rights be defined solely based on needs or taking into account their chances of being enforced? Should a faster decision-making process be the priority, or should rights advocates ensure that this process includes disability rights movement representatives?
While the effects of movement inclusion on rights advocacy have been the focus of this article, further research is needed in order to investigate the consequences of this participation on rights entitlement. The presence of disability rights organization representatives can be expected to have some effect by means of indirect pressure put on the institution through the creation of a right of oversight. The impact of participation in broader discussions leading to the definition of forms of administrative jurisprudence should also be the subject of future inquiry.
