Disability Anti-Discrimination Law: A Tool for Compliance or Path Towards Social Justice?

Abstract

Drawing on vignette interviews, this article analyses the legal consciousness of disability anti-discrimination law of staff working with disability/accessibility resources in higher education in Sweden and the United States. In both countries, participants considered the law as the basis of their work, but differences were noticed regarding their views of the purpose of laws banning disability discrimination and their potential to change society. Swedish participants underlined the rule of law but were sceptical about the anti-discrimination law's potential to address social injustice more broadly. American participants pointed to the need to go beyond legal compliance and follow the spirit of the law. The article interprets these findings as differences in collective legal consciousness regarding disability anti-discrimination laws that are rooted in people's understanding of disability and in the process through which anti-discrimination laws were adopted in Sweden and the United States.

Introduction

The past two decades witnessed the ‘globalisation of the disability rights discourse’ (Heyer and Mor, 2019: 498) through the adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2006. Rooted in American law, the principle of non-discrimination is a central feature of the CRPD. Many countries around the world have passed laws banning disability discrimination, but there are gaps between these laws and their implementation in practice, be it in education (De Beco, 2018; Revillard, 2023), in bureaucracies (Fillion et al., 2021; Lejeune, 2017) or in the courts of justice (Bagenstos, 2020; Pyaneandee, 2019; Waddington, 2015).

Examining the legal diffusion of disability rights, Heyer (2015) observed incompatibilities between American-style individual rights protections and collective welfare arrangements in Germany and Japan. In Sweden, previous research showed that disability rights activists promoted disability anti-discrimination law as a tool for social change (Sépulchre, 2021) but that its legal mobilisation depended on the role played by the Discrimination Ombudsman (Lejeune, 2017). More recently, Revillard (2023: 145) noted the ‘limits of the acclimatation of the rights register in the field of disability in France’ but pointed out that these rights ‘have nonetheless provided an ambitious perspective of social change’.

Socio-legal research showed that the realisation of disability anti-discrimination rights is connected to the understanding of disability as a civil rights issue (Bagenstos, 2020; Sépulchre, 2023), organisational responses to the law (Barnes and Burke, 2012), disabled individuals' willingness to claim their rights (Engel and Munger, 2003; Lejeune and Ringelheim, 2019), disability organisations’ legal mobilisation (Vanhala, 2006), and co-existing disability policies and welfare arrangements (Aucante and Baudot, 2018; Burke and Barnes, 2018; Fillion et al., 2021). How administrators who routinely implement disability anti-discrimination law conceive of this law remains largely unexplored (notable exceptions are Barnes and Burke (2012), and Fillion et al. (2021)).

This article contributes to the socio-legal understanding of disability anti-discrimination law by analysing the legal consciousness of staff working with disability/accessibility resources in higher education in the United States and Sweden. These staff have the role of ‘organisational interpreters’ (Barnes and Burke, 2006) of disability anti-discrimination law as they administer the support to which disabled students are legally entitled. Access to education was selected because it has historically been an important area regarding anti-discrimination law – as exemplified by the landmark decision of the US Supreme Court in Brown v. Board of Education (1954). Sweden and the United States were chosen because of their contrasting legacies regarding disability politics and anti-discrimination laws. In the United States, the prohibition of disability discrimination and the requirement to provide reasonable accommodation applies to public and private institutions of higher education since 1990. In Sweden, similar requirements have been in place since 2015.

The article starts by reviewing the socio-legal literature on anti-discrimination laws and disability rights in different countries. The following sections outline legal consciousness typologies and conceptions of disability, which form the theoretical framework of this study. Next comes an overview of the adoption of disability anti-discrimination law in the United States and Sweden, respectively. Moving on to the empirical part of the article, the next section describes the study's design, which consists of qualitative interviews based on fictive scenarios (vignettes) that participants were invited to discuss. The following section presents the different types of legal consciousness that were discerned in the interviews. The last section discusses the implications of this study for our understanding of disability anti-discrimination law.

Anti-Discrimination Law and Disability Rights in Different Contexts

A useful starting point to study disability anti-discrimination law from a comparative perspective is the observation that the legal principle of non-discrimination is only one of the possible frames that can be used to make sense of situations of injustice and that it is rooted in American law. Saguy (2003) showed that sexual harassment tended to be interpreted as gender-based discrimination in the United States but was perceived as a form of interpersonal violence in France. Similarly, Lamont et al. (2019) observed differences in how Black people in the United States, Brazil and Israel interpreted their experiences of being treated unfairly. While legal discrimination was a salient frame through which individuals interpreted their grievances in the United States, people in the two other countries referred instead to socio-economic inequalities or social injustice more generally (Lamont et al., 2019).

Different understandings of anti-discrimination law can also be found within one country. Banakar (2004) demonstrated that, although they were similar from a legal point of view, the gender and ethnic discrimination laws had contrasting impacts in Sweden. He highlighted that the women's movement had pushed the adoption of the gender discrimination law and that, when the law was passed, the issue of gender discrimination was widely considered a problem in society. As such, it followed a bottom-up process (Banakar, 2004). By contrast, the ethnic discrimination law had a top-down trajectory. It was adopted because of national and international political pressure on the Swedish government, and ethnic discrimination had not been recognised as an important issue in society at the time the law was passed (Banakar, 2004).

Scrutinising the legal diffusion of disability anti-discrimination law from the United States to other countries, Heyer (2002) remarked that this law was likely to have a different effect in Germany, because ‘the individualised rights model [of American anti-discrimination law] collides with labour and welfare traditions that offer more comprehensive or positive rights against the state’ (Heyer, 2002: 759). Similar arguments were made regarding the implementation of disability anti-discrimination law in Sweden (Lejeune, 2017; Lindqvist, 2000).

Research in various European countries shows an ambivalence towards the mobilisation of disability anti-discrimination law. A study of disabled workers in Belgium who mobilised their right to receive reasonable accommodation revealed that, at first, some participants had not thought about claiming these rights because they did not see themselves as disabled or because they did not want to cause trouble (Lejeune and Ringelheim, 2019). In France, Revillard (2019; 2023) found that, while disabled people were not jumping into litigation, they experienced a lack of accessibility as an injustice and negotiated their right of access in collective protest actions and everyday interactions. Further, Vanhala (2006) showed how disability organisations in the United Kingdom started fighting discrimination in court when that legal possibility was created through the adoption of anti-discrimination laws. She argued that such legal mobilisation was only possible because of a prior politicization of disability by the British disability movement (Vanhala, 2006).

People's ambivalence towards disability anti-discrimination law is not unique to countries that have recently adopted such laws. Research reported that American citizens refrained from mobilising against the Americans with Disabilities Act (ADA) because they did not want to negatively impact the relationship with their employer or be perceived as getting better treatment (Engel and Munger, 2003). Based on a representative survey of the American population, Dorfman (2019) observed a widespread belief that people abuse disability rights to obtain advantageous treatment.

Regarding professionals implementing disability anti-discrimination law, the study of Fillion, Lejeune and Thivet (2021) in France showed differences between disability rights administrators who had previously been part of the disability movement and those without such experience. The latter saw themselves as bureaucrats and focused on the implementation of individual rights, the former engaged more proactively with the realisation of disability rights and considered structural and environmental aspects regarding disability. Fillion et al. (2021) noted, however, that both types of administrators made little use of the disability anti-discrimination laws. They connected this observation to Aucante and Baudot (2018), who argued that the development of disability politics is best understood as a process of ‘layering’ in which new laws and policies are added to an existing framework without cancelling out the old ones. In a similar vein, Burke and Barnes (2018) highlighted that contradictory disability rights coexist in the United States because the adoption of the ADA, which is based on the social model of disability, did not cancel out previous laws reflecting a medical understanding of disability.

This brief literature review indicates that people's interpretation of and attitude toward anti-discrimination law is influenced by the ways in which people make sense of social injustice, how people understand and relate to the discrimination ground at stake, how an anti-discrimination law was adopted, and what other laws and policies co-exist.

Types of Legal Consciousness

This article builds on Ewick and Silbey's (1998) influential typology of legal consciousness. Based on interviews with people of diverse backgrounds in New Jersey, Ewick and Silbey (1998) distinguished between three attitudes towards the law – before, with and against the law. These correspond to perceptions of the law as residing outside society, as a game with rules that they can navigate, and as a flawed system that is unable to bring about social justice, respectively. These different attitudes can be distinguished at the analytical level, but they often coexist in reality (Ewick and Silbey, 1998).

Fritsvold (2009) introduced the category ‘under the law’ to capture the posture of radical environmental activists who regard ‘the law as the protector and defender of a social order that is fundamentally illegitimate’ (Fritsvold, 2009: 799). Nuancing this finding, Halliday and Morgan (2013) argued that radical environmental activists adopt both a gaming approach to the law, which they can use for collective aims, and a critical approach to it by drawing on a ‘sense of a morality beyond or external to state law’, which justifies their disregard of some legal provisions (Halliday and Morgan, 2013: 17). In a different area, Halliday et al. (2015) showed how family members of brain-injured patients used the law as ‘a sword’ and ‘a shield’ to protect themselves, or perceived it as ‘a barrier’ constraining their actions.

In her classic study of British bureaucrats’ legal consciousness, Cooper (1995) discerned a perception of the law as a ‘colonising force’. This perception was adopted by local government actors who viewed the law as ‘the coloniser's tool – a means of promoting policies decided upon elsewhere [i.e., by the central government]’ (Cooper, 1995: 512). More recently, Hertogh (2018) claimed that people in the Netherlands are being ‘alienated from the law’. One of his case studies shows how a school director resisted the Dutch non-discrimination law in a case of racial discrimination, by putting forward his own definition of legal equality (Hertogh, 2018). By contrast, Emerton's (2023) study, which focuses on gender discrimination, found that people working in the equality sector in England and Wales were ‘attached to the law’ because they viewed that the law provides a minimum standard for equality. They were also ‘protective of the law’ because they considered the law as precious and hard-won (Emerton, 2023).

The contrasting attitudes regarding anti-discrimination law described by Hertogh (2018) and Emerton (2023) may suggest different types of legal consciousness in England and the Netherlands. This interpretation could be made in the light of research on ‘collective legal consciousness’ (Hertogh and Kurkchiyan, 2016; Kurkchiyan, 2011), which shows that people's legal consciousness is shaped by the national context in which they live. Following Banakar (2004), Hertogh's (2018) and Emerton's (2023) findings may also be interpreted as reflecting differences regarding people's perception of different discrimination grounds – in this case, racial and gender discrimination, respectively. This article adds to this research by examining the legal consciousness of disability anti-discrimination law in Sweden and the United States.

Disability Models and Politics

Next to socio-legal studies, this article is informed by disability studies, which conceptualised different models to understand disability. Overall, disability studies reject the view that disability is merely a medical phenomenon or an unfortunate condition of an individual needing a cure or charitable actions – a perspective that is commonly referred to as the ‘medical model of disability’ (Oliver, 1996). Disability studies developed different versions of the ‘social model of disability’ – a term rooted in disability studies in the United Kingdom (Oliver, 1996; Thomas, 2004) – to highlight the social, political, economic, legal, and cultural aspects that create disadvantages and exclude disabled people from participation in society. These models are influenced by the academic and activist contexts in which they developed (Traustadóttir, 2009). In the United States, the social model of disability took the shape of a ‘minority group model of disability’, which positions disabled people as a minority group and conceives of disability in terms of discrimination (Hahn, 1996). The Nordic countries introduced a ‘relational model of disability’, defining disability as a situational misfit between the individual and the environment (Tøssebro, 2004). While both perspectives can be considered variations of the social model of disability (Traustadóttir, 2009), they are also different: the American minority group model presents disability as an issue of social injustice that can be combatted through civil rights and anti-discrimination measures, the Nordic relational model views it in terms of situational disadvantages that can be compensated through welfare measures and changes in the environment. The different models of disability have been the object of heated debates in disability studies (Shakespeare, 2006). Although recent studies tend to adopt more complex definitions and underline the role of cultural norms in shaping disability, the findings of the study presented in this article suggest that the original models continue to inform how disability is conceptualised in Sweden and the United States.

The Adoption of Disability Anti-Discrimination Law in the United States

The first disability anti-discrimination law in the United States is the Rehabilitation Act of 1973, whose final section (Section 504) prohibits discrimination against disabled people in services and programmes funded by the federal government. The adoption of this law took place at a time when several other minority groups obtained civil rights protections. This happened in the aftermath of the Black civil rights movement, which paved the way for a certain understanding of social politics and civic participation (Skrentny, 2002). Modelled after the Civil Rights Act of 1964, Section 504 was written at the initiative of civil servants who saw an analogy between disability and racial discrimination (Scotch, 2001; Skrentny, 2002). The passage of Section 504 went smoothly. It was not debated in Congress, although the Rehabilitation Act itself was vetoed twice by the U.S. President (Scotch, 2001; Skrentny, 2002).

The Rehabilitation Act recognises that equal treatment does not suffice to prevent disability discrimination. It stipulates the obligation to accommodate the needs of disabled people – for example, by making architectural changes to ensure accessibility – providing that these modifications do not cause undue hardship. Fearing that it would be costly, Section 504 was blocked by the US Department of Health, Education, and Welfare (HEW), which was in charge of writing its regulations (Scotch, 2001). Following the efforts of the Office for Civil Rights and the protest actions organised by the newly emboldened disability rights movement, the regulations for the Rehabilitation Act were signed in 1977 (Scotch, 2001). The disability rights movement and its allies worked then towards expanding the scope of the Rehabilitation Act. This was achieved through the passage of the Americans with Disabilities Act (ADA) in 1990. The ADA is rooted in the recognition that disabled people have a long history of discrimination and still face significant discrimination in contemporary society, as outlined in the Congress's findings.

The Congress finds that … historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem. (ADA, Sec. 12101)

However, the rationale behind the ADA and the shift from a medical towards a social model understanding of disability it implied did not receive much media attention. Therefore, they were not well-known by the general population when the law was passed (Shapiro, 1994). A decade after its passage, various commentators voiced that there was a backlash against the ADA (Krieger, 2000). Legal scholars were divided regarding the nature of the law. Some viewed it as a welcomed addition to existing anti-discrimination law, which would increase the civil rights protection of all citizens in the long run. Others objected that the ADA was not a civil rights law because of its purpose to create both formal and structural equality through the provision of reasonable accommodation (Miller, 1998; Stein, 2004). Moreover, the legal interpretation of the protected category of disability was the object of heated debates (Bagenstos, 2000; Emens, 2012; Locke, 1997). In 2008, Congress passed the ADA Amendments Act (ADAAA) to reverse a series of Federal Court interpretations of the statute that had considerably narrowed the protected category of disability.

In sum, the passage of disability anti-discrimination legislation in the United States happened at the initiative of civil servants, at a time when various other minority groups obtained legal protection against discrimination (Skrentny, 2002). The implementation of disability anti-discrimination law and the broadening of its original scope were pushed by the disability rights movement and its allies. When the ADA was passed, the principle of anti-discrimination was already rooted in American legal culture but the conception of disability as a ground of discrimination was not common knowledge in society.

The Adoption of Disability Anti-Discrimination Law in Sweden

The first law banning disability discrimination in Sweden is the Act on the Prohibition of Discrimination in Working Life due to Disability of 1999. This law was adopted following the European Treaty of Amsterdam of 1997 – which urged EU members to take action to combat discrimination – and in anticipation of the EU Employment Equality Directive of 2000 aiming to ban discrimination at the workplace. The European Union's anti-discrimination provisions were directly inspired by American laws (Quinn and Flynn, 2012).

At the turn of the twenty-first century, Sweden expanded its legal protections against discrimination on various grounds, including disability. These were subsequently merged into the Discrimination Act of 2008. The rationale for adopting the Discrimination Act is outlined in the government's proposition to the parliament.

The discrimination legislation aims to protect the principle of the equal value of all people and everyone's right to be treated as individuals on equal terms. Ultimately, the legislation is an expression of the free, democratic society and the values that underlie the organisation of society. (Prop. 2007/08:95, p. 79)

The official reason for passing the Discrimination Act in Sweden emphasises the importance of promoting the equal value of all people and guaranteeing everyone's right to equal treatment. This contrasts with the previously mentioned rationale provided by the ADA, which centres on the recognition that disabled people have been discriminated against in the past and are currently facing widespread discrimination. The two laws are therefore grounded in different purposes: the ADA aims to redress enduring structural discrimination of disabled people in the United States, and the Swedish Discrimination Act seeks to safeguard the value of equality between people, which is taken to already prevail in society. Rather than being merely textual differences, the empirical study presented in this article suggests that these rationales are reflected in the participants’ legal consciousness of disability anti-discrimination law.

Unlike its American counterpart, the Swedish Discrimination Act did not recognise lack of accessibility as a form of discrimination. The government was reluctant to add anti-discrimination provisions regarding accessibility – which requires the provision of reasonable accommodations – because of their expected costs. After country-wide protest actions by the Swedish disability movement (Sépulchre, 2021) and because of Sweden's obligations under the United Nations Convention on the Rights of Persons with Disabilities, the Discrimination Act was amended, and ‘inadequate accessibility’ was added as a form of discrimination in 2015.

Scholars discussed the impact that the adoption of anti-discrimination law would have on the Swedish welfare state (Hvinden, 2004; Lindqvist, 2000; Quinn and Flynn, 2012). Activists and other actors were divided. On the one hand, anti-discrimination law was viewed by Swedish disability activists as a new tool for driving social change (Sépulchre, 2021; Sépulchre and Lindberg, 2020). On the other hand, the adoption of disability anti-discrimination laws met resistance from the part of labour unions and bureaucrats who believed that Sweden already had sufficient legal protections for citizenship rights in terms of collective agreements and welfare provisions (Lappalainen, 2024; Lejeune, 2017).

In sum, in contrast to the United States, disability anti-discrimination law in Sweden emanated from top-down initiatives at the level of the European Union and the United Nations, at a time when the principle of discrimination was a newcomer in Swedish legal culture. Like in the United States, the disability rights movement and its allies played an important role in broadening the scope of the disability anti-discrimination law. Another similarity with the United States is that there was little awareness of the social and societal structures sustaining disability discrimination when the law was adopted in Sweden.

Disability/Accessibility Resources in Higher Education

In Sweden and the United States, public and private institutions for higher education fall under the scope of disability anti-discrimination laws. A key part of the enforcement of these laws is realised by specialised staff concerned with accessibility and accommodations for disabled students. In the United States, these staff members are part of administrative offices that are commonly called ‘accessibility resources’ or ‘disability resources’. These offices are usually part of the division of student affairs, but they can also be located under other divisions, such as the Division for Diversity, Inclusion, and Equity – which can have different names at different institutions. In Sweden, accessibility/disability resources staff are usually called ‘coordinators for targeted pedagogical support’ and are part of the division of student affairs. For reasons of readability, this article refers to staff in both countries as disability/accessibility resources staff.

The organisation of disability/accessibility resource offices differs across institutions but, in general, their main task is to ensure accessibility and administer different types of support and accommodations. The staff establish whether a student falls within the category of ‘students with disabilities’ and meet with them to discuss their experience and needs in the context of higher education. Typically, disability/accessibility resource staff ask for (medical) documentation of the student's disabilities and are the only persons at the university or college who know about the student's condition, unless the student wishes to disclose it to others. This meeting leads to a decision concerning the type of support and accommodations that may be appropriate for the student, which is summarised in a memo that is subsequently communicated to the instructors, often by the students themselves.

Research Design

This study consists of semi-structured interviews based on an interview guide that included vignettes. Vignettes are texts describing hypothetical situations that the participants are asked to comment upon. This method is useful to study people's interpretative frameworks (Jenkins et al., 2010) and compare how people in different contexts reflect about a given topic (Saguy, 2003; Soydan, 1996). In this study, five vignettes describing common situations pertaining to the implementation of disability anti-discrimination law in higher education were presented to the participants. It is crucial that vignettes seem plausible to the participants (Jenkins et al., 2010). The vignettes used in this study were created based on the author's experience as a teacher in higher education, academic literature and reports regarding accommodations and accessibility. The plausibility of the vignettes was confirmed by many participants who stated during the interviews that they had ‘just encountered this situation the other day!’.

The following excerpt of vignette 1 provides an example of the scenarios that were discussed during the interviews.

A student with ADHD asks a teacher to make their PowerPoint slides available before the lectures because that helps them to focus.

What do you think the teacher will answer?

The teacher says that they understand but that, unfortunately, they cannot provide the PowerPoint slides beforehand because they have no time and because they often need to make last-minute changes in the lectures.

• How do you interpret this reaction? (vignette 1)

The vignettes functioned as microcosms and clues (Törrönen, 2018). They represented well-known situations, and the participants were asked to imagine what would happen next. The reflections on the vignettes unfolded as a dialogue between the disability/accessibility resources staff and the interviewer (the author), who had presented herself as a researcher and a teacher. As such, these dialogues were reminiscent of interactions between the participants, who are experts in disability resources and accommodations, and teachers seeking advice about how to meet disabled students’ needs.

The interview guide included questions regarding the participants’ professional role and the practicalities concerning the process to request disability accommodation at their university or college. There were no questions about the law and the interview guide did not use the concepts of social justice and ableism. These topics were often mentioned by the participants. If not, they were sometimes suggested by the author towards the end of the interview.

The interview guide was tested during a pilot interview. Thereafter, 16 interviews were realised (seven interviews in the United States and nine in Sweden), with a total of 18 participants (one interview included three participants). The participants were recruited through snowball and purposive sampling with the aim of interviewing staff working at institutions of higher education of different sizes and geographic locations. The sample is not representative of disability/accessibility resources staff in Sweden and the United States, but it includes participants from five different American states and nine different Swedish counties. In the United States, most participants held a position of assistant director or director of the disability/accessibility resources office, and one participant was working at the Office for Inclusion, Diversity and Equity. In Sweden, disability/accessibility offices have a flat structure and there are few directors. One of the Swedish interviews included three participants, and one interview was with a participant working as a legal advisor for an institution of higher education. Participants in both countries had diverse academic backgrounds, including degrees in higher education, occupational therapy, rehabilitation sciences, sociology, psychology, law, and study and career counselling. Moreover, although the topic was not included in the interview guide, five out of seven American participants (but no Swedish participant) mentioned having a personal experience of disability.

All the interviews took place online via Zoom between November 2021 and May 2022. Digital interviews facilitated the realisation of interviews with individuals located in places that were far apart from each other. The interviews lasted between 1 and 2.5 hours. They were recorded with the consent of the participants and transcribed verbatim.

The interview material was analysed with qualitative thematic analysis (Nowell et al., 2017). Preliminary results were discussed in various academic settings and workshops with disability/accessibility resources staff in both countries. These exchanges strengthened the quality of the findings of this study.

Finding Creative Solutions to Apply the Law

The participants’ interpretation of the vignettes and their descriptions of their everyday work with disability/accessibility resources were surprisingly similar in both countries. The interviews suggest a ‘with the law’ legal consciousness (Ewick and Silbey, 1998) when participants explained how they routinely interpreted the law to determine what accommodations and support measures may be appropriate for a student. Being able to navigate the law is particularly important regarding disability anti-discrimination law because it is tied to the condition of being reasonable and avoiding undue hardship (Barnes and Burke, 2012).

It's … like: Let's be creative, we can’t do this but we can do this. And just, kind of, going from A to Z in terms of solutions. (interview 5, US)

The law never says: This is exactly how the accommodation shall be … it is a question of interpretation simply and, yes, having a discussion with us is part of it: How can we solve this in the best way? (interview 10, SE)

In the United States, some participants made an explicit link between the law and the need to have a conversation with students and faculty members.

That's how the ADA is written, you know, you must have an interactive process. (interview 4, US)

Participants in both countries viewed that the law dictates the ‘rules of the game’ (Ewick and Silbey, 1998) as it provides a framework that guides their actions. Yet they recognised that some legal interpretations are better – or worse – with respect to accessibility, equity, and inclusion.

Yeah, it's acceptable from a legal standpoint. Is it really acceptable just in general, in terms of good pedagogy and design? No, it's not. (interview 3, US)

You have to stay within the rules, and these are the rules, but as long as you do it, there are no … it's only the imagination that sets limits. (interview 16, SE)

Disability/accessibility resources staff explained that their power is limited because many of the accommodations that may be required by students need to be implemented by the teachers, who may not have the possibility and/or willingness to provide these accommodations. This appears in the respondents’ reactions to the vignettes that depict concrete scenarios. Vignette 1, for example, which was presented in the methods section, describes a student requesting access to PowerPoint slides before the lectures. The following quote illustrates a typical answer of American participants:

It depends on who the teacher is. We probably have some percentage of instructors that would say: Yeah, no problem I have all my PowerPoint slides ready and done and I’ll post them in a course file for everyone, so no worries, they’re gonna be there. We probably have some instructors who will say: Uhm, you know, I don’t have them ready, quite before the lecture, but I’ll post them as soon as I have them available and you can have them but, like, it can be right before the lecture. We’ll have a set of faculty members who’ll say: I don’t make my PowerPoint slides available, I’m gonna use them but, sorry, I’m not going to give them to you. And then you’ll have another set of faculty members who’ll say: Those are my property and you can’t have them. (Interview 3, US)

Similarly, the Swedish participants commented that teachers act differently when it comes to accommodating the needs of disabled students.

Oh, it's so very different. I think some teachers will say: Yes, of course, here they are [the PowerPoint slides], and I will make sure that you get them from now on, so that you have them in advance before the lectures. Other teachers will say: Do you have a disab[ility]? I don’t know anything about ADHD, you have to talk to the coordinator [of disability/accessibility resources] about this…. And others will take it as food for thought: Maybe I need to work on accessibility on a broad front, it's certainly not just you who has this need, but everyone will benefit from it…. Three different answers to that question. (Interview 8, SE)

As illustrated by these quotes, participants in both countries agreed that accessing teaching materials in advance is an important accommodation for some students but understood that teachers could not always meet such requests.

In brief, disability/accessibility resources staff in Sweden and the United States spoke of the leeway they are given to interpret the law. They emphasised the importance of having a dialogue and showed understanding towards the teachers’ inability to accommodate some of the students’ requests.

Viewing the Law as the Basis of Disability/Accessibility Resources

Although they were not asked directly about the law, disability/accessibility resources staff in both countries stated that disability anti-discrimination law is the basis for their work. Participants referred to the law as an objective element that guides and constrains the actions of their university or college, which corresponds to a legal consciousness of ‘before the law’ (Ewick and Silbey, 1998).

A lot of our work is focused around compliance and that is [what] we need to think through all the time. (interview 1, US)

The basis for the work with targeted pedagogical support is the discrimination legislation. (interview 10, SE)

The interviews suggest that the law legitimises their work and provides them with arguments to counter push-back from teachers. In such cases, disability/accessibility resources staff use the law as a ‘shield’ or a ‘sword’ (Halliday et al. 2015).

If we can’t get traction, and that happens … I’ll just say: okay, I just have to tell you that as you know in our reasonable accommodation policy, if we’re not able to meet the student's request I am required to tell the student that they can go to Equity, Diversity, Inclusion or the Office for Civil Rights, or both, and complain. (interview 2, US)

This is not something we made up, it's nothing we make up to be nice, no: this is the law. (interview 15, SE)

It is noteworthy that the American and Swedish participants shared similar ‘before the law’ attitudes concerning the disability anti-discrimination law, even though these laws have different histories. As mentioned previously, the Swedish law banning disability discrimination was adopted following initiatives at the level of the UN and the EU. Yet rather than feeling alienated from the law or viewing disability anti-discrimination law as a ‘colonising force’ (Cooper, 1995), the Swedish participants considered the law as a given. Differences can be noticed, however, with respect to fear of litigation. No American participant reported having been involved in a lawsuit at their workplace, but they were aware that being sued is a possibility.

We’ve not had students sue us, knock on wood. (interview 4, US)

Oh the threat is definitely there, because when you drill down to it it's about compliance, right … compliance, at the end of the day, is always on my mind. (interview 5, US)

By contrast, the interviews with Swedish disability/accessibility resources staff show a more relaxed attitude towards the possibility of having students filing a legal complaint.

[Sometimes a student may say:] Oh but then I'll report you. [Then I would say:] Ah, if you want to do it that way, then you can do it, I won’t stop you from doing that…. For me it is quite undramatic, you must be able to file a complaint against an authority if you feel that you want to do so, and a legal process will take care of the matter. (interview 8, SE)

Differences also appear in how participants understood the principle of non-discrimination based on disability. The interview guide included the question: What is the first thing that comes to mind when you hear the term ‘prohibition of discrimination based on disability’? In the United States, participants referred to the law and pointed to discriminatory behaviours and structures.

I think about overt discrimination of disabled people … we only have one residence hall that is physically accessible, and the other five are not. So if you do have a physical disability … you only have one choice. And then the other, definitely more, micro-aggressions … there still are definitely practices that people might not even be aware of, that are discriminatory. (interview 6, US)

In Sweden, participants answered by expressing their agreement with the principle of non-discrimination and stating that disabling barriers should be removed.

I am thinking: To enable, that one tries to remove obstacles…. But partly I think it is good, it should be clear that we should not discriminate. (interview 15, SE)

As mentioned previously, the ADA is built on the recognition that disability discrimination has been and still is a problem in the United States. The Discrimination Act is grounded in the rationale that it is important to secure the value of equality in Sweden. It appears thus that the participants’ perception of the principle of non-discrimination based on disability aligns with the different rationales provided by the anti-discrimination laws in the United States and Sweden, respectively.

Another difference between the two countries concerns the understanding of disability. In Sweden, the disability/accessibility resources staff shared an understanding of disability as a permanent or long-term functional impairment that needs to be compensated. As such, they adopted a medical model or deficit approach to disability. In addition, they explained that disability needs to be understood in the context of the learning situation, which is in line with the relational model of disability that was conceptualised in disability studies in the Nordic countries (Traustadóttir, 2009). This explanation was salient, for example, when Swedish participants explained that they used the term ‘functional impairment’ (funktionsnedsättning) rather than ‘functional variation’ (funktionsvariation), which are two terms that signify disability in Swedish. ¹

We speak about functional impairments, and it concerns, well, we are speaking about [that] when it is a limitation in relation to the studies, it is actually a difficulty in that case. (interview 11, SE)

We use functional impairment because that is what is written in the Discrimination Act … it's the law that makes that one can get support [in higher education]. Hence, it is this term that we use. (interview 15, SE)

The second quote shows a ‘before the law’ attitude because it refers to the law as an external truth that legitimises the terminology used by the disability/accessibility resources staff in Sweden. Moreover, these quotes indicate that disability should be understood in terms of impairments in the learning situation, which was a common view in the Swedish interviews. While American participants similarly acknowledged the importance to consider the specific situations that create disadvantages or discriminate students, they also looked beyond the learning situations and referred to disability in terms of identity and/or diversity.

The next student I’m meeting with is, identifies as neurodivergent. (interview 2, US)

Disability at [name of the university] is actually considered part of diversity. (interview 3, US)

The conception of disability as identity and/or diversity that was present in the American interviews corresponds to a minority model and social justice conception of disability. This conception differs from the relational conception of disability that permeated the Swedish interviews, which described disabled students as recipients of accommodations and support measures (see also Sépulchre, 2023).

In brief, the interviews in the two countries show clear ‘before the law’ conceptions as the participants stated that the anti-discrimination laws are the basis of their work. Differences were found with respect to the American and Swedish participants’ fear of litigation and conception of disability.

Doubting or Promoting the Law's Capacity to Change Society

The third type of legal consciousness identified by Ewick and Silbey (1998), ‘against the law’, implies a critical attitude towards the law and its capacity to redress injustice. The most clear-cut ‘against the law’ attitudes were found in the Swedish interviews. Some participants stated that they doubted the benefit of having a law banning disability discrimination because it may be counterproductive and restrict the universities and colleges’ work with inclusion and accessibility.

The law can also limit sometimes, that is, different initiatives for new thinking, et cetera, and go outside the box and come up with new solutions. (interview 13, SE)

This quote suggests a conception of the law as ‘a barrier’ (Halliday et al., 2015) that constrains people's actions. Furthermore, some Swedish participants claimed that the Discrimination Act is not effective to protect students from disability-based discrimination.

I think that the law is toothless, we have a law, which cannot really be put into practice…. Once it is tested in court, it often falls flat. (interview 15, SE)

It is very rare that the requisites of the Discrimination Act are met, that is, it is very rarely established that there has been discrimination…there has been a mistake on the part of the educational institution … but it is not discrimination. (interview 16, SE)

The critical attitude toward the disability anti-discrimination law suggests that the Swedish disability/accessibility resources staff doubted the law's capacity to change society. By contrast, when critical attitudes towards the law appeared in the American interviews, they were rooted in the opinion that legal compliance does not suffice.

We very much have a human approach, the legal piece is just an aspect of it but … we more frame it as human. (interview 1, US)

The law is the least that you have to do and it doesn’t often feel very welcoming or accessible or inclusive. (interview 2, US)

Several American participants expressed the need to go beyond the minimal requirements of the law and follow the spirit of the law to dismantle ableist structures in higher education.

We talk about the spirit of the law, the spirit of the ADA is inclusion, but if you narrowly interpret the ADA you’re really just stuck, you know, an accommodation or basic compliance does not necessarily make things necessarily very good. You know, that type of access can be separate and different and often more burdensome for individuals, but if the goal for all students is to be included, to feel welcome, to [feel] like they belong, then we need to think about access differently (interview 4, US)

The reference to the ‘spirit of the ADA’ suggests a connection to the disability rights movement, which promoted the passage of the law to obtain social justice for disabled people in the United States. While they saw a link between their work with disability/accessibility resources and the struggle for social justice of the disability rights movement, the participants did not consider themselves disability activists. Rather than referring to a sense of legality beyond the law (Halliday and Morgan, 2013), they positioned themselves as university administrators who are committed to the social justice purpose of American anti-discrimination law. Yet the American disability/accessibility resources staff explained that they had limited resources to engage in structural transformations and some mentioned that their work must be complemented by other diversity work realised, for example, by student organisations.

A lot of what we’re doing is the compliance side, right, all the accommodations and legal compliance … and then there is a cultural piece, and a cultural piece, which is more connected to the other types of diversity and advocacy work on campus. (interview 3, US)

Initiatives targeting cultural representations of disability were not mentioned in the Swedish interviews. Participants in both countries remarked that the realisation of disability anti-discrimination law differs across institutions of higher education. In the following quote, an American participant compares their university to other universities in the United States.

I would say, in terms of US universities, we’re not, we’re not very progressive, I would say we’re pretty middle. (interview 2, US)

The reference to progress suggests a vision that society is moving – or should move – towards social justice through the realisation of the ADA. Allusions to a better, non-ableist, future appear in several American interviews. By contrast, the Swedish participants focused on the present moment. They agreed that no one should get discriminated against but did not mention structural inequalities that should be redressed in society. The Swedish participants tended to apprehend disability in terms of difficulties arising in specific situations rather than as a dimension of structural injustice. This view may be connected to the fact that there is no word for ableism in the Scandinavian languages (Lid, 2022; Sépulchre, 2023). Some Swedish participants noted that it is not forbidden to go beyond legal compliance, but they did not advocate to go beyond the law and follow the spirit of anti-discrimination law.

The law does not prevent us from taking a few steps further…but I will never push for us to take a step, the university management must … they must state that and be clear, not just write in a document that “we have those strategies”, but they also need to put resources into it. (interview 16, SE)

When I have time to spare, I can reach out: Can I come out to your department and tell you briefly about how it works? … I see that there is a need … [but] we have no official mandate that we should work like that, unfortunately. (interview 11, SE)

As illustrated by these quotes, Swedish participants recognised that there is room for improvement when it comes to accessibility in higher education. Rather than referring to the law as a starting point to bring about social change, they pointed to the responsibility of the leadership of their university or college in this regard. Their role as disability/accessibility staff was focused on individual situations. Swedish participants stressed the importance of the rule of law (rättssäkerhet), implying that legal certainty must be ensured in the provision of support measures and accommodations for disabled students.

If one needs accommodation, one can contact the coordinator [of disability/accessibility resources] … if there is no certificate about targeted pedagogical support, then there is legal uncertainty. (interview 10, SE)

I see it as a possibility to find an alternative [form of] examination that does not jeopardise legal certainty. (interview 8, SE)

American participants explained that they needed to comply with the law and follow guidelines but stated that they had been more flexible with respect to disability documentation since the 2008 Amendment of the ADA. Moreover, they claimed that disabled students should feel welcome and that their entire university or college experience should be as similar to the experience of non-disabled students as possible.

We’re saying that they should have equal access to all aspects of their education, and we’re not, I mean, that's a major way that unfortunately a lot of schools like ours discriminate, I mean, we can get pretty close with their housing usually, and their dining and their classes. But their day-to-day experience? Probably not! (interview 7, US)

Compliance doesn’t mean access, right? So, we’re, our office we, our goal is to provide equitable access. (interview 2, US)

In brief, the analysis suggests that American participants understand disability anti-discrimination law as part of a wider movement for social justice for disabled people in the United States. They underlined the goal of equitable education and referred to the spirit of the ADA. Such commitment to social justice was not found in the interviews with Swedish disability/accessibility resources staff. Swedish participants brought forward a conception of procedural justice and emphasised the principle of equal treatment between disabled and non-disabled students.

What is the Purpose of Disability Anti-Discrimination Law?

This study suggests that, although they were both ‘attached to the law’ (Emerton, 2023), disability/accessibility resources staff in Sweden and the United States had different conceptions of the broader purpose of disability anti-discrimination law. American participants claimed that it was important to go beyond legal compliance and realise the spirit of disability anti-discrimination law. Swedish disability/accessibility resources staff underlined the importance of respecting the rule of law (rättssäkerhet), which is a core principle in Swedish public administration.

These differences could be explained by looking at the staff's conception of disability. Swedish participants conceived of disability as an individual characteristic that can lead to difficulties in certain situations, which should be remedied by providing resources and accommodations. In the United States, this conception was supplemented by a social justice perspective on disability. Some American participants engaged to promote the understanding of disability as diversity at their university or college to further this perspective (see also Sépulchre, 2023). ² It was also striking that, while most American participants mentioned having personal experiences of disability, no Swedish participant referred to such an experience. Having a personal experience and/or a social justice conception of disability does, however, not necessarily imply a legal consciousness of disability anti-discrimination law as a tool for social change. Fillion et al. (2021) showed that French administrators’ conceptions of disability varied depending on their previous engagement in disability organisations, but that even those with a social justice understanding of disability did not mobilise disability anti-discrimination law. Instead, they used other laws regarding disability provisions that co-existed in the French disability rights framework (Fillion et al., 2021).

Hence, while administrators’ conceptions of disability matter, they are not sufficient to explain differences in their attitude toward disability anti-discrimination law. This article offers that the process through which laws are passed and the country's collective legal consciousness of civil rights are other elements that influence the administrator's legal consciousness of disability anti-discrimination law. In the United States, civil rights are rooted in social movements demanding social change and the reduction of social inequality for certain groups in society. This view is reflected in the definition provided by Engel and Munger's (2003) socio-legal study of the Americans with Disabilities Act.

Civil rights are rights of inclusion for the individual whom society otherwise excludes. They go against the grain; they often violate social norms rather than institutionaliz[e] them in legal form; they annoy, they outrage at the very moment when they most effectively insist on an identity and a legal status for the person who invokes them. (Engel and Munger, 2003: 4)

By contrast, Swedish participants took for granted that disabled students should not be discriminated against. For them, disability anti-discrimination law was an administrative tool designed to grant accommodations to disabled students without jeopardising the principle of equal treatment between students.

Conclusion

The study presented in this article suggests that disability anti-discrimination law was conceived of as an instrument for social change by administrators in the United States, but not in Sweden. This finding troubles the assumption that anti-discrimination law is grounded in a quest for social change, which underpins socio-legal studies on the realisation of civil rights (see e.g. Paris, 2006; Stryker, 2007). The insights gained from this small-scale qualitative study point to the need to examine the collective legal consciousness of disability rights and anti-discrimination law if we are to understand how these rights work in practice and what, if any, change they may bring about.