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14 fected by the service expansion and reductions, including Title VI of the Civil Rights Act of 1964."156 The U.S. Su- the travel time and cost of the current route compared to preme Court held that Section 601 of Title VI, 42 U.S.C. the cost to the rider of the alternative; and (4) docu- 2000d, proscribes only intentional discrimination.157 mented evidence of steps taken to seek out and consider The Sandoval decision is consistent with prior deci- the viewpoints of minority and low-income populations in sions of the Court. In Alexander v. Choate,158 involving the course of developing the policy on major service 159 changes. 150 Section 504 of the Rehabilitation Act of 1973, the Court held that Section 601 only prohibited intentional The letter pointed out that, even if BART performed discrimination, not discrimination of the disparate- an equity evaluation addressing FTA's concerns, it was impact variety. In Choate, the state had reduced the likely that BART still would miss FTA's deadline of number of annual days of inpatient hospital care cov- March 5, 2010, for obligating the funds available under ered by the state Medicaid program.160 Although the ARRA. reduction had more impact on the handicapped, the On February 12, 2010, the FTA notified BART that Court agreed with the State of Tennessee that Section FTA had rejected BART's "corrective action plan" for 504 reaches only purposeful discrimination. meeting BART's Title VI obligations, because "there is The Choate Court cited its decision in Guardians As- no way the agency can come into full compliance with sociation v. Civil Service Commission of New York Title VI" by FTA's deadline of September 30, 2010, un- City,161 in which the Court "confronted the question 151 der the ARRA. (The FTA's letter explained that funds whether Title VI...reaches both intentional and dispa- not disbursed by the deadline would "lapse" and not be rate-impact discrimination."162 Although "[n]o opinion available for use in the Bay area).152 According to the commanded a majority...the Court held that Title VI FTA, BART was "being realistic in admitting that the itself directly reached only instances of intentional dis- process of coming into full compliance will take consid- 163 crimination" (emphasis added). erably longer than the 8+ months that remain before Post-Sandoval, in 2003 in South Camden Citizens in 153 the September 30 deadline." The letter concluded: Action v. New Jersey Department of Environmental Pro- Given the fact that the initial Title VI complaint against BART was well founded, I am not in a position to award 156 the ARRA funds to BART while the agency remains out of Sandoval, 532 U.S. at 278, 121 S. Ct. at 1515, 149 L. Ed. compliance. Moreover, it is clear that, if FTA were to pur- 2d at 523. 157 sue such a course, the likelihood of protracted litigation Id., 532 U.S. at 280 (citing Regents of Univ. of Cal. v. with the parties that made the initial complaint is ex- Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978); tremely high. Guardians Ass'n v. Civil Serv. Comm'n of N.Y. City, 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983); and Alexander v. According to press reports, BART still will receive Choate, 469 U.S. 287, 293, 105 S. Ct. 712, 83 L. Ed. 2d 661 $17 million of the $70 million in stimulus funds but for (1985)). In addition, the Court has held that punitive damages other uses.154 may not be awarded in private suits brought under Title VI of the 1964 Act. Barnes v. Gorman, 536 U.S. 181, 188, 122 S. Ct. III. JUDICIAL INTERPRETATION OF SECTIONS 601 2097, 2102, 153 L. Ed. 2d 230, 238 (2002) (stating that "Title AND 602 OF TITLE VI VI funding recipients have not, merely by accepting funds, implicitly consented to liability for punitive damages"). 158 469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985). A. Section 601 Proscribes Only Intentional 159 Section 504 provides that "[n]o otherwise qualified handi- Discrimination capped individual...shall, solely by reason of her or his handi- In Alexander v. Sandoval,155 a case involving Ala- cap, be excluded from the participation in, be denied the bene- bama's English-only driver's license examination, the fits of, or be subjected to discrimination under any program or issue was "whether private individuals may sue to en- activity receiving Federal financial assistance." Choate, 469 U.S. at 290, 105 S. Ct. at 714, 83 L. Ed. 2d at 665, (quoting 29 force disparate impact regulations promulgated under U.S.C. 794). 160 The petitioners alleged that both the 14-day limitation and in fact any limitation on inpatient coverage would dispar- 150 ately affect the handicapped and constitute a violation of 504 Id. (citing 29 U.S.C. 794). 151 Letter from the FTA, to the Metropolitan Transportation 161 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983). Commission and San Francisco Bay Area Rapid Transit Dis- 162 Choate, 469 U.S. at 29293, 105 S. Ct. at 716, 83 L. Ed. trict 12 (Feb. 12, 2010), available at http://www. 2d at 66667. thestrategycenter.org/flyer/fta-letter-bart, last accessed on 163 Sept. 9, 2010. Id. On the other hand, the Choate Court, observing that 152 courts of appeals had held under some circumstances that Id. at 2. 153 504 reaches disparate impact legislation, stated that the Id. Court "assume[d] without deciding that 504 reaches at least 154 BART's Loss of $70 Million is Muni's Gain, S.F. some conduct that has an unjustifiable disparate impact upon EXAMINER, Feb. 16, 2010, available at http://www. the handicapped." Id. at 299. The Court, however, rejected the sfexaminer.com/local/BARTs-loss-of-70-million-is-Munis-gain- respondents' disparate impact claims, because " 504 does not 84535707.html , last accessed on Sept. 9, 2010. impose an `affirmative-action obligation on all recipients of 155 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). federal funds.'" Id. at 300 n.20 (citation omitted).