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17 alone is not determinative, and the Court must look to able group.'"206 In making a determination of whether 198 other evidence. invidious discrimination was a motivating factor con- The Court identified a nonexhaustive list of factors cerning a policy, program, or action, the court must to evaluate in determining whether a decision was the make "a sensitive inquiry into such circumstantial and result of discriminatory animus. direct evidence as may be available."207 The court may consider evidence such as "the historical background of "The historical background of the decision is one the decision, the specific sequence of events leading up evidentiary source, particularly if it reveals a series of to the challenged decision, legislative or administrative official actions taken for invidious purposes."199 history of the decisionmaking body, and any other evi- "The specific sequence of events leading up to the dence relevant to a showing of discriminatory pur- challenged decision also may shed some light on the pose."208 decisionmaker's purposes."200 In Western States Paving Co., the court, in a decision "Departures from the normal procedural sequence on remand from the Ninth Circuit, held that the plain- also might afford evidence that improper purposes are tiff's Section 601 claim for damages could proceed playing a role. Substantive departures too may be rele- against the Washington State DOT,209 because its DBE vant, particularly if the factors usually considered im- program was not a facially neutral one; rather, "it was portant by the decisionmaker strongly favor a decision specifically race conscious. Any resulting discrimination 201 contrary to the one reached." was therefore intentional, whether the reason for the "The legislative or administrative history may be classification was benign or its purpose remedial."210 highly relevant, especially where there are contempo- The court held that the Department's DBE program, rary statements by members of the decisionmaking which was subject to judicial review based on a stan- body, minutes of its meetings, or reports."202 dard of strict scrutiny, "was not sufficiently narrowly 211 tailored to withstand such scrutiny." As explained In Western States Paving Co., Inc. v. Washington below, statistical and other evidence, such as the Ar- State Dep't of Transportation,203 although the district lington Heights factors, may be used by a court in decid- court held that the disadvantaged business enterprise ing whether a policy, program, or action was motivated (DBE) program at issue was intentionally race- by a discriminatory purpose. conscious, the court addressed what evidence may be Although the next subsection discusses Title VI and considered when a facially neutral, yet allegedly dis- recent judicial decisions, Section V of the digest ex- criminatory, policy is at issue. The court held that to plains that financial assistance may be refused to an establish discriminatory intent under Section 601, the applicant that fails or refuses to assure its compliance plaintiff must show that "`it has been intentionally with Title VI and that an aggrieved party may file an treated differently from others similarly situated and administrative complaint with the FTA regarding al- that there is no rational basis for the difference in leged violations of Title VI. treatment.'"204 The court stated that "[d]iscriminatory purpose...implies more than intent as volition or intent B. Title VI and Recent Cases as awareness of consequences. It implies that a deci- In Darensburg v. Metropolitan Transportation Com- sionmaker singled out a particular group for disparate mission212 and in Committee Concerning Community 213 treatment and selected his course of action at least in Improvement v. City of Modesto, the courts decided part for the purpose of causing its adverse effects on the whether the plaintiffs' evidence proved intentional dis- 205 identifiable group." When a policy is facially neutral, "a plaintiff must 206 Id. at *3536 (quoting Pryor v. NCAA, 288 F.3d 548 (3d show that the relevant decision maker (e.g., state legis- Cir. 2002) (quoting Personnel Administrator of Massachusetts lature) adopted the policy at issue `because of not v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 2d 870 merely in spite of, its adverse effects upon an identifi- (1979) (some internal quotation marks omitted). 207 Id. at *36 (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977). 198 Id. at 266 (citations omitted) (footnotes omitted). 208 Id. (citation omitted). 199 Id. at 267 (citations omitted). 209 Id. at *3. 200 Id. at 267 (citations omitted). 210 Id. at *37 (citation omitted). 201 Id. at 267 (footnote omitted). 211 Id. at *910. On the other hand, the plaintiffs' did not 202 Id., 429 U.S. at 268, 97 S. Ct. at 565, 50 L. Ed. 2d at 466. have claims against the city and county because their involve- 203 2006 U.S. Dist. LEXIS 43058, at *1 (W.D. Wash. 2006). ment had been "involuntary and required no independent ac- 204 Id. at *17 (quoting SeaRiver Maritime Financial Hold- tivity"; therefore, the city and county were held not to have ings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002) and cit- intentionally discriminated against the plaintiff. Id. at *16. 212 ing Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996)). 611 F. Supp. 2d 994 (N.D. Cal. 2009). 205 213 Id. (internal quotations omitted) (citations omitted). 583 F.3d 690 (9th Cir. 2009).

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18 crimination based on statistical evidence and/or the California's largest bus-only transit system."221 The Arlington Heights factors. In both cases, the plaintiffs plaintiffs on behalf of themselves and others alleged were unable to prove violations of Title VI. In Darens- that MTC historically had engaged, and continues to burg, the plaintiffs also failed to establish disparate engage, in a policy, pattern, or practice of actions and impact under state law. In Committee Concerning omissions that have the purpose and effect of discrimi- Community Improvement v. City of Modesto, the plain- nating against poor transit riders of color in favor of tiffs were unsuccessful in proving discrimination re- white, suburban transit users on the basis of their race garding the defendants' provision of municipal infra- and national origin. The plaintiffs sought to enjoin MTC structure and services to the plaintiffs' neighborhoods. permanently "from making any funding decision that has an unjustified disproportionately adverse impact on 1. Darensburg v. Metropolitan Transportation AC Transit riders of color"222 and "from supporting the Commission funding of...any improvement or expansion in service that detracts from the equitable funding of services that a. Denial of Plaintiffs' Title VI Disparate Treatment benefit AC Transit riders."223 Claim.--In Darensburg, in 2008214 and 2009,215 a federal In a 2008 opinion, the court granted the defendant's district court in California considered the plaintiffs' motion for summary judgment on the plaintiff's claim of claims of intentional discrimination against the Metro- intentional discrimination but denied the defendant's politan Transportation Commission (MTC) in which the motion to dismiss and allowed the case to proceed to plaintiffs sought injunctive and declaratory relief pur- trial on the disparate-impact claim on the basis of Cali- suant to the Fourteenth Amendment of the Constitu- 224 fornia Government Code Section 11135, discussed tion and 42 U.S.C. 1983 and Title VI, as well as Cali- 225 216 later. fornia Government Code Section 11135. As discussed The court rejected the plaintiffs' Title VI claim, find- below, in 2008, the court dismissed the plaintiffs' claim ing that the plaintiffs had no evidence of direct dis- of intentional discrimination. Although the court per- criminatory intent and that even applying the Arling- mitted a claim to proceed for disparate impact based on ton Heights factors, the "totality of the circumstances state law, in 2009 the court dismissed the claim. shown by Plaintiffs' indirect evidence" did not evince The plaintiffs filed a class action alleging that the intentional discriminatory intent.226 The court observed, MTC, which programs and allocates funding from vari- for example, that the defendant produced evidence that ous sources to San Francisco Bay Area transit and it has no authority to redirect earmarked federal funds highway projects, had channeled funds to projects that and "has provided preventative maintenance funding to disproportionately benefited white suburban riders of AC Transit to use for operating expenses whenever AC BART and Caltrain at the expense of projects that Transit sought such funding."227 would have benefited minority bus patrons of AC Tran- The court held that "[t]he circumstances include too sit.217 The MTC is responsible for updating the Regional many strong contraindications of discriminatory motive Transportation Plan (RTP) for the nine-county San that preclude drawing any reasonable inference of dis- Francisco Bay Area.218 The RTP is the region's long- criminatory intent."228 As one example, the court dis- range transportation plan for a 25-year period and is a cussed the MTC's prerequisite for the Bay Area's transportation projects to qualify for federal funds.219 Among its various man- treatment of the whitest of the seven major carriers, dates, the MTC must "`emphasize the preservation of Golden Gate Transit, almost two-thirds of whose passen- gers are white in a transit area that is majority minority. the existing transportation system.'"220 Facing steep operating shortfalls in three RTPs in 1994, The plaintiffs alleged intentional discrimination 1998 and 2005..., which MTC did not cover, Golden Gate based on "a longstanding pattern of race discrimina- tion" by the MTC in the funding of public transit ser- 221 Darensburg, 2008 U.S. Dist. LEXIS 63991, at *3. vices in the San Francisco Bay Area with respect to 222 Id. at *30. "people of color who are riders of the AlamedaContra 223 Costa Transit District (AC Transit), which operates Id. 224 CAL. GOV'T CODE 11135(a) provides: 214 2008 U.S. Dist. LEXIS 63991, at *1 (N.D. Cal. 2008). (a) No person in the State of California shall, on the basis of 215 race, national origin, ethnic group identification, religion, age, 611 F. Supp. 2d 994 (N.D. Cal. 2009). 216 sex, sexual orientation, color, or disability, be unlawfully denied On September 19, 2005, the court granted MTC's motion full and equal access to the benefits of, or be unlawfully sub- to dismiss the complaint with leave to amend; the plaintiffs jected to discrimination under, any program or activity that is filed an amended complaint on October 11, 2005. conducted, operated, or administered by the state or by any 217 The plaintiffs were individuals of color and organizations state agency, is funded directly by the state, or receives any fi- nancial assistance from the state. with minority members who ride buses of the Alameda-Contra Costa Transit District ("AC Transit"), which operates Califor- Notwithstanding 11000, this section applies to the California nia's largest bus-only transit system. Darnesburg, 611 F. Supp. State University. 225 2d at 997. Darensburg, 2008 U.S. Dist. LEXIS 63991, at *79. 218 226 Id. at 998, 1000. Id. at *72, 76. 219 227 Id. at 1006. Id. at *72. 220 228 Id. at 1006 (citing 23 U.S.C. 134(h)(1)(H). Id. at *7677.

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19 Transit cut its service by 35% and lost 21% of its rider- benefit from additional service and that many of them 229 ship. are burdened by fare hikes and service cuts...."240 The court stated that "it would strain credulity to in- However, the court stated it had come "to appreciate fer that Defendant is motivated by racial discrimination the difficult challenge faced by MTC's public servants of to harm AC Transit's minority riders by not covering meeting a wide array of complex transportation needs operating shortfalls [when MTC] allows Golden Gate and competing priorities of multiple operators through- Transit's largely white riders to suffer steep cuts in ser- out the Bay Area with limited and often highly re- vice instead of covering its operating shortfalls."230 stricted funds."241 For example, there are committed b. Denial of Plaintiffs' Disparate-Impact Claim.--In funds and discretionary funds;242 some of the committed the 2008 opinion, the court had observed that, unlike funds are federal funds administered by the FTA (Sec- 243 Title VI, California's "statutory scheme expressly pro- tions 5307 and 5309 funds), which may be eligible for vides for a private right of action"231 by stating in Sec- capital expenditures or preventive maintenance;244 there tion 11139 that "[t]his article and regulations adopted are ADA set-aside funds and other funds that may be pursuant to this article may be enforced by a civil ac- allocated by the MTC.245 There are state committed 232 tion for equitable relief." The court held that on the funds based on state statutes and statewide voter- state disparate-impact claim, there were triable issues approved propositions, as well as regional measures 246 of fact regarding, for example, whether Congestion passed by voters in the Bay Area. There are other Mitigation and Air Quality "funds can be allocated to uncommitted funds that may be available to the MTC.247 operating shortfalls in the RTP";233 whether Surface Although the court found that the plaintiffs had Transportation Program "funds can be used for operat- demonstrated some instances of disparate impact,248 "on 234 ing expenses"; and whether State Transportation Im- balance, Plaintiffs have not met their burden of show- provement Program "funds could be allocated to cover ing that MTC's funding practices regarding committed operating shortfalls in the RTP."235 There was also a funds have a significantly disproportionate adverse im- 249 triable issue of fact concerning causation and the plain- pact on the Plaintiff Class." Furthermore, the "Plain- tiffs' claims for disparate impact.236 tiffs have not met their burden of showing a prima facie In its 2009 decision, the court considered in detail case of showing a significant disparate impact with re- and rejected the plaintiffs' disparate-impact claim un- spect to uncommitted funds."250 der the California statute. As stated, in contrast to Title The plaintiffs did establish a prima facie case re- 251 VI, under the California statute there is a private right garding Resolution 3434, a strategic long-range plan of action to enforce the statute and the regulations.237 for transit expansion projects.252 Because the plaintiffs However, "[A]s under Title VI, a prima facie case of disparate impact discrimination under section 11135 240 Id. at 999. requires a plaintiff to show: (1) the occurrence of certain 241 outwardly neutral practices; and (2) a significantly ad- Id. 242 verse or disproportionate impact on minorities produced Id. 243 by the defendant's facially neutral acts or practices."238 Id. at 1019. 244 Although the court observed later in its opinion that Id. at 101922. "comparing transit service is more `an art than a sci- 245 Id. at 102224. ence,'"239 the court disposed of the plaintiffs' Section 246 Id. at 102428. 11135 disparate-impact claim. The court began by stat- 247 Id. at 103036. ing that it recognized that "AC Transit bus riders would 248 Id. at 1044. For example, the court stated that "[o]n bal- ance, Plaintiffs have shown that MTC's practice with respect to Resolution 3434 caused disparate impact" and that the "Plain- tiffs have shown that MTC's projections, particularly those in 229 Id. at *7778 (citation omitted) (footnote omitted). the near future, constitute a substantial factor contributing to 230 Id. at *78 (footnotes omitted). service reductions by AC Transit." Id. at 1050. 249 231 Id. at *44. Id. at 1051. 250 232 Id. (citation omitted). Id. 251 233 Id. at *60. Id. 252 234 Id. Id. at 1044. Thus, the court stated: 235 Id. at *63. On balance, Plaintiffs have shown that MTC's practice with 236 respect to Resolution 3434 caused disparate impact. As de- Id. at *68, 71. scribed above, MTC allocates more funding to rail projects than 237 Darensburg, 611 F. Supp. 2d at 104142 (citing CAL. to bus projects, resulting in bus projects proposed by AC Transit GOV'T CODE 11139). being excluded from projects listed in Resolution 3434. Although 238 Plaintiffs' challenge to MTC's initial decisions on which projects Id. at 1042. 239 to include under Resolution 3434 appear to be barred by the Id. at 1048. statute of limitations, those decisions constitute relevant context

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20 had established a prima facie case of disparate impact, ence."261 Twenty-six unincorporated neighborhoods, re- the defendant had to "demonstrate a substantial legiti- ferred to as "islands," are within the city's sphere of mate justification for its action."253 The court rejected influence.262 The plaintiffs alleged that certain actions the plaintiffs' argument that the "MTC must demon- and inaction of the city and Stanislaus County consti- strate a strict transportation necessity through empiri- tuted intentional discrimination in violation of the Fed- cal validation studies, citing landmark cases that arose eral Constitution and statutes, as well as of California in the employment context"254 (emphasis added). The statutes.263 Essentially, the claim was that the defen- court distinguished the cases on which the plaintiffs dants discriminated against the plaintiffs in the deliv- relied on the basis that the cases involved a discrete ery of municipal services. test or screening device, which was wholly different One of plaintiffs' specific complaints concerned the from the complex situation with which the MTC had to lack of infrastructure, such as curbs, sidewalks, and deal. The "MTC's practices...are subject to a complex drains.264 Another complaint concerned the city's failure array of statutory, regulatory and administrative con- to annex the neighborhoods. Annexation would have straints, not to mention numerous, and sometimes meant additional city services, as well as resulted in the competing policy goals, which require making difficult residents being able to vote in city elections.265 One of 255 trade-offs." The court held that it could not "say that the barriers to annexation was the exclusion of the MTC has failed to show a substantial legitimate justifi- plaintiff neighborhoods from a Master Tax Sharing cation for Resolution 3434...."256 Agreement (MTSA) between the city and the county. When a plaintiff in a disparate-impact case makes a Under the MTSA the governments had agreed to a divi- prima facie case, but the defendant responds by demon- sion of tax revenue if and when the city annexed a 266 strating a substantial legitimate justification for its community covered by the agreement. If a community actions, the plaintiff "must then show an equally effec- is not covered by the MTSA, the city and county must tive alternate practice that results in less racial dispro- enter into a separate tax sharing agreement for the 257 267 portionality." However, in Darensburg, the court community. ruled that the plaintiffs did not show that their alleged The plaintiffs argued that the MTSA was a disincen- less discriminatory alternative "would be equally effec- tive to the county's building of infrastructure because tive while causing less racial disparity."258 there was no assurance that in a future annexation the city would not require financial concessions from the 2. Committee Concerning Community county.268 The MTSA issue allegedly also deterred the Improvement v. City of Modesto and Title VI Claims neighborhoods from seeking annexation, a "burden- Although not involving transit, another case of in- some" and possibly "futile" process in the absence of a terest is Committee Concerning Community Improve- covering MTSA.269 ment v. City of Modesto,259 an action against the city, A lack of sewerage facilities was also at issue. Be- Stanislaus County, and the county sheriff, in which a cause of the passage of a measure by city voters, the district court rejected the plaintiffs' Title VI and Four- extension of sewerage facilities to any annexed teenth Amendment Equal Protection and 1983 claims neighborhoods had been rendered more difficult.270 based on alleged discrimination in the defendants' pro- Moreover, the county allegedly had given priority to the vision of municipal infrastructure and services to the building of other infrastructure projects in predomi- 271 affected neighborhoods. As discussed below, the Ninth nately white communities. Circuit affirmed the district court in part and reversed Another issue concerned law enforcement and emer- and remanded in part. gency response times, services that were the responsi- The plaintiffs/appellants were residents of four pre- bility of the county for the plaintiff neighborhoods.272 dominately Latino neighborhoods, as well as commu- The plaintiffs alleged that the response times for the nity groups representing the neighborhoods. 260 The predominately Latino neighborhoods are longer than for 273 neighborhoods are outside of the city and not incorpo- predominately white neighborhoods. rated in the city but within the city's "sphere of influ- 261 Id. 262 Id. 263 Id. for MTC's further reductions in 2006 of the scope of the few AC 264 Transit bus projects that had initially been included. Id. Id. at 69697. 265 253 Id. at 1042. Id. at 697. 266 254 Id. at 1051. Id. 267 255 Id. at 1052. Id. 268 256 Id. at 1057. Id. 269 257 Id. at 1042 (citing Ga. State Conference of Branches of Id. 270 NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985). Id. at 698. 258 271 Id. at 1060. Id. 259 272 583 F.3d 690 (9th Cir. 2009). Id. at 699. 260 273 Id. at 696. Id.