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21 The District Court in a series of decisions granted material and, if so, whether the difference is the result summary judgment to the defendants and dismissed of the plaintiffs' ethnicity.282 the plaintiffs' claims, including those for violation of The plaintiffs' claim regarding the lack of infrastruc- Title VI.274 As stated, the Ninth Circuit affirmed the ture concerned in part a "Priorities List" that the District Court in part and reversed and remanded in county had adopted in 2004. The court affirmed the part. district court's grant of a summary judgment to the First, the appellate court ruled that the plaintiffs' county, holding that "in the context of many County- claim based on the 2004 MTSA was not time-barred and wide infrastructure needs...and limited funding..., that the plaintiffs could use time-barred 1983 or 1996 there is not sufficient evidence to give rise to an infer- MTSAs "`as evidence to establish motive and to put ence of discriminatory intent."283 [their] timely-filed claims in context.'"275 Second, the The plaintiffs' Fair Housing Act and other claims are court held that evidence of "gross statistical disparities" not addressed here, but it may be noted that the appel- may be used to satisfy the intent requirement of Title late court invited the lower court to reconsider its dis- VI when the evidence "tends to show that some invidi- missal of the state law claims, e.g., California Govern- ous or discriminatory purpose underlies the policy."276 ment Code Section 11135, which occurred in the context Statistical evidence of discriminatory impact does not of the dismissal of the federal claims. However, the relieve the plaintiffs of their burden of showing a de- court indicated that the district court would not neces- 277 fendant's intent to discriminate. However, statistical sarily be reversed if it once more did not address the 284 evidence along with the Arlington Heights factors may state claims. be "considered in determining whether there is evidence Although the district court's decision on remand is of intent or purpose to discriminate...."278 unknown at this writing, based on the Ninth Circuit's Although the court earlier stated that "it is the rare decision in Modesto, it is possible to raise a triable issue case where impact alone will be sufficient to invalidate of fact for a Section 601 claim based on statistical and 279 a challenged government action," the court held that other evidence in the absence of direct evidence of dis- the statistical evidence and other factors were "evidence criminatory intent. of discriminatory impact which, in turn, has created a sufficient inference of discriminatory intent to permit C. Pre-Sandoval Disparate-Impact Cases [the plaintiffs] to present their MTSA claim to a fact- Although they were decided prior to the Supreme finder."280 Court's rulings in Sandoval, several other cases located Thus, on the plaintiffs' claim based on the MTSA, for the digest are of interest regarding Title VI claims. the court reversed the district court and remanded. In New York Urban League v. New York,285 the plain- However, on the plaintiffs' claim regarding the lack of tiffs challenged the State of New York's and the Metro- sewerage services, the court found that the "statistical politan Transportation Authority's (MTA) allocation of evidence is insufficient to give rise to an inference of funds for mass transit. The plaintiffs alleged that riders discriminatory intent" and affirmed the district court's of the New York City Transit Authority (NYCTA) sub- grant of summary judgment to the city.281 way and bus system, "the majority of whom are mem- On the issue of law-enforcement and emergency re- bers of protected minority groups, pay a higher share of sponse times, the court found that the difference be- the cost of operating that system than commuter line tween the response times for the predominately Latino passengers, who are predominantly white...." 286 The communities and the predominately white communities court recognized that Section 601 "only prohibits inten- to be "statistically significant" and remanded to the tional discrimination, not actions that have a disparate district court to determine whether the difference is impact upon minorities";287 stated that "Title VI dele- gated to federal agencies the authority to promulgate 274 Comm. Concerning Cmty. Improvement v. City of Mo- regulations incorporating a disparate impact stan- desto, 2007 U.S. Dist. LEXIS 39099, at *1 (E.D. Cal., May 16, dard";288 and then, pre-Sandoval, proceeded to discuss 2007); 2007 U.S. Dist. LEXIS 50258, at *1 (E.D. Cal., July 2, whether a prima facie case of disparate impact had 2007); 2007 U.S. Dist. LEXIS 57551, at *1 (E.D. Cal., July 30, 2007); 2007 U.S. Dist. LEXIS 61195, at *1 (E.D. Cal., July 30, 2007). 282 Id. at 709. 275 Comm. Concerning Cmty. Improvement, 583 F.3d at 702 283 Id. at 710. (citation omitted). 284 Id. at 715. 276 Id. at 703 (citations omitted). 285 71 F.3d 1031 (2d Cir. 1995). 277 Id. 286 Id. at 1033. 278 Id. 287 Id. at 1036 (citing Guardians Ass'n v. Civil Serv. 279 Id. Comm'n, 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 280 Id. at 705. (1983). 281 288 Id. at 707. Id.

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22 been made and whether the defendant had established ules.297 The systems' different costs could "obscure the a substantial legitimate justification for its actions.289 level of subsidies provided to each."298 The court stated The appeals court reversed the district court's grant that the "farebox recovery ratio thus says very little of an injunction barring the implementation of a pro- about the overall allocation of funds to the two sys- posed 20 percent fare increase for subway and bus rid- tems...."299 ers.290 The Second Circuit held that the lower court "fo- Second, the court ruled that the district court made cused on the proposed NYCTA fare increase without insufficient findings on whether the defendants had examining the broader financial and administrative shown a substantial legitimate justification for a fare context in which this fare increase was adopted."291 The increase300 and failed to analyze "whether the defen- court noted that New York law required the MTA to "be dants had shown a substantial legitimate justification 301 self-sustaining with respect to the combined operating for [the] allocation." The court observed that the MTA expenses of the MTA and its subsidiary corporations, and the state identified several factors favoring a including the commuter lines."292 The court held that higher subsidization of the commuter lines.302 the gravamen of the action was that "riders of the New Finally, the court held that enjoining the NYCTA York City subway and bus system, compared to passen- fare increase was not an appropriate remedy with re- 303 gers on the commuter lines, bear a disproportionately spect to the alleged disparate impact in subsidies. high share of the cost of operating the transportation Another case of interest, decided in 2001, is La- system they use."293 bor/Community Strategy Center v. Los Angeles County First, the Second Circuit held that the district court Metropolitan Transportation Authority,304 in which a erroneously found that the plaintiffs had made a prima group of bus passengers challenged decisions by the Los facie showing of disparate impact based "upon a com- Angeles County Metropolitan Transportation Authority parison of the so-called `farebox recovery ratios' of the (LACMTA) to spend "several hundred million dollars" NYCTA and the commuter lines. The farebox recovery on a new rail line, to increase bus fares, and to elimi- 305 ratio measures the percentage of each system's operat- nate monthly discount passes. LACMTA allegedly was ing cost--adjusted to include certain interest payments, spending a disproportionate amount of its budget on depreciation, and the cost of police services--that is rail lines and suburban bus systems "that would pri- recovered through fare revenues."294 marily benefit white suburban commuters, while inten- The court held that "[b]ecause the underlying claim tionally neglecting inner-city and transit-dependent challenges the total allocation of subsidies to the minority bus riders who relied on the city bus sys- NYCTA and the commuter lines, the district court tem."306 should have first assessed whether any measure or The district court approved a consent decree that combination of measures could adequately capture the settled the case; however, the LACMTA did not meet impact of these subsidies upon NYCTA and commuter certain service improvement goals set forth in the de- 295 307 line passengers." The Second Circuit concluded that cree. Ultimately, the district court entered an order the farebox recovery ratio was not a sufficient basis for that included a requirement that the MTA immediately a finding of disparate impact, in part because the ratio acquire 248 additional buses to reduce passenger over- "does not reveal the extent to which one system might crowding.308 The appeals court agreed that the consent have higher costs associated with its operations--costs decree imposed an "obligation" on the LACMTA "to 309 stemming from different maintenance requirements, meet the scheduled load factor targets...." 296 schedules of operation, labor contracts, and so on." A third pre-Sandoval case, Committee for a Better The court further concluded that there was no rea- North Philadelphia v. Southeastern Pennsylvania son to assume that each system's expenses had a "pro- portionate relationship," because the systems were 297 "fundamentally different" in how they carry passengers Id. 298 and in their frequency of stops and operating sched- Id. 299 Id. 300 289 Id. (stating that courts considering claims under analo- Id. at 1039. 301 gous Title VI regulations have looked to Title VII disparate Id. 302 impact cases for guidance) (citing Elston v. Talladega County Id. Bd. of Educ., 997 F.2d 1394, 1407 N14 (11th Cir. 1993); Ga. 303 Id. at 103940. State Conference of Branches of NAACP v. Georgia, 775 F.2d 304 263 F.3d 1041 (9th Cir. 2001). 1403, 1417 (11th Cir. 1985); Larry P. v. Riles, 793 F.2d 969, 305 Id. at 1043. 982 NN 9, 10 (9th Cir. 1984). 306 290 Id. N.Y. Urban League, 71 F.3d at 1033. 307 291 To reduce bus overcrowding, the Consent Decree set forth Id. 292 specific "load factor targets" or "LTFs" that the MTA had to Id. at 1034. meet by specific dates and established a Joint Working Group 293 Id. at 1035. of representatives from the plaintiffs' class and the MTA. See 294 Id. at 1037. id. at 1044. 295 308 Id. at 1038. Id. at 1043. 296 309 Id. at 1037. Id. at 1049.