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23 Transportation Authority,310 involved a claim of dispa- tioned the receipt of federal highway funds on compli- rate impact on the black community of Philadelphia.311 ance with Title VI and the waiver of sovereign immu- The plaintiffs argued that the Southeastern Pennsyl- nity from claims arising under Title VI."320 In Western vania Transportation Authority (SEPTA) used an un- States Paving Co., supra, the court held that the state fair portion of its federal subsidy dollars for Regional did not have sovereign immunity because the regula- Rail at the expense of City Transit,312 which had a tions clearly put "the state on notice--as a recipient of higher percentage of black riders than Regional Rail.313 federal funds--that it faced private causes of action in Plaintiffs argued that City Transit riders were paying the event of noncompliance."321 "through their fares a higher percentage of the divi- sion's operating expenses than...the riders of Regional 2. Statute of Limitations Rail."314 In Darensburg v. Metropolitan Transportation Com- The court rejected the plaintiff's arguments that mission,322 the court considered whether some of the SEPTA should raise Regional Rail fares and reallocate plaintiffs' claims alleging disparate impact were time- subsidies to City Transit or reduce Regional Rail Ser- barred. In its 2008 opinion, the court dismissed the vice to reduce its share of operating expenses.315 The plaintiffs' Title VI disparate-treatment case. The only court agreed with SEPTA that the agency had a respon- basis for a disparate-impact claim was California Gov- sibility to maintain a balanced budget that included the ernment Code Section 11135. First, the court held that need to increase ridership on Regional Rail that would the statute of limitations was 2 years for disparate- not be accomplished if the court required SEPTA to 323 impact claims under Section 11135. Second, citing the 316 decrease service and raise fares for Regional Rail. The U.S. Supreme Court's opinion in National Railroad court held that none of the alternatives offered by the Passenger Corp. v. Morgan,324 the court held that the Committee would accomplish SEPTA's legitimate goals "continuing violation doctrine" did not extend the limi- and granted a summary judgment in favor of SEPTA tations period.325 The court held that the "Plaintiffs' because the plaintiff did not sustain its burden of prov- challenges to ongoing effects of policies adopted prior to ing the existence of other devices without a similarly April 19, 2003 are likely time-barred under Morgan";326 undesirable effect.317 however, the court held that in "disparate impact cases...the court may consider time-barred events as D. Other Issues Relating to Title VI Claims evidence in connection with Plaintiffs' timely claims."327 1. Sovereign Immunity V. WHETHER DISPARATE-IMPACT CLAIMS ARE The Eleventh Amendment bars 1981 and 1983 ACTIONABLE UNDER SECTION 1983 claims against the states and state agencies.318 How- ever, the Eleventh Amendment does not bar a Section A. Cases Holding That Disparate-Impact Claims 601 disparate-treatment, intentional-discrimination claim.319 The reason is that "Congress has clearly condi- Are Not Actionable Under Section 1983 Under the Sandoval decision, a private right of ac- 310 1990 U.S. Dist. LEXIS 10895, at *1 (E.D. Pa. 1990). tion to enforce Section 601 of Title VI for intentional 311 Comm. for a Better North Phila., 1990 U.S. Dist. LEXIS discrimination does not include a private right of action 10895, at *8 (court stating that "[i]n Title VI discriminatory to enforce Section 602 and the regulations issued there- impact cases , as in cases brought under Title VII, the burden under for disparate impact. Section 1983 is not an inde- of proof has three distinct stages) (citations omitted). pendent basis for a claim. That is, a statute, not the 312 Id. regulations, must have "rights-creating language" be- 313 Id. at *9. fore a claim may be pursued under 1983, which "`by 314 Id. itself does not protect anyone against anything.'"328 315 Id. at *11. 316 Id. at *13. 317 320 Id. (quotation marks omitted) (citations omitted). Id. at *3031. 318 321 W. States Paving Co., 2006 U.S. Dist. LEXIS 43058, at Id. at *34. *29 (citing Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir. 322 611 F. Supp. 2d 994 (N.D. Cal. 2009). 1982); Pennhurst State Sch. & Hospital v. Halderman, 465 323 Id. at 1039. U.S. 89, 1013, 104 S. Ct. 900, 90810, 79 L. Ed. 2d 67, 7880 324 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). (1984) (Eleventh Amendment sovereign immunity extends to 325 state agencies and to damage claims against state officials Darensburg, 611 F. Supp. 2d at 1041. 326 acting in their official capacity); Quern v. Jordan, 440 U.S. 332, Id. 33940, 99 S. Ct. 1139, 1114, 59 L. Ed. 2d 358, 36566 (1979). 327 Id. 319 W. States Paving Co., 2006 U.S. Dist. LEXIS 43058, at 328 Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 121 S. Ct. 2268, *27. 2276, 153 L. Ed. 2d 309, 322 (2002) (quoting Chapman v.