Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications (2011)

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25 under § 1983.349 (States, however, retain no sovereign immunity as against the federal government.)350 A plaintiff may bring a § 1983 action against state offi- cials in their official capacities for prospective, injunc- tive relief.351 As for whether a transportation authority organized as a public corporation qualifies as a state entity, in Mancuso v. New York State Thruway Authority352 the Second Circuit held that the New York State Thruway Authority did not have sovereign immunity because New York State would not have been affected finan- cially by an award of damages against the defendant.353 In reaching its decision that the Authority did not have immunity, the court identified six factors to determine whether a public corporation has sovereign immunity: 1) how the entity is referred to in the documents that created it; 2) how its governing members are appointed; 3) how the entity is funded; 4) whether the entity’s function is traditionally one of local or state govern- ment; 5) whether the state has a veto power over the entity’s actions; and 6) whether the entity’s obligations are binding upon the state.354 As for municipal transit agencies and § 1983 actions, in Monell v. New York355 the Court held that municipal corporations are persons that are amenable to suit un- der § 1983. In ruling that the Eleventh Amendment is not a bar to municipal liability, the Monell Court’s hold- ing was limited to “local government units which are 349 Vickroy v. Wis. Dep’t of Transp., 73 Fed. Appx. 172 (7th Cir. 2003); Gregory v. S.C. Dep’t of Transp., 289 F. Supp. 2d 721, 723 (2003) (holding that a claim that the state defendants targeted the defendant and his neighborhood for a systematic undervaluation appraisal because of his race in connection with the state’s use of eminent domain to acquire property for a specific bridge project was barred by the Eleventh Amend- ment); Manning v. S.C. Dep’t of Highway and Pub. Transp., 914 F.2d 44 (4th Cir. 1990); Toledo, Peoria & W. R. Co. v. State of Ill., Dep’t of Transp., 744 F.2d 1296 (7th Cir. 1984 (dismiss- ing action against state transportation department because a state agency is not a “person” within the meaning of the Civil Rights Act)). 350 United States v. Miss. Dep’t of Pub. Safety, 321 F.3d 495, 498 (5th Cir. 2003 (involving the ADA)); West Virginia v. United States, 479 U.S. 305, 312 n.4, 107 S. Ct. 702, 707 n.4, 93 L. Ed. 2d 639, 647 n.4 (1987). 351 Heartland Academic Cmty. Church v. Waddle, 427 F.3d 525, 530 (8th Cir. 2005). 352 86 F.3d 289, 293 (2d Cir. 1996), citing Feeney v. Port Auth. Trans-Hudson Corp., 873 F.2d 628, 630–31 (2d Cir. 1989). 353 Id. at 296 (stating that “the state treasury is not even minimally at risk”). 354 Id. at 293. 355 Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 694–95, 98 S. Ct. 2018, 2037–38, 56 L. Ed. 2d 611, 638 (1978). not considered part of the state for Eleventh Amend- ment purposes.”356 In sum, the majority view appears to be that § 1983 is not a basis for a suit alleging a violation of disparate- impact regulations.357 In any event, states and state agencies have immunity with respect to § 1983 ac- tions.358 VI. ADMINISTRATIVE ENFORCEMENT OF TITLE VI COMPLAINTS A. Procedures Applicable to Complaints As a condition to receiving federal financial assis- tance, the recipient and subrecipients must provide assurances to the USDOT of their compliance with Title VI requirements.359 The regulations list the types of dis- crimination prohibited by any recipient through any program for which federal financial assistance is pro- vided by the USDOT.360 The Secretary of the DOT must seek the cooperation of a recipient and provide guidance in an effort to secure voluntary compliance with the regulations.361 The disparate-impact regulations identify two ways in which the disparate-impact policies are enforced. First, federal financial assistance may be refused if an applicant “fails or refuses to furnish an assurance re- quired under [49 C.F.R.] § 21.7 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section….”362 Section 21.13 identifies the procedures that apply when the Department seeks to terminate financial assistance or refuses to grant or continue such assistance. A hearing, which occurs be- fore either the Secretary or a hearing examiner, must 356 Id. at 691, n.54. The Court reaffirmed that the doctrine of respondeat superior is not a basis for holding local govern- ments liable under § 1983 for the constitutional torts of their employees. See also Donnelly v. McLellan, 889 F. Supp. 136, 140 (D. Vt. 1995) (noting that the New York City Transit Au- thority “has been held to be an agency of the City of New York by a variety of courts and for a broad range of statutory pur- poses”). 357 ANDREW H. BAIDA, CIVIL RIGHTS IN TRANSPORTATION PROJECTS 18 (Transportation Research Board, Legal Research Digest No. 48, 2003) (“Section 1983 remains an option for pri- vate parties seeking relief from such action, but the future viability of these suits is questionable, given the current com- position of the Supreme Court.”) 358 The question of whether a § 1983 claim may be brought against a specific agency is beyond the scope of the digest. 359 49 C.F.R. § 21.7 (2009). 360 Id. §§ 21.3, 21.5 (2009). 361 Id. § 21.9 (2009). 362 Id. § 21.13(b) (2009).

26 precede any adverse action taken against an applicant for or a recipient of federal funds.363 The second way in which the disparate-impact poli- cies are enforced is when a complainant files a com- plaint with the funding agency alleging a violation.364 The USDOT’s regulations provide that “[a]ny person who believes himself or any specific class of persons to be subjected to discrimination prohibited by this part may by himself or by a representative file with the Sec- retary [of the Department of Transportation] a written complaint.”365 The Secretary must investigate promptly a complaint by an allegedly injured party or by his or her representative.366 In training material disseminated by the USDOT, the Department has summarized the substance of the procedure. In a disparate impact case, the focus of the investigation concerns the consequences of the recipient’s practices, rather than the recipient’s intent. To establish liability under disparate impact, the investigating agency must first ascertain whether the recipient utilized a facially neutral practice that had a disproportionate impact on a group protected by Title VI. If the evidence establishes a prima facie case, the investigating agency must then de- termine whether the recipient can articulate a substan- tial legitimate justification for the challenged practice. To prove a substantial legitimate justification, the recipient must show that the challenged policy was necessary to meeting a goal that was legitimate, important, and inte- gral to the recipient’s mission. If the recipient can make such a showing, the inquiry must focus on whether there are any equally effective al- ternative practices that would result in less adverse im- pact or whether the justification proffered by the recipient is actually a pretext for discrimination. If a substantial legitimate justification is identified, the third stage of the disparate impact analysis is the com- plainant’s demonstration of a less discriminatory alterna- tive.367 (emphasis added). If an investigation results in a finding of noncompli- ance, the Secretary must inform the recipient of the funds and attempt to resolve the matter informally.368 “If there appears to be a failure or threatened failure to comply with this part, and if the noncompliance or threatened noncompliance cannot be corrected by in- formal means,” the noncompliance may result in the cessation of federal financial assistance and a recom- mendation to the DOJ.369 Not only may there be a hear- 363 Id. § 21.15(d) (2009). 364 Id. § 21.11(b) (2009). 365 Id. 366 Id. § 21.11(a–c) (2009). 367 U.S. Dep’t of Transp., Complaints Investigations Refer- ence Notebook for Civil Rights Personnel, available at http://www.fhwa.dot.gov/download/module3.pdf (Last visited Sept. 9, 2010). 368 49 C.F.R. § 21.11(d) (2009). 369 Id. § 21.13(a) (2009). ing,370 but also judicial review is permitted for action taken pursuant to Title VI, Section 602.371 In addition, the Justice Department may enforce any rights the United States has under any federal law, any applicable proceeding pursuant to any state or local law, and any other means necessary against a recipi- ent.372 In summary, although private actions may be brought under Title VI and § 1983 for intentional dis- crimination, there is no private right of action to sue under Section 602 of Title VI and its regulations for actions alleged to have a disparate impact on minority groups. The sole remedy for a claim of disparate impact is as provided under the above regulations and proce- dures. B. Title VI Administrative Complaints Based on Reduction in Service or Increase in Fares In a 2003 statutory report the United States Com- mission on Civil Rights reported that [T]he Department of Transportation (DOT) receives rela- tively few Title VI complaints. DOT attributes the lack of complaints to its outreach efforts and requirements for early community involvement in transportation planning. This, however, may not account for the low number of re- ported complaints. The number of complaints filed may also be a function of affected communities being unaware of how and when to participate in the decision-making process, lack of access to technical and scientific informa- tion, cultural and language barriers, and insufficient ac- cess to clear guidance on how to file Title VI com- plaints.373 The 2008 TCRP Report, entitled Civil Rights Impli- cations of the Allocation of Funds between Bus and Rail, discusses eight Title VI complaints processed by the FTA in the preceding 10-year period, some of which involved a reduction in transit service or an increase in fares.374 Some of the complaints also involved allocation 370 See id. § 21.15 (2009). 371 Id. § 21.19 (2009); see Tit. VI § 603 (outlining judicial re- view available for actions taken pursuant to § 602). 372 See 49 C.F.R. § 21.13(a) (2009). 373 Not in My Backyard: Executive Order 12,898 and Title VI as Tools for Achieving Environmental Justice, available at http://www.usccr.gov/pubs/envjust/ch3.htm (Last visited Sept. 9, 2010). The United States Commission on Civil Rights was established in 1964 to analyze and report on Civil Rights Laws. 374 LARRY W. THOMAS, CIVIL RIGHTS IMPLICATIONS OF THE ALLOCATION OF FUNDS BETWEEN BUS AND RAIL 9–10 (Transit Cooperative Research Program, Legal Research Digest 27, 2008), hereinafter cited as “2008 TCRP Report,” discussing Piras and Williams v. Metro. Transp. Comm’n, FTA No. 2000- 0315 (involving alleged discriminatory allocation of funds); Wash. Street Corridor Coalition v. Mass. Bay Transp. Auth., FTA No. 2001-0177 (alleging failure, inter alia, to replace line as promised); West Harlem Envtl. Action v. Metro. Transp. Agency, FTA No. 2001-0062 (alleging discrimination in the development and operation of bus parking lots and bus depots and in the placement of diesel bus depots and open-air bus parking lots for diesel buses adversely affecting health of Afri- can-American and Latino residents); Metro. Atlanta Transp.

27 of funds between bus and rail transit providers that complainants alleged had a disparate impact in viola- tion of Title VI.375 Although the FTA concluded one case on the basis of a “Title VI Resolution Agreement,” the FTA made a final determination in the other cases that the transit providers had not violated Title VI. C. Reported Title VI Complaints in the Past 10 Years Based on Service Reductions or Fare Increases In connection with the present digest, 62 of 64 tran- sit agencies that responded to a survey conducted for the digest stated that within the past 10 years they had reduced transit service and/or increased fares. As for whether a reduction in service and/or an increase in fares had resulted in any Title VI complaints against an agency, five agencies reported that within the past 10 years they had received such complaints. As of January 2010, only two agencies reported hav- ing pending Title VI complaints. One complaint was for a reduction in transit service; the other complaint con- cerned fare increases implemented in January 2008 as well as January 2009. A third agency had received complaints concerning service changes, which caused some patrons in low- income and/or minority neighborhoods to have to walk approximately an additional city block for access to bus service, and concerning a 2009 fare increase. No com- plaints against the agency were filed with the FTA. The agency’s approach to handling the complaints is dis- cussed in Section IX, infra, regarding transit agencies’ Title VI and ADA best practices when having to reduce transit service or increase fares. Equity Coalition v. Metro. Atlanta Transit Auth., FTA No. 2001-0084 (alleging, inter alia, disparate treatment by the MARTA in its delivery of services to minority riders, its deci- sion to raise fares, and its delivery of services to disabled rid- ers); Brazen v. Harris County Metro. Transit Authority, FTA No. 2003-0110 (alleging that the civil rights of poor and minor- ity bus riders were violated because of the transit authority’s “callous slashing and gutting” of bus service while “continuing to spend precious taxpayer funds on a tram/trolley system”); Winkelman v. Bi-State Development Agency, FTA No. 2003- 0241 (alleging that a Cross-County Metro Link Extension Pro- ject discriminated against those who rely on public transit in an effort to benefit Washington University); Payne v. Chicago Transit Auth., FTA No. 04-0194 (alleging that the CTA dis- criminated against the predominantly minority residents of Chicago’s South Side when the CTA chose not to fund the Gray Line transit route proposal for racial reasons); and Leese v. Suburban Mobility Auth. for Rapid Transit, FTA No. 2006- 0238 (alleging that SMART’s implementation of a proposed service reduction in November 2005 as a result of the decision of the City of Livonia, Mich., to opt out of the Wayne County Transit Authority was discriminatory because state funds were shifted). 375 Id. at 9–10. A fourth agency’s fare increase in August 2008 did prompt an FTA complaint but on August 14, 2009, the FTA advised the complainants that the FTA had con- cluded that the agency’s fare changes “did not result in a disproportionate adverse effect on a group protected by Title VI.” The fifth agency reported a complaint prompted by a reduction in service that allegedly affected minority and/or low-income areas. The agency’s approach and explanations, discussed in Section IX, infra, allayed the complainants’ concerns without there being any further action. Although not identified in the survey, a complaint in September 2009 under Title VI in connection with the OAC Project, which resulted in the FTA’s denial of funding under the ARRA for the project, is discussed, supra, in Section II.I of the digest. D. Transit Agencies’ Responses to Title VI Complaints With respect to complaints processed at the FTA, transit providers have responded in a variety of ways to Title VI complaints.376 Some of the approaches are rele- vant to complaints alleging disparate impact caused by reductions in transit service and/or increases in fares.377 First, some transit providers have focused on the complaint’s failure to show or allege any specific dis- criminatory intent or effect, the complaint’s failure to identify any discrimination, the absence of proof of any alleged disparity, and/or the complaint’s failure to show a causal connection.378 Second, if needed, transit providers have explained the basis for the agency’s decision, the adequacy of ex- isting service or of new service, and the provision, where applicable, of alternative service.379 Third, other transit providers have emphasized that a decision was made after appropriate deliberations and study, that various options were considered, and/or that there were public hearings and public participation prior to a decision and as part of the decision-making process.380 Fourth, some transit providers have used statistics and demographic information to rebut allegations of disparate impact.381 Fifth, some transit providers have explained the sources of the transit provider’s funding, any statutory requirements or restrictions that may affect the transit provider’s funding, and why there is a lack of funding, 376 Id. at 11–13. 377 Id. 378 Id. at 11. 379 Id. 380 Id. 381 Id.