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26 precede any adverse action taken against an applicant ing,370 but also judicial review is permitted for action for or a recipient of federal funds.363 taken pursuant to Title VI, Section 602.371 The second way in which the disparate-impact poli- In addition, the Justice Department may enforce any cies are enforced is when a complainant files a com- rights the United States has under any federal law, any plaint with the funding agency alleging a violation.364 applicable proceeding pursuant to any state or local The USDOT's regulations provide that "[a]ny person law, and any other means necessary against a recipi- who believes himself or any specific class of persons to ent.372 be subjected to discrimination prohibited by this part In summary, although private actions may be may by himself or by a representative file with the Sec- brought under Title VI and 1983 for intentional dis- retary [of the Department of Transportation] a written crimination, there is no private right of action to sue complaint."365 The Secretary must investigate promptly under Section 602 of Title VI and its regulations for a complaint by an allegedly injured party or by his or actions alleged to have a disparate impact on minority her representative.366 groups. The sole remedy for a claim of disparate impact In training material disseminated by the USDOT, is as provided under the above regulations and proce- the Department has summarized the substance of the dures. procedure. In a disparate impact case, the focus of the investigation B. Title VI Administrative Complaints Based on concerns the consequences of the recipient's practices, Reduction in Service or Increase in Fares rather than the recipient's intent. To establish liability In a 2003 statutory report the United States Com- under disparate impact, the investigating agency must mission on Civil Rights reported that first ascertain whether the recipient utilized a facially neutral practice that had a disproportionate impact on a [T]he Department of Transportation (DOT) receives rela- group protected by Title VI. If the evidence establishes a tively few Title VI complaints. DOT attributes the lack of prima facie case, the investigating agency must then de- complaints to its outreach efforts and requirements for termine whether the recipient can articulate a substan- early community involvement in transportation planning. tial legitimate justification for the challenged practice. To This, however, may not account for the low number of re- prove a substantial legitimate justification, the recipient ported complaints. The number of complaints filed may must show that the challenged policy was necessary to also be a function of affected communities being unaware meeting a goal that was legitimate, important, and inte- of how and when to participate in the decision-making gral to the recipient's mission. process, lack of access to technical and scientific informa- tion, cultural and language barriers, and insufficient ac- If the recipient can make such a showing, the inquiry cess to clear guidance on how to file Title VI com- must focus on whether there are any equally effective al- plaints. 373 ternative practices that would result in less adverse im- pact or whether the justification proffered by the recipient The 2008 TCRP Report, entitled Civil Rights Impli- is actually a pretext for discrimination. cations of the Allocation of Funds between Bus and Rail, If a substantial legitimate justification is identified, the discusses eight Title VI complaints processed by the third stage of the disparate impact analysis is the com- FTA in the preceding 10-year period, some of which plainant's demonstration of a less discriminatory alterna- involved a reduction in transit service or an increase in 367 tive. (emphasis added). fares.374 Some of the complaints also involved allocation If an investigation results in a finding of noncompli- 370 ance, the Secretary must inform the recipient of the See id. 21.15 (2009). 371 funds and attempt to resolve the matter informally.368 Id. 21.19 (2009); see Tit. VI 603 (outlining judicial re- "If there appears to be a failure or threatened failure to view available for actions taken pursuant to 602). 372 comply with this part, and if the noncompliance or See 49 C.F.R. 21.13(a) (2009). 373 threatened noncompliance cannot be corrected by in- Not in My Backyard: Executive Order 12,898 and Title formal means," the noncompliance may result in the VI as Tools for Achieving Environmental Justice, available at cessation of federal financial assistance and a recom- (Last visited Sept. 369 mendation to the DOJ. Not only may there be a hear- 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 910 (Transit 363 Cooperative Research Program, Legal Research Digest 27, Id. 21.15(d) (2009). 2008), hereinafter cited as "2008 TCRP Report," discussing 364 Id. 21.11(b) (2009). Piras and Williams v. Metro. Transp. Comm'n, FTA No. 2000- 365 Id. 0315 (involving alleged discriminatory allocation of funds); 366 Id. 21.11(ac) (2009). Wash. Street Corridor Coalition v. Mass. Bay Transp. Auth., 367 FTA No. 2001-0177 (alleging failure, inter alia, to replace line U.S. Dep't of Transp., Complaints Investigations Refer- as promised); West Harlem Envtl. Action v. Metro. Transp. ence Notebook for Civil Rights Personnel, available at Agency, FTA No. 2001-0062 (alleging discrimination in the (Last visited development and operation of bus parking lots and bus depots Sept. 9, 2010). 368 and in the placement of diesel bus depots and open-air bus 49 C.F.R. 21.11(d) (2009). parking lots for diesel buses adversely affecting health of Afri- 369 Id. 21.13(a) (2009). can-American and Latino residents); Metro. Atlanta Transp.