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3 REDUCTIONS IN TRANSIT SERVICE OR INCREASES IN FARES: CIVIL RIGHTS, ADA, REGULATORY, AND ENVIRONMENTAL JUSTICE IMPLICATIONS by Larry W. Thomas, Attorney-at-Law I. INTRODUCTION equal access to the decision-making process to have a 5 healthy environment in which to live, learn, and work. Congress has concluded that "[r]apid urbanization The Federal Highway Administration states that and continuing dispersal of the population and activi- there are three fundamental environmental justice ties in urban areas have made the ability of all citizens principles: to move quickly and at a reasonable cost an urgent problem of the Government."1 However, because of the To avoid, minimize, or mitigate disproportionately increase in demands on transit agencies, budget con- high and adverse human health and environmental straints, and other reasons, transit agencies may have effects, including social and economic effects, on minor- to review their services and staffing. Indeed, in the past ity populations and low-income populations. 10 years, as indicated by responses by 64 transit agen- To ensure the full and fair participation by all po- cies to a survey conducted for this digest, 62 of the tentially affected communities in the transportation agencies have had to reduce service, increase fares, or 2 decision-making process. both. (The survey form and list of responding agencies To prevent the denial of, reduction in, or signifi- are contained in Appendix A and Appendix B, respec- cant delay in the receipt of benefits by minority and tively.) Reductions in service or increases in fares may low-income populations.6 affect adversely those who are the most dependent on mass transit for their transportation needs. In light of the principles of environmental justice, The digest addresses the legal implications of reduc- this digest analyzes constitutional and statutory provi- tions in transit service or increases in fares in the con- sions and regulations in regard to transit agencies' text of environmental justice. Environmental justice is compliance with Title VI of the Civil Rights Act of 1964 a term associated with the elimination of "unfair and 3 (Title VI) and the Americans with Disabilities Act inequitable conditions." One objective of environmental (ADA). Of course, there is a clear distinction between justice is to assure that transportation policies avoid or Title VI, which prohibits discrimination against minori- mitigate negative effects on "particular communities" 7 ties, and the ADA, which prohibits discrimination and ensure "that disadvantaged groups receive their against persons with disabilities. Persons with disabili- fair share of benefits."4 ties are not automatically protected by Title VI because According to the United States Environmental Pro- of their disability. tection Agency (EPA), As discussed in the digest, individuals may sue un- [E]nvironmental Justice is the fair treatment and mean- der Section 601 of Title VI only for intentional discrimi- ingful involvement of all people regardless of race, color, nation. In the absence of direct proof of disparate national origin, or income with respect to the develop- ment, implementation, and enforcement of environmental treatment, statistical evidence along with other evi- laws, regulations, and policies. EPA has this goal for all dence, such as the factors described by the United communities and persons across this Nation. It will be States Supreme Court in Village of Arlington Heights v. achieved when everyone enjoys the same degree of pro- 5 tection from environmental and health hazards and United States Environmental Protection Agency, Envi- ronmental Justice, available at http://www.epa.gov/ environmentaljustice/ (Last visited on Sept. 3, 2010). 6 United States Department of Transportation, Federal 1 Highway Administration, Federal Transit Administration, 49 U.S.C. 5301(c) (2009). available at http://www.fhwa.dot.gov/environment/ej2000.htm, 2 Only one agency responded that it had not done so. One last accessed on Sept. 3, 2010. agency did not respond to the question. 7 As explained in the digest, federal policies and activities 3 Sean B. Seymore, Set the Captives Free!: Transit Inequity resulting in disparate impact on low-income populations must in Urban Centers, and the Laws and Policies, which Aggravate be considered and prevented or mitigated in much the same the Disparity, 16 GEO. MASON U. CIV. RTS. L.J. 57, 62 (2005). way as disparate impact on minorities. See discussion, infra, in 4 Id. pt. I.F of the digest.

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4 Metropolitan Housing Development Corp.,8 may be con- forms of transportation services that state and local sidered in determining whether there is evidence of governments provide, such as motor vehicle and inter- intent to discriminate. However, in 2009 in Darensburg city or commuter rail services. Not included under Title v. Metropolitan Transportation Commission9 and in II, Part B, are transportation services by private enti- Committee Concerning Community Improvement v. City ties, which are covered under Title III. The USDOT 10 of Modesto, the plaintiffs were unsuccessful in bring- issued regulations in 1991 that address a wide variety ing a claim under Section 601 and also were unable to of issues not dealt with directly by the ADA, as well as prove disparate impact under California law, which, guidelines interpreting the regulations. The regulations unlike federal law, permits a private right of action un- are applicable to entities providing transportation ser- der the California statute and regulations for disparate vices regardless of whether the entities receive financial impact. assistance from the USDOT. Section 602 of Title VI is applicable to discrimination The entities that must adhere to the USDOT's regu- resulting from policies and actions that have disparate lations include 1) a public entity that provides desig- impact on minorities. Federal agencies are authorized nated public transportation or intercity or commuter to implement Title VI's provisions through regulations rail transportation, 2) any private entity that provides requiring compliance with Title VI by recipients of fed- specified public transportation, and 3) any private en- eral funding. The regulations issued pursuant to Sec- tity not primarily engaged in transportation but that tion 602 are implicated when a recipient of federal operates a demand-responsive or fixed-route system. funding uses a neutral procedure or practice that has a Entities that receive federal financial assistance from disparate impact on protected individuals that lacks a the USDOT must comply with regulations relating to substantial legitimate justification. There is no private transportation services for individuals with disabilities right of action to enforce federal, disparate-impact regu- as a condition of their compliance with Section 504 of lations issued pursuant to Section 602 of Title VI. As the Rehabilitation Act of 1973. discussed in Section V of the digest, under federal law Finally, the transit agencies' practices in regard to the sole remedy for a claim of disparate impact is for an Title VI and the effect of a reduction in service or an aggrieved party to file an administrative complaint pur- increase in fares on low-income populations, as well as suant to U.S. Department of Transportation (USDOT) outreach to include LEP persons, appear to embrace regulations and procedures. many of the practices covered, for example, by the 2007 Furthermore, the majority view is that a Section 602 Federal Transit Administration (FTA) Title VI Circular, disparate impact claim may not be brought under 42 entitled Title VI and Title VI-Dependent Guidelines for United States Code (U.S.C.) 1983. Moreover, the Elev- Federal Transit Administration Recipients, and the enth Amendment bars 1983 claims against the states USDOT's Policy Guidance Concerning Recipients' Re- and state agencies. However, the Eleventh Amendment sponsibilities to Limited English Proficient Persons, does not bar a Section 601 disparate-treatment, inten- both of which are discussed, infra, in Sections II.E and tional-discrimination claim; the reason is that Congress II.G, respectively, of the digest. In any case, only three has conditioned the receipt of federal funds on compli- transit agencies responding to the survey reported Title ance with Title VI and on a waiver of sovereign immu- VI complaints in the past 10 years having been filed nity from claims arising under Title VI. with the FTA, two of which were pending at the time of Every application for federal financial assistance to this digest. In the other case reported by a transit carry out a program to which Title VI applies must agency, the FTA determined there were no Title VI vio- submit assurances that the recipient will comply with lations. In addition, a Title VI complaint in September Title VI. A transit agency's reduction in service or in- 2009 involving the Oakland Airport Connector Project crease in fares that disproportionately affects minority and the FTA's denial in February 2010 of requested and limited-English-proficient (LEP) communities are funding from federal economic stimulus funds are dis- examples of actions with potentially disparate impact. cussed, infra, in Section II.I of the digest. As for the As discussed in the digest, a recipient may implement a ADA, only four transit agencies reported having had service reduction or a fare increase that would have complaints, only one of which was pending at the time disproportionately high and adverse effects if the re- of this digest, the others having been resolved. cipient is able to demonstrate that the action meets a substantial need that is in the public interest and that alternatives would have more severe adverse effects than the preferred alternative. The ADA, Title II, Part B, is applicable to public transportation services and includes essentially all 8 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977) (super- seded by statute as stated in Chapman v. Nicholson, 579 F. Supp. 1504 (Ala. 1984)). 9 611 F. Supp. 2d 994 (N.D. Cal. 2009). 10 583 F.3d 690 (9th Cir. 2009).