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46 Table 8. Possibly, in the absence of direct proof of intentional Transit Agencies That Prepare a Legal Memo- discrimination, evidence of intent to discriminate may randum on Reduction in Service or Increase in be established by proof of the Arlington Heights factors Fare Issues and/or the use of statistical evidence. However, in two recent cases, Darensburg and Committee Concerning Transit Agencies That 54 Community Improvement, discussed in the digest, the Have a Legal Memorandum plaintiffs' disparate-treatment and disparate-impact Transit Agencies That 6 claims were unsuccessful. Do Not Have a Legal The 2007 FTA Title VI Circular provides recipients Memorandum and subrecipients of FTA financial assistance with Transit Agencies Not 4 guidance regarding compliance with Title VI regula- Responding tions and how to integrate into their programs the USDOT's Order on Environmental Justice and the One agency having such a memorandum said that it USDOT LEP Policy Guidance. Nevertheless, recipients "is reviewed by the directors and legal counsel to de- of federal funds may implement policies or take actions termine potential violations, risks, or lawsuits." that have disparate impact if the policies or actions One agency's reply was that that, although there is have substantial legitimate justification, if there are no no specific internal legal memorandum, the agency has comparably effective alternative practices that would "very precise policies in place to address these issues. result in less disparate impacts, and if the justification The process of route service reduction and fare increase for the policy or action is not a pretext for discrimina- is never...undertaken cursorily or superficially." More- tion. over, the agency stated that "before any decisions are A federal-aid recipient's failure to assure that people made, a series of meetings and public outreach efforts who are not proficient in English can effectively partici- are made with all cities and members of the county, pate in and benefit from programs and activities may with the public, and with specific transit interest constitute national origin discrimination prohibited by groups. Their input often guides whatever decisions we Title VI. Recipients and subrecipients that are not re- make regarding route modifications and/or fare quired to develop a plan must consider other ways to changes...." provide reasonably meaningful access to LEP persons. In sum, although a small number of agencies have a Recipients have wide latitude regarding what LEP legal memorandum regarding anticipated issues when measures are appropriate. reducing service or increasing fares, most agencies do As for the ADA, Title II, Part B, is applicable to pub- not. lic transportation services and includes essentially all forms of transportation services that state and local X. CONCLUSION governments provide, such as motor vehicle and inter- city or commuter rail services. The USDOT issued regu- Reductions in service or increases in fares may affect lations in 1991 that address a wide variety of issues not adversely those who are the most dependent on mass directly addressed by the ADA, as well as issued guide- transit for their transportation needs, such as minority lines interpreting the regulations. and low-income populations. As stated, one objective of The digest discusses the practices that were identi- environmental justice is to assure that transportation fied as the result of a survey of transit agencies con- policies avoid or mitigate negative effects on particular cerning their handling and resolving of Title VI and communities and ensure that disadvantaged groups ADA issues when it becomes necessary to reduce transit receive their fair share of benefits. Consequently, the service and/or increase fares. Both Title II of the ADA digest addresses the legal implications of reductions in and Section 504 of the Rehabilitation Act are enforce- transit service or increases in fares in the context of able through a private cause of action. As noted in the environmental justice. Report, although a state may have sovereign immunity As for Title VI of the Civil Rights Act of 1964, indi- under the Eleventh Amendment in regard to ADA viduals may sue under Section 601 only for intentional claims, it appears that even if an ADA claim is dis- discrimination. Section 602 of Title VI is applicable to missed on the basis of sovereign immunity, the claim discrimination resulting from policies and actions that may be brought under the Rehabilitation Act. have disparate impact on minorities; however, there is no private right of action to enforce disparate-impact regulations issued pursuant to Section 602 of Title VI. As discussed in Section V of the digest, the sole remedy for a claim of disparate impact is for an aggrieved party to file an administrative complaint pursuant to USDOT regulations and procedures. The majority view is that a Section 602 disparate-impact claim may not be brought under § 1983.