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5 II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI gram or activity...is authorized and directed to effectuate OF THE CIVIL RIGHTS ACT OF 1964 WHEN the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or PUBLIC TRANSPORTATION PROJECTS orders of general applicability which shall be consistent ALLEGEDLY DISCRIMINATE AGAINST MINORITY with achievement of the objectives of the statute authoriz- OR ETHNIC GROUPS ing the financial assistance in connection with which the 15 action is taken. A. Prohibition of Intentional Discrimination Under Title VI, as well as Title VII of the Civil 16 Caused by Disparate Treatment Under Section Rights Act of 1968 and other statutes and regulations, the USDOT promulgated regulations to effectuate Title 601 of Title VI VI.17 The regulations issued pursuant to Section 602 of Civil rights issues arise when public transportation Title VI are implicated when a recipient of federal fund- officials plan highways, transit facilities, and related ing uses a neutral procedure or practice that has a dis- projects that allegedly affect minority or ethnic groups parate impact on protected individuals that lacks a sub- on a discriminatory basis. The primary law is Title VI of 18 stantial legitimate justification. The Ninth Circuit has the Civil Rights Act of 1964.11 Section 601 of Title VI recognized that disparate-impact regulations may go prohibits intentional discrimination caused by disparate further than the statute that they implement and pro- treatment, whereas Section 602 deals with discrimina- scribe "activities that have disparate effects on racial tion resulting from policies and actions that have dispa- groups, even though such activities are permissible un- rate impact on minorities and others protected by Sec- der 601."19 tion 602 and the regulations issued pursuant thereto.12 Part 21 of Title 49 of the Code of Federal Regulations Section 601 provides that "[n]o person in the United (C.F.R.) gives effect to Title VI in "that `no person in the States shall, on the ground of race, color, or national United States shall, on the grounds of race, color, or origin, be excluded from participation in, be denied the national origin, be excluded from participation in, be benefits of, or be subjected to discrimination under any denied the benefits of, or be otherwise subjected to dis- program or activity receiving Federal financial assis- crimination under any program or activity receiving tance."13 Regardless of a transit system's motivation, Federal financial assistance' from the Department of decisions affecting minority riders must be made in Transportation."20 Part 21 effectuates Title VI's provi- compliance with Title VI. As discussed in Section II.B in sions21 and is applicable "to any program for which Fed- this digest, federal agencies are authorized to imple- eral financial assistance is authorized under a law ad- ment Title VI's provisions through regulations requir- ministered" by USDOT.22 ing compliance with Title VI by recipients of federal Section 21.5(a) prohibits discrimination, first, in funding. general: "No person in the United States shall, on the As explained in Section II.A, infra, by virtue of a de- grounds of race, color, or national origin be excluded cision of the U.S. Supreme Court, individuals may sue from participation in, be denied the benefits of, or be under Section 601 of Title VI only for intentional dis- otherwise subjected to discrimination under, any pro- crimination. Moreover, there is no private right of ac- gram to which this part applies." tion to enforce disparate-impact regulations issued pur- Section 21.5(b) identifies specific discriminatory ac- suant to Section 602 of Title VI.14 tions that are prohibited, including an action the effect of which is to B. No Cause of Action Under Disparate-Impact (i) Deny a person any service, financial aid, or other bene- Regulations Promulgated Under Section 602 of fit provided under the program; Title VI to Effectuate the Provisions of Section 601 Section 602 of Title VI provides in pertinent part 15 42 U.S.C. 2000d-1 (2009). that 16 Id. 36013619, 46014655 (2009); 23 U.S.C. 109(h), [E]ach Federal department and agency which is empow- 324 (2009). 17 ered to extend Federal financial assistance to any pro- 49 C.F.R. pt. 21 (2009). 18 See Complaints Investigations Reference Notebook for 11 Title VI of the Civil Rights Act of 1964; Title VI, 602, 88 Civil Rights Personnel, U.S. Dep't of Transp., available at Pub. L. No. 352, 78 Stat. 252 (July 2, 1964), codified at 42 http://www.fhwa.dot.gov/download/module3.pdf (Last visited U.S.C. 2000d. Sept. 9, 2010). 19 12 Gulino v. Bd. of Educ. of the City Sch. Dist. of the City of Save Our Valley v. Sound Transit, 335 F.3d 932, 935 n.2. 20 N.Y., 236 F. Supp. 2d 314 (S.D.N.Y. 2002). 49 C.F.R. 21.1 (2009) (quoting 42 U.S.C. 2000d (Title 13 42 U.S.C. 2000d (2009). VI)). 21 14 Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 Id. 21.1 (2009). 22 L. Ed. 2d 517 (2001). Id.