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6 (ii) Provide any service, financial aid, or other benefit to a C. Executive Order 12898 (1994) Requiring person which is different, or is provided in a different Federal Agencies to Combat Directly manner, from that provided to others under the program; Disproportionate and Adverse Effects of Their (iii) Subject a person to segregation or separate treatment Programs, Policies, and Activities on Minority and in any matter related to his receipt of any service, finan- Low-Income Populations cial aid, or other benefit under the program; On February 11, 1994, President Clinton, in an effort (iv) Restrict a person in any way in the enjoyment of any to identify and address "disproportionately high and advantage or privilege enjoyed by others receiving any adverse human health or environmental effects of [fed- service, financial aid, or other benefit under the program; eral agency] programs, policies, and activities on minor- ... [or] ity populations and low-income populations," issued (vi) Deny a person an opportunity to participate in the Executive Order 12898, Federal Actions to Address En- program through the provision of services or otherwise or vironmental Justice in Minority Populations and Low- afford him an opportunity to do so which is different from Income Populations.34 (The FTA's 2007 Title VI Circu- that afforded others under the program.... lar, discussed in Section II.E, infra, specifically incorpo- A recipient of federal funds may not directly or indi- rates the principles of Executive Order 12898.) rectly take actions that would substantially impair the Pursuant to 2-2 of the Executive Order accomplishment of the objectives of Title VI or the regu- lations promulgated pursuant thereto.23 As the FTA has [E]ach Federal agency shall conduct its programs, poli- cies, and activities that substantially affect human health advised, the implementation of reductions in transit or the environment, in a manner that ensures that such services or increases in fares that disproportionately programs, policies, and activities do not have the effect of affect minority communities are examples of actions excluding persons (including populations) from participa- 24 with potentially disparate impact. tion in, denying persons (including populations) the bene- As will be seen in Section II.E, infra, which discusses fits of, or subjecting persons (including populations) to the FTA's guidance regarding compliance with Title VI, discrimination under such programs, policies, and activi- 35 "[e]very application for Federal financial assistance to ties because of their race, [c]olor, or national origin. carry out a program to which this part applies" must The effect of the executive order is to require federal submit assurances that the applicant will comply with agencies to approach and combat directly dispropor- Title VI; assurances may be required from subgrantees, tionate and adverse effects by federal programs, poli- contractors, and others identified in the regulation.25 cies, and activities on minority and low-income popula- States and state agencies receiving federal funds must tions. The executive order does not create a private give assurances of compliance with Title VI as well and right of action and is intended solely to improve the that all recipients are compliant.26 internal management of the executive branch.36 The regulations set forth the type of compliance in- formation required27 and include procedures regarding D. USDOT Title VI Order (1997) Incorporating 28 Title VI complaints and investigations, a procedure for the Principles of Environmental Justice in 29 30 effecting compliance, hearings, and decisions and Decision-Making Practices of All USDOT 31 32 notices, as well as judicial review. Programs, Policies, and Activities Recipients of federal funds may implement policies or take actions that have disparate impacts if the poli- On April 15, 1997, the USDOT issued its final order cies or actions have substantial legitimate justification, for the purpose of complying with President Clinton's if there are no comparably effective alternative prac- Executive Order 12898.37 The order incorporates the tices that would result in less disparate impacts, and if principles of environmental justice in the decision- the justification for the policy or action is not a pretext making processes of all USDOT programs, policies, and for discrimination. 33 activities but based on existing statutes, including Title 23 See id. 21.5(b)(2) and (3) (2009). 24 FTA Region VI Civil Rights Colloquium, Training Materi- 34 Exec. Order No. 12898, 59 Fed. Reg. 7629 1-101 (Feb. als (Mar. 28, 2006), available at http://www.fta.dot.gov/ 11, 1994). civil_rights.html (Last visited Sept. 9, 2010). 35 Id. 2-2. Compare Exec. Order No. 12898 2-2 with 42 25 49 C.F.R. 21.7(a) (2009). U.S.C. 2000d (stating that "[no] person in the United States 26 Id. 21.7(b) (2009). shall, on the ground of race, color, or national origin, be ex- 27 Id. 21.9 (2009). cluded from participation in, be denied the benefits of, or be 28 subjected to discrimination under any program or activity re- Id. 21.11 (2009). 29 ceiving Federal financial assistance"). Id. 21.13 (2009). 36 30 Exec. Order No. 12898, 59 Fed. Reg. 7629 6-609 (Feb. Id. 21.15 (2009). 11, 1994). 31 Id. 21.17 (2009). 37 United States Department of Transportation, Order to 32 Id. 21.19 (2009). Address Environmental Justice in Minority Populations and 33 United States Department of Transportation, Federal Low-Income Populations, 62 Fed. Reg. 18377 (Apr. 15, 1997), Highway Administration, www.fta.dot.gov. hereinafter cited as "DOT Order."