Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications (2011)

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

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