Civil Rights Implications of the Allocation of Funds between Bus and Rail (2008)

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29 gle decision made by its legislative body, even if the decision is singular and not meant as a continuing pol- icy, ‘because even a single decision by such a body un- questionably constitutes an act of official government policy.’”297 On the other hand, it has been held that statements of individual lawmakers are not binding on a city.298 For an official to represent government policy, he or she must have final policymaking authority, authority that is lacking when an official’s decisions are subject to meaningful administrative review.299 Whether a particu- lar official has final policymaking authority for the pur- poses of § 1983 is a question of state law.300 The court must determine whether the person or entity that made the policy at issue speaks for the government entity being sued. Such an inquiry seeks to determine whether governmental officials are final policymakers for the local government in a particular area or on a particular issue. As stated, the finding is dependent on an analysis of state law.301 Finally, although the case arose under 42 U.S.C. § 1981, in Pryor v. NCAA,302 the defendant, a voluntary collegiate athletic association, adopted a policy that raised academic standards for student athletes in their freshmen year. The policy improved graduation rates among black student athletes, but the complaint alleged that the policy’s real goal was to “screen out” more black student athletes from ever receiving athletic scholarships in the first place. The court held that the allegations under Title VI and 42 U.S.C.S. § 1981 (re- quiring intentional discrimination) were sufficient to withstand a motion to dismiss and that Title VI and § 1981 provide a private cause of action for intentional discrimination. Thus, the court reversed and remanded a district court’s dismissal of the racial discrimination claims that were based on allegations of purposeful dis- crimination rather than deliberate indifference. Individuals who are not protected by immunity may be subject to punitive damages. Punitive damages are available “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally pro- 297 2005 U.S. Dist. LEXIS 3113 at *20 (citation omitted). 298 Id. at *25. 299 Caruso v. City of Cocoa, Fla., 260 F. Supp. 2d 1191, 1203 (M.D. Fla. 2003). See also Stewart v. Bd. of Commr’s for Shawnee County, Kan., 320 F. Supp. 2d 1143 (D. Kan. 2004) (holding that county department heads did not exercise final policymaking authority); Pino v. City of Miami, 315 F. Supp. 2d 1230 (S.D. Fla. 2004) (holding that § 1983 action failed where city manager had not ratified decision to transfer police offi- cer). 300 McMillan v. Monroe County, Ala., 520 U.S. 781, 786, 117 S. Ct. 1734, 1737, 138 L. Ed. 2d 1, 8 (1997). 301 McClure v. Houston County, 306 F. Supp. 2d 1160 (M.D. Ala. 2003) (held that sheriff was not policymaker for county; thus, county had immunity to claims based on sheriff’s alleged failure to train or supervise). 302 288 F.3d 548 (3d Cir. 2002), class certification denied, 2004 U.S. Dist. LEXIS 10214 (E.D. Pa. Mar. 4, 2004). tected rights of others.”303 The standard applicable to common law tort claims is the same for § 1983 actions. In City of Newport v. Fact Concerts, Inc., the Supreme Court was clear that punitive damages could be awarded “against the offending official, based on his personal financial resources….”304 As for injunctive relief, “[c]ivil rights actions under section 1983 are exempt from the usual prohibition on federal court injunctions of state court proceedings.”305 Although the Eleventh Amendment bars claims for damages against state agencies and officials acting in their official capacity, the federal courts may enjoin state officials acting in their official capacity as long as the injunction governs only the officer’s future conduct and no retroactive remedy is provided; the rule applies also to declaratory judgments.306 As has been noted, “[s]tate officials acting in their official capacities are Section 1983 ‘persons’ when sued for prospective relief” such as reinstatement as a state employee.307 The requirements for an injunction generally are that the movant must show that he or she will suffer irreparable harm if the injunction is not granted; that the movant would probably prevail on the merits; that the state would not be harmed by the injunction more than the movant would be helped by it; and that the granting of the injunction would be in the public inter- est. Alternatively, the movant must show either a com- bination of probable success on the merits and the pos- sibility of irreparable injury or that serious questions have been raised and that the balance of hardships tips sharply in the movant’s favor.308 X. CONCLUSION Decisions affecting minority riders must be made in compliance with Title VI of the Civil Rights Act of 1964. Federal programs may not exclude, deny benefits to, or subject any person to discrimination on the ground of race, color, or national origin. Since the 1997 TCRP Report, however, the U.S. Supreme Court has made it clear that in suits predicated on Title VI, individuals may sue only for intentional discrimination under Sec- tion 601 of Title VI. 303 Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632, 652 (1983). 304 City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 269, 101 S. Ct. 2748, 2761, 69 L. Ed. 2d 616, 633 (1981). 305 Schroll v. Plunkett, 760 F. Supp. 1385, 1389 (D. Or. 1991). 306 Ippolito v. Meisel, 958 F. Supp. 155, 161 (S.D.N.Y. 1997). See also Mercer v. Brunt, 272 F. Supp. 2d 181 (D. Conn. 2002). 307 Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997) (holding that the § 1983 claim of a state employee who alleged that he was wrongfully terminated by the state’s Employment Security Department on account of his race and age was not barred because he sought equitable relief, such as reinstate- ment as a state employee). 308 Remlinger v. State of Nevada, 896 F. Supp. 1012, 1014– 15 (D. Nev. 1995).

30 Federal agencies empowered to extend financial as- sistance to transit systems are authorized by Section 602 of Title VI to issue regulations requiring compliance with Title VI by recipients of federal funding. In addi- tion, as of April 13, 2007, the FTA has implemented a new Title VI Circular, one objective of which is to en- sure that the level and quality of transportation service is provided without regard to race, color, or national origin. As discussed in the report, because the Supreme Court has held that there is no private right of action to enforce disparate-impact regulations issued pursuant to Section 602 of Title VI, administrative enforcement of Section 602 is the only remedy for disparate-impact violations. The survey of transit providers conducted for this Report and the files provided by FTA on Title VI com- plaints relating to issues of allocation of funds between bus and rail show that there have not been many Title VI complaints in the past 10 years. Moreover, since the filing of four challenges in 2001, it appears that there has been a decline in the number of Title VI complaints alleging disparate impact under Section 602 on matters relevant to this report. As discussed in the report, the outcomes of Title VI complaints generally have been favorable to transit providers. Section 1983 of Title 42 of the U.S.C. is not, standing alone, a basis for a civil rights claim. For there to be a § 1983 action against a transit provider regarding an is- sue related to the allocation of funds between bus and rail, the plaintiff would have to allege intentional dis- crimination under Section 601 of the Civil Rights Act of 1964 or a violation of the Equal Protection Clause of the Fourteenth Amendment, or allege a violation of consti- tutional rights arising out of an official municipal tran- sit agency policy, custom, or practice.309 As for § 1983 claims against states and their agencies and their offi- cials sued in their official capacity, all have immunity under the Eleventh Amendment and, thus, are not amenable to suit under § 1983. A state official, however, may be sued in his or her individual or personal capac- ity for damages under § 1983 for depriving a citizen of his or her federal constitutional or statutory rights. An 309 Once more, however, one may note that the Tenth Circuit stated that the Sandoval decision does not bar all claims to enforce disparate-impact regulations but only disparate-impact claims brought by private parties directly under Title VI. Fur- thermore, according to the court, the Sandoval decision did not foreclose disparate-impact claims brought against state offi- cials for prospective injunctive relief through a § 1983 action to enforce § 602 regulations. See Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002) (interlocutory appeal affirming district court’s denial of defendants’ motion to dismiss), cert. denied, 539 U.S. 926, 123 S. Ct. 2574, 156 L. Ed. 2d 603 (2003). Also, as pointed out in the discussion of The Comm. Concerning Cmty. Improvement v. City of Modesto, 2007 U.S. Dist. LEXIS 39099, at *23 (E. D. Cal. 2007) (with later proceedings as dis- cussed in this report), the court stated that “[o]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact. ‘Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination’” claim. officer or employee of a state also may be subject to pro- spective injunctive relief. By virtue of the Monell decision, municipal corpora- tions are persons amenable to suit under § 1983. Thus, a municipal transit authority or other transit provider not deemed to be an agency of the state government does not have immunity from § 1983 actions.310 The doc- trine of respondeat superior is not a basis for holding a municipal transit provider liable under § 1983 for a constitutional violation by an employee. Rather, it is when the execution of a government’s official policy, custom, or practice, whether made by its lawmakers or by those whose edicts or acts may fairly be said to rep- resent official policy, inflicts a constitutional injury that the government as an entity is responsible under § 1983. Section 1983 liability, thus, may be based on the ex- istence of an official policy, custom, or practice that vio- lates one’s constitutional rights. Thus, before a munici- pal defendant such as a transit agency may be held liable for deprivations of civil rights, there must be a showing that the deprivation resulted from an official policy, custom, or practice. As seen in the discussion of the pending Darensburg case, the plaintiffs are alleging that the transit authority in that case has engaged in a longstanding pattern of race discrimination with re- spect to the allocation of funds between bus and rail transit and has purposefully discriminated against mi- nority groups because of their race and national origin. 310 The question of whether a transit authority organized as a public corporation has immunity as an agency of the state depends on the consideration and balancing of various factors, as discussed in the report.