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

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3 CIVIL RIGHTS IMPLICATIONS OF THE ALLOCATION OF FUNDS BETWEEN BUS AND RAIL By Larry W. Thomas Attorney-at-Law, Washington, DC I. INTRODUCTION Historically, with insufficient public funding to cover the public transportation needs of most densely popu- lated cities and suburban areas in the United States, transportation agencies have been called upon to make budgetary allocations between bus and rail service and facilities.1 These decisions on funding may be economi- cally or sometimes politically motivated. Some social economic policy experts have argued that there is a bias in favor of highway-centered transit networks as op- posed to intra-city transit networks or that budgetary allocations have had disparate impact on minorities and violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.2 What- ever the motivation, decisions by transportation de- partments and transit systems affecting minority riders must be made in compliance with Title VI of the Civil Rights Act of 1964. Programs may not exclude, deny benefits to, or subject any person to discrimination on the ground of race, color, or national origin.3 Federal agencies empowered to extend financial assistance to transit systems are authorized to implement Title VI’s provisions through regulations requiring compliance with Title VI by recipients of federal funding.4 Section 601 of Title VI expressly prohibits discrimi- nation by a recipient of federal funds and provides a private right of action for individual lawsuits, but the courts have interpreted Section 601 to prohibit only intentional discrimination. Section 602 authorizes gran- tor agencies to promulgate regulations prohibiting dis- criminatory practices by its grantees. For instance, the regulations promulgated by the United States Depart- ment of Transportation (USDOT) in effect create a per se violation for actions by a grantee of federal funds that have a disparate impact resulting in discrimina- tion. However, as explained herein, the courts have held that there is no private right of action to enforce 1 Patrick Moulding, Fare or Unfair? The Importance of Mass Transit for America’s Poor, 12 GEO. J. ON POVERTY L. & POL’Y 155 (2005). 2 Paul Boudreaux, Vouchers, Buses, and Flats: The Persis- tence of Social Segregation, 49 VILL. L. REV. 55 (2004). See also J. MOTAVALLI, BREAKING GRIDLOCK: MOVING TOWARD TRANSPORTATION THAT WORKS (2002). 3 See Tit. VI of the Civil Rights Act of 1964, Pub. L. No. 88- 352, Tit. VI, § 60, 78 Stat. 252 (July 2, 1964), codified at 42 U.S.C. § 2000d. 4 See Tit. VI of the Civil Rights Act of 1964, Pub. L. No. 88- 352, Tit. VI, § 602, 78 Stat. 252 (July 2, 1964), codified at 42 U.S.C. § 2000d-1. disparate-impact regulations such as those promulgated by the USDOT. Disparate-impact regulations must be enforced, such as by a grantor agency withholding all or part of a culpable grantee’s funding. In June 1997, the Transit Cooperative Research Pro- gram (TCRP) published The Impact of Civil Rights Liti- gation under Title VI and Related Laws on Transit De- cision Making, TCRP Legal Research Digest 7, hereinafter the “1997 TCRP Report.” The 1997 TCRP Report, inter alia, provided information for transit offi- cials and other interested persons on the issues sur- rounding the provision of rail and bus services to minor- ity and nonminority passengers, including recent litigation that called into question whether such ser- vices were being provided in accordance with the USDOT grants, applicable regulations and legislation, and the United States Constitution. In June 2003, the National Cooperative Highway Research Program (NCHRP) published Civil Rights in Transportation Projects.5 The report addressed the civil rights issues that may arise when transportation offi- cials plan highways and related projects that allegedly affect minorities or ethnic groups in a discriminatory way in violation of Title VI of the Civil Rights Act of 1964. Another article that is relevant to some of the issues discussed herein is the December 2000 report published by NCHRP entitled The State’s Immunity from Suit in Federal and State Court.6 In May 2000, the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA), in compliance with Section 602 of Title VI, promulgated a policy guidance memorandum to federal regional and division administrators on the subject of implementing Title VI requirements in the area of metropolitan and statewide planning.7 Pursuant to these directives, citi- zens and affected transit operators and public agencies are to be provided an opportunity to comment on a pro- posed transit program. During the planning process, transit agencies must certify that they are in compli- ance with the foregoing requirement and other re- quirements to receive federal funding. As part of their initial planning process, many local transit agencies 5 ANDREW H. BAIDA, CIVIL RIGHTS IN TRANSPORTATION PROJECTS (NCHRP Legal Research Digest No. 48, 2003). 6 See ANDREW H. BAIDA, THE STATE’S IMMUNITY FROM SUIT IN FEDERAL AND STATE COURT (NCHRP Legal Research Digest No. 45, 2000). 7 See BAIDA supra note 5, at 6 (citing Policy Guidance Con- cerning Application of Title VI of the Civil Rights Act of 1964 to Metropolitan and Statewide Planning, 65 Fed. Reg. 31803 (May 19, 2000)).