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

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4 now provide notices of upcoming projects and requests for modifications, as well as information on making administrative complaints.8 As discussed in Section V.D, infra, on April 13, 2007, a Final Notice was given of the issuance of FTA’s new Title VI Circular entitled, “Title VI and Title VI- Dependent Guidelines for Federal Transit Administra- tion Recipients.”9 The circular supersedes the FTA Cir- cular dated May 26, 1988. Almost 10 years have passed since the publication of the 1997 TCRP Report on the impact of civil rights liti- gation under Title VI. However, since the 1997 TCRP Report, the U.S. Supreme Court has made it clear that individuals may sue only for intentional discrimination under Section 601 of Title VI and that there is no pri- vate right of action to enforce disparate-impact regula- tions issued pursuant to Section 602 of Title VI.10 An increased emphasis on the opportunity to comment on proposed agency action combined with the Supreme Court’s limitations on the right to sue under Title VI, Section 602, may help explain why there has been a notable drop in the number and frequency of Title VI complaints against transit agencies in the past 10 years (see Section II infra). Nonetheless, judicial actions have been filed, as discussed in Section II.C. This report identifies Title VI complaints filed with the FTA during the past 10 years, the legal forum in which challenges were brought, and whether there is an ongoing Title VI controversy involving transit agencies and the communities and riders they serve (see Section II, infra). This report examines whether Title VI challenges have increased or diminished (see Section III); the na- ture of the transit agencies’ responses to Title VI chal- lenges, including efforts other than regulatory ones that transit agencies have made to uphold Title VI protec- tions and avoid adverse actions (see Section IV, infra); and specific strategies and defenses transit systems have utilized when confronted with Title VI complaints (see Section IV, infra). Furthermore, the report discusses U.S. Supreme Court and other decisions holding that there is no pri- vate right of action under Section 602 for disparate- impact violations (see Sections V and VI, infra) and that administrative enforcement is the only remedy for Sec- 8 See Caltrans Tit. VI Program, Civil Rights, Have Your Rights Been Violated?, http://www.dot.ca.gov/hq/bep/title_vi/t6_violated.htm (contains flow charts of the Caltrans discrimination complaint process); see also New York MTA public involvement process available at http://www.mdt.mt.gov/business/contracting/civil/titlevi.shtml and Montana’s Tit. VI program available at http://www.mta.info/mta/planning/brt/pip.htm. 9 Fed. Reg., vol. 72, no. 71, at 18732 (Apr. 13, 2007). The FTA Tit. VI Circular, C 4702.1A (May 13, 2007), is available at http://www.fta.dot.gov/documents/Title_VI_Circular_2007-04- 04_(FINAL)_(3).doc. 10 Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). tion 602 disparate-impact violations (see Section VI, infra). The questions concerning whether an alleged violation of Section 602 or an alleged failure to comply with the Equal Protection Clause of the Fourteenth Amendment may be pursued by a § 1983 action may not have been resolved fully as yet (see Section VIII.B, in- fra).11 This report also discusses whether claims for inten- tional discrimination in violation of Section 601 or for disparate impact under Section 602 of Title VI may be made under 42 United States Code (U.S.C.) § 1983 (see Section VIII, infra); whether transit authorities that are agencies of the state have immunity from § 1983 actions under the Eleventh Amendment (see Section IX.A, infra); and the factors that may govern whether a transit authority that is organized as a public corpora- tion is an agency of the state for the purpose of immu- nity under the Eleventh Amendment from § 1983 claims (see Section IX.B, infra). With respect to other transit authorities, the report discusses whether actions may be brought against mu- nicipal transit authorities pursuant to § 1983 for al- leged violations of Title VI (see Section IX.C, infra) and whether, regardless of Section 601 or 602 and regula- tions issued pursuant to Section 602, a policy or custom of a municipal transit authority could give rise to a § 1983 action (see Section IX.D, infra). II. TITLE VI CHALLENGES BASED ON DISPARATE IMPACT OF ALLOCATION OF FUNDS BETWEEN BUS AND RAIL A. Title VI Challenges as Reported by Transit Agencies In January 2007, 31 transit agencies out of 200 to whom the survey was mailed responded to a question- naire in which they were asked whether there had been any Title VI complaints based on increases in fares or fees or allocation of funds between bus and rail or the neighborhood served. (A copy of the questionnaire is included as Appendix A.) Of the 31 respondents, only three responded that they had had Title VI complaints filed against them during the 10-year period, 1997 to 2006 (see list of respondents identified in Appendix B). (Two of the transit providers responding to the survey are included among the complaints filed with the FTA that are discussed in Section II.B.) One transit agency responding to the survey had no specific Title VI com- plaints, but advised that it had received a complaint opposing increases in fares or capital outlays based on 11 This report is consistent with the findings of NCHRP Le- gal Research Digest 48, supra, in which the author concludes that “[w]hile private suits may be brought under Title VI and § 1983 for intentional discrimination, the Supreme Court has eliminated Title VI and its implementing regulations as the means by which private redress may be sought for government action alleged to have a disparate impact on minority groups.” BAIDA, supra note 5, at 18.

5 alleged discriminatory impact. Several of the respon- dents to the survey, however, did report that they did not provide rail service. Respondents provided other information requested by the survey. Thus, as to whether the respondents had an annual or other report on Title VI complaints, five responded affirmatively. As for whether the agencies have a Web site where information on Title VI com- plaints is made available to the public, seven responded that they had such Web sites. Furthermore, the respon- dents were asked to report on what information the agency makes available to the public regarding admin- istrative complaints or challenges. Agencies that re- sponded to the inquiry had the following comments: • “The agency makes available to the public a ‘spe- cial complaint form’ for Title VI discrimination claims, an explanation of ‘What is Title VI,’ and a description of the [agency’s] Title VI complaint process via the [agency’s] Web site.” • “[The agency] provide[s] information to the public on how to file a Title VI complaint. Complaint informa- tion is also provided in our triennial Title VI report to the FTA.” • “[The agency] gives public notice on its vehicles and at some of its public facilities.” • “Through regulatory and advocacy groups.” • “Pursuant to the Georgia Open Records Act, in- formation is made available upon request.” • “A customer rights section is included in our fixed route bus book, dial-a-ride guide, and valley metro ADA policy brochures for passengers with disabilities. The section provides guidance on how to make a discrimina- tion complaint under Title VI.” • “Post notices on all of our rolling stock service ve- hicles explaining they can file Title VI complaints if they believe they have been discriminated against by the transit system.” • “All related information is available from the Title VI coordinator.” • “[The agency] is currently developing public out- reach in this area.” • “Posters containing Title VI information [are] prominently displayed [with the] District’s name [and] contact information. [The transit agency] annually pub- lish[es] a notice that [the agency] operates in accor- dance with Title VI of the Civil Rights Act of 1964 and related statutes.” • “Everything—Open Records.” • “As requested by the FTA.” • “Upon request.” • “If we had any persons or groups who were dissat- isfied with the allocation of service after the regularly scheduled public participation process, we would advise them of their options, including filing a Title VI com- plaint.” • “Part of Title VI update process.” Although only a few agencies reported having had a Title VI complaint of a nature relevant to the subject of this report, three agencies replied to a question regard- ing any responses or defenses that had been developed to deal with Title VI disparate-impact challenges. • “We have [had] a Title VI Complaint procedure in place since 2004 for investigating complaints of race, color, and national origin filed by [the agency’s] custom- ers.” • “We have had a Title VI benchmark analysis done regarding the provision of our service. We also now do ‘environmental justice’ analyses that the FTA office of Civil Rights reviews when a fare or service revision is considered for implementation.” • One respondent stated that “[w]e do the analysis on an ongoing basis.” As noted, three agencies reported having had within the past 10 years a Title VI complaint based on opposi- tion to increases in fares or fees or in the allocation of funds between bus and rail or the neighborhood served. One transit agency for a large metropolitan area ad- vised that it had had 55 Title VI administrative com- plaints during the period 1997–2006, some of which involved fare increases or the allocation of funds be- tween bus and rail and between neighborhoods. The agency did not provide details on the complaints but did provide a summary of the status or disposition of 46 complaints. As of February 2007, the agency indicated that 17 complaints were classified as “Allegations Un- founded;” seven were classified as “Administrative Clo- sure;” two were classified as “Allegations Founded;” one was classified as “Revolved/Settled;” and 19 were classi- fied as “Pending.” The agency did not disclose the status of the other nine complaints. The agency advised that there had been two civil actions of a Title VI nature, one filed in 1995 that had been dismissed and another one filed in 1998 that had been settled and dismissed. A second agency also serving a large metropolitan area advised of one Title VI complaint in the past 10 years challenging the agency’s alleged disparate treat- ment in its delivery of services. The agency advised that the complaint focused on disparate treatment in deliv- ery of services to minority riders; the agency’s decision to raise its fares that would disproportionately burden poor, transit-dependent African Americans; and the agency’s disparate treatment in its delivery of services to its disabled riders. According to the agency, among other things, the agency agreed to dispatch more clean- burning natural gas buses; improve maintenance at one of its facilities; allocate new diesel buses to replace ag- ing vehicles; install a substantial number of additional bus shelters and benches; place a certain number of the additional shelters and buses in “environmental justice” areas; and take steps to provide greater security in the affected riders’ areas. A third agency, also serving a large metropolitan area, said that it had had at least 365 Title VI com- plaints during the period 1997–2006, but advised that

6 none of these complaints related to increases in fares or fees or allocation of funds between bus and rail or be- tween neighborhoods.12 B. Title VI Challenges as Reported by the FTA As explained by FTA, [i]ndividuals or organizations who believe they have been denied the benefits of, excluded from participation in, or subject to discrimination on the grounds of race, color, or national origin by a recipient of [FTA] funding can file an administrative complaint with the [FTA’s] Office of Civil Rights under Title VI of the Civil Rights Act of 1964.13 Complaints are investigated “on the basis of intentional discrimination or on the basis of disparate impact dis- crimination, where a neutral policy or practice has the effect of disproportionately excluding or adversely af- fecting minority beneficiaries or other protected indi- viduals and the recipient's practice lacks a substantial legitimate justification.”14 After FTA concludes its in- vestigation, the agency transmits “a letter of finding to the complainant and the recipient” of FTA funds. If the FTA determines that the recipient is not in violation of Title VI, the FTA will “explain why the recipient was found in compliance.”15 If the FTA determines that a recipient is in violation of Title VI, the [FTA] will document the violation and instruct the recipient to take action to come into compliance.16 Information received from the FTA is consistent with a 2002 article stating that the USDOT receives rela- tively few Title VI complaints. FTA provided files in response to a Freedom of Information Act (FOIA) re- quest made in March 2007 concerning complaints that FTA had received since the year 2000 alleging dispari- ties in funding between bus and rail or inequitable im- pact of service and fare changes: Piras and Williams v. Metropolitan Transportation Commission, 2000-0315. West Harlem Environmental Action v. Metropolitan Transportation Agency and New York City Transit, 2001-0062. Metropolitan Atlanta Transportation Equity Coali- tion v. Metropolitan Atlanta Transit Authority, 2001- 0084. Washington Street Corridor Coalition v. Massachu- setts Bay Transportation Authority, 2001-0177. Brazen v. Harris County Metropolitan Transit Au- thority, 2003-0110. Winkelman v. Bi-State Development Agency, 2003- 0241. 12 This responding agency also provided a copy of a “Title VI Complaint Log 2004-2006” that listed 201 complaints by num- ber, incident date, date received, ethnicity, provider, category code, completion date, and resolution code. 13 See USDOT, FTA Web site available at http://www.fta.dot.gov/civilrights/title6/civil_rights_5104.html. 14 Id. 15 Id. 16 Id. Payne v. Chicago Transit Authority, 2004-0194. Leese v. Suburban Mobility Authority for Rapid Transit, 2006-0238. The details of the complaints and the outcomes are discussed in Section III, infra. C. Judicial Proceedings Involving Title VI Complaints for Disparate Impact In response to the survey, only two transit providers reported a disparate impact judicial action that had been filed in the past 10 years. However, prior to the Sandoval decision in 2001 that rejected Title VI claims for disparate impact, there were some reported cases. The case does not come within the 10-year period covered by this report; however, in 1995 in New York Urban League, Inc. v. New York,17 the Second Circuit reversed and vacated a district court’s injunction based on a Title VI claim made on behalf of members of pro- tected minority groups who used the New York City Transit (NYC Transit). It was alleged that the riders paid a higher share of the cost of operating the system than commuter line passengers, who were predomi- nately white. The Second Circuit ruled that the lower court’s conclusions were based on insufficient findings that a disparate impact existed. In 1998 in South Bronx Coalition for Clean Air, Inc. v. Conroy,18 an environmental group, alleging disparate impact on minority residents, sought an injunction to compel the return of buses that had been transferred to other bus depots. The court held, inter alia, that the civil rights claim was vague and that it was unclear whether a private right of action existed under Section 602 of Title VI. Another case of interest, decided in 2001, is La- bor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority.19 The lawsuit was brought by a group of bus passengers because of decisions by the Los Angeles County Metropolitan Transportation Authority (LACMTA) “to spend several hundred million dollars on a new rail line” and to in- crease bus fares and eliminate monthly discount passes rather than reduce overcrowding problems on city buses.20 LACMTA was allegedly spending a dispropor- tionate amount of its budget on rail lines and suburban bus systems “that would primarily benefit white subur- ban commuters, while intentionally neglecting inner- city and transit-dependent minority bus riders who re- lied on the city bus system.”21 A district court approved a Consent Decree that set- tled the case; however, the LACMTA did not meet cer- tain service improvement goals set forth in the Decree.22 17 71 F.3d 1031 (2d Cir. 1995). 18 20 F. Supp. 2d 565 (S.D.N.Y. 1998). 19 263 F.3d 1041, 2001 U.S. App. LEXIS 19410 (9th Cir. 2001). 20 Labor/Community Strategy Center, 263 F.3d at 1043. 21 Id. 22 To reduce bus overcrowding, the Consent Decree set forth specific “load factor targets” or “LTFs” that the MTA had to

7 Ultimately the district court entered an order that in- cluded a requirement that the LACMTA “immediately acquire 248 additional buses to reduce passenger over- crowding even if that meant diverting funds from other transportation services under MTA’s jurisdiction.”23 In affirming the district court’s order, the Ninth Circuit rejected the LACMTA’s argument that the load factor targets in the Consent Decree “were simply perform- ance goals that MTA promised to use its ‘best efforts’ to meet” and that the Decree “only required substantial compliance.”24 The appeals court agreed that the decree imposed an “obligation” on the LACMTA “to meet the scheduled load factor targets….”25 In 2003, in Save Our Valley v. Sound Transit (Cen- tral Puget Sound Regional Transit Authority),26 dis- cussed in more detail in Section V.C, infra, the plaintiff Save Our Valley (SOV), a community advocacy group, challenged the defendant Regional Transit Authority’s plan to build a light-rail line through the community. The plaintiff argued that the project would “cause dis- proportionate adverse impacts to minority residents”27 and that the proposed line “violated a Department of Transportation ‘disparate impact’ regulation— promulgated pursuant to Title VI of the Civil Rights Act of 1964….”28 The court noted that the department’s dis- parate-impact regulations go further than the statute they implement, “proscribing activities that have dispa- rate effects on racial groups, even though such activi- ties are permissible under § 601.”29 The Ninth Circuit held that violations of rights, not violations of laws, give rise to Section 1983 actions; that plaintiffs suing under Section 1983 must demonstrate that a statute, not a regulation, confers an individual right; and that the paramount consideration is to de- termine whether Congress intended to create the par- ticular federal right sought to be enforced. The court held that a “disparate-impact regulation cannot create a new right; it can only ‘effectuate’ a right already created by § 601. And § 601 does not create the right that SOV seeks to enforce, the right to be free from racially dis- criminating effects.”30 A case currently pending, Darensburg v. Metropoli- tan Transportation Commission, is predicated on claims of purposeful discrimination rather than disparate im- pact.31 In 2005, the plaintiffs filed a class action in U.S. meet by specific dates and established a Joint Working Group of representatives from the plaintiffs’ class and the MTA. See Labor/Community Strategy Center, 263 F.3d at 1044. 23 Labor/Community Strategy Center, 263 F.3d at 1043. 24 Id. at 1048. 25 Labor/Community Strategy Center, 263 F.3d at 1049. 26 335 F.3d 932 (9th Cir. 2003). 27 Save Our Valley, 335 F.3d at 934. 28 Id. at 935. 29 Id. at n.2. 30 Id. at 944. 31 No. C-05-01597, U.S. District Court, Northern District of California, hereinafter cited as “Darensburg.” District Court for the Northern District of California, alleging that the Metropolitan Transportation Commis- sion (MTC), which programs and allocates funding from various sources to Bay Area transit and highway pro- jects, had channeled funds to projects that dispropor- tionately benefited suburban BART and Caltrain riders, predominantly white, at the expense of projects that would benefit AC Transit minority bus patrons. On September 19, 2005, the court granted MTC’s motion to dismiss the complaint with leave to amend; the plain- tiffs filed an amended complaint October 11, 2005. The amended complaint seeks injunctive and de- claratory relief pursuant to the Fourteenth Amend- ment, 42 U.S.C. § 1983, and Title VI of the Civil Rights Act, as well as California Government Code Section 11135. The amended complaint alleges intentional dis- crimination in challenging “a longstanding pattern of race discrimination” by the MTC in the funding of pub- lic transit services in the San Francisco, California, Bay Area with respect to “people of color who are riders of the Alameda–Contra Costa Transit District (AC Tran- sit), which operates California’s largest bus-only transit system.”32 The plaintiffs on behalf of themselves and others allege that MTC “has historically engaged, and continues to engage, in a policy, pattern or practice of actions and omissions that have the purpose and effect of discriminating against poor transit riders of color in favor of white, suburban transit users, on the basis of their race and national origin.”33 The Darensburg amended complaint asserts: • That “[o]ver many years Defendant MTC has chan- neled and continues to channel funds to projects and programs that benefit the disproportionately white riders of Caltrain and BART, at the expense of the disproportionately minority riders of AC Transit;”34 • That MTC “discriminates against [Communities for Better Environment’s] people of color members by denying them equal treatment in its funding, advocacy, and other decisionmaking processes, by providing them with lower transit subsidies than white Caltrain and BART riders, and by denying them equal transportation benefits, on the basis of their race and national origin;”35 • That MTC “discriminates against [Amalgamated Transit Union, Local 192’s] people of color members by denying them equal treatment in its funding, advocacy, and other decisionmaking processes, by providing them with lower transit subsidies than white Caltrain and BART riders.”36 • That MTC “is the metropolitan planning organiza- tion and designated recipient of federal transportation funds for the San Francisco Bay Area;”37 “makes fund- 32 Darensburg, First Amended Complaint ¶ 1 (Oct. 11, 2005). 33 Id. (emphasis supplied). 34 Id. at ¶ 3. 35 Id. at ¶ 17. 36 Id. at ¶ 18. 37 Id. at ¶ 21.

8 ing decisions on a ‘continuous’ basis”38 and “was acting and continues to act under color of state law” within the meaning of § 1983.39 The plaintiffs allege that MTC “is aware that BART and Caltrain have historically served disproportionately white riders.”40 While whites make up 35 percent of the collective ridership of AC Transit, Caltrain, and BART, they ac- count for 60 percent of Caltrain riders and 43 percent of BART riders. And while African Americans have a col- lective ridership on these three operators of 22 percent, they account for only 4 percent of Caltrain riders and only 14 percent of BART riders….41 While African Americans account for only 22 percent of all riders on these three transit systems, they ac- count for more than one-and-a-half times that percent- age, 37 percent, of AC Transit’s riders.42 • That MTC “exerts substantial control over the capital and operating budgets of each of the transit operators within its jurisdiction” and that [i]n exercising this substantial control over the budgets of transit operators, Defendant MTC engages in a pattern and practice of actions and omissions that have the pur- pose and effect of discriminating against projects and programs that benefit the disproportionately minority ridership of AC Transit in favor of projects and programs that benefit the disproportionately white riders of Cal- train and BART, on the basis of these riders’ race and na- tional origin.43 • That MTC has control over AC Transit’s budget,44 and that MTC allegedly “reduced the quality and quan- tity of service that had previously been available to Plaintiffs,”45 • That MTC “systematically discriminates against low-income people of color in the selection of transit projects, with an explicit two-tiered approach to transit projects that benefit minority passengers and white passengers, fully funding the latter, but leaving an un- funded shortfall of several billion for the former,”46 and, • That MTC “consistently refused and continues to refuse to implement recommendations that would miti- gate the harmful effects of its funding decisions….”47 The plaintiffs allege that MTC “continues to engage in these and other discriminatory funding practices, even though it knows they are discriminatory.”48 Paragraph 61 of the amended complaint summarizes the plaintiffs’ 38 Id. at ¶ 22. 39 Id. at ¶ 23. 40 Id. at ¶ 31. 41 Id. at ¶ 33. 42 Id. at ¶ 34. 43 Id. at ¶ 36 (emphasis supplied). 44 See id. at ¶¶ 41, 42. 45 Id. at ¶ 43. 46 Id. at ¶ 45. 47 Id. at ¶ 48. 48 Id. at ¶ 59. allegations regarding what they say is MTC’s “policy, pattern or practice of discriminatory funding….”49 The plaintiffs in the Darensburg case allege causes of action based on denial of equal protection of the law under § 198350 and purposeful discrimination under Title VI and § 1983,51 as well as purposeful and dispa- rate-impact discrimination under California Govern- ment Code Section 11135.52 Among the requests for re- lief are that the court permanently enjoin MTC “from making any funding decision that has an unjustified disproportionately adverse impact on AC Transit riders of color”53 and “from supporting the funding of or fund- ing any improvement or expansion in service that de- tracts from the equitable funding of services that bene- fit AC Transit riders.”54 One basis for a § 1983 action is that a constitutional violation was caused by a governmental official policy or custom (see Section IX.D, infra). In its answer to the amended complaint, MTC asserted various defenses including the defense that “MTC’s policies, actions, and practices have substantial legitimate justification” and that the plaintiffs’ amended complaint “fails to meet the requirements of Monell et al v. Dept. of Social Services of the City of New York, et al., 436 U.S. 658 (1978) to show that the alleged injuries are cause[d] by a gov- ernmental policy or custom.”55 The Darensburg action is still pending as of this writing; a Joint Scheduling Statement was filed July 30, 2007. 49 Specifically the plaintiffs allege that: (1) Defendant MTC establishes funding criteria that favor projects and programs that benefit rail riders over bus riders; (2) Defendant MTC applies its own funding criteria and financial controls over transit operators inconsistently, to the disadvan- tage of AC Transit riders; (3) Defendant MTC declines to allo- cate or program discretionary funds for the benefit of AC Tran- sit riders in a manner comparable to its allocation or programming of discretionary funds for the benefit of Caltrain and BART riders; and (4) Defendant MTC advocates with state and federal legislatures more aggressively on behalf of Caltrain and BART riders than AC Transit riders, for example, by giving Caltrain and BART projects a higher priority than AC Transit projects, requesting more money for projects and programs that benefit Caltrain and BART riders than AC Transit riders, and advocating for funds to be committed by law to projects and pro- grams that benefit Caltrain and BART riders, but not advocat- ing at all, or with comparable vigor, for similar earmarking of funds for projects and programs that benefit ACTransit riders. Darensburg, First Amended Complaint ¶ 61. 50 Id. at ¶¶ 70–72. 51 Id. at ¶¶ 73–75. 52 Id. at ¶¶ 76–78. The full text of CAL. GOV’T CODE § 11135 is available at http://www.leginfo.ca.gov/cgi- bin/displaycode?section=gov&group=11001-12000&file=11135- 11139.7. 53 Darensburg, First Amended Complaint (Prayer for Relief) ¶ 5. 54 Id. at ¶ 6. 55 Darensburg, Amended Answer of Defendant Metropolitan Transportation Commission to First Amended Complaint at 15.