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

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13 maining 25 percent is made available to MTC to allo- cate among three recipients, one of which is AC Transit. MTC’s response also analyzed the allocation of fed- eral operating funds.67 For example, the response stated that with respect to FTA Section 9 Operating Funds under the Intermodal Surface Transportation Efficiency Act,68 although BART was a major generator of the funds, MTC allocated all available Section 9 funds to AC Transit and other bus service providers. MTC also provided a table showing the allocation of FTA Section 5307 Operating Funds and discussed the “actual fed- eral” Section 5307, Section 5309, and STP/CMAQ funds received by AC Transit and BART over certain periods. According to the MTC’s analysis, during the FY 1992– 2001 period, even though federal operating subsidies were being phased out, the MTC-administered subsi- dies to AC Transit increased by more than 49 percent. Finally, MTC’s response argued that the complaint ig- nored the different capital and operating requirements of bus and rail systems, noting that rail systems have greater capital needs but more modest operating re- quirements.69 V. STATUTORY AND REGULATORY FRAMEWORK OF TITLE VI COMPLAINTS A. Title VI, Section 601 of the Civil Rights Act of 1964 Civil rights issues arise when public transportation officials plan highways and related projects that are alleged to affect minority or ethnic groups on a dis- criminatory basis. The primary law is Title VI of the Civil Rights Act of 1964. Section 601 of the Act provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activ- ity receiving Federal financial assistance.”70 In Alexander v. Sandoval,71 the U.S. Supreme Court held, first, that “private individuals may sue to enforce § 601 of Title VI and obtain both injunctive relief and damages”72 and “[s]econd, …that § 601 prohibits only intentional discrimination.”73 Furthermore, the Court held that there is no private right of action to enforce disparate-impact regulations issued pursuant to Section 67 FTA § 9 Operating Funds under ISTEA. 68 P. L. No. 102-240 (1991) (expired in 1997). 69 Piras and Williams, Metropolitan Transportation Com- mission Response to Environmental Justice Complaints, dated Jan. 5, 2001 (quotation marks omitted in the discussion of MTC’s response). 70 42 U.S.C. § 2000d. 71 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). 72 532 U.S. at 279–80, 121 S. Ct. at 1516, 149 L. Ed. 2d at 524 (citation omitted). 73 532 U.S. 275, 280, 121 S. Ct. at 149 L. Ed. 2d at 524 (2001) (citations omitted). 602 of Title VI.74 Thus, Section 601 of Title VI may be invoked only in instances of intentional discrimination, and there is no private right of action to enforce dispa- rate-impact regulations promulgated pursuant to Sec- tion 602, discussed below. As a federal court stated in 2007, the Sandoval decision means that “[t]he entity involved must be engaged in intentional discrimination and be the recipient of federal funding.”75 B. Disparate-Impact Regulations Under Title VI, Section 602 Title VI, Section 602 provides in pertinent part that [e]ach Federal department and agency which is empow- ered to extend Federal financial assistance to any pro- gram or activity...is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consis- tent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.76 As advised by the FTA at the FTA Region VI Civil Rights Colloquium on March 28, 2006, “[t]he Depart- ment of Justice and Department of Transportation Regulations prohibit disparate-impact discrimination as well as intentional discrimination.”77 The FTA’s Web site provides the following examples of actions with potentially disparate impacts: •Installing bus shelters on the basis of their poten- tial to generate advertising revenue; •Assigning clean-fuel vehicles and facilities to routes that do not serve predominately minority communities; •Implementing service reductions or fare increases that disproportionately affect minority communities; or •Planning a fixed guideway project that travels through predominately minority communities but does not include stations in these communities. As for when recipients of federal funds may take ac- tions that have disparate impacts, the FTA advises that the recipient may do so in the cases when the policy is supported by a substantial legitimate justification; there are no comparably effective alternative practices that would result in less disparate impacts; and the justification for the action is not a pretext for discrimi- nation.78 Under Title VI of the Civil Rights Act of 1964,79 as well as Title VII of the Civil Rights Act of 196880 and 74 42 U.S.C. § 2000d-1. 75 Committee Concerning Community Improvement, 2007 U.S. Dist. LEXIS 57551, at *51 (E.D. Cal., July 30, 2007) (cita- tion omitted). 76 42 U.S.C. § 2000d-1. 77 See www.fta.dot.gov (civil rights/accessibility). 78 Id. (quotation marks omitted). 79 42 U.S.C. §§ 2000d–2000d-4. 80 42 U.S.C. §§ 3601–3619, 4601–4655; 23 U.S.C. §§ 109(h), 324.

14 other statutes and regulations, the USDOT promul- gated rules to effectuate Title VI.81 The regulations is- sued pursuant to Section 602 of Title VI are implicated when “a recipient, in violation of agency regulations, uses a neutral procedure or practice that has a dispa- rate impact on protected individuals, and such practice lacks a substantial legitimate justification.”82 However, as noted and as discussed in more detail in the next section, the Supreme Court has held that no private right of action exists to enforce disparate-impact regula- tions and policies.83 Nonetheless, transportation officials need to be aware of other civil rights–related laws and regulations that are implicated by their decisions re- garding projects and planning. Part 21 of Title 49 of the Code of Federal Regulations (C.F.R.) gives effect to Title VI in “that no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to dis- crimination under any program or activity receiving Federal financial assistance from the Department of Transportation.”84 USDOT regulations are representative of how de- partments and agencies of the federal executive branch have given effect to federal law on disparate impact. USDOT regulations provide that participants in such programs may not, directly or through contractual or other ar- rangements, utilize criteria or methods of administration which have the effect of subjecting persons to discrimina- tion because of their race, color, or national origin, or have the effect of defeating or substantially impairing ac- complishment of the objectives of the program with re- spect to individuals of a particular race, color, or national origin.85 The regulations also state that [i]n determining the site or location of facilities, a recipi- ent or applicant may not make selections with the pur- pose or effect of excluding persons from, denying them the benefits of, or subjecting them to discrimination under any program to which this regulation applies, on the grounds of race, color, or national origin; or with the pur- pose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this part.86 Although 49 C.F.R. § 21.19 provides for judicial re- view pursuant to the limitations of Title VI, as dis- cussed in the next section, the Supreme Court has held that disparate-impact regulations promulgated pursu- ant to Title VI do not give rise to a private right of ac- tion. Thus, the sole remedy available to individuals al- 81 49 C.F.R. pt. 21. 82 See U.S. Dep’t of Transp., Complaints Investigations Ref- erence Notebook for Civil Rights Personnel, available at http://www.fhwa.dot.gov/download/module3.pdf. 83 Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). 84 49 C.F.R. § 21.1 (quoting 42 U.S.C. § 2000d (Title VI)). 85 Id. § 21.5(b)(2). 86 Id. § 21.5(b)(3) (emphasis added). leging that there has been a disparate impact exists under the regulations and procedures described in sub- section C hereafter. C. Requirements Under Executive Order 12898 (1994) As discussed, Section 60187 of Title VI prohibits in- tentional discrimination and Section 60288 of Title VI authorizes regulations to effectuate the provisions of Section 601 with respect to programs or actions involv- ing federal financial assistance.89 In Save Our Valley, supra, the Ninth Circuit recognized that disparate- impact regulations may go further than the statute they implement, “proscribing activities that have disparate effects on racial groups, even though such activities are permissible under § 601.”90 On February 11, 1994, President Clinton, in an effort to identify and address “disproportionately high and adverse human health or environmental effects of [fed- eral agency] programs, policies, and activities on minor- ity populations and low-income populations,” issued Executive Order 12898 entitled, Federal Actions to Ad- dress Environmental Justice in Minority Populations and Low-Income Populations.91 (The FTA’s Title VI Cir- cular discussed in the next subsection specifically in- corporates the principles of Executive Order 12898.92) The Executive Order created an interagency working group that includes the head of the USDOT.93 The Ex- ecutive Order, moreover, required each federal agency to implement an agency strategy that at a minimum would: 1. Promote enforcement of all health and environ- mental statutes in areas with minority populations and low-income populations; 2. Ensure greater public participation; 3. Improve research and data collection relating to the health of and environment of minority populations and low-income populations; and 4. Identify differential patterns of consumption of natural resources among minority populations and low- income populations.94 The effect of the Executive Order is to require fed- eral agencies to approach and combat directly dispro- portionate and adverse effects to human health by their 87 42 U.S.C. § 2000d. 88 Id. § 2000d-1. 89 See Alexander v. Sandoval, 532 U.S. 275, 278, 288, 121 S. Ct. 1511, 1515, 1521, 149 L. Ed. 2d 517, 523, 530 (2001). 90 Save Our Valley, 335 F.3d at 935, n.2 (but the court held that such a regulation does not create a right enforceable un- der 42 U.S.C. § 1983.) 91 Exec. Order No. 12898, Fed. Reg. vol. 59, no. 32 (Feb. 11, 1994), § 1-101. 92 See Tit. VI Circular at II-1, discussed in § V.D, infra. 93 Exec. Order No. 12898, § 1-102. 94 Id. § 1-103.

15 programs, policies, and activities on minority and low- income populations. The Executive Order results in agency reflection internally that is reviewed by other agencies and the Environmental Protection Agency (EPA).95 The Executive Order does not create a private right of action and is intended solely to improve the internal management of the executive branch.96 Section 2-2 of the Executive Order provides that [e]ach Federal agency shall conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participa- tion in, denying persons (including populations) the bene- fits of, or subjecting persons (including populations) to discrimination under[] such[] programs, policies, and ac- tivities[] because of their race, [c]olor, or national origin.97 Thus, Section 2-2 of the Order uses language similar to that found in Section 601 of Title VI, 42 U.S.C. § 2000d. D. FTA Title VI Circular (2007) On April 13, 2007, final notice98 was given of the is- suance of FTA’s new Title VI Circular entitled “Title VI and Title VI-Dependent Guidelines for Federal Transit Administration Recipients.”99 The Circular supersedes one dated May 26, 1988. The objectives of the Circular are to assist FTA recipients and subrecipients to: 1. Ensure that the level and quality of transportation ser- vice is provided without regard to race, color, or national origin; 2. Identify and address, as appropriate, disproportion- ately high and adverse human health and environmental effects, including social and economic effects of programs and activities on minority populations and low-income populations; 3. Promote the full and fair participation of all affected populations in transportation decision making; 4. Prevent the denial, reduction, or delay in benefits re- lated to programs and activities that benefit minority populations or low-income populations; [and] 5. Ensure meaningful access to programs and activities by persons with limited English proficiency.100 95 See id. § 1-102. 96 Id. § 6-609. 97 Compare Exec. Order No. 12898 § 2-2 with 42 U.S.C. § 2000d (stating that “[no] person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”). 98 Fed. Reg., vol. 72, no. 71, at 18732 (Apr. 13, 2007). 99 FTA C 4702.1A (May 13, 2007), hereinafter cited as “Title VI Circular,” available at: http://www.fta.dot.gov/documents/Title_VI_Circular_2007-04- 04_(FINAL)_(3).doc. 100 Tit. VI Circular at II-1. The Circular notes that 49 C.F.R. § 21.9(b) requires that recipients record and retain certain information that is to be submitted to the FTA and that recipients of FTA funding submit a compliance report to the respon- sible FTA regional office every 3 years or, in the case of metropolitan planning organizations, every 4 years.101 The Circular states that in accordance with 49 C.F.R. § 21.7, “every application for financial assistance from FTA must be accompanied by an assurance that the applicant will carry out the program in compliance with Title VI of the Civil Rights Act of 1964.”102 The Circular sets forth the general requirements and guidelines for FTA recipients and subrecipients. Among the stated requirements are that applicants submit an annual “Title VI Certification and Assurance”; develop Title VI complaint procedures; maintain a record of Title VI investigations, complaints, and lawsuits; and provide information to the public regarding the recipi- ent’s Title VI obligations.103 The Circular provides fur- ther guidance on the contents of notices and the appro- priate means of disseminating information on Title VI requirements to the public. The Circular provides program-specific requirements and guidelines for recipients serving large urbanized areas, defined as geographic areas with a population of 200,000 people or more.104 Among the stated require- ments are that the recipient collect demographic data in accordance with the options described in the Circular, set systemwide service standards and policies, evaluate service and fare changes in accordance with the meth- ods described in the Circular, monitor transit service through at least one of four service monitoring proce- dures described in the Circular, and prepare and sub- mit a Title VI program, the guidelines for which are set forth in Chapter V of the Circular.105 The Circular also contains program-specific re- quirements and guidelines for state transportation de- partments or other administering agencies, as well as guidance on statewide transportation planning, pro- gram administration, monitoring of subrecipients, as- sistance to subrecipients, and preparation and submis- sion of a Title VI program.106 The Circular, moreover, provides program-specific guidance for metropolitan transportation planning organizations, including guid- ance on conducting planning and reporting require- ments. The Circular’s chapter on compliance reviews de- scribes the review process that the FTA will follow when determining if a recipient or subrecipient is defi- cient or noncompliant after the award of Federal finan- cial assistance and what information and actions are 101 Id. at II-3-5. Ch. II defines some of the key terms such as the meaning of “adverse effect,” “discrimination,” “disparate impact,” “disparate treatment,” and “minority persons.” 102 Id. at III-1. 103 Id. at IV-1-2. 104 Id. at V-1. 105 Id. at V-1-9. 106 Id. at VI-1-3.