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

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

20 VII. ADMINISTRATIVE ENFORCEMENT PROCEDURES FOR TITLE VI COMPLAINTS FOR DISPARATE IMPACT The regulations list the types of discrimination pro- hibited by any recipient through any program for which federal financial assistance is provided by USDOT.168 As a precondition to receiving federal financial assistance, a recipient must provide assurances to USDOT that it will comply with the requirements.169 The Secretary of USDOT must seek the cooperation of a recipient and provide guidance to it in its attempt to comply voluntar- ily with the regulations.170 The disparate-impact regulations generally identify two ways in which the disparate-impact policies are enforced. First, federal financial assistance may be re- fused if an applicant “fails or refuses to furnish an as- surance required under [49 C.F.R.] § 21.7 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section….”171 Section 21.13 of the department’s regulations identifies the procedures that apply when the department seeks to terminate financial assistance or to refuse to grant or to continue such as- sistance. A hearing, which occurs before either the Secretary or a hearing examiner, must precede any adverse action taken against an applicant or recipi- ent of federal funds.172 In training material disseminated by USDOT, the department has summarized the substance of the pro- cedure. In a disparate impact case, the focus of the investigation concerns the consequences of the recipient’s practices, rather that the recipient’s intent. To establish liability under disparate impact, the investigating agency must first ascertain whether the recipient utilized a facially neutral practice that had a disproportionate impact on a group protected by Title VI. If the evidence establishes a prima facie case, the investigating agency must then de- termine whether the recipient can articulate a substan- tial legitimate justification for the challenged practice. To prove a substantial legitimate justification, the recipient must show that the challenged policy was necessary to meeting a goal that was legitimate, important, and inte- gral to the recipient’s mission. If the recipient can make such a showing, the inquiry must focus on whether there are any equally effective al- ternative practices that would result in less adverse im- pact or whether the justification proffered by the recipient is actually a pretext for discrimination. If a substantial legitimate justification is identified, the third stage of the disparate impact analysis is the com- 168 49 C.F.R. §§ 21.3, 21.5. 169 Id. at § 21.7. 170 Id. at § 21.9. 171 Id. at § 21.13(b). 172 Id. at § 21.15(d). plainant’s demonstration of a less discriminatory alterna- tive.173 A decision is issued, followed by recommendations for compliance if a violation of Title VI is found likely to exist. The second way in which the disparate-impact poli- cies are enforced is when a complainant files a com- plaint with the funding agency, alleging a violation.174 USDOT’s regulations provide that “[a]ny person who believes himself or any specific class of persons to be subjected to discrimination prohibited by this part may by himself or by a representative file with the Secretary [of the Department of Transportation] a written com- plaint.”175 The Secretary must investigate a complaint by an allegedly injured party or by his or her represen- tative promptly.176 If the investigation results in a find- ing of noncompliance, then the Secretary must inform the funds recipient and attempt to resolve the matter informally.177 “If there appears to be a failure or threat- ened failure to comply with this part, and if the non- compliance or threatened noncompliance cannot be cor- rected by informal means,” then the state’s noncompliance may result in the cessation of federal financial assistance and a recommendation to the De- partment of Justice.178 Not only may there be a hear- ing,179 but also judicial review is permitted for action taken pursuant to Title VI, Section 602.180 Finally, the Department of Justice may enforce any rights the United States has under any federal law, any applicable proceeding pursuant to any state or local law, and any other means necessary against the recipi- ent.181 In summary, although private suits may be brought under Title VI and § 1983 for intentional discrimina- tion, the Supreme Court has eliminated Title VI and its implementing regulations as the means by which pri- vate redress may be sought for government action al- leged to have a disparate impact on minority groups. 173 U.S. Dep’t of Transp., supra note 82. According to the FTA, individuals and organizations may file a complaint by going to a link provided on the FTA’s Web site and completing a Title VI complaint form that is provided. Complaints should include the complainant’s contact information and be signed and thereafter forwarded to the Federal Transit Administra- tion Office of Civil Rights to the attention of the Title VI Pro- gram Coordinator, East Building, 5th Floor – TCR, 1200 New Jersey Ave., SE, Washington, DC, 20590. See USDOT, FTA, available at http://www.fta.dot.gov/civilrights/title6/civil_rights_5104.html. 174 49 C.F.R. § 21.11(b). See generally Jan. 19, 1977, DOT Order 1000.12 at V-1-V-10. 175 Id. § 21.11(b). 176 Id. §§ 21.11(a-c). 177 Id. § 21.11(d). 178 Id. § 21.13(a). 179 See id. § 21.15. 180 Id. § 21.19; see Tit. VI § 603 (outlining judicial review available for actions taken pursuant to § 602). 181 See 49 C.F.R. § 21.13(a).