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Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications (2011)

Chapter: II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS

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Suggested Citation:"II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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Suggested Citation:"II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
×
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Suggested Citation:"II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
×
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Suggested Citation:"II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
×
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Suggested Citation:"II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
×
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Suggested Citation:"II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
×
Page 12
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Suggested Citation:"II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS." National Academies of Sciences, Engineering, and Medicine. 2011. Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications. Washington, DC: The National Academies Press. doi: 10.17226/14498.
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5 II. CIVIL RIGHTS ISSUES ARISING UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 WHEN PUBLIC TRANSPORTATION PROJECTS ALLEGEDLY DISCRIMINATE AGAINST MINORITY OR ETHNIC GROUPS A. Prohibition of Intentional Discrimination Caused by Disparate Treatment Under Section 601 of Title VI Civil rights issues arise when public transportation officials plan highways, transit facilities, and related projects that allegedly affect minority or ethnic groups on a discriminatory basis. The primary law is Title VI of the Civil Rights Act of 1964.11 Section 601 of Title VI prohibits intentional discrimination caused by disparate treatment, whereas Section 602 deals with discrimina- tion resulting from policies and actions that have dispa- rate impact on minorities and others protected by Sec- tion 602 and the regulations issued pursuant thereto.12 Section 601 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 activity receiving Federal financial assis- tance.”13 Regardless of a transit system’s motivation, decisions affecting minority riders must be made in compliance with Title VI. As discussed in Section II.B in this digest, federal agencies are authorized to imple- ment Title VI’s provisions through regulations requir- ing compliance with Title VI by recipients of federal funding. As explained in Section II.A, infra, by virtue of a de- cision of the U.S. Supreme Court, individuals may sue under Section 601 of Title VI only for intentional dis- crimination. Moreover, there is no private right of ac- tion to enforce disparate-impact regulations issued pur- suant to Section 602 of Title VI.14 B. No Cause of Action Under Disparate-Impact Regulations Promulgated Under Section 602 of Title VI to Effectuate the Provisions of Section 601 Section 602 of Title VI provides in pertinent part that [E]ach Federal department and agency which is empow- ered to extend Federal financial assistance to any pro- 11 Title VI of the Civil Rights Act of 1964; Title VI, § 602, 88 Pub. L. No. 352, 78 Stat. 252 (July 2, 1964), codified at 42 U.S.C. § 2000d. 12 Gulino v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 236 F. Supp. 2d 314 (S.D.N.Y. 2002). 13 42 U.S.C. § 2000d (2009). 14 Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). 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 consistent with achievement of the objectives of the statute authoriz- ing the financial assistance in connection with which the action is taken.15 Under Title VI, as well as Title VII of the Civil Rights Act of 196816 and other statutes and regulations, the USDOT promulgated regulations to effectuate Title VI.17 The regulations issued pursuant to Section 602 of Title VI are implicated when a recipient of federal fund- ing uses a neutral procedure or practice that has a dis- parate impact on protected individuals that lacks a sub- stantial legitimate justification.18 The Ninth Circuit has recognized that disparate-impact regulations may go further than the statute that they implement and pro- scribe “activities that have disparate effects on racial groups, even though such activities are permissible un- der § 601.”19 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.”20 Part 21 effectuates Title VI’s provi- sions21 and is applicable “to any program for which Fed- eral financial assistance is authorized under a law ad- ministered” by USDOT.22 Section 21.5(a) prohibits discrimination, first, in general: “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 discrimination under, any pro- gram to which this part applies.” Section 21.5(b) identifies specific discriminatory ac- tions that are prohibited, including an action the effect of which is to (i) Deny a person any service, financial aid, or other bene- fit provided under the program; 15 42 U.S.C. § 2000d-1 (2009). 16 Id. §§ 3601–3619, 4601–4655 (2009); 23 U.S.C. §§ 109(h), 324 (2009). 17 49 C.F.R. pt. 21 (2009). 18 See Complaints Investigations Reference Notebook for Civil Rights Personnel, U.S. Dep’t of Transp., available at http://www.fhwa.dot.gov/download/module3.pdf (Last visited Sept. 9, 2010). 19 Save Our Valley v. Sound Transit, 335 F.3d 932, 935 n.2. 20 49 C.F.R. § 21.1 (2009) (quoting 42 U.S.C. § 2000d (Title VI)). 21 Id. § 21.1 (2009). 22 Id.

6 (ii) Provide any service, financial aid, or other benefit to a person which is different, or is provided in a different manner, from that provided to others under the program; (iii) Subject a person to segregation or separate treatment in any matter related to his receipt of any service, finan- cial aid, or other benefit under the program; (iv) Restrict a person in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program; … [or] (vi) Deny a person an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program…. A recipient of federal funds may not directly or indi- rectly take actions that would substantially impair the accomplishment of the objectives of Title VI or the regu- lations promulgated pursuant thereto.23 As the FTA has advised, the implementation of reductions in transit services or increases in fares that disproportionately affect minority communities are examples of actions with potentially disparate impact.24 As will be seen in Section II.E, infra, which discusses the FTA’s guidance regarding compliance with Title VI, “[e]very application for Federal financial assistance to carry out a program to which this part applies” must submit assurances that the applicant will comply with Title VI; assurances may be required from subgrantees, contractors, and others identified in the regulation.25 States and state agencies receiving federal funds must give assurances of compliance with Title VI as well and that all recipients are compliant.26 The regulations set forth the type of compliance in- formation required27 and include procedures regarding Title VI complaints and investigations,28 a procedure for effecting compliance,29 hearings,30 and decisions and notices,31 as well as judicial review.32 Recipients of federal funds may implement policies or take actions that have disparate impacts if the poli- cies or actions have substantial legitimate justification, if there are no comparably effective alternative prac- tices that would result in less disparate impacts, and if the justification for the policy or action is not a pretext for discrimination.33 23 See id. § 21.5(b)(2) and (3) (2009). 24 FTA Region VI Civil Rights Colloquium, Training Materi- als (Mar. 28, 2006), available at http://www.fta.dot.gov/ civil_rights.html (Last visited Sept. 9, 2010). 25 49 C.F.R. § 21.7(a) (2009). 26 Id. § 21.7(b) (2009). 27 Id. § 21.9 (2009). 28 Id. § 21.11 (2009). 29 Id. § 21.13 (2009). 30 Id. § 21.15 (2009). 31 Id. § 21.17 (2009). 32 Id. § 21.19 (2009). 33 United States Department of Transportation, Federal Highway Administration, www.fta.dot.gov. C. Executive Order 12898 (1994) Requiring Federal Agencies to Combat Directly Disproportionate and Adverse Effects of Their Programs, Policies, and Activities on Minority and Low-Income Populations 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, Federal Actions to Address En- vironmental Justice in Minority Populations and Low- Income Populations.34 (The FTA’s 2007 Title VI Circu- lar, discussed in Section II.E, infra, specifically incorpo- rates the principles of Executive Order 12898.) Pursuant to ¶ 2-2 of the Executive Order [E]ach Federal agency shall conduct its programs, poli- cies, 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 activi- ties because of their race, [c]olor, or national origin.35 The effect of the executive order is to require federal agencies to approach and combat directly dispropor- tionate and adverse effects by federal programs, poli- cies, and activities on minority and low-income popula- tions. The executive order does not create a private right of action and is intended solely to improve the internal management of the executive branch.36 D. USDOT Title VI Order (1997) Incorporating the Principles of Environmental Justice in Decision-Making Practices of All USDOT Programs, Policies, and Activities On April 15, 1997, the USDOT issued its final order for the purpose of complying with President Clinton’s Executive Order 12898.37 The order incorporates the principles of environmental justice in the decision- making processes of all USDOT programs, policies, and activities but based on existing statutes, including Title 34 Exec. Order No. 12898, 59 Fed. Reg. 7629 § 1-101 (Feb. 11, 1994). 35 Id. § 2-2. 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 ex- cluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity re- ceiving Federal financial assistance”). 36 Exec. Order No. 12898, 59 Fed. Reg. 7629 § 6-609 (Feb. 11, 1994). 37 United States Department of Transportation, Order to Address Environmental Justice in Minority Populations and Low-Income Populations, 62 Fed. Reg. 18377 (Apr. 15, 1997), hereinafter cited as “DOT Order.”

7 VI.38 The order provides that “each operating admini- stration shall determine the most effective and efficient way of integrating the processes and objectives” of the USDOT order.39 The order directs that “[p]lanning and programming activities that have the potential to have a disproportionately high and adverse effect on human health or the environment shall include explicit consid- eration of the effects on minority populations and low- income populations.”40 The order requires that all stat- utes governing USDOT operations must be adminis- tered “so as to identify and avoid discrimination and avoid disproportionately high and adverse effects on minority populations and low-income populations,” for example, by proposing measures to avoid, minimize, or mitigate such effects and by considering alternatives.41 The public is to have access to information concerning the environmental impacts of programs, policies, and actions.42 As used in the order, the term “adverse effects” means, in part, “the totality of significant individual or cumulative human health or environmental effects.”43 The phrase [D]isproportionately high and adverse effect on minority and low-income populations means an adverse effect that: (1) is predominately borne by a minority population and/or a low-income population, or (2) will be suffered by the minority population and/or low- income population and is appreciably more severe or greater in magnitude than the adverse effect that will be suffered by the non-minority population and/or non-low- income population.44 The order requires Operating Administrators and other responsible DOT of- ficials [to] ensure that any of their respective programs, policies or activities that will have a disproportionately high and adverse effect on populations protected by Title VI (“protected populations’’) will only be carried out if: (1) a substantial need for the program, policy or activity exists, based on the overall public interest; and (2) alternatives that would have less adverse effects on protected populations (and that still satisfy the need identified in subparagraph (1) above), either (i) would have other adverse social, economic, environmental or 38 Id. at 18379 ¶ 4. 39 Id. ¶ 5(a). 40 Id. ¶ 5(b)(1). 41 Id. at 18380 ¶¶ 7(c)(2) and (3). 42 Id. at 18379 ¶ 5(b)(2). The order provides that the DOT will administer its programs, policies, and activities “so as to identify, early in the development of the program, policy or activity, the risk of discrimination so that positive corrective action can be taken.” Id. at 18380 ¶ 7. See also, id. 7(b)(1). 43 Id. at 18380–81 (App.) ¶ 1(f). 44 Id. ¶¶ 1(g)(1) and (2). human health impacts that are more severe, or (ii) would involve increased costs of extraordinary magnitude.45 (em- phasis added) Furthermore, administrators and officials must [E]nsure that any of their respective programs, policies or activities that will have a disproportionately high and ad- verse effect on minority populations or low-income popu- lations will only be carried out if further mitigation meas- ures or alternatives that would avoid or reduce the disproportionately high and adverse effect are not practi- cable. In determining whether a mitigation measure or an alternative is “practicable,’’ the social, economic (includ- ing costs) and environmental effects of avoiding or miti- gating the adverse effects will be taken into account.46 (emphasis added) Thus, the DOT Order does not preclude adverse ef- fects from taking place when “further mitigation meas- ures or alternatives…are not practicable.”47 E. Guidance Provided by FTA Title VI Circular (2007) for Recipients and Subrecipients of FTA Financial Assistance Regarding Compliance with Title VI and Integration of the USDOT Order as Well as Policy Guidance Concerning Limited- English-Proficient Persons 1. Purpose of the Circular On April 13, 2007, final notice48 was given of FTA’s Title VI Circular entitled “Title VI and Title VI– Dependent Guidelines for Federal Transit Administra- tion Recipients.”49 The circular supersedes one dated May 26, 1988. The purpose of the 2007 FTA Title VI Circular is to provide recipients and subrecipients of FTA financial assistance with guidance regarding their compliance with Title VI regulations, 49 C.F.R. Part 21, and on how to integrate into their programs the DOT’s Order on Environmental Justice, Order 5610.2, and the USDOT Policy Guidance Concerning Recipients’ Responsibilities to Limited English Proficient Persons.50 Every applicant for FTA financial assistance must certify that it will 45 Id. at 18380 ¶ 8(d). 46 Id. ¶ 8(c). 47 Id. 48 72 Fed. Reg. vol. 18732 (Apr. 13, 2007). 49 See FTA C 4702.1A (May 13, 2007), hereinafter cited as “FTA Title VI Circular,” link is accessible at http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html (Last visited Sept. 9, 2010). 50 Policy Guidance Concerning Recipients’ Responsibilities to Limited English Proficient (“LEP”) Persons, 70 Fed. Reg. 74087 (Dec. 14, 2005). Key terms are defined in the 2007 FTA Circular, including discrimination, disparate impact, disparate treatment, and minority persons.

8 comply with Title VI.51 First-time applicants must pro- vide information regarding their history of compliance with Title VI if they have received funding from an- other federal agency.52 2. Provisions in the FTA Title VI Circular Regarding Compliance with Title VI When Reducing Service or Increasing Fares Preliminarily it may be noted that recipients must file a compliance report every 3 years.53 Metropolitan planning organizations (MPO) that are direct recipients of FTA funds must do so every 4 years.54 In addition to the recipient, a state department of transportation (DOT) must certify every 3 years its compliance with Title VI.55 MPOs who are direct recipients of FTA report to the FTA as provided in Chapter II, otherwise to their direct recipient, for example, the state DOT.56 Finally, the circular describes how FTA will respond to Title VI discrimination complaints filed with the FTA against a recipient or subrecipient of FTA funds and sets forth FTA’s procedures when FTA determines that a recipi- ent is not in compliance with Title VI.57 Several provisions of the circular address the quality or level of service.58 In the Circular, the term “adverse effect” is defined broadly and includes “destruction or disruption of the availability of public and private facili- ties and services” and “the denial of, reduction in, or significant delay in the receipt of benefits of DOT pro- grams, policies, or activities.”59 Chapter IV of the FTA circular sets forth the general requirements and guidelines that recipients must follow to assure that they are Title VI–compliant. Various Ti- tle VI assurances are required to be provided as part of a transit agency’s annual Certification and Assurance submission to FTA. Assurances must be given regard- ing the recipient’s development of Title VI complaint procedures; the recording of Title VI investigations, complaints, and law suits; the notification by various means of beneficiaries of their protection under Title VI; and the preparation and submission of a Title VI program.60 51 FTA Title VI Circular, link is accessible at http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html, ch. III-1 ¶ 1. 52 Id. ¶ 2. 53 Id. at ch. V-9 ¶ 6. 54 Id. at ch. II-2 ¶ 4. 55 Id. at ch. VI-1, VI-3 ¶ 5. The state DOT must have “an analytic basis in place,” such as a demographic profile of the state, a “state-wide transportation planning process that iden- tifies the needs of low-income and minority populations,” and a “process that identifies the benefits and burdens of the State’s transportation system for different socioeconomic groups….” Id. at V-1 ¶ 1(a)–(c). 56 See id. at ch. VII. 57 Id. at ch. VIII, ch. IX, and ch. X. 58 See, e.g., ch. II-1 ¶ 1(a). 59 See id. at ch. II-3 ¶ 6(a). 60 Id. at ch. IV-1–IV-3. Chapter V of the Circular sets forth the require- ments for recipients serving large urbanized areas, i.e., 200,000 people or greater under 49 U.S.C. § 5307.61 A recipient must collect demographic data “showing the extent to which members of minority groups are benefi- ciaries of programs receiving Federal financial assis- tance”62 and “adopt quantitative system-wide service standards necessary to guard against discriminatory service design or operations decisions.”63 A recipient must “adopt system-wide service policies necessary to guard against service design and operational policies that have disparate impacts.”64 As part of its Title VI compliance, a recipient must “evaluate significant sys- tem-wide service and fare changes and proposed im- provements at the planning and programming stages to determine whether those changes have a discriminatory impact.”65 “[T]his requirement applies to ‘major service changes’ only. The recipient should have established guidelines or thresholds for what it considers a ‘major’ change to be. Often, this is defined as a numerical stan- dard, such as a change that affects 25 percent of service hours of a route.”66 The FTA encourages the evaluation of the impacts of proposed service and fare changes by assessing their effects on minority and low-income populations.67 For service “changes that would reduce or expand hours and days of service, the recipient should analyze any available information generated from ridership surveys that indicates whether minority and low-income riders are more likely to use the service during the hours and/or days that would be eliminated.”68 Second, in regard to the evaluation of service and fare changes, the recipient must “[a]ssess the alterna- tives available for people affected….”69 Thus, in regard to service changes “the recipient should analyze what, if any, alternative transit modes, fare payment types, or fare payment media are available for people affected by the fare change. The analysis should compare the fares paid under the change with fares that would be paid through available alternatives.”70 A recipient must “[d]etermine which, if any[,] of the proposals under con- sideration would have a disproportionately high and 61 Id. at ch. V-1–V-9. 62 Id. at ch. V-1 ¶ 1. There are three options for doing so: the preparation of demographic and service profile maps and charts, the use of a survey to collect information regarding the recipient’s ridership, or the use of a locally developed alterna- tive meeting the “expectations” of 49 U.S.C. § 21.5(b)(2) and (7). Id. at ch. V-1–V-3 ¶ 1(a)-(c). 63 Id. at ch. V-3 ¶ 2. 64 Id. at ch. V-4 ¶ 3. 65 Id. at ch. V-5 ¶ 4. 66 Id. 67 Id. at ch. V-6 ¶ 4(a)(1). The Circular states that recipients may choose to develop their own procedures as well. See id. at ch. V-7 ¶ 4(b). 68 Id. at ch. V-6 ¶ 4(a)(4). 69 Id. ¶ 4(a)(2) 70 Id. ¶ 4(a)(2)(a).

9 adverse effect on minority and low-income riders.”71 A recipient must monitor its transit service in its service area and “compare the level and quality of service pro- vided to predominately minority areas with service pro- vided in other areas to ensure…equitable service.”72 The circular provides for and describes procedures for moni- toring service: a level of service methodology, a quality of service methodology, and a “Title VI Analysis of Cus- tomer Surveys.”73 A recipient also has the option of de- veloping its own alternative to monitor transit service.74 A recipient is required to document its compliance with the program-specific requirements in Sections 1 and 2 of Chapter V, as well as those in Sections 1 through 7 of Chapter IV.75 A recipient must provide a copy of its demographic analysis, system-wide service standards and system-wide service policies, equity evaluation of any significant service changes and fare changes since its last submission, level of service moni- toring, quality of service monitoring, demographic analysis of customer surveys, or locally developed moni- toring procedures conducted since the last submission.76 Finally, a recipient may “implement a fare increase or major service reduction that would have disproportion- ately high and adverse effects” if the recipient is able to demonstrate “that the action meets a substantial need that is in the public interest and that alternatives would have more severe adverse effects than the pre- ferred alternative.”77 3. Transit Agencies’ Response to the Question of Whether the 2007 FTA Title VI Circular Resolves Any Issues Arising in Connection with Compliance with Title VI Transit agencies were asked in the survey conducted for this digest whether the FTA Title VI Circular either resolves any questions that have arisen regarding com- pliance with Title VI in earlier proceedings of which an agency is aware or, alternatively, raises any new issues. Although 54 agencies replied that the circular neither resolved any issues nor raised any new issues, 6 agen- cies indicated that the circular either did resolve issues or raised new issues.78 Only three agencies’ responses were more specific. One agency stated that the circular clarified the low- income population component and notification require- ments that are discussed in Section II.G, infra, and as a 71 Id. ¶ 4(a)(4). 72 Id. at ch. V-7 ¶ 5. 73 Id. at ch. V-7–V-8. 74 Id. at ch. V-8 ¶ 5(d). 75 Id. at ch. V-9 ¶ 6. 76 Id. ¶¶ 6(a)(1)–(4). 77 Id. at ch. V-6 ¶ 4(a)(4). 78 Four agencies did not respond to the question. result the agency had posted notifications in prominent areas and on the agency’s Web site. A second agency stated in part that the circular helped clarify some questions we had about Title VI implementation, and it made some issues make better sense. Some of the improvements in our Title VI imple- mentation which we adopted post–2007 FTA Circular in- clude placing an electronic copy of our Title VI complaint procedures onto our agency’s webpage; we adopted this improvement after learning about such implementation options from a recent FTA Civil Rights workshop for the 2007 Circular that we attended. A third response was that the circular “answers some questions[] but does not adequately address changes to fare media types and availability.” F. Application of Principles of Environmental Justice to Avoid, Minimize, or Mitigate Disproportionately High and Adverse Human Health and Environmental Effects on Low-Income Populations The consideration of low-income populations, defined hereafter, in environmental justice is not a new re- quirement.79 The principles of environmental justice include seeking to avoid, minimize, or mitigate “dispro- portionately high and adverse human health and envi- ronmental effects, including social and economic effects, on minority populations and low-income populations,”80 and to ensure their participation in regard to actions of federal agencies or their recipients affecting minority and low-income populations.81 The 2007 FTA Circular defines the term environmental justice to “[m]ean an action taken by DOT, FTA, or a recipient or subrecipient of FTA funding to identify and address adverse and disproportionate effects of its policies, programs, or ac- tivities on minority and/or low-income populations, con- sistent with Executive Order 12898 and the DOT Order 5610.2 on Environmental Justice”82 (emphasis added). Although there is no specific federal statute applica- ble to transit agencies regarding disparate impact on 79 An Overview of Transportation and Environmental Jus- tice 2, available at http://www.fhwa.dot.gov/environment/ ej2000.htm (Last visited Sept. 9, 2010), hereinafter cited as “Overview of Transportation and Environmental Justice.” 80 Id. 81 Id. See also David Monsma, Equal Rights, Governance, and the Environment: Integrating Environmental Justice Prin- ciples in Corporate Social Responsibility, 33 ECOLOGY L.Q. 443, 444 (2006), hereinafter cited as “Monsma,” http://www.cerium.ca/IMG/pdf/EQUAL_RIGHTS_GOVERNAN CE_AND_THE_ENVIRONMENT.pdf (Last visited Sept. 9, 2010). 82 FTA Title VI Circular, http://www.fta.dot.gov/laws/ circulars/leg_reg_5956.html, at ch. II-1 ¶ 6(i).

10 low-income populations,83 Section 602 of Title VI re- quires federal agencies and departments to give effect to Section 2000d “by issuing rules, regulations, or or- ders of general applicability…consistent with [the] achievement of the objectives of the statute….”84 Thus, the consideration of the effect of federal actions on low- income populations is consistent with Title VI and Sec- tion 602. Although Title VI does not specifically prohibit dis- crimination against low-income persons or populations, the USDOT order refers to Title VI;85 affirms that “[i]t is DOT policy to actively administer and monitor its op- erations and decision making to assure that nondis- crimination is an integral part of its programs, policies, and activities;”86 and mandates that the “income level” of a population served or affected “in implementing these requirements…should be obtained where rele- vant, appropriate and practical….”87 A low-income person is one “whose median house- hold income is at or below the Department of Health and Human Services poverty guidelines.”88 A “Low- Income Population” is “any readily identifiable group of low-income persons who live in geographic prox- imity….”89 The term “adverse effects,” inter alia, means the totality of significant individual or cumulative human health or environmental effects, including interre- lated social and economic effects, which may include, but are not limited to…[the] exclusion or separation of minor- ity or low-income individuals within a given community or from the broader community; and the denial of, reduc- tion in, or significant delay in the receipt of, benefits of DOT programs, policies, or activities.90 Low-income populations are protected from pro- grams, policies, or activities that have a disproportion- ately high and adverse effect on them as further defined in the FTA circular.91 One of the purposes of the FTA circular is to aid re- cipients in appropriately identifying and addressing “disproportionately high and adverse human health and environmental effects, including social and economic effects of programs and activities on minority popula- 83 Monsma, at 444, 446–47 (stating that incorporates envi- ronmental justice remedies) (See id. n.6, citing Daniel Kevin, ‘Environmental Racism’ and Locally Undesirable Land Uses: A Critique of Environmental Justice Theories and Remedies, 8 VILL. ENVTL. L.J. 121, 130 (1997); See id. 447, n.21, citing Richard J. Lazarus, Civil Rights in the New Decade: Highways and Bi-ways for Environmental Justice, 31 CUMB. L. REV. 569, 582 (2001)). 84 42 U.S.C. § 2000d-1 (2009). 85 DOT Order, 62 Fed. Reg. at 18439 ¶ 7(a). 86 Id. ¶ 7(b). 87 Id. 88 Id. at 18380 (App.) ¶ 1(b). 89 Id. ¶ 1(d). 90 See id. ¶ 1(f). 91 See id. ¶ (g)(1) and (2). tions and low-income populations….”92 A recipient’s submission each 3 years must include a summary of “public outreach and involvement…to ensure that mi- nority and low-income people had meaningful access” to FTA activities.93 Chapter V of the circular, applicable to large urban- ized areas, requires that when evaluating service or making fare changes, recipients must evaluate “the effects of the proposed fare or service change on minor- ity and low-income populations”;94“[a]ssess the alterna- tives available for people affected”;95 and describe ac- tions proposed to “minimize, mitigate, or offset effects…on minority and low-income populations.”96 A recipient must “[d]etermine which, if any of the propos- als under consideration would have a disproportion- ately high and adverse effect on minority and low- income riders.”97 As stated, the circular allows recipi- ents to develop a local evaluation procedure.98 In Chap- ter V of the circular, the FTA recommends that if a re- cipient conducts a survey on customer demographics and travel patterns, information should be collected on riders’ income or income range.99 In sum, federal law requires recipients of federal funds such as transit agencies to avoid, minimize, or mitigate the disparate impact of their decisions and activities on low-income populations.100 92 FTA Title VI Circular, http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html, at ch. II-1 ¶ 1(b). 93 Id. at ch. IV-3 ¶ 7(a)(1). 94 Id. at ch. V-6 ¶ 4(a)(1). 95 Id. ¶ 4(a)(2). 96 Id. ¶ 4(a)(3). 97 Id. ¶ 4(a)(4). 98 Id. ¶ 4(b). 99 Id. at ch. V-2 ¶ (1)(b)(7). 100 See Executive Order 12898, 59 Fed. Reg. 7629 § 1-101 (Feb. 11, 1994), ¶ 1-101 (stating that “each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportion- ately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States,” as well as its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Northern Mariana Islands); DOT Order, 62 Fed. Reg. at 18380 ¶ 7(c) (noting the federal requirement to “identify and avoid discrimination and avoid disproportionately high and adverse effects on minority populations and low-income populations”).

11 G. Executive Order 13166 (2000), Department of Justice and USDOT Policy Guidance, and the 2007 FTA Title VI Circular Regarding Access to Transit Services for LEP Persons and Compliance with Title VI 1. Executive Order 13166 (2000) and Improving Access to Services for LEP Persons On August 11, 2000, President Clinton signed Ex- ecutive Order 13166 entitled “Improving Access to Ser- vices for Persons with Limited English Proficiency,”101 which directed every federal agency “to examine the services it provides and develop and implement a sys- tem by which LEP persons can meaningfully access those services consistent with, and without unduly bur- dening, the fundamental mission of the agency”102 and “to prepare a plan to improve access to its federally conducted programs and activities by eligible LEP per- sons.”103 2. Department of Justice Policy Guidance Regarding Enforcement of Title VI of the Civil Rights Act of 1964 Concerning “National Origin Discrimination” Against LEP Persons Pursuant to Executive Order 13166, on August 16, 2000, the Department of Justice (DOJ) issued a Policy Guidance entitled ‘‘Enforcement of Title VI of the Civil Rights Act of 1964—National Origin Discrimination against Persons with Limited English Proficiency” (DOJ LEP Guidance).104 The DOJ LEP Policy Guidance is clear that neither it nor the executive order creates any new obligations but only clarifies existing Title VI responsibilities.105 The guidance states that “[a] federal aid recipient’s failure to assure that people who are not proficient in English can effectively participate in and benefit from programs and activities may constitute national origin discrimination prohibited by Title VI.”106 Federal agencies were advised that what constituted meaningful access was to be determined based on a consideration of four factors: “the number or proportion of LEP persons in the eligible service population, the frequency with which LEP individuals come in contact with the program, the importance of the service pro- vided by the program, and the resources available to the recipient.”107 The Justice Department advised fed- 101 Executive Order 13166, 65 Fed. Reg. 50121 (Aug. 16, 2000), hereinafter cited as “Exec. Order 13166 (2000).” 102 Id. § 1. 103 Id. § 2. 104 DOJ LEP Policy Guidance, 65 Fed. Reg. 50123 (Aug. 16, 2000), hereinafter cited as “DOJ LEP Policy Guidance.” 105 Id. (Summary). 106 Id. 107 Id. at 50124. eral agencies to utilize the guidance “to develop specific criteria…to review the programs and activities for which they offer financial assistance.”108 3. USDOT Policy Guidance Concerning Recipients’ Responsibilities to LEP Persons On December 14, 2005, the USDOT issued a revision of its earlier guidance. The legal basis for USDOT’s Pol- icy Guidance Concerning Recipients’ Responsibilities to Limited English Proficient (LEP) Persons109 (DOT LEP Policy Guidance) is the prohibition against national origin discrimination in Title VI as it affects LEP per- sons.110 The USDOT LEP Policy Guidance clarifies the responsibilities of recipients of federal financial assis- tance from USDOT and assists them in fulfilling their responsibilities to LEP persons.111 As defined in the USDOT’s guidance, the term “limited English profi- cient” means those “[i]ndividuals who do not speak Eng- lish as their primary language and who have a limited ability to read, write, speak, or understand Eng- lish….”112 As such, they are entitled to language assis- tance under Title VI with respect to any “service, bene- fit, or encounter.”113 The 2007 FTA Title VI Circular defines LEP persons as those persons “for whom Eng- lish is not their primary language and who have a lim- ited ability to speak, understand, read, or write Eng- lish,” including “people who reported to the U.S. Census that they do not speak English well or do not speak English at all.”114 The USDOT LEP Policy Guidance informed recipi- ents that they must “take reasonable steps to ensure meaningful access to their programs and activities by LEP persons” by making “an individualized assessment that balances four factors,”115 the language of which differs somewhat from the foregoing DOJ LEP Policy 108 Id. at 50123. 109 DOT LEP Policy Guidance, 70 Fed. Reg. 74087 (Dec. 14, 2005), available at http://edocket.access.gpo.gov/2005/05- 23972.htm (Last visited on Sept. 9, 2010). DOT “revised its LEP guidance to insure greater consistency with DOJ’s revised LEP guidance, published June 18, 2002, and other agencies’ revised LEP guidance. 67 Fed. Reg. 117 (June 18, 2002).” Id. at 74091. 110 Id. at 74087 (summary). 111 Id. 112 Id. at 74091. 113 Id. 114 FTA C 4702.1A (May 13, 2007), hereinafter cited as “FTA Title VI Circular,” at ch. II-4-5 ¶ 6(n), link is accessible at http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html (Last visited Sept. 9, 2010). 115 DOT LEP Policy Guidance, 70 Fed. Reg. 74087 (Dec. 14, 2005), available at http://edocket.access.gpo.gov/2005/05- 23972.htm, at 74091. (Last visited on Sept. 9, 2010).

12 Guidance.116 Under the USDOT LEP Policy Guidance, the four factors are: (1) The number or proportion of LEP persons eligible to be served or likely to be encountered by a program, activ- ity, or service of the recipient or grantee; (2) the frequency with which LEP individuals come in contact with the pro- gram; (3) the nature and importance of the program, ac- tivity, or service provided by the recipient to people’s lives; and (4) the resources available to the recipient and costs.117 Nevertheless, recipients “have considerable flexibil- ity in developing such a plan….”118 4. FTA’s 2007 Title VI Circular’s Application to LEP Persons The 2007 FTA Title VI Circular makes repeated ref- erences to LEP persons. The circular’s Chapter IV, General Requirements and Guidelines, applicable to recipients and subrecipients, requires “that FTA recipi- ents take responsible steps to ensure meaningful access to the benefits, services, information, and other impor- tant portions of their programs and activities for indi- viduals who are…LEP,” including the development of a language implementation plan.119 The circular includes an exception from the requirement for those recipients and subrecipients “serving very few LEP persons or those with very limited resources [who] may choose not to develop a written LEP plan.”120 Nevertheless, recipi- ents and subrecipients that do not develop a plan must “consider other ways to reasonably provide meaningful access” to LEP persons.121 Recipients and subrecipients must provide information to the public regarding a re- cipient’s Title VI obligations and “apprise members of the public of the protections against discrimination af- forded to them by Title VI.”122 For LEP persons, notices detailing a recipient’s or subrecipient’s Title VI obliga- tions and complaint procedures must be translated into other languages “as needed and consistent with DOT LEP Guidance.”123 Also, in Chapter IV, as part of a recipient’s required 3-year submission showing compliance with Title VI, the recipient must include a copy of the agency’s plan for providing language assistance for LEP persons.124 116 Id. n.107, and accompanying text. 117 Id. at 74091. 118 Id. at 74096 (pt. VII). 119 FTA C 4702.1A (May 13, 2007), hereinafter cited as “FTA Title VI Circular,” at ch. IV-1 ¶ 4. (Link is accessible at http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html (Last visited Sept. 9, 2010). 120 Id. ¶ 4(a). 121 Id. at ch. IV-2 ¶ 4(a). 122 Id. ¶ 5. 123 Id. ¶ 5(b)(3). 124 Id. at ch. IV-4 ¶ 9. H. Recipients’ and Subrecipients’ Obligation to Promote Inclusive Public Participation Recipients and subrecipients have obligations to promote “inclusive public participation”125 and seek out the viewpoints not only of minority and low-income groups but also of LEP populations,126 such as by “of- fer[ing] early and continuous opportunities for the pub- lic to be involved in the identification of social, eco- nomic, and environmental impacts of proposed transportation decisions.”127 Recipients must implement USDOT’s policy guidance regarding their responsibility to LEP persons to overcome barriers to public participa- tion.128 Effective practices include “[u]sing locations, facilities, and meeting times that are convenient and accessible to low-income and minority communities”129 or “different meeting sizes or formats, or varying the type and number of news media used to announce pub- lic participation opportunities, so that communications are tailored to the particular community or popula- tion.”130 Nevertheless, recipients have “wide latitude” regarding what measures are appropriate.131 Although there is no specific guidance regarding whether or how to conduct a public hearing, the guid- ance does suggest that among the documents that should be translated by a recipient are notices of public hearings regarding changes in services or benefits.132 A prior notification should be given by appropriate means in the language or languages of the LEP persons being served133 and should advise that qualified interpreters134 will be provided or be available at any hearing.135 Rele- 125 Id. at ch. IV-5 ¶ 9(a)(1-5). 126 Id. at ch. IV-4 ¶ 9. 127 Id. 128 Id. at ch. IV ¶ 9(a)(5). 129 Id. ¶ 9(a)(3). 130 Id. ¶ 9(a)(4). 131 Id. ¶ 9(a). 132 DOT LEP Policy Guidance, 70 Fed. Reg. 74087, at 74094 (pt. VI(B)). (Dec. 14, 2005), available at http://edocket.access. gpo.gov/2005/05-23972.htm. (Last visited Sept. 9, 2010). 133 For example, the DOT LEP Policy Guidance states that “[n]otifications should be delivered in advance of scheduled meetings or events to allow time for persons to request accom- modation and participate.” Id., 70 Fed. Reg. at 74098 (pt. IX N 14). 134 The DOT LEP Policy Guidance states that “[w]here in- terpretation is needed and is reasonable, recipients should consider some or all of the options below for providing compe- tent interpreters in a timely manner”; that “when interpreta- tion is needed and is reasonable, it should be provided in a timely manner in order to be effective”; and that “[c]ontract interpreters may be a cost-effective option when there is no regular need for a particular language skill.” Id. at 74093 (pt. VI(A)). 135 For example, the DOT LEP Policy Guidance states that “[o]nce an agency has decided, based on the four factors, that it will provide language services, it is important that the recipi- ent notify LEP persons of services available free of charge. Recipients should provide this notice in languages LEP persons would understand,” such as by “[i]ncluding notices in local

13 vant documents should be translated and made avail- able to LEP persons before and/or at a hearing.136 I. Applicability of Title VI and the ADA to the American Recovery and Reinvestment Act of 2009 The American Recovery and Reinvestment Act of 2009 (ARRA), signed into law by President Barack Obama on February 17, 2009, includes $8.4 billion for transit capital improvements.137 On March 5, 2009, FTA published a Notice in the Federal Register to implement the ARRA.138 The FTA’s Policy Guidance and Proce- dures for ARRA Grants states that existing regulations and guidance pertaining to Title VI and the ADA, as well as the requirements of the Equal Employment Op- portunity and Disadvantaged Business Enterprise laws, apply to ARRA funds.139 In September 2009, three parties filed a complaint alleging noncompliance with Title VI when funding was being sought under the ARRA by the San Francisco Bay Area Rapid Transit (BART) in connection with the pro- posed Oakland Airport Connector Project (OAC Pro- ject).140 The complainants were the Urban Habitat Pro- gram, a nonprofit, environmental justice organization based in Oakland, California;141 Transform, a public transit advocacy and policy organization;142 and Genesis, a regional faith- and values-based organization in the San Francisco Bay Area.143 The complaint alleged that newspapers other than in English.” Id. at 7409674097 (pt. VII(4)). 136 The DOT LEP Policy Guidance addresses the translation of documents: After applying the four-factor analysis, a recipi- ent may determine that an effective LEP plan for its particular program or activity includes the translation of vital written materials into the language of each frequently encountered LEP group eligible to be served and/or likely to be affected by the recipient’s program. DOT LEP Policy Guidance, 70 Fed. Reg. at 74094 (Part VI(B)). 137 111 Pub. L. No. 5, 123 Stat. 115. 138 “American Recovery and Reinvestment Act of 2009 Public Transportation Apportionments, Allocations and Grant Pro- gram Information,” United States Department of Transporta- tion, Federal Transit Administration, 74 Fed. Reg. 9656 (Mar. 5, 2009). 139 FTA Policy Guidance and Procedures for ARRA Grants, available at http://www.fta.dot.gov/civilrights/civil_rights_ 9903.html (Last visited on Sept. 9, 2010). 140 Urban Habitat Program v. Bay Area Rapid Transit Dist., Complaint before the United States Department of Transporta- tion and Federal Transit Administration under Title VI of the Civil Rights Act of 1964 and Executive Order 12898, dated Sept. 1, 2009, hereinafter cited as “OAC Title VI Complaint,” available at http://issuu.com/transform/docs/fta_title_vi_complaint_09-1- 09_final (Last visited on Sept. 9, 2010). 141 OAC Title VI Complaint, at 14. 142 Id. at 15. 143 Id. BART failed to comply with Title VI in connection with the OAC Project. For example, the complaint alleged that BART failed to prepare a required service and fare equity analysis144 and failed to evaluate whether the project would have a disproportionate impact on minor- ity and low-income populations.145 The complaint argued that BART’s 2002 Final Environmental Impact Re- view/Environmental Impact Statement and its 2007 Title VI Triennial Report did not include the required evaluations. It was further alleged that BART’s failure to conduct the required analyses of disproportionate ad- verse impacts on minority and low-income populations has resulted in an even more significant failure, as it has not taken the necessary action to “minimize, mitigate, or offset any adverse effects of proposed fare and service changes on minority and low-income populations.” Nor has BART weighed the costs and benefits of the alterna- tives, and determined whether a less-discriminatory al- ternative can provide the needed benefits at the same or lesser cost.146 In the FTA’s letter of January 15, 2010, addressing Title VI issues and the OAC Project, the FTA noted that during a compliance review conducted after the above complaint, “BART’s staff acknowledged it failed to inte- grate Title VI into BART’s service planning and moni- toring activities for the Project. BART also admitted that it did not conduct an equity evaluation of its ser- vice changes other than the one conducted on the 2009 reduction in service headways.”147 The FTA observed also that “BART’s non-compliance with Title VI will be addressed through the Office of Civil Rights’ compliance review process….”148 Meanwhile, however, the FTA advised that BART’s “Title VI, Environmental Justice, and Limited English Proficiency Analysis of Proposed Service and Fare Changes,” dated January 14, 2010, was “insufficient to meet the [FTA] Circular’s requirements on many fronts.”149 That is, [T]he equity analysis fails to analyze whether the Pro- ject’s improvement and the service reductions would have a discriminatory impact. In addition, your analysis still does not address: (1) a policy for what constitutes a “ma- jor service change;” (2) the impacts of the major service changes according to a specified procedure, including route changes and span of service; (3) an analysis of what alternative modes of transit are available for people af- 144 Id. at 20. 145 Id. 146 Id. at 21. 147 Letter from the FTA to the Metropolitan Transportation Commission and San Francisco Bay Area Rapid Transit Dis- trict 1 (Jan. 15, 2010), available at http://www.scribd.com/ doc/26217928/FTA-Letter-to-MTC-and-BART-on-Oakland- Airport-Connector. 148 Id. 149 Id. at 2.

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TRB’s Transit Cooperative Research Program (TCRP) Legal Research Digest 35: Reductions in Transit Service or Increases in Fares: Civil Rights, ADA, Regulatory, and Environmental Justice Implications explores the legal implications of reductions in transit service or increases in fares in the context of environmental justice. Based on federal environmental justice principles, the report analyzes constitutional and statutory provisions and regulations in regard to transit agencies’ compliance with Title VI of the Civil Rights Act of 1964 (Title VI) and the Americans with Disabilities Act (ADA).

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