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Suggested Citation:"IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT." 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:"IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT." 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:"IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT." 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:"IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT." 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:"IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT." 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:"IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT." 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:"IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT." 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:"IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT." 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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15 tection,164 a federal district court in New Jersey held that “a party must allege that he or she was the target of purposeful, invidious discrimination” to state a claim under either Section 601 of Title VI or the Equal Pro- tection Clause of the Fourteenth Amendment and § 1983.165 The Ninth Circuit also stated in a 2003 case that Section 601 does not create a right “to be free from racially discriminating effects.”166 In sum, Section 601 only targets intentional dis- crimination. In Section IV.A, infra, the digest discusses how intentional discrimination, nevertheless, may be proved in the absence of direct evidence of discrimina- tory intent by the use of statistical and other evidence. B. No Private Right to Enforce Regulations Promulgated Under Section 602 of Title VI to Effectuate Section 601 of Title VI In Sandoval, the Court did not address whether the courts below were correct to hold that Alabama’s Eng- lish-only policy had the effect of discriminating on the basis of national origin….”167 Rather, the Court held that there simply is no private cause of action to enforce the Section 602 regulations.168 Prior to the Sandoval decision, in 1998 in South Bronx Coalition for Clean Air, Inc. v. Conroy,169 an envi- ronmental group alleging disparate impact on minority residents had 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. The Sandoval Court explained, however, that “[i]t is clear now that the disparate-impact regulations do not simply apply § 601—since they indeed forbid conduct that § 601 permits—and therefore clear that the private right of action to enforce § 601 does not include a pri- vate right to enforce these regulations.”170 Declaring that such a right must come, if at all, from the inde- pendent force of Section 602, the Court held that it as- 164 254 F. Supp. 2d 486, 495 (D. N.J. 2003). 165 Id. at 495. 166 Save Our Valley v. Sound Transit (Central Puget Sound Reg. Transit Auth.), 335 F.3d 932, 944 (9th Cir. 2003). 167 Id., Sandoval, 532 U.S. at 279. 168 Id. See also Julia B. Latham Worsham, Disparate Impact Lawsuits Under Title VI, Section 602: Can A Legal Tool Build Environmental Justice?, 27 B.C. ENVTL. AFF. L. REV. 631 (2000), available at http://www.bc.edu/bc_org/avp/law/ lwsch/journals/bcealr/27_4/02_TXT.htm (Last visited Sept. 9, 2010); Thomas A. Lambert, The Case Against Private Disparate Impact Suits, 34 GA. L. REV. 1155 (2000); and Bradford C. Mank, Environmental Justice and Title VI: Making Recipi- ent Agencies Justify Their Siting Decisions, 73 TUL. L. REV. 787 (1999). 169 20 F. Supp. 2d 565 (S.D.N.Y. 1998). 170 Sandoval, at 285–86 (citation omitted). sumed for the purpose of its decision that Section 602 confers the authority to promulgate disparate-impact regulations but held that Section 602 does not confer a private right to enforce the regulations.171 The Court stated that Congress, as opposed to agencies of the ex- ecutive branch, must create private rights of action to enforce federal law.172 The Court emphasized that Section 602 authorizes agencies to enforce the regulations by terminating fund- ing or by “any other means authorized by law,”173 au- thority vested in the agencies that indicates that Con- gress did not intend to sanction an individual’s right of action under the regulations.174 “Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602.”175 Post-Sandoval, in 2003 in Save Our Valley v. Sound Transit (Central Puget Sound Regional Transit Author- ity),176 a community advocacy group opposed a proposed light-rail line through its community. The group argued that the project would have disproportionate adverse effects on minority residents177 in violation of disparate- impact regulations issued pursuant to Section 602 of Title VI.178 However, the Ninth Circuit held that a “dis- parate-impact regulation cannot create a new right; it can only ‘effectuate’ a right already created by § 601.”179 IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT A. Proof of Disparate Treatment: The Arlington Heights Factors As one article notes, “[t]he courts recognize two methods of proving intentional discrimination: the di- rect method and the indirect method, with a mixed mo- tive defense available in some cases.”180 The indirect method181 is used mostly in employment discrimination 171 Id. at 286. 172 Id. at 289. 173 Id. (quoting 42 U.S.C. § 2000d-1). 174 Id. 175 Id. at 293 (footnote omitted). 176 335 F.3d 932 (9th Cir. 2003). 177 Id. at 934. 178 Id. at 935. 179 Id. at 944 (citation omitted). 180 Ivan E. Bodensteiner, The Implications of Psychological Research Related to Unconscious Discrimination and Implicit Bias in Proving Intentional Discrimination, 73 MO. L. REV. 83, 87-88 (2008) (footnote omitted), hereinafter cited as “Boden- steiner.” 181 As summarized in the article, [T]he indirect method, referred to as the McDonnell-Douglas proof scheme, and used most often in employment discrimina-

16 cases,182 and the mixed motive approach in both Title VII employment cases and in some Age Discrimination in Employment Act (ADEA) cases.183 However, although the “‘direct method’ describes the usual or conventional way of proving a case,”184 the Supreme Court has “ex- plicitly approved the use of circumstantial evidence under the direct method of proving intentional dis- crimination”185 and, furthermore, has held that a “plain- tiff need only show that a ‘discriminatory purpose was a motivating factor,’ not the sole factor.”186 Thus, just as there is “burden-shifting” with the indirect method, likewise there is burden-shifting with the direct method.187 If a plaintiff utilizing the direct method of proof provides evidence sufficient to support a finding that a prohibited factor was a motivating factor in the challenged decision, this shifts the burden to the defendant to establish “that the same decision would have resulted even had the im- permissible purpose not been considered.”…In short, this defense recognizes that a decisionmaker may be moti- vated by both legitimate and illegitimate factors in mak- ing a challenged decision.188 The matter of burden-shifting is relevant to other federal statutes that “require the plaintiff to prove dis- parate treatment,”189 such as the ADA prohibiting dis- crimination based on a disability in employment as well as in public accommodations and government ser- vices,190 the Rehabilitation Act’s Section 504,191 and the ADEA.192 tion cases, establishes a three-step burden-shifting framework. First, the plaintiff must establish a prima facie case. For exam- ple, an applicant for a position claiming her application was re- jected because of sex can establish a prima facie case by showing (i) she is a member of a protected group, (ii) applied for an open position, (iii) she was qualified for the position, and (iv) her ap- plication was rejected and the employer hired a male, or the po- sition remained open and the employer continued to seek appli- cations from persons with qualifications similar to the plaintiff’s. This creates a presumption of discrimination. Second, the burden of production then shifts to the employer to articu- late a legitimate, nondiscriminatory reason for the challenged action. Third, assuming the employer meets this minimal bur- den, the plaintiff, who retains the ultimate burden of persua- sion, can establish intentional discrimination either directly by showing “that a discriminatory reason more likely motivated the employer or indirectly by showing that the proffered explanation is unworthy of credence [pretext].” Id. at 88 (footnotes omitted). 182 Id. 183 Id. at 95–96. 184 Id. at 91. 185 Id. at 92–93 (citing Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252 (1977)). 186 Id. at 94 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 244–45 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102–66, 105 Stat. 1074). 187 Id. at 88. See text in note 181, supra. 188 Id. at 94 (footnotes omitted). 189 Id. at 83 n.1. 190 42 U.S.C. §§ 12101–12213. 191 29 U.S.C. § 794. 192 Id. §§ 621–34. Although the Supreme Court held in Sandoval that Section 601 proscribes only intentional discrimination, such discriminatory animus may be difficult if not im- possible to prove by direct evidence. Proof of discrimina- tory impact is insufficient to prove discriminatory in- tent. “[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact. ‘Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial dis- crimination.’”193 Nevertheless, as the Supreme Court held in Village of Arlington Heights v. Metropolitan Housing Development Corp.,194 in the absence of direct proof, indirect, circumstantial proof, if sufficient, may establish discriminatory intent. In Arlington Heights, the Supreme Court explained that the application of a variety of factors may prove discriminatory intent. The Arlington Heights case con- cerned the review of a denial of a petition by the Metro- politan Housing Development Corp. (MHDC) for a re- zoning of a 15-acre parcel in the Village of Arlington Heights from a single-family zoning classification to a multiple-housing classification to permit MHDC to build low- to moderate-income housing.195 After Arling- ton Heights denied the request, the MHDC alleged that the denial was racially discriminatory and violated, inter alia, the Fourteenth Amendment and the Fair Housing Act of 1968. The Supreme Court held that, although the Arling- ton Heights decision “does arguably bear more heavily on racial minorities,”196 the MHDC and individual re- spondents “simply failed to carry their burden of prov- ing that discriminatory purpose was a motivating factor in the Village’s decision.”197 The Court held that the re- spondents had failed to prove discrimination based on what courts would refer to later as the Arlington Heights factors. In Arlington Heights, the Court held that when a discriminatory policy or action is alleged in a Section 601 case, the courts must conduct an inquiry into the circumstances to ascertain whether discrimination was the purpose of an official action or decision. Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action—whether it “bears more heavily on one race than another”…—may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. …The evidentiary inquiry is then relatively easy. …[I]mpact 193 Village of Arlington Heights, 429 U.S. at 264–65, 97 S. Ct. at 563, 50 L. Ed. 2d at 464 (citation omitted). 194 Id. at 252. 195 Id. at 254. 196 Id. at 269. 197 Id. at 270.

17 alone is not determinative, and the Court must look to other evidence.198 The Court identified a nonexhaustive list of factors to evaluate in determining whether a decision was the result of discriminatory animus. • “The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes.”199 • “The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes.”200 • “Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be rele- vant, particularly if the factors usually considered im- portant by the decisionmaker strongly favor a decision contrary to the one reached.”201 • “The legislative or administrative history may be highly relevant, especially where there are contempo- rary statements by members of the decisionmaking body, minutes of its meetings, or reports.”202 In Western States Paving Co., Inc. v. Washington State Dep’t of Transportation,203 although the district court held that the disadvantaged business enterprise (DBE) program at issue was intentionally race- conscious, the court addressed what evidence may be considered when a facially neutral, yet allegedly dis- criminatory, policy is at issue. The court held that to establish discriminatory intent under Section 601, the plaintiff must show that “‘it has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.’”204 The court stated that “[d]iscriminatory purpose…implies more than intent as volition or intent as awareness of consequences. It implies that a deci- sionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on the identifiable group.”205 When a policy is facially neutral, “a plaintiff must show that the relevant decision maker (e.g., state legis- lature) adopted the policy at issue ‘because of not merely in spite of, its adverse effects upon an identifi- 198 Id. at 266 (citations omitted) (footnotes omitted). 199 Id. at 267 (citations omitted). 200 Id. at 267 (citations omitted). 201 Id. at 267 (footnote omitted). 202 Id., 429 U.S. at 268, 97 S. Ct. at 565, 50 L. Ed. 2d at 466. 203 2006 U.S. Dist. LEXIS 43058, at *1 (W.D. Wash. 2006). 204 Id. at *17 (quoting SeaRiver Maritime Financial Hold- ings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002) and cit- ing Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996)). 205 Id. (internal quotations omitted) (citations omitted). able group.’”206 In making a determination of whether invidious discrimination was a motivating factor con- cerning a policy, program, or action, the court must make “a sensitive inquiry into such circumstantial and direct evidence as may be available.”207 The court may consider evidence such as “the historical background of the decision, the specific sequence of events leading up to the challenged decision, legislative or administrative history of the decisionmaking body, and any other evi- dence relevant to a showing of discriminatory pur- pose.”208 In Western States Paving Co., the court, in a decision on remand from the Ninth Circuit, held that the plain- tiff’s Section 601 claim for damages could proceed against the Washington State DOT,209 because its DBE program was not a facially neutral one; rather, “it was specifically race conscious. Any resulting discrimination was therefore intentional, whether the reason for the classification was benign or its purpose remedial.”210 The court held that the Department’s DBE program, which was subject to judicial review based on a stan- dard of strict scrutiny, “was not sufficiently narrowly tailored to withstand such scrutiny.”211 As explained below, statistical and other evidence, such as the Ar- lington Heights factors, may be used by a court in decid- ing whether a policy, program, or action was motivated by a discriminatory purpose. Although the next subsection discusses Title VI and recent judicial decisions, Section V of the digest ex- plains that financial assistance may be refused to an applicant that fails or refuses to assure its compliance with Title VI and that an aggrieved party may file an administrative complaint with the FTA regarding al- leged violations of Title VI. B. Title VI and Recent Cases In Darensburg v. Metropolitan Transportation Com- mission212 and in Committee Concerning Community Improvement v. City of Modesto,213 the courts decided whether the plaintiffs’ evidence proved intentional dis- 206 Id. at *35–36 (quoting Pryor v. NCAA, 288 F.3d 548 (3d Cir. 2002) (quoting Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979) (some internal quotation marks omitted). 207 Id. at *36 (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977). 208 Id. (citation omitted). 209 Id. at *3. 210 Id. at *37 (citation omitted). 211 Id. at *9–10. On the other hand, the plaintiffs’ did not have claims against the city and county because their involve- ment had been “involuntary and required no independent ac- tivity”; therefore, the city and county were held not to have intentionally discriminated against the plaintiff. Id. at *16. 212 611 F. Supp. 2d 994 (N.D. Cal. 2009). 213 583 F.3d 690 (9th Cir. 2009).

18 crimination based on statistical evidence and/or the Arlington Heights factors. In both cases, the plaintiffs were unable to prove violations of Title VI. In Darens- burg, the plaintiffs also failed to establish disparate impact under state law. In Committee Concerning Community Improvement v. City of Modesto, the plain- tiffs were unsuccessful in proving discrimination re- garding the defendants’ provision of municipal infra- structure and services to the plaintiffs’ neighborhoods. 1. Darensburg v. Metropolitan Transportation Commission a. Denial of Plaintiffs’ Title VI Disparate Treatment Claim.—In Darensburg, in 2008214 and 2009,215 a federal district court in California considered the plaintiffs’ claims of intentional discrimination against the Metro- politan Transportation Commission (MTC) in which the plaintiffs sought injunctive and declaratory relief pur- suant to the Fourteenth Amendment of the Constitu- tion and 42 U.S.C. § 1983 and Title VI, as well as Cali- fornia Government Code Section 11135.216 As discussed below, in 2008, the court dismissed the plaintiffs’ claim of intentional discrimination. Although the court per- mitted a claim to proceed for disparate impact based on state law, in 2009 the court dismissed the claim. The plaintiffs filed a class action alleging that the MTC, which programs and allocates funding from vari- ous sources to San Francisco Bay Area transit and highway projects, had channeled funds to projects that disproportionately benefited white suburban riders of BART and Caltrain at the expense of projects that would have benefited minority bus patrons of AC Tran- sit.217 The MTC is responsible for updating the Regional Transportation Plan (RTP) for the nine-county San Francisco Bay Area.218 The RTP is the region’s long- range transportation plan for a 25-year period and is a prerequisite for the Bay Area’s transportation projects to qualify for federal funds.219 Among its various man- dates, the MTC must “‘emphasize the preservation of the existing transportation system.’”220 The plaintiffs alleged intentional discrimination based on “a longstanding pattern of race discrimina- tion” by the MTC in the funding of public transit ser- vices in the San Francisco Bay Area with respect to “people of color who are riders of the Alameda–Contra Costa Transit District (AC Transit), which operates 214 2008 U.S. Dist. LEXIS 63991, at *1 (N.D. Cal. 2008). 215 611 F. Supp. 2d 994 (N.D. Cal. 2009). 216 On September 19, 2005, the court granted MTC’s motion to dismiss the complaint with leave to amend; the plaintiffs filed an amended complaint on October 11, 2005. 217 The plaintiffs were individuals of color and organizations with minority members who ride buses of the Alameda-Contra Costa Transit District (“AC Transit”), which operates Califor- nia’s largest bus-only transit system. Darnesburg, 611 F. Supp. 2d at 997. 218 Id. at 998, 1000. 219 Id. at 1006. 220 Id. at 1006 (citing 23 U.S.C. § 134(h)(1)(H). California’s largest bus-only transit system.”221 The plaintiffs on behalf of themselves and others alleged that MTC historically had engaged, and continues to engage, in a policy, pattern, or practice of actions and omissions that have the purpose and effect of discrimi- nating against poor transit riders of color in favor of white, suburban transit users on the basis of their race and national origin. The plaintiffs sought to enjoin MTC permanently “from making any funding decision that has an unjustified disproportionately adverse impact on AC Transit riders of color”222 and “from supporting the funding of…any improvement or expansion in service that detracts from the equitable funding of services that benefit AC Transit riders.”223 In a 2008 opinion, the court granted the defendant’s motion for summary judgment on the plaintiff’s claim of intentional discrimination but denied the defendant’s motion to dismiss and allowed the case to proceed to trial on the disparate-impact claim on the basis of Cali- fornia Government Code Section 11135,224 discussed later.225 The court rejected the plaintiffs’ Title VI claim, find- ing that the plaintiffs had no evidence of direct dis- criminatory intent and that even applying the Arling- ton Heights factors, the “totality of the circumstances shown by Plaintiffs’ indirect evidence” did not evince intentional discriminatory intent.226 The court observed, for example, that the defendant produced evidence that it has no authority to redirect earmarked federal funds and “has provided preventative maintenance funding to AC Transit to use for operating expenses whenever AC Transit sought such funding.”227 The court held that “[t]he circumstances include too many strong contraindications of discriminatory motive that preclude drawing any reasonable inference of dis- criminatory intent.”228 As one example, the court dis- cussed the MTC’s treatment of the whitest of the seven major carriers, Golden Gate Transit, almost two-thirds of whose passen- gers are white in a transit area that is majority minority. Facing steep operating shortfalls in three RTPs in 1994, 1998 and 2005…, which MTC did not cover, Golden Gate 221 Darensburg, 2008 U.S. Dist. LEXIS 63991, at *3. 222 Id. at *30. 223 Id. 224 CAL. GOV’T CODE § 11135(a) provides: (a) No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully sub- jected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any fi- nancial assistance from the state. Notwithstanding § 11000, this section applies to the California State University. 225 Darensburg, 2008 U.S. Dist. LEXIS 63991, at *79. 226 Id. at *72, 76. 227 Id. at *72. 228 Id. at *76–77.

19 Transit cut its service by 35% and lost 21% of its rider- ship.229 The court stated that “it would strain credulity to in- fer that Defendant is motivated by racial discrimination to harm AC Transit’s minority riders by not covering operating shortfalls [when MTC] allows Golden Gate Transit’s largely white riders to suffer steep cuts in ser- vice instead of covering its operating shortfalls.”230 b. Denial of Plaintiffs’ Disparate-Impact Claim.—In the 2008 opinion, the court had observed that, unlike Title VI, California’s “statutory scheme expressly pro- vides for a private right of action”231 by stating in Sec- tion 11139 that “[t]his article and regulations adopted pursuant to this article may be enforced by a civil ac- tion for equitable relief.”232 The court held that on the state disparate-impact claim, there were triable issues of fact regarding, for example, whether Congestion Mitigation and Air Quality “funds can be allocated to operating shortfalls in the RTP”;233 whether Surface Transportation Program “funds can be used for operat- ing expenses”;234 and whether State Transportation Im- provement Program “funds could be allocated to cover operating shortfalls in the RTP.”235 There was also a triable issue of fact concerning causation and the plain- tiffs’ claims for disparate impact.236 In its 2009 decision, the court considered in detail and rejected the plaintiffs’ disparate-impact claim un- der the California statute. As stated, in contrast to Title VI, under the California statute there is a private right of action to enforce the statute and the regulations.237 However, “[A]s under Title VI, a prima facie case of disparate impact discrimination under section 11135 requires a plaintiff to show: (1) the occurrence of certain outwardly neutral practices; and (2) a significantly ad- verse or disproportionate impact on minorities produced by the defendant’s facially neutral acts or practices.”238 Although the court observed later in its opinion that “comparing transit service is more ‘an art than a sci- ence,’”239 the court disposed of the plaintiffs’ Section 11135 disparate-impact claim. The court began by stat- ing that it recognized that “AC Transit bus riders would 229 Id. at *77–78 (citation omitted) (footnote omitted). 230 Id. at *78 (footnotes omitted). 231 Id. at *44. 232 Id. (citation omitted). 233 Id. at *60. 234 Id. 235 Id. at *63. 236 Id. at *68, 71. 237 Darensburg, 611 F. Supp. 2d at 1041–42 (citing CAL. GOV’T CODE § 11139). 238 Id. at 1042. 239 Id. at 1048. benefit from additional service and that many of them are burdened by fare hikes and service cuts….”240 However, the court stated it had come “to appreciate the difficult challenge faced by MTC’s public servants of meeting a wide array of complex transportation needs and competing priorities of multiple operators through- out the Bay Area with limited and often highly re- stricted funds.”241 For example, there are committed funds and discretionary funds;242 some of the committed funds are federal funds administered by the FTA (Sec- tions 5307 and 5309 funds),243 which may be eligible for capital expenditures or preventive maintenance;244 there are ADA set-aside funds and other funds that may be allocated by the MTC.245 There are state committed funds based on state statutes and statewide voter- approved propositions, as well as regional measures passed by voters in the Bay Area.246 There are other uncommitted funds that may be available to the MTC.247 Although the court found that the plaintiffs had demonstrated some instances of disparate impact,248 “on balance, Plaintiffs have not met their burden of show- ing that MTC’s funding practices regarding committed funds have a significantly disproportionate adverse im- pact on the Plaintiff Class.”249 Furthermore, the “Plain- tiffs have not met their burden of showing a prima facie case of showing a significant disparate impact with re- spect to uncommitted funds.”250 The plaintiffs did establish a prima facie case re- garding Resolution 3434,251 a strategic long-range plan for transit expansion projects.252 Because the plaintiffs 240 Id. at 999. 241 Id. 242 Id. 243 Id. at 1019. 244 Id. at 1019–22. 245 Id. at 1022–24. 246 Id. at 1024–28. 247 Id. at 1030–36. 248 Id. at 1044. For example, the court stated that “[o]n bal- ance, Plaintiffs have shown that MTC’s practice with respect to Resolution 3434 caused disparate impact” and that the “Plain- tiffs have shown that MTC’s projections, particularly those in the near future, constitute a substantial factor contributing to service reductions by AC Transit.” Id. at 1050. 249 Id. at 1051. 250 Id. 251 Id. 252 Id. at 1044. Thus, the court stated: On balance, Plaintiffs have shown that MTC’s practice with respect to Resolution 3434 caused disparate impact. As de- scribed above, MTC allocates more funding to rail projects than to bus projects, resulting in bus projects proposed by AC Transit being excluded from projects listed in Resolution 3434. Although Plaintiffs’ challenge to MTC’s initial decisions on which projects to include under Resolution 3434 appear to be barred by the statute of limitations, those decisions constitute relevant context

20 had established a prima facie case of disparate impact, the defendant had to “demonstrate a substantial legiti- mate justification for its action.”253 The court rejected the plaintiffs’ argument that the “MTC must demon- strate a strict transportation necessity through empiri- cal validation studies, citing landmark cases that arose in the employment context”254 (emphasis added). The court distinguished the cases on which the plaintiffs relied on the basis that the cases involved a discrete test or screening device, which was wholly different from the complex situation with which the MTC had to deal. The “MTC’s practices…are subject to a complex array of statutory, regulatory and administrative con- straints, not to mention numerous, and sometimes competing policy goals, which require making difficult trade-offs.”255 The court held that it could not “say that MTC has failed to show a substantial legitimate justifi- cation for Resolution 3434….”256 When a plaintiff in a disparate-impact case makes a prima facie case, but the defendant responds by demon- strating a substantial legitimate justification for its actions, the plaintiff “must then show an equally effec- tive alternate practice that results in less racial dispro- portionality.”257 However, in Darensburg, the court ruled that the plaintiffs did not show that their alleged less discriminatory alternative “would be equally effec- tive while causing less racial disparity.”258 2. Committee Concerning Community Improvement v. City of Modesto and Title VI Claims Although not involving transit, another case of in- terest is Committee Concerning Community Improve- ment v. City of Modesto,259 an action against the city, Stanislaus County, and the county sheriff, in which a district court rejected the plaintiffs’ Title VI and Four- teenth Amendment Equal Protection and § 1983 claims based on alleged discrimination in the defendants’ pro- vision of municipal infrastructure and services to the affected neighborhoods. As discussed below, the Ninth Circuit affirmed the district court in part and reversed and remanded in part. The plaintiffs/appellants were residents of four pre- dominately Latino neighborhoods, as well as commu- nity groups representing the neighborhoods.260 The neighborhoods are outside of the city and not incorpo- rated in the city but within the city’s “sphere of influ- for MTC’s further reductions in 2006 of the scope of the few AC Transit bus projects that had initially been included. Id. 253 Id. at 1042. 254 Id. at 1051. 255 Id. at 1052. 256 Id. at 1057. 257 Id. at 1042 (citing Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985). 258 Id. at 1060. 259 583 F.3d 690 (9th Cir. 2009). 260 Id. at 696. ence.”261 Twenty-six unincorporated neighborhoods, re- ferred to as “islands,” are within the city’s sphere of influence.262 The plaintiffs alleged that certain actions and inaction of the city and Stanislaus County consti- tuted intentional discrimination in violation of the Fed- eral Constitution and statutes, as well as of California statutes.263 Essentially, the claim was that the defen- dants discriminated against the plaintiffs in the deliv- ery of municipal services. One of plaintiffs’ specific complaints concerned the lack of infrastructure, such as curbs, sidewalks, and drains.264 Another complaint concerned the city’s failure to annex the neighborhoods. Annexation would have meant additional city services, as well as resulted in the residents being able to vote in city elections.265 One of the barriers to annexation was the exclusion of the plaintiff neighborhoods from a Master Tax Sharing Agreement (MTSA) between the city and the county. Under the MTSA the governments had agreed to a divi- sion of tax revenue if and when the city annexed a community covered by the agreement.266 If a community is not covered by the MTSA, the city and county must enter into a separate tax sharing agreement for the community.267 The plaintiffs argued that the MTSA was a disincen- tive to the county’s building of infrastructure because there was no assurance that in a future annexation the city would not require financial concessions from the county.268 The MTSA issue allegedly also deterred the neighborhoods from seeking annexation, a “burden- some” and possibly “futile” process in the absence of a covering MTSA.269 A lack of sewerage facilities was also at issue. Be- cause of the passage of a measure by city voters, the extension of sewerage facilities to any annexed neighborhoods had been rendered more difficult.270 Moreover, the county allegedly had given priority to the building of other infrastructure projects in predomi- nately white communities.271 Another issue concerned law enforcement and emer- gency response times, services that were the responsi- bility of the county for the plaintiff neighborhoods.272 The plaintiffs alleged that the response times for the predominately Latino neighborhoods are longer than for predominately white neighborhoods.273 261 Id. 262 Id. 263 Id. 264 Id. at 696–97. 265 Id. at 697. 266 Id. 267 Id. 268 Id. 269 Id. 270 Id. at 698. 271 Id. 272 Id. at 699. 273 Id.

21 The District Court in a series of decisions granted summary judgment to the defendants and dismissed the plaintiffs’ claims, including those for violation of Title VI.274 As stated, the Ninth Circuit affirmed the District Court in part and reversed and remanded in part. First, the appellate court ruled that the plaintiffs’ claim based on the 2004 MTSA was not time-barred and that the plaintiffs could use time-barred 1983 or 1996 MTSAs “‘as evidence to establish motive and to put [their] timely-filed claims in context.’”275 Second, the court held that evidence of “gross statistical disparities” may be used to satisfy the intent requirement of Title VI when the evidence “tends to show that some invidi- ous or discriminatory purpose underlies the policy.”276 Statistical evidence of discriminatory impact does not relieve the plaintiffs of their burden of showing a de- fendant’s intent to discriminate.277 However, statistical evidence along with the Arlington Heights factors may be “considered in determining whether there is evidence of intent or purpose to discriminate….”278 Although the court earlier stated that “it is the rare case where impact alone will be sufficient to invalidate a challenged government action,”279 the court held that the statistical evidence and other factors were “evidence of discriminatory impact which, in turn, has created a sufficient inference of discriminatory intent to permit [the plaintiffs] to present their MTSA claim to a fact- finder.”280 Thus, on the plaintiffs’ claim based on the MTSA, the court reversed the district court and remanded. However, on the plaintiffs’ claim regarding the lack of sewerage services, the court found that the “statistical evidence is insufficient to give rise to an inference of discriminatory intent” and affirmed the district court’s grant of summary judgment to the city.281 On the issue of law-enforcement and emergency re- sponse times, the court found that the difference be- tween the response times for the predominately Latino communities and the predominately white communities to be “statistically significant” and remanded to the district court to determine whether the difference is 274 Comm. Concerning Cmty. Improvement v. City of Mo- desto, 2007 U.S. Dist. LEXIS 39099, at *1 (E.D. Cal., May 16, 2007); 2007 U.S. Dist. LEXIS 50258, at *1 (E.D. Cal., July 2, 2007); 2007 U.S. Dist. LEXIS 57551, at *1 (E.D. Cal., July 30, 2007); 2007 U.S. Dist. LEXIS 61195, at *1 (E.D. Cal., July 30, 2007). 275 Comm. Concerning Cmty. Improvement, 583 F.3d at 702 (citation omitted). 276 Id. at 703 (citations omitted). 277 Id. 278 Id. 279 Id. 280 Id. at 705. 281 Id. at 707. material and, if so, whether the difference is the result of the plaintiffs’ ethnicity.282 The plaintiffs’ claim regarding the lack of infrastruc- ture concerned in part a “Priorities List” that the county had adopted in 2004. The court affirmed the district court’s grant of a summary judgment to the county, holding that “in the context of many County- wide infrastructure needs…and limited funding…, there is not sufficient evidence to give rise to an infer- ence of discriminatory intent.”283 The plaintiffs’ Fair Housing Act and other claims are not addressed here, but it may be noted that the appel- late court invited the lower court to reconsider its dis- missal of the state law claims, e.g., California Govern- ment Code Section 11135, which occurred in the context of the dismissal of the federal claims. However, the court indicated that the district court would not neces- sarily be reversed if it once more did not address the state claims.284 Although the district court’s decision on remand is unknown at this writing, based on the Ninth Circuit’s decision in Modesto, it is possible to raise a triable issue of fact for a Section 601 claim based on statistical and other evidence in the absence of direct evidence of dis- criminatory intent. C. Pre-Sandoval Disparate-Impact Cases Although they were decided prior to the Supreme Court’s rulings in Sandoval, several other cases located for the digest are of interest regarding Title VI claims. In New York Urban League v. New York,285 the plain- tiffs challenged the State of New York’s and the Metro- politan Transportation Authority’s (MTA) allocation of funds for mass transit. The plaintiffs alleged that riders of the New York City Transit Authority (NYCTA) sub- way and bus system, “the majority of whom are mem- bers of protected minority groups, pay a higher share of the cost of operating that system than commuter line passengers, who are predominantly white….”286 The court recognized that Section 601 “only prohibits inten- tional discrimination, not actions that have a disparate impact upon minorities”;287 stated that “Title VI dele- gated to federal agencies the authority to promulgate regulations incorporating a disparate impact stan- dard”;288 and then, pre-Sandoval, proceeded to discuss whether a prima facie case of disparate impact had 282 Id. at 709. 283 Id. at 710. 284 Id. at 715. 285 71 F.3d 1031 (2d Cir. 1995). 286 Id. at 1033. 287 Id. at 1036 (citing Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983). 288 Id.

22 been made and whether the defendant had established a substantial legitimate justification for its actions.289 The appeals court reversed the district court’s grant of an injunction barring the implementation of a pro- posed 20 percent fare increase for subway and bus rid- ers.290 The Second Circuit held that the lower court “fo- cused on the proposed NYCTA fare increase without examining the broader financial and administrative context in which this fare increase was adopted.”291 The court noted that New York law required the MTA to “be self-sustaining with respect to the combined operating expenses of the MTA and its subsidiary corporations, including the commuter lines.”292 The court held that the gravamen of the action was that “riders of the New York City subway and bus system, compared to passen- gers on the commuter lines, bear a disproportionately high share of the cost of operating the transportation system they use.”293 First, the Second Circuit held that the district court erroneously found that the plaintiffs had made a prima facie showing of disparate impact based “upon a com- parison of the so-called ‘farebox recovery ratios’ of the NYCTA and the commuter lines. The farebox recovery ratio measures the percentage of each system’s operat- ing cost—adjusted to include certain interest payments, depreciation, and the cost of police services—that is recovered through fare revenues.”294 The court held that “[b]ecause the underlying claim challenges the total allocation of subsidies to the NYCTA and the commuter lines, the district court should have first assessed whether any measure or combination of measures could adequately capture the impact of these subsidies upon NYCTA and commuter line passengers.”295 The Second Circuit concluded that the farebox recovery ratio was not a sufficient basis for a finding of disparate impact, in part because the ratio “does not reveal the extent to which one system might have higher costs associated with its operations—costs stemming from different maintenance requirements, schedules of operation, labor contracts, and so on.”296 The court further concluded that there was no rea- son to assume that each system’s expenses had a “pro- portionate relationship,” because the systems were “fundamentally different” in how they carry passengers and in their frequency of stops and operating sched- 289 Id. (stating that courts considering claims under analo- gous Title VI regulations have looked to Title VII disparate impact cases for guidance) (citing Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1407 N14 (11th Cir. 1993); Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985); Larry P. v. Riles, 793 F.2d 969, 982 NN 9, 10 (9th Cir. 1984). 290 N.Y. Urban League, 71 F.3d at 1033. 291 Id. 292 Id. at 1034. 293 Id. at 1035. 294 Id. at 1037. 295 Id. at 1038. 296 Id. at 1037. ules.297 The systems’ different costs could “obscure the level of subsidies provided to each.”298 The court stated that the “farebox recovery ratio thus says very little about the overall allocation of funds to the two sys- tems….”299 Second, the court ruled that the district court made insufficient findings on whether the defendants had shown a substantial legitimate justification for a fare increase300 and failed to analyze “whether the defen- dants had shown a substantial legitimate justification for [the] allocation.”301 The court observed that the MTA and the state identified several factors favoring a higher subsidization of the commuter lines.302 Finally, the court held that enjoining the NYCTA fare increase was not an appropriate remedy with re- spect to the alleged disparate impact in subsidies.303 Another case of interest, decided in 2001, is La- bor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority,304 in which a group of bus passengers challenged decisions by the Los Angeles County Metropolitan Transportation Authority (LACMTA) to spend “several hundred million dollars” on a new rail line, to increase bus fares, and to elimi- nate monthly discount passes.305 LACMTA allegedly was spending a disproportionate amount of its budget on rail lines and suburban bus systems “that would pri- marily benefit white suburban commuters, while inten- tionally neglecting inner-city and transit-dependent minority bus riders who relied on the city bus sys- tem.”306 The district court approved a consent decree that settled the case; however, the LACMTA did not meet certain service improvement goals set forth in the de- cree.307 Ultimately, the district court entered an order that included a requirement that the MTA immediately acquire 248 additional buses to reduce passenger over- crowding.308 The appeals court agreed that the consent decree imposed an “obligation” on the LACMTA “to meet the scheduled load factor targets….”309 A third pre-Sandoval case, Committee for a Better North Philadelphia v. Southeastern Pennsylvania 297 Id. 298 Id. 299 Id. 300 Id. at 1039. 301 Id. 302 Id. 303 Id. at 1039–40. 304 263 F.3d 1041 (9th Cir. 2001). 305 Id. at 1043. 306 Id. 307 To reduce bus overcrowding, the Consent Decree set forth specific “load factor targets” or “LTFs” that the MTA had to meet by specific dates and established a Joint Working Group of representatives from the plaintiffs’ class and the MTA. See id. at 1044. 308 Id. at 1043. 309 Id. at 1049.

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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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