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

Chapter: V. WHETHER DISPARATE-IMPACT CLAIMS ARE ACTIONABLE UNDER SECTION 1983

« Previous: IV. PROOF OF DISPARATE TREATMENT AND DISPARATE IMPACT
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Suggested Citation:"V. WHETHER DISPARATE-IMPACT CLAIMS ARE ACTIONABLE UNDER SECTION 1983." 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:"V. WHETHER DISPARATE-IMPACT CLAIMS ARE ACTIONABLE UNDER SECTION 1983." 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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23 Transportation Authority,310 involved a claim of dispa- rate impact on the black community of Philadelphia.311 The plaintiffs argued that the Southeastern Pennsyl- vania Transportation Authority (SEPTA) used an un- fair portion of its federal subsidy dollars for Regional Rail at the expense of City Transit,312 which had a higher percentage of black riders than Regional Rail.313 Plaintiffs argued that City Transit riders were paying “through their fares a higher percentage of the divi- sion’s operating expenses than…the riders of Regional Rail.”314 The court rejected the plaintiff’s arguments that SEPTA should raise Regional Rail fares and reallocate subsidies to City Transit or reduce Regional Rail Ser- vice to reduce its share of operating expenses.315 The court agreed with SEPTA that the agency had a respon- sibility to maintain a balanced budget that included the need to increase ridership on Regional Rail that would not be accomplished if the court required SEPTA to decrease service and raise fares for Regional Rail.316 The court held that none of the alternatives offered by the Committee would accomplish SEPTA’s legitimate goals and granted a summary judgment in favor of SEPTA because the plaintiff did not sustain its burden of prov- ing the existence of other devices without a similarly undesirable effect.317 D. Other Issues Relating to Title VI Claims 1. Sovereign Immunity The Eleventh Amendment bars § 1981 and § 1983 claims against the states and state agencies.318 How- ever, the Eleventh Amendment does not bar a Section 601 disparate-treatment, intentional-discrimination claim.319 The reason is that “Congress has clearly condi- 310 1990 U.S. Dist. LEXIS 10895, at *1 (E.D. Pa. 1990). 311 Comm. for a Better North Phila., 1990 U.S. Dist. LEXIS 10895, at *8 (court stating that “[i]n Title VI discriminatory impact cases , as in cases brought under Title VII, the burden of proof has three distinct stages) (citations omitted). 312 Id. 313 Id. at *9. 314 Id. 315 Id. at *11. 316 Id. at *13. 317 Id. (quotation marks omitted) (citations omitted). 318 W. States Paving Co., 2006 U.S. Dist. LEXIS 43058, at *29 (citing Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir. 1982); Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89, 101–3, 104 S. Ct. 900, 908–10, 79 L. Ed. 2d 67, 78–80 (1984) (Eleventh Amendment sovereign immunity extends to state agencies and to damage claims against state officials acting in their official capacity); Quern v. Jordan, 440 U.S. 332, 339–40, 99 S. Ct. 1139, 1114, 59 L. Ed. 2d 358, 365–66 (1979). 319 W. States Paving Co., 2006 U.S. Dist. LEXIS 43058, at *27. tioned the receipt of federal highway funds on compli- ance with Title VI and the waiver of sovereign immu- nity from claims arising under Title VI.”320 In Western States Paving Co., supra, the court held that the state did not have sovereign immunity because the regula- tions clearly put “the state on notice—as a recipient of federal funds—that it faced private causes of action in the event of noncompliance.”321 2. Statute of Limitations In Darensburg v. Metropolitan Transportation Com- mission,322 the court considered whether some of the plaintiffs’ claims alleging disparate impact were time- barred. In its 2008 opinion, the court dismissed the plaintiffs’ Title VI disparate-treatment case. The only basis for a disparate-impact claim was California Gov- ernment Code Section 11135. First, the court held that the statute of limitations was 2 years for disparate- impact claims under Section 11135.323 Second, citing the U.S. Supreme Court’s opinion in National Railroad Passenger Corp. v. Morgan,324 the court held that the “continuing violation doctrine” did not extend the limi- tations period.325 The court held that the “Plaintiffs’ challenges to ongoing effects of policies adopted prior to April 19, 2003 are likely time-barred under Morgan”;326 however, the court held that in “disparate impact cases…the court may consider time-barred events as evidence in connection with Plaintiffs’ timely claims.”327 V. WHETHER DISPARATE-IMPACT CLAIMS ARE ACTIONABLE UNDER SECTION 1983 A. Cases Holding That Disparate-Impact Claims Are Not Actionable Under Section 1983 Under the Sandoval decision, a private right of ac- tion to enforce Section 601 of Title VI for intentional discrimination does not include a private right of action to enforce Section 602 and the regulations issued there- under for disparate impact. Section 1983 is not an inde- pendent basis for a claim. That is, a statute, not the regulations, must have “rights-creating language” be- fore a claim may be pursued under § 1983, which “‘by itself does not protect anyone against anything.’”328 320 Id. at *30–31. 321 Id. at *34. 322 611 F. Supp. 2d 994 (N.D. Cal. 2009). 323 Id. at 1039. 324 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). 325 Darensburg, 611 F. Supp. 2d at 1041. 326 Id. 327 Id. 328 Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 121 S. Ct. 2268, 2276, 153 L. Ed. 2d 309, 322 (2002) (quoting Chapman v.

24 Notwithstanding the Sandoval and other decisions discussed herein, in one case located for the digest, the Tenth Circuit held that the Sandoval decision does not necessarily preclude the possibility of a judicial remedy for disparate-impact claims. In Robinson v. Kansas,329 the plaintiffs argued that the Kansas state school fi- nancing system, through a provision for “low enroll- ment weighting” and “local option budgets,”330 resulted in less funding per pupil in schools in which minority students, students who are not of United States origin, and students with disabilities were disproportionately enrolled. The plaintiffs’ original complaint sought a court order requiring the defendants to revise the Kan- sas school finance law so that it complied with the law. The appellate court noted that the plaintiffs, however, were willing to amend their complaint, as the district court suggested, to request injunctive relief prohibiting the defendants from enforcing the state law.331 After the district court denied the defendants’ motion to dismiss, the defendants filed an interlocutory appeal. According to plaintiffs, there was a disparate impact on such students in violation of the implementing regu- lations of the Rehabilitation Act of 1973332 and Section 602 of Title VI.333 Consistent with Sandoval, the court in Robinson held that a private right of action exists under Section 601 only in cases involving intentional dis- crimination. However, the Robinson court held that Sandoval does not bar all claims to enforce such regula- tions but only disparate-impact claims brought by pri- vate parties directly under Title VI. Furthermore, ac- cording to the court, the Sandoval decision did not foreclose disparate-impact claims brought against state officials for prospective injunctive relief through a § 1983 action to enforce Section 602 regulations.334 Other courts have not followed the Robinson deci- sion. For example, in Gulino v. Board of Education of the City School District of the City of New York,335 a fed- eral district court in New York stated that it disagreed with the Tenth Circuit and several district courts that had allowed Section 602 disparate-impact claims to pro- ceed under § 1983.336 The court held that “‘the regula- tion at issue in this case does not create federal rights Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979)). 329 295 F.3d 1183 (10th Cir. 2002) (interlocutory appeal af- firming district court’s denial of defendants’ motion to dismiss). 330 Id. at 1186. 331 Id. N 2. 332 29 U.S.C. §§ 701 et seq. 333 42 U.S.C. § 2000d. 334 Thus, the plaintiffs were allowed to amend their com- plaint to bring their Title VI disparate-impact claims against the named state officials under § 1983. 335 236 F. Supp. 2d 314 (S.D.N.Y. 2002). 336 236 F. Supp. 2d at 338 (citing Robinson v. State of Kan- sas, 295 F.3d 1183 (10th Cir. 2002) (allowing disparate-impact claims to be brought under § 1983)); Lucero v. Detroit Pub. Schs., 160 F. Supp. 2d 767 (E.D. Mich. 2001). for the purposes of § 1983….’”337 The New York court observed that in South Camden Citizens in Action v. New Jersey Department of Environmental Protection,338 the Third Circuit had declined to follow the Tenth Cir- cuit and had disallowed § 1983 claims based on Section 602 of Title VI.339 Second, in Gulino, the district court pointed out that the Second Circuit had decided that Title IX claims may not be brought pursuant to § 1983.340 Because the Su- preme Court “analyzes Title VI and Title IX claims in- terchangeably…it follows that Title VI claims cannot be brought under § 1983 in this jurisdiction.”341 In an analogous situation in Gonzaga University v. Doe,342 a case involving the improper or unauthorized release of personal information under the Family Edu- cational Rights and Privacy Act of 1974 (FERPA),343 the Supreme Court held that “the relevant provisions of FERPA create no personal rights to enforce under 42 U.S.C. § 1983.”344 The Court rejected any “notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983.”345 The Court emphasized that under FERPA the Congress authorized the Secretary of Edu- cation to handle violations of the Act.346 In 2003, in Save Our Valley, supra, the plaintiff, a community advocacy group, argued that the Regional Transit Authority’s plan to build a light-rail line through the community violated USDOT’s disparate- impact regulations in that it would “cause dispropor- tionate adverse impacts to minority residents.”347 The court held that a “disparate-impact regulation cannot create a new right; it can only ‘effectuate’ a right al- ready created by § 601. And § 601 does not create the right that SOV seeks to enforce, the right to be free from racially discriminating effects.”348 B. Sovereign Immunity and Section 1983 Assuming arguendo that a disparate-impact claim could be brought under § 1983 unless the immunity is deemed to have been waived, a state or state agency, such as a transportation department, has immunity 337 Id. at 338–39 (citing Ceasar v. Pataki, 2002 U.S. Dist. LEXIS 5098 at *11 (S.D.N.Y. 2002). 338 274 F.3d 771 (3d Cir. 2001). 339 Gulino, 236 F. Supp. 2d at 338. 340 Id. at 339 N 30 (citing Bruneau v. S. Kortright Cent. Sch. Dist., 163 F.3d 749 (2d Cir. 1998)). 341 Id. (citing Sandoval, 532 U.S. at 280, 121 S. Ct. at 1516, 149 L. Ed. 2d at 524; Gebser v. Lago Vista, 524 U.S. 274, 286, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998)). 342 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002). 343 20 U.S.C. § 1232(g). 344 Gonzaga Univ., 536 U.S. at 276. 345 Id. at 283. 346 Id. at 289. 347 Save Our Valley, 335 F.3d at 934, 935. 348 Id. at 944.

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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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