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

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Legal Research Digest 27 TRansiT CoopeRaTive ReseaRCh pRogRam sponsored by the Federal Transit administration July 2008 Subject Areas: IA Planning and Administration; IC Transportation Law; VI Public Transit TRanspoRTaTion ReseaRCh BoaRD OF THE NATIONAL ACADEMIES CIVIL rIghTS ImPLICATIonS of The ALLoCATIon of fundS beTween buS And rAIL This report was prepared under TCRp project J-5, “Legal aspects of Transit and intermodal Transportation programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Larry W. Thomas, attorney-at-Law, Washington, DC. James B. mcDaniel, TRB Counsel for Legal Research projects, was the principal investigator and content editor. The Problem and Its Solution The nation’s transit agencies need to have access to a program that can provide authoritatively re- searched, specific, limited-scope studies of legal is- sues and problems having national significance and application to their businesses. The TCRP Project J-5 is designed to provide this insight. The intermodal approach to surface transporta- tion requires a partnership between transit and other transportation modes. Transit attorneys have noted that they particularly need information in several areas of transportation law, including environmental requirements; con- struction and procurement contract procedures and administration; civil rights and labor standards; and tort liability, risk management, and system safety. In other areas of the law, transit programs may involve legal problems and issues that are not shared with other modes; as, for example, compliance with transit equipment and operations guidelines, Federal Transit Administration (FTA) financing initiatives, and labor or environmental standards. Applications Transit funding decisions are often economically and sometimes politically motivated. Social eco- nomic policy experts argue that there is a bias to- ward highway-centered transit networks as opposed to intracity transit networks. Notwithstanding the motivation, such decisions must be made in consid- eration of Title VI of the Civil Rights Act of 1964. Federally funded programs may not exclude, deny benefits to, or subject to discrimination, any person on the grounds of race, color, or national origin. Federal agencies that extend financial assistance are authorized to “effectuate” the provisions of Title VI by issuing regulations that require compliance by re- cipients of the funding. The Transportation Research Board’s Transit Cooperative Research Program (TCRP) published TCRP Legal Research Digest 7, The Impact of Civil Rights Litigation Under Title VI and Related Laws on Transit Decision Making, in June 1997. This pub- lication, inter alia, instructed transit officials and other interested persons on “the issues surrounding the provision of rail and bus services to minority and nonminority, passengers, including recent litigation that called into question whether such services are being provided in accordance with the DOT grants, applicable regulations and legislation, and the United States Constitution.” Almost 10 years have passed since the publication of the aforementioned TCRP LRD 7. Since that time, the courts have prescribed limits on affected citizens’ right to sue. But funding agencies may promul- gate regulations that validly bar activities that, even though permissible under Title VI, have a disparate impact on racial groups. In short, Title VI challenges based on administrative regulations are unlikely to diminish. This digest reviews cases and regulatory actions since publication of TCRP LRD 7. This digest should be useful to transit officials, administrators, attorneys, financial personnel, mi- nority groups, civil rights advocates, and members of communities affected by transit agencies’ allocation of resources. xxxxxx responsible Senior Program officer: gwen Chisholm Smith CONTENTS I. Introduction 3 II. Title VI Challenges Based on Disparate Impact of Allocation of Funds Between Bus and Rail 4 A. Title VI Challenges as Reported by Transit Agencies 4 B. Title VI Challenges as Reported by the FTA 6 C. Judicial Proceedings Involving Title VI Complaints for Disparate Impact 6 III. Outcome of Title VI Complaints of Disparate Impact Caused by Transit Agencies’ Decisions 9 A. Discussion of Complaints and FTA Decisions 9 B. Summary of Title VI Issues, Outcomes, and Trends 10 IV. Transit Agencies’ Strategy and Defenses to Title VI Disparate-Impact Challenges 11 V. Statutory and Regulatory Framework of Title VI Complaints 13 A. Title VI, Section 601 of the Civil Rights Act of 1964 13 B. Disparate-Impact Regulations Under Title VI, Section 602 13 C. Requirements Under Executive Order 12898 (1994) 14

D. FTA Title VI Circular (2007) 15 VI. No Private Right of Action Under Disparate- Impact Regulations 16 VII. Administrative Enforcement Procedures for Title VI Complaints for Disparate Impact 20 VIII. Claims Against Government Transit Agencies for Disparate Impact Under 42 U.S.C. § 1983 21 A. Constitutional and Statutory Framework of § 1983 21 B. Section 1983 Claims for Disparate Impact 21 IX. Whether State or Municipal Transit Agencies Have Immunity from Claims Under § 1983 23 A. State Transit Agencies’ Immunity Under the Eleventh Amendment 23 B. Factors Considered in Determining Whether a Transit Authority Has Immunity Under the Eleventh Amendment 26 C. Whether a Municipal Transit Agency Is Subject to Suit Under § 1983 26 D. Municipal Transit Agency’s Official Policy or Custom as a Basis for Liability Under § 1983 27 X. Conclusion 29 Appendix A 31 Appendix B 33 ConTenTs (cont’d)