National Academies Press: OpenBook

Policing and Public Transportation (2022)

Chapter: PART IV Liability of Public Transportation Authorities in 1983 Actions on Behalf of Homeless Persons

« Previous: C. Liability of Public Transportation Authorities for Disparate Impact
Page 38
Suggested Citation:"PART IV Liability of Public Transportation Authorities in 1983 Actions on Behalf of Homeless Persons." National Academies of Sciences, Engineering, and Medicine. 2022. Policing and Public Transportation. Washington, DC: The National Academies Press. doi: 10.17226/26652.
×
Page 38
Page 37
Suggested Citation:"PART IV Liability of Public Transportation Authorities in 1983 Actions on Behalf of Homeless Persons." National Academies of Sciences, Engineering, and Medicine. 2022. Policing and Public Transportation. Washington, DC: The National Academies Press. doi: 10.17226/26652.
×
Page 37

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

38 TCRP LRD 58 cally for unlawful retaliation in violation of Title VI.538 Allstate alleged that SEPTA failed to take action on Allstate’s applica- tion for recertification as a Disadvantaged Business Enterprise (DBE) and that SEPTA intentionally altered the design of its 1997 Request for a Proposal (RFP) to preclude Allstate from bidding. A federal district court in Pennsylvania held, first, that Allstate could not maintain a retaliation claim under § 1983, be- cause the 1997 RFP was unrelated to Allstate’s prior 1993 con- tract with SEPTA.539 However, Title VI, 42 U.S.C § 2000d, which “prohibits inten- tional racial discrimination against participants in, applicants for, or intended beneficiaries of a federally funded program,”540 was a basis for a retaliation claim.541 Title VI rights were specifically created by Congress to prevent dis- crimination on the basis of race by anyone who receives federal funds. Title VI language prohibiting “exclusion from participation in … federally assisted programs” naturally includes applicants for partici- pation in federally funded programs.542 The court held that Allstate’s evidence was sufficient to cre- ate a genuine issue of material fact on its recertification claim. “ Allstate … pointed to weaknesses, implausibilities, inconsis- tencies, contradictions and incoherencies in SEPTA’s explana- tion of its administration of Allstate’s application for DBE re- certification [that are] sufficient to create a genuine issue of material fact and allow a factfinder to rationally infer pretext.”543 Thus, based on Allstate’s allegation that SEPTA failed to act on Allstate’s application for its DBE recertification, the court denied SEPTA’s motion for a summary judgment on Allstate’s claim for retaliation. C. Liability of Public Transportation Authorities for Disparate Impact Section 602 of Title VI applies to facially neutral laws, regu- lations, or policies that have an unlawful disparate impact on persons protected by Title VI. Section 602 provides, in part, that [e]ach Federal department and agency which is empowered to extend Federal financial assistance to any program 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 authorizing the finan- cial assistance in connection with which the action is taken.544 The Supreme Court has held that no private right of action exists under § 602 to enforce disparate impact regulations and policies.545 538 Id. at *65-66. 539 Id. at *67-68. 540 Id. at *68 (citations omitted). 541 Id. at *68, 70. 542 Id. at *70 (citations omitted). 543 Id. at *77 (citations omitted). 544 42 U.S.C. § 2000d-1 (2021). 545 Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed.2d 517 (2001). A Circular issued by the FTA, FTA C 4702.1B,546 furnishes guidance on Title VI and the U.S. DOT’s Title VI regulations.547 The regulations prohibit “recipients of Federal financial assis- tance … from, among other things, using criteria or methods of administering its program which have the effect of subject- ing individuals to discrimination based on their race, color, or national origin.”548 Thus, [i]n accordance with 49 CFR part 21 and Title VI case law, if an other- wise facially neutral program, policy, or activity will have a discrimi- natory impact on minority populations, that program, policy, or ac- tivity may only be carried out if (1) the recipient can demonstrate a substantial legitimate justification for the program, policy, or activity; (2) there are no comparably effective alternative practices that would result in less-disparate impacts; and (3) the justification for the pro- gram, policy or activity is not a pretext for discrimination.549 The FTA Circular provides guidance on how transit providers should handle their prior decisions that may have had a disparate impact. If a transit provider determines, based on its monitoring activities, that prior decisions have resulted in a disparate impact on the basis of race, color, or national origin, the transit provider shall take correc- tive action to remedy the disparities to the greatest extent possible, and shall discuss in the Title VI Program these disparate impacts and actions taken to remedy the disparities.550 The FTA Circular advises that “[p]ersons alleging intentional discrimination (i.e., disparate treatment) may bring a court ac- tion seeking to enforce Title VI but cannot do so with regard to allegations of discrimination based on agency disparate impact regulations. Disparate impact claims may be filed with the Fed- eral agency.”551 PART IV – Liability of Public Transportation Authorities in § 1983 Actions on Behalf of Homeless Persons XIV. LIABILITY UNDER THE EIGHTH AMENDMENT IN § 1983 ACTIONS CHALLENGING LAWS DIRECTED AT THE HOMELESS Of concern to public transportation authorities is how to address homeless persons’ use of stations and other facilities.552 546 FTA Circular C 702.1B, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients” (Oct. 1, 2012), [herein- after FTA Circular], https://www.transit.dot.gov/sites/fta.dot.gov/files/ docs/FTA_Title_VI_FINAL.pdf (last accessed Jan. 31, 2020). 547 See 49 C.R.R. § 21.1 (nondiscrimination in federally assisted programs of the Department of Transportation and effectuation of Title VI of the Civil Rights Act of 1964) and 23 C.F.R. part 200 (implement- ing Title VI compliance program). 548 FTA Circular, supra note 546, at Chap. I-6, ¶ 6 (internal quota- tion marks omitted). 549 Id. at Chap. I-8-9 (Title VI, column 2). 550 Id. at Chap. IV-10, ¶ 6. 551 Id. at Chap. I-9 (Title VI, column 2) (emphasis supplied). 552 One source states that an “an overwhelming 91% of transit agen- cies reported homelessness as an issue, with 31% weighing it as a major

TCRP LRD 58 37 A preliminary issue was whether the plaintiffs’ putative class action satisfied the “commonality requirement” for certifica- tion of the case as a class action, meaning that the questions of law and fact in the case had be common to all members of the class.524 With respect to class certification, the court held that the plaintiffs had made a sufficient showing “that the CPD de- ployed a centralized stop and frisk program during the times relevant to this case” and “that the City knew, or should have known, that its stop and frisk program was associated with a risk of widespread Fourth Amendment violations.”525 The plaintiffs’ proof was credible also that the CPD implemented a department-wide stop and frisk strate- gy, failed to train its employees adequately in spite of well-document- ed and widespread constitutional violations, covered up evidence of police misconduct through the [Investigatory Stop Report] review process, and took all those actions through a hierarchical chain-of- command structure extending to the CPD’s highest levels.526 The court held that the plaintiffs’ Monell claim against the municipal defendants for failure to train could “‘rise to the level of an official government policy for purposes of § 1983.’”527 More specifically, however, a local government’s failure to train must amount to deliberate indif- ference to the rights of the citizens who the officers encounter. . . . Proof of deliberate indifference in the context of a failure to train case “can take the form of either (1) failure to provide adequate training in light of foreseeable consequences; or (2) failure to act in response to re- peated complaints of constitutional violations by its officers.”528 The court noted the plaintiffs’ averment that “the CPD’s con- tinuing deliberate indifference to Fourth Amendment violations places Plaintiffs at risk of future injury.”529 Granting, in part, the plaintiffs’ motion for class certification, the court held that the plaintiffs had “provided sufficient evidence of a common ques- tion of whether supervision and training deficiencies caused the alleged Fourth Amendment violations.”530 In a Massachusetts state court action, Commonwealth v. Long,531 not involving § 1983, the Supreme Judicial Court of Massachusetts recognized that there are “‘legitimate concerns regarding racial profiling and the impact of such practices on communities of color….’” Furthermore, in Massachusetts, it has long been held that “[t]he equal protection principles of the Fourteenth Amendment … and arts. 1 and 10 … [of the Massachusetts Declaration of Rights] prohibit discriminatory application of impartial laws.”532 524 Id. at *36-37 (citations omitted). 525 Id. at *30. 526 Id. at *39-40. 527 Id. at *42 (citation omitted). 528 Id. at *42-43 (citations omitted) (emphasis supplied). 529 Id. at *44 (citation omitted). 530 Id. at *44-45. 531 485 Mass. 711, 716, 152 N.E.3d 725 (Mass. Sup. Jud. Ct. 2020) (quoting Commonwealth v. Buckely, 478 Mass. 861, 871, 90 N.E.3d 767 (2018)). 532 Id., 485 Mass. at 717, 152 N.E.3d 725 (internal quotation marks omitted) (emphasis supplied). The Court held that the Superior Court abused its discretion by denying Long’s motion to suppress evidence. The defendant’s evidence was sufficient for a reasonable inference that the traffic stop that resulted in Long’s arrest was racially motivated. More- over, in its opinion, the court made a prospective announce- ment that it would revise its test for deciding when a stop was a racially motivated “discriminatory stop.”533 Finally, it may be noted that the Tri-County Metropolitan Transportation District of Oregon (TriMet) specifically prohibits all profiling, a term TriMet defines broadly to include any improper use of any protected classification, such as race, color, reli- gion, sex, age, national origin, ancestry, physical or mental disability, sexual orientation, marital or veteran status, family relationship, or other legally protected characteristic or status, as a basis for making a customer inquiry or taking an enforcement or compliance action.534 TriMet states that it does not use the above classifications as a factor in its decision to contact customers, to educate and in- form them, or to ensure their compliance with the TriMet Code. XIII. LIABILITY UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 FOR DISPARATE TREATMENT OR DISPARATE IMPACT A. Introduction The Federal Transit Administration (FTA) has provided guidance on Title VI of the Civil Rights Act of 1964 and the U.S. Department of Transportation’s Title VI regulations that apply to recipients of federal funds. As this section of the Digest discusses, public transportation authorities’ enforcement of policies or codes of conduct may constitute unlawful inten- tional discrimination or disparate impact discrimination under Title VI. B. Liability of Public Transportation Authorities for Disparate Treatment Section 601 of the 1964 Act provides that “[n]o person in the United States shall, on the ground of race, color, or national ori- gin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”535 The Supreme Court has held that § 601 proscribes only “intentional” discrimination.536 In Allstate Transp. Co. v. SEPTA,537 the plaintiff ’s 16-count complaint included a § 1983 claim alleging purposeful discrimi- nation by SEPTA in violation of both Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 49 U.S.C. § 306(b), specifi- 533 Id., 485 Mass. at 712-713, 152 N.E.3d 725. 534 TriMet Field Operations – Supervisor – Working Conditions, Prohibited Practices: Profiling, SOP 311 (rev. 1/15/2015), Appendix A, Item 24. 535 42 U.S.C. § 2000d (2021). 536 Alexander v. Choate, 469 U.S. 287, 293, 105 S. Ct. 712, 716, L. Ed.2d 661, 667 (1985), but see Prakel v. Indiana, 100 F. Supp.3d 661 (S.D. Ind. 2015). 537 2000 U.S. Dist. LEXIS 3831, at *1 (E.D. Pa. 2000).

Next: XIV. LIABILITY UNDER THE EIGHTH AMENDMENT IN 1983 ACTIONS CHALLENGING LAWS DIRECTED AT THE HOMELESS »
Policing and Public Transportation Get This Book
×
MyNAP members save 10% online.
Login or Register to save!
Download Free PDF

Compliance with transit-equipment and operations guidelines, FTA financing initiatives, private-sector programs, and labor or environmental standards relating to transit operations are some of the legal issues and problems unique to transit agencies.

The TRB Transit Cooperative Research Program's TCRP Legal Research Digest 58: Policing and Public Transportation provides a comprehensive analysis of constitutional issues and summarizes current laws and practices that apply to policing by public transportation agencies.

Supplemental to the Digest is Appendix A: Agreements, Policies, Reports, and Other Documents Provided by Public Transportation Authorities for the Report.

  1. ×

    Welcome to OpenBook!

    You're looking at OpenBook, NAP.edu's online reading room since 1999. Based on feedback from you, our users, we've made some improvements that make it easier than ever to read thousands of publications on our website.

    Do you want to take a quick tour of the OpenBook's features?

    No Thanks Take a Tour »
  2. ×

    Show this book's table of contents, where you can jump to any chapter by name.

    « Back Next »
  3. ×

    ...or use these buttons to go back to the previous chapter or skip to the next one.

    « Back Next »
  4. ×

    Jump up to the previous page or down to the next one. Also, you can type in a page number and press Enter to go directly to that page in the book.

    « Back Next »
  5. ×

    To search the entire text of this book, type in your search term here and press Enter.

    « Back Next »
  6. ×

    Share a link to this book page on your preferred social network or via email.

    « Back Next »
  7. ×

    View our suggested citation for this chapter.

    « Back Next »
  8. ×

    Ready to take your reading offline? Click here to buy this book in print or download it as a free PDF, if available.

    « Back Next »
Stay Connected!