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38 TCRP LRD 58 cally for unlawful retaliation in violation of Title VI.538 Allstate alleged that SEPTA failed to take action on Allstateâs 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 Allstateâs prior 1993 con- tract with SEPTA.539 However, Title VI, 42 U.S.C § 2000d, which âprohibits inten- tional racial discrimination against participants in, applicants for, or intended beneficiaries of a federally funded program,â540 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 âexclusion from participation in ⦠federally assisted programsâ naturally includes applicants for partici- pation in federally funded programs.542 The court held that Allstateâs evidence was sufficient to cre- ate a genuine issue of material fact on its recertification claim. â Allstate ⦠pointed to weaknesses, implausibilities, inconsis- tencies, contradictions and incoherencies in SEPTAâs explana- tion of its administration of Allstateâs application for DBE re- certification [that are] sufficient to create a genuine issue of material fact and allow a factfinder to rationally infer pretext.â543 Thus, based on Allstateâs allegation that SEPTA failed to act on Allstateâs application for its DBE recertification, the court denied SEPTAâs motion for a summary judgment on Allstateâs 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. DOTâs Title VI regulations.547 The regulations prohibit ârecipients 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.â548 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 â[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.â551 PART IV â 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 personsâ use of stations and other facilities.552 546 FTA Circular C 702.1B, âTitle VI Requirements and Guidelines for Federal Transit Administration Recipientsâ (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 âan 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 plaintiffsâ putative class action satisfied the âcommonality requirementâ 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 âthat the CPD de- ployed a centralized stop and frisk program during the times relevant to this caseâ and âthat the City knew, or should have known, that its stop and frisk program was associated with a risk of widespread Fourth Amendment violations.â525 The plaintiffsâ 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 CPDâs highest levels.526 The court held that the plaintiffsâ Monell claim against the municipal defendants for failure to train could âârise to the level of an official government policy for purposes of § 1983.ââ527 More specifically, however, a local governmentâs 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 âcan 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.â528 The court noted the plaintiffsâ averment that âthe CPDâs con- tinuing deliberate indifference to Fourth Amendment violations places Plaintiffs at risk of future injury.â529 Granting, in part, the plaintiffsâ motion for class certification, the court held that the plaintiffs had âprovided sufficient evidence of a common ques- tion of whether supervision and training deficiencies caused the alleged Fourth Amendment violations.â530 In a Massachusetts state court action, Commonwealth v. Long,531 not involving § 1983, the Supreme Judicial Court of Massachusetts recognized that there are ââlegitimate concerns regarding racial profiling and the impact of such practices on communities of colorâ¦.ââ Furthermore, in Massachusetts, it has long been held that â[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.â532 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 Longâs motion to suppress evidence. The defendantâs evidence was sufficient for a reasonable inference that the traffic stop that resulted in Longâs 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 âdiscriminatory stop.â533 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 Transportationâs Title VI regulations that apply to recipients of federal funds. As this section of the Digest discusses, public transportation authoritiesâ 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 â[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.â535 The Supreme Court has held that § 601 proscribes only âintentionalâ discrimination.536 In Allstate Transp. Co. v. SEPTA,537 the plaintiff âs 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 â Supervisor â 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).