Title VI of the Civil Rights Act of 1964 Principles Policies Guidance to FTA Recipients FTA Circular 4702.1A, “Title VI and Title VI-Dependent Guidelines for FTA Recipients”

Objectives Of This Presentation Provide information that will allow you to ensure that your agency is in compliance with Title VI. This information will also allow you to evaluate and resolve discrimination complaints filed with your agency.

Title VI Principles Basic Tone of Title VI+

Non-Discrimination “Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.” --President John F. Kennedy, 1963

Section 601 of Title VI “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial assistance.” --42 U.S.C. Section 2000d The next few slides dissect this statement and focus on some of the key words.

Title VI Applies to “Persons” Title VI Protections are not limited to citizens. Individuals may bring a cause of action under Title VI if they are an intended beneficiary of, an applicant for, or a participant in a Federally assisted program. If an underlaying law that provides Federal assistance limits benefits to citizens, undocumented persons would not have standing to challenge the implementation of the law. Title VI does not give illegal immigrants blanket protections from efforts to crack down on illegal immigration, provided the law is targeted at illegal immigrants and not simply at non-citizens.

Race, Color, National Origin Persons of any race can file a Title VI complaint. We rely on U.S. Census categories to define race. Title VI prohibits discrimination on the basis of shades of skin color. National origin means being from a country other than the United States or having ancestors from a country other than the United States. Although the Civil Rights Act was passed in response to white racism against African-Americans, it applies to persons of all races. FTA recently investigated a Title VI complaint brought by a white transit rider against an African-American bus driver. We’ve investigated complaints brought by Latino persons against

Federal Financial Assistance Financial assistance can be in nonmonitary form. It can include use of Federal land or property, Federal training, or a loan of Federal personnel.

Recipients Recipients are any entity to whom Federal financial assistance is extended. Many recipients enter into a relationship with the Federal government akin to contract. Federal financial assistance is received under a condition of assurance of compliance with Title VI. Both primary recipients and subrecipients must conform their actions to Title VI.

Recipients v. Beneficiaries Beneficiaries do not enter into an agreement with the Federal government where compliance with Title VI is a condition of receiving aid. Recipients are covered under Title VI. Beneficiaries are not. Are not a transit system’s riders indirect recipients of Federal financial assistance? After all, they receive certain advantages as the result of Federal investment in the local transit system. We occasionally receive complaints of discriminatory treatment from one beneficiary against another. For example, we’ve received complaints from a transit rider complaining that another transit rider subjected them to racial slurs while on the transit system. Unless a representative of the transit system was involved in the altercation, we would not investigate this complaint under Title VI.

Program or Activity Title VI’s prohibitions are meant to apply institutionwide, not just to the limited aspect of the institution’s operations that receive the Federal funding. Example: If a college or University receives Federal assistance to provide financial aid to its students, it’s athletic program must comply with Title VI. If a transit agency receives Federal funds to purchase buses, and then decides to construct a light rail line, without Federal financial assistance, the planning and operations of the light rail line must also comply with Title VI.

Title VI Policies

Title VI Regulations Section 602 of Title VI authorizes Federal agencies “to effectuate provisions of [Section 601]…by issuing rules, regluations, or orders of general applicability.” The Department of Justice and Department of Transportation regulations prohibit disparate impact discrimination as well as intentional discrimination. Disparate impact provisions make working with Title VI more interesting and more relevant in today’s day and age. Intentional discrimination is relatively rare, but there remains potential for disparate impact discrimination.

Disparate Treatment vs. Disparate Impact Discrimination Disparate treatment--The recipient, in violation of the statute, intentionally discriminates against beneficiaries. Disparate impact--The recipient, in violation of agency regulations, uses a neutral procedure or practice that has a disparate impact on minority beneficiaries, and such practice lacks a substantial legitimate justification. In order to establish a claim of intentional discrimination, a complainant must show that a particular action was motivated by an intent to discriminate. This usually means presenting evidence of discriminatory statements, a history of discriminatory treatment. If

Disparate treatment claims require proof of an intent to discriminate against a protected class.  Disparate impact claims, on the other hand, focus on the disproportionate adverse consequences of facially neutral employment policies and practices, not simply the underlying motivation.  In other words, disparate impact analysis focuses on the effects of an employment practice on the employee rather than on the motivation for the action of the employer.

Examples of Actions with Potentially Disparate Impacts Installing bus shelters on the basis of their potential to generate advertising revenue. Assigning clean-fuel vehicles and facilities to routes that do not serve predominanty minority communities. Implementing service reductions or fare increases that disproportionately effect minority communities. Planning a fixed guideway project that travels through predominantly minority communities but does not include stations in these communities. We’ve received complaints and transit agencies have been subject to lawsuits on these issues.

When can recipients take actions that have disparate impacts? In the cases when the policy is supported by a “substantial legitimate justification” and There are no comparably effective alternative practices that would result in less disparate impacts and The justification for the action is not a pretext for discrimination. Generally substantial legitimate justifications show that the action that would have disparate impacts are necessary to meet a goal that is legitimate, important, and integral to the agency’s institutional mission. In cases of fare increases or service cuts, there is usually a substantial, legitimate justification, and the question becomes--are there alternatives that would meet the need that would have less disparate impacts?

Alexander v. Sandoval In this 2001 decision, the Supreme Court ruled that plaintiffs can sue under the intentional discrimination provisions in Section 601 of Title VI. However, plaintiffs cannot bring lawsuits under the disparate impact regulations promulgated by Federal agencies under Section 602 of Title VI. Persons may still file administrative complaints with Federal agencies under the Title VI regulations. The court ruled that Congress never intended for Section 601 to include disparate impacts, but it also found that agencies were intitled to write disparate impact provisions into their regulations. This means that for persons who believe they were victims of disparate impact discrimination, filing a complaint with a transit agency or with FTA is the only game in town.

DOT Title VI Regulations Recipients may not, on the grounds of race, color, or national origin: --Deny any individual service, financial aid, or benefit under the program. --Provide any service, financial aid, or benefit that is different from that provided to others. --Subject an individual to segregation or separate treatment. --Restrict an individual in the enjoyment of any advantage or privilege enjoyed by others. --Treat individuals differently in terms of whether they satisfy admission, eligibility, or membership. --Deny an individual the opportunity to participate in the provision of services. --Deny a person the opportunity to participate as a member of a planning or advisory body. 49 CFR 21.5(b) The next few slides go over the DOT regulations. Examples: transit agencies cannot refuse to allow persons of Arab descent or who appear to be Muslim to board vehicles or enter stations. These persons cannot be subjected to searches or questioning solely on the basis of their race or national origin. Persons applying for ADA complementary paratransit service cannot be denied eligibility on the basis of race, color, or national origin. Fare holidays should be provided equitably.

DOT Title VI Regulations Recipients may not use criteria or methods of administration that have the effect of subjecting individuals to discrimination (49 CFR 21.5(b)(2)). In determining the location of facilities, recipients may not make decisions with the purpose or effect of subjecting persons to discrimination (49 CFR 21.5(b)(3)). Recipients are expected to take affirmative action to assure non-discrimination (49 CFR 21.5(b)(7)).

DOT Title VI Regulations Discrimination with regard to the routing, scheduling, or quality of transit service is prohibited. Frequency of service, age and quality of vehicles assigned to routes, quality of stations serving different routes, and location of routes must not be determined on the basis of race, color, national origin. (Appendix C to 49 CFR 21)

Title VI Guidance to Recipients of FTA Funding FTA Circular 4702.1A, “Title VI and Title VI-Dependent Guidelines for FTA Recipients” So far, we’ve discussed broad principles and policies of Title VI. But may of these principles are ambiguous and open ended, and recipients may wonder--exactly what do I need to do to comply with Title VI. FTA has issued guidance and procedures that recipients should follow to ensure that their planning activities and their day-to-day operations are in compliance with Title VI.

Circular 4702.1: Last Updated in 1988

Purpose of the Circular Provide recipients and subrecipients with guidance and instructions necessary to carry out the DOT Title VI Regulations and to integrate into their programs and activities considerations expressed in the DOT Order on Environmental Justice and DOT Policy Guidance on LEP.

Qualities of the Updated Circular Issues requirements that stem from the Title VI regulations and guidance that stem from Environmental Justice and LEP. Gives grantees more flexibility to implement requirements and guidance using locally-preferred options. Adds some record keeping and reporting requirements and eliminates other requirements. The document should be more useful and usable.

Circular Objectives 1. Ensure level and quality of transportation service provided without regard to race, color, national origin. 2. Identify and address, as appropriate, disproportionately high and adverse effects of minority populations and low-income populations. 3. Promote full and fair participation of all affected populations in transportation decision making. 4. Prevent the denial, reduction of, or delay in benefits related to programs and activities that benefit minority populations or low-income populations. 5. Ensure meaningful access to programs and activities by persons with limited English proficiency.

Circular Organization Chapter I—How to use this circular. Chapter II—Overview. Chapter III—Requirements for applicants. Chapter IV—General Requirements and Guidelines. Chapter V—Requirements and Guidelines for recipients serving large urbanized areas. Chapter VI—Requirement and Guidelines for State DOTs/Administrating Agencies. Chapter VII—Requirements and Guidelines for Metropolitan Planning Organizations. Chapter VIII—Compliance Reviews. Chapter IX—Complaints. Chapter X—Effecting Compliance.

Requirements and Guidelines for all recipients and subrecipients (Circular 4702.1A, Chapter IV) Have procedures for investigating Title VI complaints. Keep a record of Title VI complaints, investigations, and lawsuits. Take responsible steps to ensure meaningful access to programs and activities for people with LEP. Inform the public of their rights under Title VI. Include EJ analysis in NEPA documentation. Conduct public involvement in an inclusive manner. Submit a Title VI report to FTA or to direct recipient.

Requirements and Guidelines for transit agencies serving large urban areas (Circular 4702.1A, Chapter V) Collect demographic information on beneficiaries. Maps and overlays Customer surveys Local option Set system-wide service standards and policies. Analyze the impacts of proposed service and fare changes for disparate impact discrimination. Monitor transit service provided for equity. Report on these activities once every three years to FTA.

Requirements and Guidance for State DOTs/Administering Agencies (Circular 4702.1A, Chapter VI) Conduct statewide transportation planning in a non-discriminatory manner. Pass through FTA funds to subrecipients in a non-discriminatory manner. Monitor subrecipients for compliance with Title VI. Report on these activities to FTA once every three years.

Additional Circular Content Reporting requirements chart at appendices A, B, and C. Technical assistance resources at Appendix D.

Resources for Implementing the New Circular Your regional civil rights officer. Plans to submit Title VI compliance report through TEAM. The Title VI web page at http://www.fta.dot.gov/civilrights/civil_rights_5088.html