# Presentation: 918129

## Title VI of the Civil Rights Act of 1964PrinciplesPoliciesGuidance to FTA Recipients

- FTA Region VI Civil Rights Colloquium
- March 28, 2006

## 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 

##           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

##            Non-Discrimination 

- 	“...Direct discrimination by Federal, State, or Local Governments is prohibited by the Constitution. But indirect discrimination through, the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation. Congress and the Executive have their responsibilities to uphold the Constitution also...”

**Notes:**
Title VI eliminated any doubts that Federal agencies had about their authority to prohibit discrimination in their programs. Title VI also eliminated the need for Congress to debate nondiscrimination amendments to each new piece of legislation authorizing Federal financial assistance.
A the time,, racial discrimination continued to be widely subsidized by Federal funds. For example, hospitals in N. Carolina received Federal funds for construction and the hospitals discriminated against black patients and medical staff. 

## 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

**Notes:**
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.

**Notes:**
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.

**Notes:**
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.

**Notes:**
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 _x0010_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.

**Notes:**
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.

**Notes:**
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.

**Notes:**
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 

## 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.

**Notes:**
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.

**Notes:**
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.

**Notes:**
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)**

**Notes:**
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 

- From FTA Circular 4702.1, “Title VI Program Guidelines to FTA Recipients”

**Notes:**
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. 

## Guidance for all Recipients and Subrecipients 

- Certify that you will comply with Title VI
- Document any Title VI complaints and lawsuits and past Title VI compliance reviews.
- Inform the public of your Title VI policy and how individuals may file a complaint.
- Analyze the impacts of construction projects on minority households and businesses.
- (Circular 4702.1 Chapter III)

## Guidance for transit agencies serving urbanized areas 

- Prepare demographic maps and overlays showing distribution of service to minority populations.
- Set system-wide service standards for vehicle load, headway, assignment, transit access, and transit amenities.
- Monitor service provided to minority and non-minority areas to ensure that service meets the system-wide standards.
- Establish procedures for complying with Title VI, including assessing the impacts of service and fare changes.
- (Circular 4702.1 Chapter III)

## Guidance for transit agencies serving urbanized areas

- Provide information on how minority communities will be informed of upcoming service changes.
- Provide a racial breakdown of non-elected boards, advisory councils, and committees, and encourage minority participation on these decision making bodies.
- (Circular 4702.1 Chapter III)

## Guidance for State Departments of Transportation 

- Ensure that funds dispersed to applicants for Section 5310 and Section 5311 funding are distributed without regard to race, color, and national origin.
- Ensure that efforts to assist applicants applying for section 5310 and Section 5311 funding is made without regard to race, color, or national origin.
- Monitor 5310 and 5311 subrecipients to ensure they are complying with Title VI.
- (Circular 4702.1 Chapter III)

**Notes:**
This means having an objective application criteria and tracking those applicants who serve predominantly minority communities and evaluating whether these applicants were rejected in disproportionate numbers or were funded to a significantly lesser extent than other applicants. 
This means doing outreach to potential applicants in all  communities through across the board measures like statewide mailings and it could also mean engaging in targetted outreach efforts to encourage providers serving predominantly minority communities to participate in these programs. 

## Guidance for Metropolitan and Statewide Planning Activities 

- Seek out and consider the needs of traditionally underserved populations in the planning process (23 CFR 450)
- Have an analytical process in place for assessing the regional benefits and  burdens of transportation system investments for different socioeconomic groups
- Have a public involvement strategy for engaging minority and low-income populations in transportation decisionmaking.
- (1999 FTA/FHWA Memorandum)

## The Relevance of Title VI in 2006

## 		40th Anniversary of the 			Civil Rights Act of 1964

- 	“The Civil Rights Act of 1964 gives all Americans another reason to be proud of our country. The work of equality is not done because the evil of bigotry is not finally defeated. Yet the laws of this nation and the good heart of this nation are on the side of equality. And as Dr. King reminded us, "We must not rest until the day when justice rolls down like waters, and righteousness like a mighty stream."
- 	--President George W. Bush, July 2nd, 2004.

## Conditions persist that make disparate impact discrimination a reality 

- Residential segregation persists in many metropolitan areas, due to:
- Personal preferences
- Discrimination in the real estate/lending industry
- Lack of affordable housing
- Residential segregation can lead to disparate provision of services due to imbalance of political clout or an “out of sight, out of mind” mindset that results in inattention to needs of minority and low-income communities.

## 	Dallas/Fort Worth 

## 	Dallas/Fort Worth 

## 			Atlanta 

## 		Washington

## 	   New York City 

##      US DOJ Response to Katrina 

- “I urge each agency to consider civil rights issues in all aspects of its hurricane response...there are many steps agencies can take to ensure that race, color, and national origin, including LEP status, do not impede access to information, shelters, and other evacuation and relief services.”
- 	--Assistant Attorney General for Civil Rights Wan J. Kim

## DOJ Response to Katrina

- Steps include:
- Conducting outreach to community and faith-based organizations serving minority populations
- Ensuring language services are in place
- Help recipients re-examine evacuation and disaster preparedness plans to ensure the plans address the specific needs of minority populations.

**Notes:**
Outreach to advise communitiies of available asisstence and including these communities in disaster preparedness, recover, and reconstruction planning.
--Particularly the minority populations that are isolated due to LEP, immigration, or income status. 

## National origin discrimination is still a concern

- Need to provide language access to services for persons with limited English proficiency.
- Bias against Arabs and Muslims may be increasing.
- Transportation and transit security needs to be provided on a non-discriminatory manner.

## Title VI Resources

- FTA website, _[www.fta.dot.gov](http://www.fta.dot.gov/)__, click on “civil rights/accessibility”_
- The Department of Justice Title VI website at _[http://www.usdoj.gov/crt/crt-home.html](http://www.usdoj.gov/crt/crt-home.html)_
- Materials in hour training binder