1200 New Jersey Avenue, SE. 

U.S.Department 

ofTransportation 

Washington, DC 20590 

Federal Highway 

Administration 

OCT 132016 

In Reply Refer To: HCR-20 

DOT# 2016-0034 

Mr. Russell McMurry, P.E. 

Commissioner 

Georgia DOT 

600 West Peachtree ~treet, NW 

Atlanta, GA 30308 

Subject: Letter ofFinding (LOF) for Complaint DOT# 2016-0034 

Dear Mr. McMurry: 

On November 17, 2015 the Federal Highway Administration (FHW A) Office ofCivil Rights 

received a complaint from (Complainant) alleging that the Georgia Department 

ofTransportation (GDOT) violated Title VI ofthe Civil Rights Act of 1964 (Title VI) and the 

Title VI regulations of both the United States Department ofTransportation (USDOT), at 49 

Code ofFederal Regulations (CFR) Part 21, and ofthe FHWA, at 23 CFR Part 200. This letter 

provides the decision for the issue raised in the complaint. 

1. Whether GDOT's distribution offunds under FHWA's Safe Routes to School (SRTS) 

program, and/or its successor Transportation Alternatives Program {TAP) discriminated 

against persons on the basis of race, color, or national origin in violation ofTitle VI. 

2. Whether GDOT's method for selecting school recipients for SRTS and/or TAP funds 

discriminated against persons on the basis of race, color, or national origin, in violation ofTitle 

VI. 

Legal Background 

Title VI prohibits discrimination on the basis ofrace, color, or national origin in programs and 

activities receiving Federal financial assistance. In particular, Title VI provides: 

"no person in the United States shall, on the ground ofrace, color, or national 

origin, be excluded from participation in, be denied the benefits of, or be 
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subjected to discrimination under any program or activity receiving Federal 

financial assistance:" 

42 U.S.C. § 2000d. 

The USDOT' s Title VI implementing regulations state that a recipient "may not utilize criteria or 

methods ofadministration which have the effect ofsubjecting persons to discrimination because 

oftheir race, color, or national origin," 49 CFR 21.5(b)(2). Recipients also must take 

"affirmative action to remove or overcome the effects" where prior discriminatory practice or 

usage exists. 49 CFR 21.5(b)(7). The FHWA's Title VI regulations similarly require Title VI 

compliance by recipients receiving Federal financial assistance from FHWA. 23 CFR Part 200. 

complaint alleged two theories ofdiscrimination under Title VI: disparate impact 

discrimination and intentional discrimination. Disparate impact theory involves an allegation that 

a specific policy or practice, that is neutral on its face, nevertheless has a discriminatory effect on 

the basis ofrace, color, or national origin. Intentional discrimination theory involves an 

allegation wherein the Respondent has intentionally discriminated against persons on the basis of 

race, color, or national origin. 

The elements ofa Title VI disparate impact claim derive from the analysis ofcases decided 

under Title VII disparate impact law. New York Urban League v. New York, 71 F.3d 1031, 1036 

(2d. Cir. 1995). The U.S. Department ofJustice (USDOJ) outlines this framework in its "Title VI 

Legal Manual" (USDOJ Manual): 

(a) Prima facie allegation ofdiscrimination 

1. Specific facially neutral policy or practice offederal-aid recipient; 

2. Disparate and adverse impact on protected group; and 

3. Causation 

(b) Substantial legitimate justification proffered by federal-aid recipient 

(c) Ifsubstantial legitimate justification shown, the availability ofless discriminatory 

alternatives 

As the USDOJ Manual notes, to establish a prima facie case ofdisparate impact discrimination, 

the investigating agency must first ascertain whether the recipient utilized a facially neutral 

practice that had a disproportionate impact on a group protected by Title VI. USDOJ Manual at 

49-50 (citing Larry P. v. Riles, 793 F.2d 969,982 (9th Cir. 1984); Elston v. Talladega County 

Bd ofEduc., 997 F.2d 1394, 1407 (11th Cir. 1993)). Next, the investigating agency must 

determine, through fact-intensive analysis, whether the severity, magnitude, or likelihood ofthe 

disparate impact ofthe identified practice is significantly adverse enough to make it an 

actionable harm. Bryan v. Koch, 627 F.2d 612,617 (2d Cir. 1980). When determining the 

actionability ofadversity, courts balance the benefits and burdens ofthe proposed policy to the 

plaintiffs, considering efforts to mitigate possible adverse impacts as well. NAACP v. Med Ctr. 

Inc., 657 F.2d 1322, 1331-2, 1340 (3d Cir. 1981); see also United States v. Bexar County, 484 F. 

Supp. 855, 859-60 (W.D. Tex. 1980). Lastly, the investigating agency must show a causal 

connection between the facially neutral policy or practice and the disproportionate and adverse 

impact on the protected group. New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 69 

(2d Cir. 2000). 
3 

The USDOJ Manual further notes that after a prima facie showing is made, the burden shifts to 

the respondent to demonstrate the existence ofa "substantial legitimate justification" for the 

allegedly discriminatory practice. USDOJ Manual at 50-51. To prove a "substantial legitimate 

justification," the recipient must be able to show that the challenged policy was "necessary to 

meeting a goal that was legitimate, important, and integral to the [recipient's] institutional 

mission." Sandoval v. Hagan, 1 F.Supp. 2d 1234, 1278 (M.D. Ala. 1998), affd, 197 F.3d 484 

(11th Cir. 1999), rev'd on other grounds, Alexander v. Sandoval, 532 U.S. 275 (2001). The 

justification must bear a "manifest demonstrable relationship" to the challenged policy. Georgia 

State Conference ofBranches ofNAACP v. Georgia, 775 F.2d. 1403, 1418 (11th Cir. 1985); See, 

e.g., Elston, 997 F. 2d at 1413 (In an education context, the practice must be demonstrably 

necessary to meeting an important educational goal, i.e. there must be an "educational necessity" 

for the practice). 

If the recipient can make a showing of"substantial legitimate justification," the investigating 

agency must then focus on whether there are "less discriminatory alternatives" that meet the 

recipient's legitimate needs, but that will do so without the same level ofdisparate effect on a 

class protected by Title VI. Elston, 991 F.2d at 1407. 

The USDOJ Manual outlines the following framework for establishing intentional 

discrimination: 

(a) Recipient was aware ofrace, color, or national origin of impacted persons 

(b) Recipient acted, at least in part, because ofthe race, color, or national origin of 

impacted persons 

An intent claim must prove that "a challenged action was motivated by an intent to 

discriminate." Elston, 991 F.2d at 1406. However, the record does not need to contain evidence 

of"bad faith, ill will or any evil motive on the part ofthe [recipient]." Id. (citation omitted). The 

USDOJ Manual further provides that evidence ofdiscriminatory intent may be direct or 

circumstantial and may be found in various sources, including statements by decision-makers, 

the historical background ofthe events in issue, the sequence ofevents leading to the decision in 

issue, a departure from standard procedure ( e.g., failure to consider factors normally considered), 

legislative or administrative history (e.g., minutes of meetings), a past history ofdiscriminatory 

or segregated conduct, and evidence ofa substantial disparate impact on a protected group. 

USDOJ Manual at 43-44 (citing Arlington Heights v. Metropolitan Hous. Redevelopment Corp., 

429 U.S. 252, 266-68 (1977) ( evaluation of intentional discrimination claim under the Fourteenth 

Amendment); Elston, 997 F.2d at 1406). 

When direct proof ofdiscriminatory motive is unavailable, claims ofintentional discrimination 

may be analyzed to determine whether a recipient has engaged in a "pattern or practice" of 

unlawful discrimination. USDOJ Manual at 46. Such claims may be proven by a showing of 

"more than the mere occurrence ofisolated or 'accidental' or sporadic discriminatory acts." 

International Bhd o/Teamsters v. United States, 431 U.S. 324,336 (1977). The evidence must 

establish that a pattern of discrimination based on race, color, or national origin was the 

recipient's "standard operating procedure the regular rather than the unusual practice. 11 Id. Once 

the existence ofsuch a discriminatory pattern has been proven, it may be presumed that every 
4 

disadvantaged member ofthe protected class was a victim ofthe discriminatory policy, unless 

the recipient can show that its action was not based on its discriminatory policy. Id. at 362. 

Ifthe case file contains sufficient evidence to establish a prima facie case ofdiscrimination, the 

investigating agency must then determine ifthe recipient can articulate a legitimate, 

nondiscriminatory reason for the challenged action. USDOJ Manual at 45 (citing McDonnell 

Douglas Corp. v. Green, 411 U.S. 792,802 (1973)). Ifthe recipient can articulate a 

nondiscriminatory explanation for the alleged discriminatory action, the investigating agency 

must determine whether the case file contains sufficient evidence to establish that the recipient's 

stated reason was a pretext for discrimination. Id. 

Factual Background 

FHWA received this complaint from via e-mail on November 17, 2015. 

alleges that GDOT has programmed Safe Routes to School funds over multiple years, and continues 

to do so, using criteria (or a lack thereof) that disproportionately awards funding to more school 

districts that serve non-minority, more affluent populations, in violation ofTitle VI. 

corresponded with of GDOT before filing this complaint, seeking GDOT's process 

for scoring and awarding projects using SRTS funds. He was unable to obtain them. 

As part ofFHWA's investigation GDOT has provided the following information for federal fiscal 

years 20 I J - 2015: 

• 74 SRTS Infrastructure Applications 

• 42 SRTS infrastructure awardees' pre-construction reports and concept reports 

• SRTS infrastructure Program policies and procedures 

SRTS funds are awarded to local governments whose projects may include multiple schools. This 

resulted in benefits being distributed to 107 schools throughout the State ofGeorgia during this time 

period. 170 schools were found to have been included in all local government applications for the 

time period. 

ln Georgia, the Governor's Office ofStudent Accountability (GOSA) provides detailed demographic 

data for each ofGeorgia's public schools and the information is available online at 

http://gosa.georgia.gov/downloadable-data. The file "Enrollment by Subgroup Programs" breaks 

down each school's demographics by race and ethnicity. Information from the 2014-2015 school 

year was used to compare the demographics ofSRTS awardees with those of Georgia public schools 

to determine ifthe funding was disproportionately awarded to non-minority and more affluent 

schools as alleged by the complainant. 

FHWA's review ofthe demographic data showed that: 

• The average SRTS awardee was 38.9% Black, 38.3% White, 2.7% Asian, 0.1% Native 

American, 16.1 % Hispanic, and 3.6% Multiracial 

• The average SRTS applicant was 39.6% Black, 37.4% White, 3.1% Asian, 0.1% Native 

American, 16.0% Hispanic, and 3.5% Multiracial 

• The average Georgia public school was 39.5% Black, 41.6% White, 2.8% Asian, 0.1 % 

Native American, 12.5% Hispanic, and 3.2% Multiracial 
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Analysis 

In reviewing the demographic data, there are no clearly apparent differences suggesting that funding 

is disproportionately being awarded to non-minority schools. The average SRTS applicant and 

awardee was actually shown to have a lower percentage ofWhite students than the average public 

school (38.3% vs. 41.6%). The chart below visualizes the demographics ofthe average SRTS 

awardee as compared with the average Georgia public school: 

Demographic Comparison of SRTS Recipients 

100 

90 

80 

70 

60 

50 

40 

30 

20 

10 

0 

Black White Asian Native American Hispanic Multiracial 

 %Enrolled {SRTS Applicants)  % Enrolled {SRTS Recipient)  %Enrolled {Georgia Public School) 

To determine ifthere was any measurable effect between a school's minority populations and 

whether or not it received SRTS funding, FH WA used a logistic regression model. Each minority 

racial/ethnic category percentage was used as an independent variable and whether or not a school 

received infrastructure funding was used as the dependent variable. An analysis ofthe variables 

representing the percentage ofBlack, Asian, and Native American suggested that there is no 

discemable statistical relationship between the percentage ofthese minority groups at a school and 

whether or not that school was awarded SRTS funds (all had p-values greater than 0.05)1

• A school's 

percentage ofHispanic students was statistically significant in the model with a p-value of less than 

0.05, however it should be noted that according to the model a school with a higher percentage of 

Hispanic students was somewhat more likely to receive SRTS funds. 

GDOT provides the policies, procedures, applications and other information related to the SRTS 

program through its website at http://www.saferoutesga.org/. A review ofthis and other information 

provided by GDOT found no evidence suggesting disparate impact or intentional discrimination in 

GDOT's methods and procedures for selecting schools to receive SRTS funds. 

Findings 

1 A p-value is the probability under a specified statistical model (in this case logistical regression) that a statistical 

summary ofthe data would be equal to or more extreme than its observed value. 
6 

Based on the information provided by GDOT for federal fiscal years 2011 -2015 and FHWA's 

analysis ofthe data show no violation for disparate impact or intentional discrimination in 

violation ofTitle VI related to GDOT' S Safe Routes to Schools program. This letter concludes 

FHWA's investigation, and the case will be closed with no further action. 

Ir e o, 

Acting Associate Administrator 

FHWA Office ofCivil Rights 

cc: Rodney Barry, Division Administrator, FHWA's Georgia Division Office 

Vanessa Ross, Civil Rights Specialist, FHWA's Georgia Division Office 

James Esselman, Specialist Counsel, FHWA's Office ofChief Counsel (HCC-40) 

Yvette Rivera, Associate Director, Equal Employment Opportunity Programs Division