Five years ago—while the Bush administration was in power—Sylvia Darensburg of Oakland filed a civil rights lawsuit against the Bay Area’s Metropolitan Transportation Commission (MTC). On behalf of the class of minority bus riders she represented, Darensburg hoped the federal courts would force MTC to change its funding priorities, which favored affluent rail commuters over transit-dependent people who rely on local bus service for access to employment, education, health care, and other essential services. (See ”Bay Area Transit—Separate and Unequal” on page 30.)
Back then, civil rights and Environmental Justice (EJ) advocates could not have foreseen that it would be a federal regulatory agency and not the federal courts that would step up for equity in the allocation of transportation funding. But that is what happened on February 12 this year when the head of the Federal Transit Administration (FTA), citing civil rights violations, withdrew $70 million from a $500 million rail project on MTC’s priority transit expansion list.
The story of how bus riders—with the help of civil rights, EJ, and labor organizations—pulled off this unprecedented victory holds out hope for a much desired fundamental shift in how the Bay Area allocates some ten billion dollars in public funds for transportation each year. It also offers important lessons for regional equity advocates across the country.
Courtroom Drama
Our story begins in a crowded San Francisco courtroom, just a month before the election of President Obama. Magistrate Judge Elizabeth Laporte of the Northern District of California had already heard several days of testimony about MTC, the transit agencies under its jurisdictions, and the riders those agencies serve. The testimony showed that the ridership of AC Transit, the largest bus-only transit provider in California, is nearly 80 percent people of color, many of whom cannot afford to own a car. By contrast, BART (Bay Area Rapid Transit) provides deluxe rail service to a ridership that is much more affluent and approximately 50 percent white.
The court had also heard testimony about MTC’s $17 billion “strategic master plan for transit expansion” known as Resolution 3434. The inclusion of a project in the plan implied a commitment of considerable funds and advocacy muscle for that project. Then on the fourth day of trial, plaintiffs’ transit finance expert, Thomas A. Rubin took the stand to explain how minority bus riders figured into MTC’s “master plan”: 94 percent of the funding was allocated for rail projects and only 4.7 percent for bus projects.
On March 27, 2009 the court issued a decision with a mixed outcome. On the one hand, Judge Laporte acknowledged that MTC’s funding decisions caused AC Transit to raise fares and cut service.[1] She also found that “Plaintiffs have shown that MTC’s practice with respect to Resolution 3434 caused disparate impact... MTC allocates more funding to rail projects than to bus projects, resulting in bus projects proposed by AC Transit being excluded from projects listed in Resolution 3434.” At the same time, the court applied an unusally lax standard in finding that MTC’s discrimination was justified:
“The Court sympathizes with the predicament of the members of the Plaintiff Class, who have experienced declines in bus services on which they depend to meet their basic needs, such as getting to school and work safely and on time. Nonetheless, MTC has met its burden of showing a substantial legitimate justification for the challenged funding practices.”Ultimately, the court did not grant bus riders any relief against the discriminatory impacts it had found. The ruling is now on appeal before the Ninth Circuit Court of Appeals.
An “Immoral” Use of Transit Stimulus Funds
Meanwhile, Congress passed its historic stimulus legislation. In anticipation of receiving $340 million in federal “formula” funds, in February 2009, MTC announced its plan to divert $70 million of those stimulus funds into closing a shortfall for BART’s Oakland Airport Connector (OAC) project—a 3.2 mile elevated rail “people mover” linking an existing East Oakland BART station to Oakland International Airport. The project would replace an existing bus shuttle service at an estimated cost of nearly $500 million.
MTC’s decision came at a time when Bay Area transit systems, like their counterparts across the country, were imposing draconian service cuts and fare hikes. Community advocates, led by Urban Habitat and Genesis, a regional faith-and-values organizing group, turned out more than a hundred vocal opponents to an MTC hearing that month. Rev. Scott Denman, president of Genesis, asserted that it was “immoral” for MTC to prioritize the needs of people who could afford an airline ticket over those who could barely afford a bus pass. In a lighter vein, he added that the Connector project was “shovel ready, and we should bury it today; I myself will perform the last rites.”
The protesters won over only one Commissioner but in a nod to the urgency of their appeal against bus service cuts, MTC adopted a contingency plan: It would re-allocate the $70 million to the region’s transit systems for existing service in the event that the BART project could not obligate the funds to the OAC project in time to meet federal deadlines.
But questions were already being raised about whether the MTC had met its duty to ensure that BART, one of it its subrecipients, had properly conducted an equity analysis of the OAC project as required by the FTA under Title VI of the Civil Rights Act of 1964. The purpose of such analysis is to ensure that low-income and minority populations receive a fair share of the benefits of the project, without being unduly burdened by its adverse impacts. A request from Public Advocates for the equity analysis under the California Public Records Act determined that BART had not conducted any equity analysis.
In July 2009, Public Advocates, Urban Habitat, and TransForm, a Bay Area transit advocacy organization, brought the Title VI issue to the attention of the BART and MTC boards of directors. Despite that, in August, MTC certified to the federal government that the BART OAC project “has received the full review and vetting required by law.” On September 3, 2009 Public Advocates filed an administrative civil rights complaint under Title VI with the FTA’s Office of Civil Rights.[2]
Advocates Speak Truth to the FTA
The complaint, brought on behalf of Genesis, Urban Habitat, and TransForm, charged BART with failing to comply with its civil rights and environmental justice duties in connection with the OAC project. It noted that two neighborhoods within a half mile of the project area have 95 percent minority and 25 to 33 percent low-income populations, and spelled out clearly why the project would deprive these populations of a fair share of the benefits from this investment:
“The OAC... would charge a one-way fare of up to $6. The rail project would replace an existing bus link with a fare of $3... Situated in an East Oakland community with a very high minority and low-income population, the OAC will traverse a corridor with many low-wage jobs that employ local residents, yet it will apparently be built without any intermediate stops. Even if such stops were added in the future, [the] extremely high fare will exclude low-income riders from the delayed benefits of the new service.”
More than just a procedural shortcoming, BART’s failure to evaluate the equity impacts of the OAC project and weigh appropriate alternatives to find a less discriminatory one, is likely to have disparate impacts on Environmental Justice populations in East Oakland, low-income and minority BART riders, and the many low-wage workers with jobs at the airport and along the Hegenberger corridor in which the OAC project would operate. Those populations either rely on the existing bus connection or would benefit from a low-fare transit option with stops at the airport and along the way.
The complaint urged the FTA to investigate these Title VI violations and require BART to conduct the equity analysis. It also asked the FTA to “place a hold on the provision of federal funds to BART for the OAC project, including the $70 million in ARRA [American Recovery and Reinvestment Act] funds programmed for the OAC project by the Metropolitan Transportation Commission... pending the satisfactory completion of the required evaluation, mitigation and review of alternatives.” Among the alternatives that BART had refused to analyze was a Bus Rapid Transit (BRT) system proposed by TransForm that would have provided fast service to intermediate stops for a very low fare at about a tenth of the cost of the OAC.
Civil Rights Action Wins $$ for Community
In December, two FTA civil rights investigators met with BART staff and representatives of the groups that had filed the complaint. In the course of this on-site compliance investigation, BART acknowledged that “it failed to integrate Title VI into [its] service planning and monitoring activities for the Project,” according to a January 15, 2010 letter from FTA chief Peter Rogoff, which also informed BART that it had to submit a “corrective action plan” for the preparation of the equity analysis for FTA’s pre-approval and that the $70 million in stimulus funds were being placed on hold.
After several weeks of failed efforts by BART to negotiate the terms of an acceptable corrective action plan, Rogoff wrote again on February 12: “I am required to reject your plan... Given the fact that the initial Title VI complaint against BART was well founded, I am not in a position to award the [stimulus] funds to BART while the agency remains out of compliance.” Furthermore, he stated, “it is imperative that BART, as a recipient of FTA funds, come fully into compliance with Title VI as soon as possible” and added that MTC must work “to ensure that [stimulus] funds can create and preserve jobs in the Bay Area” through reallocation according to MTC’s contingency plan.
Suddenly, MTC was all but forced to distribute the $70 million among all Bay Area transit systems, including BART. These funds could now be used to help fill the large operating deficits and mitigate, if not entirely avoid service cuts and fare hikes. At last, regional equity and transit advocates had the very outcome they had sought a year ago. Coming as it did at a time of great hardship for minority and low-income bus riders who are the first victims of growing operating deficits, the FTA’s landmark decision has had a profound effect across the country.
Bay Area advocates, however, are not resting on their laurels but working to keep the pressure on BART (which has yet to conduct a proper equity analysis for the OAC) and the MTC (which is facing further FTA scrutiny to determine if its failure to impose Title VI guidelines is part of a larger pattern). Ultimately, advocates hope to ensure that both agencies meet their civil rights obligations and provide low-income communities of color a fair share of the benefits from public funds.
The Obama Administration’s demonstrated commitment to revive civil rights enforcement so that the economic recovery lifts everyone, not just the few, has buoyed advocates into action across the nation. And as Congress moves ahead with its deliberations over the next major reauthorization of the surface transportation bill, the message that increased funding must be accompanied by Title VI protections is gaining traction.
Endnotes
1. The court’s decision after trial is available at www.publicadvocates.org
2. The Title VI complaint is available at www.publicadvocates.org
Richard Marcantonio is a managing attorney and Guillermo Mayer is a
senior staff attorney with the public interest law firm
Public Advocates, Inc., in San Francisco
The 20th Anniversary Issue | Vol. 17, No. 1 | Spring 2010 | Credits
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 Marcantonio-Mayer.20th.17-1.pdf | 1.1 MB |