The Equal Justice Society is supporting efforts by Transit Riders for Public Transportation (transitriders.net) to have Congress expressly establish a private right of action in the Federal Surface Transportation Authorization Act (FSTAA) that enforces the disparate impact regulations adopted by the Department of Transportation (DOT). By restoring private enforcement of DOT’s antidiscrimination regulations, the FSTAA will give local communities a well-proven tool to redress existing transportation disparities while ensuring inclusive treatment and equitable outcomes in future transportation investments.
Title VI of the Civil Rights Act of 1964 prohibits racial discrimination by recipients of federal funds. To ensure compliance, all federal agencies have adopted regulations that prohibit two types of racial discrimination: activities that discriminate purposefully on the basis of race, color or national origin (intentional discrimination), and activities that have a discriminatory effect on the basis of race, color, or national origin (disparate impact discrimination).
For over 35 years, civil rights advocates effectively used Title VI regulations to dismantle segregation and uproot discriminatory practices. However, in Alexander v. Sandoval (2001), the U.S. Supreme Court ruled that individuals could no longer bring private lawsuits to enforce disparate impact regulations, reasoning that Congress had never expressly created such a “private right of action.” As a result, federally-funded activities that have harmful and disproportionate effect on people of color can only be challenged in court if one can demonstrate intentional discrimination, which is rarely possible.
The Sandoval decision has had a chilling effect on civil rights enforcement, leaving communities of color with limited recourses to challenge decisions that have racially inequitable outcomes. This is particularly true in the area of transportation, where billions of dollars in investments are stake, and where communities of color already suffer from a disproportionate share of transportation-related burdens while lacking access to safe, affordable and reliable transit.