Streetsblog San Francisco

The Federal Transit Administration has increased the likelihood the Metropolitan Transportation Commission (MTC), the Bay Area's regional transportation planning and funding body, will undergo a full civil rights investigation after it sent a letter last week [PDF] insisting the MTC turn over documents detailing its protocols for monitoring civil rights practices of the government agencies and private groups it gives federal money. Civil rights and transportation advocates are confident the MTC doesn't have those protocols in place and argue the FTA investigation will show a pattern of discriminatory funding of transportation projects in the Bay Area that dates back decades.

The federal inquiries started after Public Advocates, a civil rights law firm in San Francisco, filed a formal complaint with the FTA over BART's failure to conduct an equity analysis for its fare policy related to the construction of the controversial Oakland Airport Connector, an elevated tramway that would connect the Oakland Coliseum BART station to the Oakland Airport. As a result of the complaint, the FTA investigated BART and found it didn't conduct the necessary fare analysis as required by federal Title VI civil rights law and denied $70 million in federal stimulus funds for the project. The FTA subsequently initiated a full investigation of the transit agency across all its applicable practices.

Because the MTC has given substantial funding to BART over the years and specifically for the OAC, the FTA in February requested the MTC provide justification of its Title VI compliance [PDF].

MTC Executive Director Steve Heminger argued in a March letter [PDF] that transit agencies such as BART, as subrecipients of federal funding, are responsible for ensuring they have done their due diligence and that they are not using the money on projects that discriminate against people of color or low-income communities. Heminger essentially took a narrow view of several FTA rules, saying because MTC is "not a State DOT or State administering agency," it was not responsible for mandating Title VI compliance for that funding.

In FTA's most recent letter, Director of the Office of Civil Rights Cheryl Hershey pointed to several other broad requirements, including an FTA Master Agreement the MTC signs each year, that mandate the MTC monitor Title VI requirements, even of its subrecipients.

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In a stern letter to BART [PDF], Federal Transit Association (FTA) Administrator Peter Rogoff informed the agency that it would not be able to develop a suitable action plan by March 5th to comply with equity and race requirements for the $70 million in stimulus funds for the Oakland Airport Connector (OAC), a move that may kill the project.

"Given the fact that the initial Title VI complaint against BART was well founded, I am not in a position to award the ARRA funds to BART while the agency remains out of compliance," wrote Rogoff.

In his letter, Rogoff said he was sure the project opponents that filed the original complaint with the FTA would proceed with further lawsuits, jeopardizing the tight timeline on stimulus funds. He advised BART and MTC to reallocate the money or the region would risk losing the funds altogether.

"The likelihood of protracted litigation with the parties that made the initial complaint is extremely high," wrote Rogoff. "Given this situation, and the fact that we are now only 3 weeks away from the March 5 deadline, I must bring these discussions to a close so that we can work together to ensure that the ARRA funds can create and preserve jobs in the Bay Area."

As a contingency plan, the Metropolitan Transportation Commission (MTC), which oversees transportation planning in the Bay Area, had planned to meet on February 17th to decide whether to reprogram the $70 million if BART did not meet its obligations. The MTC will likely move the $70 million to the region's transit agencies by pre-established funding formulas, rather than risk losing the money outright.

OAC opponents were delighted with the news.

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Nearly a month after a San Francisco federal judge ruled against a discrimination lawsuit against the MTC on behalf of AC Transit riders of color, attorneys representing a broad coalition of riders, labor and environmental justice advocates have appealed to the 9th U.S. Circuit of Appeals. 

"We're not done fighting," said plaintiff and AC Transit rider Sylvia Darensburg of East Oakland.

As we noted in our original post, the lawsuit claims the MTC has a long history of channeling funding to mostly white riders on Caltrain and BART at the expense of AC Transit bus riders of color. It named as the plaintiffs Darensburg, Vivian Hain of Berkeley and Virginia Martinez of Richmond, along with Communities for a Better Environment and the Amalgamated Transit Union Local 192.

In her ruling, U.S. District Court Judge Elizabeth Laporte said she sympathizes with the plaintiffs but "the MTC has met its burden of showing a substantial legitimate justification for the challenged funding practices." Even though she sided with the MTC, advocates point out it's significant that she noted the "disparate impact" MTC's funding practices have had on AC Transit riders of color. 

From the press release:

While vindicating minority bus riders’ claims in some respects, the judge accepted MTC’s excuse that the discriminatory impact of its decisions was outweighed by other goals.

Plaintiffs intend to argue on appeal that the Court applied the wrong legal standard in concluding that MTC had adequately justified the discriminatory impacts of its decisions.

“The trial court held MTC to too low a standard,” said Adrienne Bloch of Communities for a Better Environment (CBE). “Civil rights laws require that when otherwise lawful actions have a discriminatory impact on racial minorities, they must meet a much stricter standard of justification; there must be a ‘necessity’.”

Randy Rentschler, a spokesperson for the MTC, said in response to the appeal: "This action was expected and we’ll deal with it as we must as a public agency."

In 2005, with frustration and anger mounting over service cuts and fare hikes for AC Transit riders, who are mostly people of color, a coalition of riders, labor and environmental justice advocates filed a federal class-action lawsuit against the Metropolitan Transportation Commission (MTC), accusing the agency of racial discrimination in the way it doles out transit funding. It claimed the MTC has a long history of channeling funding to mostly white riders on Caltrain and BART at the expense of AC Transit bus riders of color.

Although a San Francisco federal judge sided with the MTC last week, advocates point out that the ruling (PDF) noted the "disparate impact" AC Transit riders have endured because of the MTC's strategic long-range plan for transit expansion projects, or Resolution 3434:

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.  Although Plaintiffs’ challenge to MTC’s initial decisions on which projects to include under Resolution 3434 appear to be barred by the statute of limitations, those decisions constitute relevant context for MTC’s further reductions in 2006 of the scope of the few AC Transit bus projects that had initially been included. 

“The court acknowledged that our lawsuit may have already pressured MTC to channel more funds to AC Transit," said Guillermo Mayer, staff attorney at Public Advocates. “We're confident that momentum is building in the fight for transit fairness and equality.”

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