MTC's Executive Director Steve Heminger, foreground, listens to public testimony against MTC's plan to use federal stimulus funds for the Oakland Airport Connector last year. Photo: Matthew Roth

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.

Wynn Hausser, a spokesperson for Public Advocates, said the FTA letter and the possibility of a full formal investigation into MTC should be a wake-up call for a commission they have sued for discrimination in its funding formulas. The 2007 Darensburg v. Metropolitan Transportation Commission lawsuit alleged MTC was subsidizing trips for wealthier white people at transit agencies like BART and Caltrain at a higher rate than they do at agencies like AC Transit, where 80 percent of riders are people of color.

"We've been after the MTC for years with our lawsuits," said Hausser. "We've had to turn to Washington and fortunately we have a very brave FTA administrator who's willing to stand up against tremendous political pressure and do the right thing."

A chart created by Public Advocates that shows how much MTC subsidizes riders on various transit systems, as well as the racial make-up of that ridership.

The MTC's spokesperson, John Goodwin, was particularly abrupt in his response. "We can confirm receipt of the letter," he said. "Our legal guys are scrutinizing it and we will work with the FTA to meet their deadlines."

To remedy their concerns, the FTA has demanded the MTC produce numerous documents, including:

• MTC's documented process for investigating Title VI complaints
• A description of actions MTC took to investigate the Title VI complaint filed by Public Advocates against BART and alleging BART was not in compliance with Title VI
• A description of the penalty MTC assesses against a subrecipient for being in breach of contract as a result of failure to comply with Title VI, as well as a description of how MTC determines a subrecipient is in breach of contract….
• Provide copies of the subrecipient compliance reports as required by FTA….
  

Goodwin insisted the MTC would work to meet the requirements from the FTA, but Hausser didn't believe they will be able to comply because they don't have the requested documents.

"We have filed Freedom of Information Act requests of these documents and we have not received anything that looks like what they're being asked for," said Hausser, who noted Public Advocates had received tens of thousands of pages of documents through the Darensburg case. "That's not to say they don't exist, but if they do, we should have them."

Despite numerous requests for clarification, Goodwin would not comment further, except to say he was not aware of any other metropolitan planning organization (MPO) like the MTC in other areas of the country undergoing a similar review by the FTA.

Hausser said the FTA's letter should be alarming to other MPOs in California and beyond and that the FTA action signaled a change in Washington under the Obama administration to seriously consider the civil rights implications of transportation funding.

"If I were an MPO in another city, I would be sitting up and taking notice," he said.

Both Hausser and John Knox White, the OAC project manager for TransForm who has advocated BART and the MTC support a more affordable bus rapid transit airport connector, argued the FTA letter repudiated the MTC's contention that the matter was a mere technicality.

"It definitely shows a systemic issue with the way these major transportation projects are planned and implemented," said Knox White. He and other advocates have repeatedly argued the MTC and BART are merely paying lip service to civil rights, and are failing to do the necessary analysis to meet the FTA's criteria. Both Knox White and Hausser point to the recent actions by the federal government as vindication of their position.

Knox White, however, doubted the agencies would change overnight and pointed to what he characterized as BART's vilification of the advocates who objected to the OAC as proposed.

"Is the Bay Area going to step up and be the gold standard on civil rights they want to be, that they feel they are, or is this just going to be another time where we cut people out of the public participation process," said Knox White, who echoed Hausser's assertion that the FTA under former President George Bush didn't enforce civil rights laws with the same vigor the current FTA does.

"Is the Bay Area worse than everywhere else?" he asked. "I'm not sure I'm ready to make that determination, but there are significant problems. It's clear we're not setting the gold standard on this."

Image: BART

"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.

"We think this is a victory for BART riders, transit workers and the community of East Oakland," said Wynn Hauser, spokesperson for Public Advocates, the legal team that filed the FTA complaint. "These are serious civil rights violations and we applaud FTA for following through on not only the letter but the spirit of Title IV. They are not saying you have to pay lip service, but you have to do this work."

"Now low income people and communities of color will be able to shape the project that they were originally denied so they can share in the benefits," he added.

John Knox White of TransForm, a transit and smart growth advocacy organization, said the decision vindicates the position TransForm and its allies have taken for more than a year. "Through this, BART has repeatedly tried to keep the public out of this process," he said.

White also pointed to the benefit the $70 million will have to maintain service and avoid fare increases at transit agencies across the Bay Area, including Muni, BART, and AC Transit, which all have budget deficits.

"FTA's decision allows MTC to put this money to transit agencies, including BART, who desperately needs it now," said White. "It's a win for everybody."

As for how this affects Muni's budget concerns, spokesperson Judson True said: "It's too early to say exactly what impact this will have on our operating budget." But, he noted, "We've done the work required to be ready to receive any funding that MTC directs our way. Since the stimulus bill first passed, we've been prepared for this eventuality."

According to True, of the $17.5 million Muni would receive, $4.3 million will go to preventive maintenance, which is essentially operating expenses. The remainder would be programmed toward light rail vehicle rehab.

Neither BART nor MTC were immediately available for comment.

More from FTA Administrator Rogoff's letter:

Since my letter of January 15, FTA staff and BART have worked diligently but unsuccessfully on the development of a corrective action plan that might be acceptable. I am required to now inform you that your plan is rejected. I ask that you immediately get in contact with Region IX Administrator Leslie Rogers for the purpose of pursuing alternative projects for the Bay area that can be obligated prior to the March 5 deadline.

I am required to reject your plan for the following reasons. Based on the timelines submitted by BART, there is no way the agency can come into full compliance with Title VI by September 30, 2010. The requirements of ARRA dictate that any funds not disbursed by September 30, 2010, must be lapsed back to the Treasury. And since I cannot allow BART to draw any funds for the OAC project prior to coming into full compliance, it is clear that pursuit of the OAC project would result in the funds either being reallocated out of the Bay area or lapsed. Both scenarios are unacceptable to me as I am sure they are to you. Let me say that, based on FTA's experience in other cities, BART is being realistic in admitting that the process of coming into full compliance will take considerably longer than the 8+ months that remain before the September 30 deadline. I appreciate and respect your honesty in this regard.

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. Moreover, it is clear that, if FTA were to pursue such a course, the likelihood of protracted litigation with the parties that made the initial complaint is extremely high. 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.

The efforts of the last few weeks have not been wasted. Wholly separate from the fate of the OAC project, it is imperative that BART, as a recipient of FTA funds, come fully into compliance with Title VI as soon as possible. The plans developed between our staffs over the last few weeks lay the groundwork for BART to achieve that important goal.

Transit justice advocates at a 2004 rally nine months before the suit was filed. Photo by Public Advocates Inc.

"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’.”

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.”

The suit named as the plaintiffs bus riders Sylvia Darensburg of East Oakland, Vivian Hain of Berkeley and
Virginia Martinez of Richmond, along with Communities for a Better Environment and the
Amalgamated Transit Union Local 192. They were represented by Public Advocates and two local law firms.

“For years MTC told us bus riders don't matter as much as train riders. The judge said we do matter. MTC can and should be doing a lot more to support AC Transit bus riders," said Darensburg, a working mother and student who has spent up to five hours a day riding public transit.

In her ruling, U.S. District Court Judge Elizabeth Laporte said she sympathizes with the plaintiffs "who have experienced declines in bus services on which they depend to meet their basic needs." She wrote the "MTC could do somewhat more to benefit AC Transit’s minority riders through bus expansion projects" but "the MTC has met its burden of showing a substantial legitimate justification for the challenged funding practices."

She also wrote that when looking at the data from the viewpoint of absolute numbers of riders advantaged or disadvantaged by MTC’s funding policies the picture becomes more complicated than the plaintiffs portrayed it:

Plaintiffs’ main complaint is that MTC facilitates expansion of costly capital-intensive rail and light rail, especially by BART, instead of channeling more funds to bus service, especially by AC Transit.  Yet in FY 2005-06, BART carried a significantly higher total number of passengers, over 101 million, so with a minority percentage of 53-percent, its total minority passengers were over 53 million. By contrast, in FY 2005-06, AC Transit carried only 65 million passengers (approximately one-third less), and at 78-percent minority, the total number of AC Transit’s minority passengers was approximately 51 million, or 2 million fewer.

The lawyers who filed the suit on behalf of the AC Transit riders are considering an appeal.