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.