By Thomas W. Sanchez & Marc Brenman (Click here to view the entire P&R issue)
This article is the authors’ updated version of their Introduction to their 2007 book The Right to Transportation: Moving to Equity. We then asked several transportation-knowledgeable commentators to respond—that Forum appears directly following the article — CH
Transportation is vital. The Supreme Court has recognized the right to travel as one of the fundamental rights guaranteed by the Fourteenth Amendment to the U.S. Constitution. The Universal Declaration of Human Rights, at Article 13, states, “Everyone has the right to freedom of movement and residence within the borders of each state.” Given this important role, it is expected that policymakers, advocates and users battle over transportation policy and its implementation. Too often, however, those battles are over specific project funding and construction in particular states, Congressional districts, towns and neighborhoods, and scant attention is paid to larger social and economic effects.
The history of the Civil Rights Movement shows the importance of transportation to people of color. In the slavery-era South, African Americans had to possess passes to travel off their plantations. The Underground Railroad, while symbolic and not a real mode of transportation, signified escape to freedom. In 1955, the arrest of Rosa Parks for refusing to give her seat on a bus to a white rider sparked the Montgomery bus boycott. Freedom Riders faced violent attacks to assert the rights of African Americans to ride on integrated buses traveling interstate. Today, we have recurrent issues of racial profiling and police stops for “driving while black and brown.” Many past and current transportation policies have limited the life chances of minorities and other traditionally discriminated against people by preventing timely access to places and opportunities at an acceptable level of accessibility, service, quality and safety.
Americans have become increasingly mobile and reliant on automobiles to meet their travel needs, due largely to transportation policies adopted after World War II that emphasized highway development over public transportation. According to recent Census estimates, less than 5% of urban work trips were made by public transit; however, this varies significantly by race and location. Minorities are less likely to own cars than whites and are more often dependent on public transportation. Cold numbers are brought to life by examples like Hurricane Katrina, where many African Americans could not evacuate due to lack of transportation. The “transit-dependent” rely on public transportation not only to travel to work but also to get to school, obtain medical care, attend religious services, and shop for basic necessities such as groceries. These needs intertwine, often for the worse. For example, lack of accessibility to fresh and healthy food leads to health problems, such as obesity and high blood pressure. The transit-dependent are often people with low incomes, and face economic inequities because transportation policies, and enormous subsidies of public funds, are oriented toward travel by car.
Through the years, a number of key Supreme Court civil rights decisions hinged on transportation issues, including ones concerning the right of owners to pursue fleeing slaves across state lines (Dred Scott v. Sandford, 1857), and creating the “separate but equal” concept of provision of services to African Americans (Plessy v. Ferguson, 1896).
The Modern Civil Rights Movement and Transportation
Nearly 100 years after the Dred Scott decision, civil rights and transportation issues persisted. As alluded to above, on December 1, 1955, Rosa Parks, a black seamstress and civil rights activist, was arrested for refusing to obey a Montgomery, Alabama, bus driver’s order to give her seat up for a boarding white passenger as required by city ordinance. Such municipal and state laws designed to separate the races were common in the South at the time. Outrage in Montgomery’s black community over the arrest sparked a boycott against the city’s bus line—the Montgomery bus boycott, one crucial incident igniting the modern Civil Rights Movement. The Rev. Dr. Martin Luther King, Jr. emerged as the president of the Montgomery Improvement Association (MIA), which organized the boycott. As the MIA’s demands expanded beyond open bus seating to include more equal access to other municipal services, white opposition increased. Preaching nonviolence, Dr. King was convinced that the cause could be won through a combination of dignified behavior and economic pressure on the part of the protesters.
The boycott ended in December 1956, over a year after it began. The U.S. Supreme Court ruled that segregation on city buses was unconstitutional. Desegregation of buses took place on December 20, 1956, after federal injunctions were served on the City and bus company officials, forcing them to follow the ruling. There was also a little-known six-month bus boycott in Tallahassee, Florida, in 1956, which was not successful in desegregating local bus service.
Another famous challenge to racial discrimination and transportation took place when a mixed group of whites and blacks, called Freedom Riders, was sent by the Congress Of Racial Equality (CORE) in May 1961 to lead a campaign forcing integration in bus terminals and challenge segregation in local interstate travel. Congressman John Lewis, a pioneer of the modern Civil Rights Movement and one of the original 13 Freedom Riders, has said: “It was almost impossible for blacks and whites to travel together from Washington, D.C., through the South to New Orleans…you had signs saying, ‘White Waiting,’ ‘Colored Waiting,’ ‘White Men,’ ‘Colored Men,’ ‘White Women,’ ‘Colored Women.’ Segregation was the order of the day. There was a tremendous amount of fear…the Ride was going to test this decision, try to desegregate these places, but also…take the civil rights movement into the heart of deep South.”
At bus terminals, the black Freedom Riders would go to the white dining areas and waiting rooms, while the white Freedom Riders would go to the area reserved for blacks. The buses were attacked by mobs in Anniston, Alabama, where one bus was destroyed by a firebomb. There were riots in Birmingham and Montgomery, Alabama, when blacks attempted to use facilities reserved for whites; federal marshals and the National Guard were called out to restore order and escort the Freedom Riders to Mississippi. Many were arrested in Jackson, Mississippi, for violating the state’s segregation laws, and a long series of court battles began. These protests led in 1961 to an Interstate Commerce Commission ban on segregation in all interstate transportation facilities.
Title VI of the Civil Rights Act of 1964
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color or national origin by recipients of federal financial assistance. It applies to all recipients of federal aid, such as state departments of transportation, metropolitan planning organizations (MPOs) and transit agencies. It also applies to all programs run by federal aid recipients, regardless of whether the specific program is federally funded. Prohibited discrimination includes denial of benefits or services, provision of inferior benefits or services, segregation, and any other treatment of an individual or a group differently and adversely because of race, color or national origin. The federal courts have defined these criteria to include limited English proficiency and accent based on national origin or race. For example, a Title VI violation would occur if a state transportation agency decided to furnish replacement housing to whites but not to people of color being displaced because of a highway project.
In 2001, the U.S. Supreme Court in Alexander v. Sandoval ended the ability of private individuals to bring suit to enforce Title VI regulations. Federal regulations under Title VI prohibit recipients of federal funds from conducting activities that have a less favorable effect or “disparate impact” on members of one racial or ethnic group than on another. Disparate impact is discrimination that results from methods of program administration or facially neutral practices that, though uniformly applied to all persons, nonetheless have the effect of disproportionately excluding members of a protected class; denying them an aid, benefit or service; or providing them a lower level of service than others. Now individuals may bring lawsuits charging a violation of Title VI only when they can prove that an action was taken intentionally to discriminate. It is much harder to prove discrimination by intent than by disparate impact. Individuals can no longer rely solely on statistical evidence to show that an action had a disparate impact on persons of a specific race, color or national origin.
Federal agencies still can and must enforce these regulations. Individuals and groups can still file administrative complaints with federal agencies. These are supposed to be investigated and findings made. Federal agencies may suspend or terminate funding to obtain compliance with Title VI or may seek equitable relief, such as an injunction. However, this is rarely done, and there are allegations that federal agencies are not sufficiently vigorous in their enforcement of the law. Today, an agency like the Environmental Protection Agency has a backlog of approximately 300 Title VI complaints that it has not investigated or made findings on. The Sandoval decision argues for the federal government to more rigorously enforce Title VI because private lawsuits are now severely limited.
Federal agencies such as the Federal Highway Administration and the Federal Transit Administration have issued guidance on Title VI and environmental justice. In addition, Executive Order 12898 requires federal agencies to achieve environmental justice by “identifying and addressing disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” The adverse impacts the Executive Order speaks of include “the denial of, reduction in, or significant delay in the receipt of, benefits of DOT programs, policies, or activities.” (DOT Order, 62 Fed. Reg. at 18381) The duty to “identify and address” these adverse impacts falls not just on the federal agencies, but also on their funding recipients. But the guidance has failed to address the concerns most often raised by community groups about the accumulation of negative economic and environmental impacts caused by transportation projects, their location, and the distribution of resources and services across metropolitan communities. The guidance called for processes to review potential Title VI or environmental justice issues, but established no thresholds, expectations or standards. There is still debate as to what exactly is required, though a recent administrative complaint finding in 2010, in Urban Habitat Program et al v. Bay Area Rapid Transit (BART), has indicated the need for a federal funding recipient to conduct an equity analysis of the impact of major service changes and fare increases on minority and low-income populations. In this case, BART wanted to extend a transit line to the Oakland Airport using stimulus funds provided by the American Reinvestment and Recovery Act. The line would have replaced existing bus shuttle service, but at double the fare; the complaint also challenged the elimination from the half-billion dollar, 3.2 mile project of intermediate stops that would have provided low-income and minority residents of the surrounding East Oakland neighborhood with access to retail and hotel jobs along the way. Finding that BART had failed to conduct the required equity analysis, FTA withdrew $70 million in stimulus funds from the project.
BART had initially claimed that it met the requirement in its environmental impact study for the project. But attempts to graft transportation equity onto environmental review requirements have not been notably successful. An example of this failure is the construction in 2004 of a site for construction of highway bridge parts on the site of a large Native American burial ground in Port Angeles, Washington. Although an extensive environmental impact statement was prepared, it failed to notice the burial site.
The Broader Framework
In a broader sense, transportation equity is also about environmental justice, metropolitan equity and the just distribution of resources. These concepts represent an evolution in how civil rights and transportation are interrelated—especially when we look back on the early cases involving slave transport and the events precipitating the Montgomery bus boycott. These debates involve difficult and unsettled issues of what constitutes equity, justice and opportunity. A further debate involves looking forward versus repairing the errors and injustices of the past. The concept of affirmative action never took hold in transportation equity, and now, as the federal courts have largely discarded affirmative action, that window of opportunity may be gone. The current economic crisis in the U.S. means that transportation- disadvantaged people are stuck with the vestiges of a crumbling transportation infrastructure that never did serve them well. Instead, resources are put into dreamy and expensive projects like high-speed rail that will be prohibitively expensive for them to ride, and will cut through their communities one more time. Strong enforcement of a robust equity analysis requirement, on the other hand, could inject some meaningful “affirmative” requirements into the process of allocating billions of dollars for transportation projects. U.S. DOT’s environmental justice order, for instance, requires an analysis “to identify, early in the development of the program, policy or activity, the risk of discrimination so that positive corrective action can be taken.”
More Recent Cases
One of the major breakthroughs of the transportation equity movement came when the Los Angeles Metropolitan Transportation Authority (LAMTA) and the Los Angeles Bus Riders Union, a project of the Labor/Community Strategy Center, negotiated a consent decree as part of a court settlement in 1996. In the case, Labor/Community Strategy Center and Los Angeles Bus Riders Union v. Los Angeles Metropolitan Transportation Authority, the court was asked to find that LAMTA had provided inferior services to Los Angeles’s largely minority and low-income bus riders. Furthermore, LAMTA was directing resources to its commuter rail lines, which served a more affluent and primarily white population, at the expense of its bus users. Prior to trial, the judge directed that the parties work to settle the case. This settlement included hundreds of millions of dollars for new buses, which are ridden primarily by people of color and low-income people.
The economic downturn has caused many transit providers across the country to consider or institute cutbacks in services or fare hikes. Since a high percent of bus riders are people of color and low-income, these cutbacks disproportionately affect those who are already transportation-disadvantaged. For example, in the Washington, DC area, the Washington Metropolitan Area Transportation Authority increased fares by 20% for buses, and 15% for Metrorail. Metrorail is a heavy-rail system ridden primarily by suburban commuters and tourists. The Transportation Equity Network (TEN) and the Gamaliel Foundation are monitoring such impacts and advocating for greater attention toward public transportation needs.
Other civil rights cases are working their way through the courts, including a suit filed in 2010 by Arlington, Virginia, alleging that state and federal transportation officials violated Title VI in proposing to build high-occupancy toll lanes along a major highway that cuts through minority areas. It alleges that services to people of color along the corridor would be decreased, in favor of whiter and higher-income commuters from the outer suburbs. Once again, the realities of separated housing both drive transportation issues and are their effect. The U.S. District Court in the case, County Board of Arlington v. Department of Transportation, et al., has permitted it to go forward. As noted above, however, it is notoriously difficult for civil rights intent cases to be proved.
Debate over the new surface transportation funding bill continues, with the bill on hold as of this writing. One element of the debate is how to fund surface transportation. The current method, based on a fuel tax paid by users, is drying up. We hope that it is replaced with a more equitable system, because currently it constitutes a flat tax that has economically regressive effects on low-income people. Economic issues inevitably intercede in transportation debates. Another example is the current popularity of tolling of roads, bridges and tunnels. If instituted simply, such tolls also have economically regressive effects. The long-term implications for declining social mobility in the U.S. are disturbing. There are methods around the problem, such as using some of the new tolling revenues to purchase more public transportation. But in the current poisonous partisan atmosphere, will there be room for such rational debate and solutions?
Another critical equity issue before Congress in the funding bill is the restoration of federal operating assistance for transit. Until it was eliminated by the Gingrich Congress, federal subsidies had supported not just transit capital projects, but also operations. The lack of adequate operating revenue often hits the local bus systems used by minority and low-income riders the hardest, since those systems are unable to recover the same farebox revenues as deluxe commuter rail systems that cater to a more affluent ridership. An early victory in restoring operating assistance was an amendment to the stimulus bill in Spring 2009 that allowed up to 10% of ARRA transit funds to be used for operating purposes. Many eyes are currently on a bill that would authorize $2 billion for emergency transit operating assistance for transit systems across the country.
In May 2010, the State of Arizona passed controversial anti-immigrant legislation, SB 1070, with provisions that many social justice advocates regard as discriminatory and punitive against Latinos. The American Civil Liberties Union, the Mexican American Legal Defense and Education Fund, and the National Immigrant Law Center have filed suit in federal court to challenge the legality of the statute. One of the causes of action in the suit concerns the constitutionally protected right to travel. It states that the Privileges and Immunities Clause of the U.S. Constitution, art. IV, § 2, cl. 1 and the Fourteenth Amendment prevent states from infringing upon the right to travel, including the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in another state, without a rational or compelling justification. The suit states that SB 1070 interferes with the rights of out-of-state citizens to travel freely through the State of Arizona without being stopped, interrogated and detained. This resonates with the Freedom Rider cases, and shows how transportation concepts continue to be viable in the pursuit of civil rights.
What Is Transportation Equity?
Transportation mobility is a hallmark of full membership in American society. The early challenges related to racial discrimination and segregation involved discriminatory practices that directly limited transportation access and mobility of people of color. The effects of limited transportation mobility persist. The lack of mobility helped create ghettos, de facto segregated schools and housing, and social and community isolation and lack of cohesion. Opportunities for civic participation and public involvement were physically cut off. Promises made by the leadership of the dominant society, such as housing to replace that destroyed in “blight clearing” projects, are often unfulfilled. Whites in suburbs have forgone physical mobility for social cohesion, while destroyed inner-city neighborhoods have been left with neither mobility nor social cohesion.
Efforts to challenge discrimination, segregation and inequitable transportation policies have become increasingly sophisticated, encompassing a broad range of related social impacts. The term transportation equity refers to a range of strategies and policies that address inequities in the nation’s transportation planning and project delivery system. Community-based organizations of low-income and minority residents, with the important involvement and leadership of faith-based organizations, are recognizing transportation’s significant role in shaping local opportunities and disinvestment. Though the definition of transportation equity varies from place to place, most of these community residents would agree that an equitable transportation system should:
- Ensure opportunities for meaningful public involvement in the transportation planning process, particularly for those communities that most directly feel the impact of projects or funding choices.
- Be held to a high standard of public accountability and financial transparency.
- Distribute the benefits and burdens from transportation projects equally across all income levels and communities.
- Provide high-quality services—emphasizing access to economic opportunity and basic mobility—to all communities, but with an emphasis on transit-dependent populations.
- Equally prioritize efforts both to revitalize poor and minority communities and to expand transportation infrastructure.
- Repair some of the damage caused by previous policies that fueled urban disinvestment and suburban sprawl.
Transportation infrastructure can displace residents and permanently damage community structure and integrity. Both the construction and operation of infrastructure can impair (or benefit) walkability and livability. Use of motor vehicles and rail cause air pollution, noise and pedestrian hazards, disproportionately affecting people living near them. Preferential investments in auto-centered transport have generated a transit-dependent subclass that has substantial barriers to access. Transportation systems facilitate race-, ethnic- and class-based segregation, contributing to environmental injustice.
On-road mobile sources contribute to the highest health risks near major roadways. Land use decisions should be made with an attempt to protect sensitive individuals where air pollution is expected. There are lessons to be learned from environmental law and process. At the scoping stage in the National Environmental Policy Act (NEPA) process, there should be adequate consideration of Title VI and environmental justice. Minority and low-income populations should be identified early and their concerns examined and addressed, at the planning stage. Cumulative impacts need to be considered. The precautionary principle should be invoked. As the recent massive and catastrophic oil leaks in the Gulf of Mexico have shown, categorical exclusions to the need for a proper environmental impact statement (EIS) cannot be lightly granted by federal agencies. But even an EIS is not a solution if social needs and cultural history are not properly considered, as was shown in the Port Angeles case. The responsibilities of planners are more than legal, because a conservative federal judiciary has undercut legal requirements. Planners’ responsibilities are also moral and ethical. Just as a number of faith-based organizations have undertaken environmental concerns due to a sense of responsibility for stewardship of God’s creation, planners need to get back to their roots of responsibility.
Solutions need to be sought, not just by advocates and not just in faith, but also in legislatures and Congress. Fixing the Sandoval decision, returning the “private attorney general” provision for private right of suit under Title VI, and incorporating environmental justice concepts into statute would be important steps. Also important is avoiding panic-driven decisions to cut public transportation services to those who most need them. The ARRA “shovel-ready project” concept has led to funding too many pothole-filling efforts. The larger American polity needs to be considered, with a return to the American creed of social mobility and opportunity.
Thomas w. Sanchez (email@example.com) is professor and director of the Urban Affairs and Planning program at Virginia Tech.
Marc Brendan (firstname.lastname@example.org) is consultant, teacher, and former state and federal civil rights agency official.