Link to the full January-April 2025 issue here.
by Aaron Golub, Alex Karner, Gabriel Quiñones-Zambrana
Title VI and transportation planning overview
The federal laws that govern major planning and infrastructure development processes have historically offered opportunities to improve planning processes and project outcomes. While there is no specific federal statute pertaining to the fairness of transportation systems, Title VI of the 1964 Civil Rights Act offers a sweeping anti-discrimination framework for any activities relying on federal funding. Assistant Attorney General Thomas Perez under President Obama used to refer to Title VI as the “sleeping giant” of civil rights law; its “breadth of coverage is extensive and it can address a huge array of injustices: from environmental racism to discriminatory profiling, and from disparities in health care and basic services to inequities in transportation, housing, and education” (Perez, 2010).
While true that Title VI has sometimes played an important role in addressing discrimination in transportation systems, we wonder whether the giant has been slayed by subsequent jurisprudence, executive actions, and a shift in the overall political climate that has upended the fundamental ways we define discrimination. Here, we review the overarching framework of Title VI and elaborate upon some of the challenges it has faced over the past several decades related to its interpretation and enforcement. In doing so, we build on Jerret Yan’s 2013 review of the promises and challenges of using Title VI to create more equitable transportation systems. We note the profound shift in the use of Title VI following the landmark BRU vs. Los Angeles Metropolitan Transportation Authority (MTA) case in 1996 and the Supreme Court’s Sandoval decision in 2001.
Building on Yan’s observations regarding the shift to administrative from judicial review of disparate impact claims, we highlight key recent transportation-civil rights cases and close with some thoughts about the prospects for Title VI in the context of a Supreme Court and federal administration that do not acknowledge the existence of discrimination.
Background and legal basis
Title VI of the Civil Rights Act includes several sections relevant to prohibiting discrimination in transportation systems. Section 601 of the statute lays out a basic prohibition against discrimination in the actions by all recipients of federal funding, while section 602 allows federal agencies to promulgate rulemaking to enforce Title VI among federal recipients. As a result, communities seeking to address discrimination could pursue actions through judicial review or administrative review.
Indeed, civil rights enforcement has historically been a critical tool in the fight for advancing transportation equity and mobility justice. Some of the better-known success stories are inspiring. Take the example of the Los Angeles Bus Riders Union/Sindicato de Pasajeros (BRU/SDP) vs. Los Angeles MTA. In the mid-90s, the BRU/SDP used Title VI to argue a disparate impact theory challenging the MTA’s plan to expand rail service while raising fares for bus riders. Bus riders were (and continue to be) more likely to be people of color and low-income people than rail riders, and the actions were determined to create a disparate impact which demanded remedy. That case was settled in federal court, resulting in a 10-year consent decree that expanded bus service and held down fare increases.
Supreme Court limits judicial review
Later developments would limit the effectiveness of judicial review of Title VI claims. Yan (2013) highlighted the challenges to judicial review, including the nuance involved in defining and measuring inequities, and the other complexities facing decision makers in light of multiple modes, geographies, funding streams and types of benefits and burdens created by transportation systems. The high-water mark for judicial action was the aforementioned BRU/SDP case.
Yan (2013), however, chronicled the significant shifts in interpretation and enforcement of Title VI in the period since the 1996 BRU/SDP settlement. Most notably, the 2001 Supreme Court decision in Alexander v. Sandoval engendered a seismic shift in Title VI jurisprudence. A central issue before the Supreme Court was whether private individuals could sue to enforce disparate-impact regulations under Title VI, or if enforcement was limited to administrative review by federal agencies. Overturning the District Court and the Eleventh Circuit Court of Appeals, the Supreme Court, in a 5-4 decision, held that private individuals cannot sue to enforce disparate-impact regulations. This ruling shifted enforcement responsibility from the courts to federal agencies, meaning that the ferocity with which claims would be investigated would depend upon political appointees, significantly narrowing the scope and potential of Title VI litigation.
Modest wins under an administrative enforcement regime
Following Sandoval, administrative enforcement of Title VI claims became the de facto standard approach for addressing discrimination claims. The almost-impossible evidentiary standard required to prove intentional discrimination claims ensured that this would be the case. Several examples of administrative enforcement of Title VI demonstrate that it can be used administratively under a disparate impact framework to advance fair transportation systems.
But we must again note that this administrative review depends upon the political and ideological leanings of the administration. Historically, Republican administrations have been much less willing to investigate and enforce disparate impact claims. The three administrative actions discussed below all occurred under Democratic administrations. The first two were initiated and decided under President Obama and the third under President Biden.
In 2011, the Leaders for Equality and Action in Dayton (LEAD) filed a complaint with the Federal Highway Administration (FHWA), alleging that the City of Beavercreek, Ohio discriminated against Black transit riders. The complaint centered on the city’s rejection of a request from the Greater Dayton Regional Transit Authority (RTA) to install three bus stops near a suburban mall. The city attempted to impose multiple requirements on the RTA that it had not previously entertained, including installing surveillance cameras and heating and cooling, among others. After an investigation, the FHWA ruled in 2013 that Beavercreek violated Title VI and ordered the city to take corrective action, requiring the installation of the bus stops under the monitoring of the Ohio Department of Transportation.
A second example of administrative action is from Corpus Christi, Texas (highlighted in this journal in the April-June 2016 issue). Residents of the Hillcrest neighborhood filed a Title VI complaint in early 2015, claiming that the proposed Harbor Bridge replacement project would have a disproportionately negative and discriminatory effect on the historically Black community. This community was already marginalized due to industrial development and existing highways. The investigation found that the project might violate Title VI, as it could deepen segregation and expose residents to greater environmental hazards. In response, both the Federal Highway Administration (FHWA) and the Texas Department of Transportation (TxDOT) entered into a Voluntary Resolution Agreement (VRA). The agreement outlined measures such as a voluntary relocation program with financial support for homeowners and renters, assistance for local businesses and churches, community liaison services, and environmental mitigations like pollution control and park enhancements.
In late 2021, the North Houston Highway Improvement Project (NHHIP), a $7 billion initiative by the Texas Department of Transportation (TxDOT) aiming to reconstruct Interstate 45 North between Houston and the North Sam Houston Tollway, was paused while the FHWA investigated potential Title VI violations. Community advocates alleged that TxDOT failed to address serious harms and disregarded community concerns. To resolve these issues, FHWA and TxDOT signed a VRA, allowing the project to move forward. The agreement outlined measures to mitigate community impacts, including detailed design improvements, stakeholder engagement, affordable housing initiatives, right-of-way acquisition, flood mitigation, and construction oversight.
Limits of Title VI
As we have demonstrated, the power of Title VI has weakened over time. Earlier judicial review seemed to hold significant potential for altering planning and project outcomes, as illustrated in the BRU/SDP case. The examples of administrative review are lackluster in comparison, resulting in pauses or voluntary agreements without the teeth of a court-convened consent decree. Looking forward, additional challenges are on the horizon. In 2023, the Supreme Court put forth an extraordinary set of propositions in Students for Fair Admissions v. Harvard when they struck down affirmative action in college admissions. Ultimately, they ruled that the protections against discrimination embodied within Title VI also extend to white and Asian students claiming that they have been harmed by college admissions policies that allow race to be used as a factor. The court’s decision claims that “Eliminating racial discrimination means eliminating all of it.” The notion that policies designed—however imperfectly—to rectify the historical and ongoing injustices faced by Black and brown Americans are themselves discriminatory is absurd on its face. When reviewing any type of race-conscious policy or practice, the courts have long differentiated between “invidious” policies that harm “racial minorities” and “benign” policies that benefit them. The prior jurisprudence makes clear that the potential harms at issue for civil rights enforcement are those suffered by minority groups.
These limitations suggest that other means are likely to be more effective in engendering material changes in transportation conditions. Title VI is simply no longer the right tool to effect transportation policies and infrastructure that advance equity and justice goals.
What’s next? Looking beyond Title VI
It was already clear during the first Trump administration that it was going to create headwinds to progress on anti-discrimination oversight and enforcement in the transportation arena. The words equity, justice, and civil rights did not appear in the administration’s strategic transportation plan, and EPA’s council on environmental justice was weakened, among other harmful measures.
At the onset of the second Trump administration, the priorities for the U.S. Department of Transportation are becoming even clearer. Shortly after his confirmation, Transportation Secretary Sean Duffy promulgated two policy memoranda. One set out the priorities for discretionary transportation funding. Specifically, the memorandum noted that locations with high birth and marriage rates as well as compliance with the administration’s immigration priorities would be prioritized for funding. This directive stands in stark contrast to the Biden administration’s policy to direct funding towards communities with the greatest need under the Justice40 initiative.
The second memorandum described purging USDOT of all “woke” policies and practices. Whereas in prior Republican administrations, civil rights enforcement was put on a back burner, it seems that in this one, any protections that have been developed will be attacked and actively rolled back. Even the meager protections afforded by the Federal Transit Administration’s circulars on environmental justice and civil rights are likely to be repealed. And based on the administration’s interpretations of civil rights law, as embodied in their various anti-DEI executive orders and the dear colleague letter sent by the U.S. Department of Education, those interested in advancing civil rights must look beyond Title VI.
What might this look like? We propose that building power among those at risk of discrimination is a key method that can be used to advance civil rights protections going forward. Community based organizations (CBO), like transit rider unions (e.g. BRU/SDP), can amplify the individual voices of public transit passengers, turning them into a collective roar that agencies would find impossible to ignore. Transit operator unions can also be brought into the fold, finding common cause with passengers in building reliable, convenient, and affordable public transit systems. Local, regional and perhaps even state government could step in to increase engagement at this time of gutted federal oversight in order to ensure that potential discrimination or disparate impacts are avoided. And where that shows little promise, CBOs can also provide a counterweight to agency-led “public involvement” efforts that have historically sidelined genuine community input in favor of agency perspectives. The philanthropic community could also prioritize building community capacity to take on these new roles, understanding that CBOs’ efforts will be doubled in the absence of a federal partner.
Building power collectively, CBOs can articulate unmet needs and push back against agency narratives. When communities can lead earlier in the planning or project development process, they can steer narratives and project priorities instead of using complaints and legal actions later in the process. These types of initiatives might bring additional benefits if organizing translates into other areas of life, including housing and labor. While we may lament the loss of Title VI protections, it may be possible to build a more just world through these emerging actions.
Resources
Yan, J. (2013). Rousing the sleeping giant: Administrative enforcement of title VI and new routes to equity in transit planning. Calif. L. Rev., 101, 1131.
Perez, T. (2010). Memorandum from Thomas Perez, Assistant Att’y Gen., to Federal Funding Agency Civil Rights Directors, regarding Title VI Coordination and Enforcement 4 (Aug. 19, 2010)
Aaron Golub, is a professor at the Nohad A. Toulan School of Urban Studies & Planning, Portland State University (agolub@pdx.edu); Alex Karner, is an associate professor in the Graduate Program in Community and Regional Planning, The University of Texas at Austin; Gabriel Quiñones-Zambrana, is a PhD student in the Nohad A. Toulan School of Urban Studies & Planning, Portland State University.
