APTA Legal Affairs Conference Civil Rights Panel February 25, 2013 1
Bay Area Demographics Title VI/Disparate Impact Legal Standards Federal & State Scope Example(s) LEP Legal Standards Today s Presentation 10:30 10:45 Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination. Thanks Federal and State Individualized Scope (4-Factors) Implementation (In)Accuracy Tools & Rules --President John F. Kennedy, 1963 2
Disparate Treatment v. Disparate Impact Programs or activities with the purpose or effect of discrimination, (Federal) 49 CFR part 21.5 (DOT Title VI Regs) [Private right of action limited] (California) Government Code 11135; 22 Cal. Code Reg. 98000. [Private right of action unlimited] Disparate Impact v. Disproportionate Effects Programs or activities of a federally-funded recipient that (1) disproportionately affect persons on the basis of race or national origin (2) lack a substantial legitimate justification, and (3) have alternatives with less disproportionate effect [(Federal) Title VI case law; (CA) GC Sec. 11135 case law] 3
Rule-Based Compliance Which? How? All Fare Changes Major Service Changes Facility Siting Disparate impact must be assessed as prescribed in Circular 4702.1B Fares: Ch. IV-19 Service: Ch. IV-12 Facility Siting: Ch. III-11 Results approved by recipient s governing body and submitted to the FTA Legal Standard Compliance Which? All remaining programs and activities. Noncompliance refers to an FTA determination that the recipient is not in compliance with the DOT Title VI regulations... Ch. I-4(u). Compliance with this Circular does not relieve a recipient from the... responsibl[ity] [of] ensuring that all of their activities are in compliance... Ch. II-1(2.) How? As determined by the agency Assess before, not after, the final decision 4
Other Activities Federal Railroad Administration Commuter rail Federal Highway Administration Earthquake/seismic retrofit Parking Fees My transit fare is $ 2, and my parking fee is $1. You are now proposing to increase my station s parking fee to $3. That s a bit much. - LEP Advisory Council member Parking Users: 60% non-minority Station Users: 50 % non-minority 5
weigh the costs of compliance against the costs of non-compliance assess risk of disproportionate effects. Costs of non-compliance Costly Litigation: LA MTA, NY MTA, MTC Withdrawal of federal funding: BART Costs of compliance: - public participation, - study, and - possible mitigation. 6
An equity analysis without meaningful public participation is less convincing & invites scrutiny Develop and train an interdepartmental Title VI team - civil rights, planning/project, fares, service, and legal Designate an attorney to review reports 7
Federal Federally-funded recipients must take reasonable steps to ensure meaningful access to its programs and activities by LEP persons. -DOT Policy Guidance; Executive Order 13166 Recipients shall use the information obtained in the Four Factor Analysis to determine the specific language services to provide. FTA Circular 4702.1B, Ch. III-7(9.a.). State Law It is a discriminatory practice for a recipient to fail to take appropriate steps to ensure that alternative communication services are available, except where such requirement would place an undue hardship on the recipient. - Dymally-Alatorre Bilingual Services Act (Cal.Gov t Code section 7290 et seq) Case Law SCOTUS: Lau v. Nichols; Alexander v. Sandoval Federal: See bibliography State: See bibliography 8
Four Factor Analysis: from 22 to 4 languages Language Spoken at Home LEP Population Estimate Percentage of Total Population Spanish 295,763 7.96 Chinese (Cantonese, Mandarin) 185,070 4.98 Tagalog 47,047 1.27 Vietnamese 27,229 0.73 Russian 17,083 0.46 Korean 16,834 0.45 Japanese 9,857 0.27 Persian 9,691 0.26 Hindi 7,776 0.21 Arabic 6,909 0.19 Portuguese 5,094 0.14 French 3,907 0.11 Italian 3,688 0.10 Thai 3,162 <0.10 Mon-Khmer, Cambodian 2,720 <0.10 German 2,131 <0.10 Urdu 2,004 <0.10 Laotian 1,767 <0.10 Serbo-Croatian 1,632 <0.10 Gujarathi 1,481 <0.10 Greek 1,348 <0.10 Polish 1,305 <0.10 Other Languages 36,001 0.97 Total 689,499 18.55 1. DOT Safe Harbor Threshold/Census Data: 22 languages 2. Agency Surveys Frequently Encountered Standard 2 languages 3. Public Input Eliminated Languages Narrowed Scope 4. Resources & Balancing 5. Monitoring 4 languages Vital Documents Tiers Translated Signs Posted Staff Training Video LEP Encounter Tracking System Triennial Review Source: U.S. Census Bureau, 2006 to 2008 American Survey Community. 9
(In)Accuracy Tools & Rules 10
Machine / Computer Translations These translation tools sometimes provide inaccurate translations. They should be reviewed and corrected by a speaker of the target language. - California Judicial Council Changes in meaning Idioms Cultural/Legal civil rights = rights under the civil code?? Technical Vehicle load levels = vehicle power levels?? 11
Tools LEP Advisory Council Pictograms Procedural Safeguards Second Translator Check Meet/Discuss with Translators: Transit 101 Focus Group Check Rules (as guidance) State Government Code Types of interpreter/translator certifications State Evidence Code Oath of accuracy State Rules of Court Professional Conduct Rules for Interpreters Federal Court Interpreters Act Other LEP Rights of Action Unconscionability [Contracts] Intentional Discrimination 12
Be Proactive Train attorneys Train staff Internal Issue-Spotting Checklist Thanks BART Co-Counsel Law Clerks 13
Minming Wu Morri Office of the General Counsel San Francisco Bay Area Rapid Transit District (BART) mwu@bart.gov 510.464.6019 14