NYSTEA influences Federal Transit Administration’s Civil Rights Guidance

As most are aware, the MTA is considering raising fares again for the 4th time in 5 years. This time around, equity should be a primary concern. Everyone is impacted when fares skyrocket, but some communities are usually hit harder than others. The last fare hike saw inequitable impacts, when low-income communities and communities of color were pushed to use more single-rides and weekly passes, as the $104 monthly MetroCard became unaffordable for many families.

In order to help prevent such disparities, transit providers are regulated under Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin by agencies that receive federal money.  Additionally the Executive Order 12898 on Environmental Justice, protects low-income people and people of color from inequitable shares of environmental benefits and burdens in federal programs.

Transportation projects have historically come under investigation for violations of civil rights. From the siting of diesel bus depots in communities of color,  to the diversion of funding for buses that serve predominantly people of color to build rail projects,  to the exclusion of minority communities from access to stations on a new light rail project,  public transportation continues to need monitoring to prevent discrimination.

Title VI distinguishes between two types of discrimination: intentional discrimination and disparate impact.  Intentional discrimination occurs when a policy or action by an agency is explicitly designed to disadvantage or privilege people based on race, color, or national origin.  Disparate impact discrimination is a policy or action that on the surface is racially neutral, yet results in a discriminatory outcome.

In the fall of 2011, the Federal Transit Administration set out to provide revised guidance documents for Title VI and Environmental Justice.  When the public hearings did not include New York State – the state that accounts for around one third of all transit trips in the country – NYSTEA secured a meeting with FTA officials to hear from New York.  NYSTEA then submitted its own comments to the docket for further consideration.

The FTA has now released the circulars.  There are many important changes to prevent discrimination.  Here are some specific recommendations from NYSTEA that made it in to the final Circular:

• Consider non-transportation sources of pollution when siting facilities – Requires analysis at census tract or census block level of surrounding similar facilities when siting transportation facilities, in order to help prevent the accumulation of disparate environmental and health benefits and burdens for communities.
• Mitigate disparate impacts from service and fare changes – When a disparate impact is identified, transit providers are required try to “avoid, minimize, and/or mitigate” the impacts.
• LEP guidance – The final Circular provides additional guidance for engaging stake holders with Limited English Proficiency, suggesting use of visual aides, videos, and accessible language for people who do not speak English or are not literate.
• Disparate impact analyses for DOTs and MPOs – State DOTs and MPOs are now required to analyze their distribution of state and federal funds for disparate impacts.
• Ridership surveys – Requires surveys of ridership to be completed by December 31, 2013, with information on race, color national origin, English proficiency, languages spoken at home, household income, and travel patterns.  While Census measures can tell us who lives along a transit line, only ridership surveys can tell us who actually rides transit.
• Transparency and accountability for boards – Transit boards must formally approve the Title VI program, major service change and disparate impact policies and analyses, and acknowledge results of service standards and monitoring.
• Consultation with EJ communities – Transit authorities should reach out to EJ communities and organizations in order to help create inclusive strategies to minimize impacts to vulnerable populations.

Another important change:

• Develop “Major Service Change” threshold with public – Transit providers must now engage the public in the decision-making process for setting the threshold that triggers a disparate impact analysis for a major service change.

NYSTEA commends the FTA for setting out on this process to strengthen civil rights protections in transportation.  These new provisions create helpful new tools to ensure that transit service is provided equitably for all.

We are already seeing the effects of NYSTEA’s advocacy as the new circulars playing out. In the MTA’s public comment period, it has already reached out to Environmental Justice and other Social Justice community organizations in the MTA service area to weigh in on the fare hike proposals. Meaningful engagement over the short and long term with communities, organizations, and riders are crucial for achieving transportation equity.