TITLE VI ANALYSES & LEP ACCESS*

Transcription

1 1 TITLE VI ANALYSES & LEP ACCESS* M I N M I N G W U M O R R I, O F F I C E O F T H E G E N E R A L C O U N S E L, S A N F R A N C I S C O B AY A R E A R A P I D T R A N S I T D I S T R I C T

2 Today s 10 minute Presentation Title VI Assessment / Equity Analyses LEP Assistance Plan 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. --President John F. Kennedy,

3 Disparate Treatment Programs or activities with the purpose of discrimination. Disparate Impact Programs or activities with the 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 [Private right of action unlimited] 3

4 Compliance with this Circular does not relieve a recipient from the responsibl[ity] [of] ensuring that all of their activities are in compliance... FTA Circular B; Ch. II-1(2.) Which activities? How? All Fare Changes Major Service Changes Facility Siting, and All Activities Circular B Fares (Ch. IV-19); Service (Ch. IV-12); Facility Siting (Ch. III-11) Title VI Legal Standard Programs and activities cannot: (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 case law] 4

5 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: 40 % non-minority 5

6 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

7 An equity analysis without adequate opportunities for public input is less defensible & invites scrutiny Develop and train an interdepartmental Title VI team - civil rights, planning/project, fares, service, and legal Ensure reports receive legal review; designate counsel to review reports. 7

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9 Federal Federally-funded recipients must take reasonable steps to ensure meaningful access to its programs and activities by LEP persons. -DOT Policy Guidance 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. - California Dymally-Alatorre Bilingual Services Act Consequences of non-compliance? Case Law Examples. SCOTUS: Lau v. Nichols; Alexander v. Sandoval Federal: See bibliography State: See bibliography 9

10 Four Factor Analysis: from 112 to 22 to 4 languages Language Spoken at Home LEP Population Estimate Percentage of Total Population Spanish 295, Chinese (Cantonese, Mandarin) 185, Tagalog 47, Vietnamese 27, Russian 17, Korean 16, Japanese 9, Persian 9, Hindi 7, Arabic 6, Portuguese 5, French 3, Italian 3, 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, Total 689, Source: U.S. Census Bureau, 2006 to 2008 American Survey Community. 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 10

11 (In)Accuracy Tools & Rules 11

12 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?? 12

13 Tools Second Translator Check Meet/Discuss with Translators: Transit 101 Focus Group Check: LEP Advisory Council Rules (as guidance) Types of interpreter/translator certifications Government Code Oath of accuracy Evidence Code Professional Conduct Rules State Rules of Court Federal Court Interpreters Act 13

14 Be Proactive Train attorneys: issue-spotting list Train staff and executives: OCR Work with FTA (dedicated ) Thanks BART Co-Counsel Law Clerks Other Agency Attorneys Title VI Legal Working Group? 14

15 Minming Wu Morri Office of the General Counsel San Francisco Bay Area Rapid Transit District (BART)