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Excerpted From: Michael Swistara, A Fare Share: A Proposed Solution to Address the Racial Disparity in Access to Public Transportation Funding in America, 26 Michigan Journal of Race and Law 521 (Winter 2021) (233 Footnotes) (Full Document)


MichaelSwistaraMore than six decades after the Supreme Court declared that separating train cars on the basis of race was inherently unequal, there remain vast racial inequities in access to public transportation in America. The deep inequality in access to funding for reliable and affordable transit has been characterized as a “transportation apartheid” by Robert Bullard, Director of the Environmental Justice Center in Atlanta, Georgia.

Getting to and from work is a daily challenge for many people of color. People of color have longer commutes than their white counter- parts and are more likely to live near busy roads, increasing their risk of health impacts from pollution and collision. Black workers are also three to six times less likely to have a car at home than white workers and are almost four times more likely to use public transportation for their commute.

Due to a history of race-based zoning laws and restrictive covenants on home ownership that barred Black residents from affluent neighborhoods near job centers in cities and suburbs, Black people are likely to live farther away from their jobs, making alternatives to driving, such as cycling or walking, impracticable - and in many areas, the sidewalk infrastructure simply does not exist. As a result, lower-income people of color are disproportionally reliant on public transportation as a means of access to work, school, healthcare, childcare, and recreation. Yet, despite continued zoning forcing reliance on public transit, Black communities suffer from disinvestment in their transit networks (and have for decades) while transportation resources are funneled towards wealthier, whiter, and less dense neighborhoods.

As this Note will discuss in greater detail, beginning in the post-World War II suburbanization boom and continuing into the 1990s, state and local adoption of facially “race neutral” policies that favored car owners widened the divide in access to mobility. Rail lines were closed in Black neighborhoods without adequate replacement. During the 2007-2009 Great Recession era of municipal belt-tightening, even more transit projects were slowed or cancelled. The few projects that proceeded focused on attracting “choice” riders--those who could otherwise drive but choose not to (i.e., wealthier, whiter suburban residents). Those who rely on public transportation for their daily needs often pay more into the system than their communities receive back, as metropolitan area transit boards spend most of their budgets on these “choice” riders, who constitute a minority of each system's ridership.

The handful of statutory and judicial attempts to remedy this inequity have failed. This is in large part because of the heightened restrictions the Supreme Court has placed on civil rights plaintiffs seeking to bring claims under Title VI, the provision of the Civil Rights Act of 1964 that prohibits discrimination on the basis of race, color, or national origin in programs receiving federal funding. A legislative fix is possible. This Note proposes legislation that would require that public transportation spending be apportioned to projects on the basis of population density, increase transparency through mandatory reporting requirements, and create a private cause of action.

Part I of this Note provides an overview of the history of racial discrimination as it pertains to public transportation funding and accessibility, with a focus on the post-war suburbanization of America. Part II illustrates the state of the problem currently, with case studies of Boston and Baltimore as examples. Parts III and IV discuss past attempts to address this problem, including litigation strategies and attempted statutory fixes. Finally, Part V proposes a new piece of federal legislation which builds upon past attempts and provides a robust and workable framework for tackling this issue by requiring that public transportation spending be allocated according to population density.

[. . .]

Truly addressing the deep-seated structural racism and inequality that plagues American cities must be an ongoing endeavor at all levels of government and society. This Note attempts to take a modest step in this direction by proposing federal legislation that would aim to improve access to public transportation for communities that have historically received under-investment in and have been disproportionally left out of newly funded projects. The proposed Act would establish a requirement for urbanized areas to prioritize funding for public transit projects according to the population density of the communities served, create disclosure requirements evaluating the effects of projects on marginalized groups, and would codify the ability for citizens to enforce the law. Applying this legislation to case studies like Boston and Baltimore demonstrates that this kind of density-focused apportionment will direct more transit dollars to communities of color and lower income neighborhoods. Denser communities of color and lower income neighborhoods are the most transit-reliant in the country but have seen disinvestment in transit accessibility as budgets have been reduced and remaining funding disproportionally flows to attracting wealthier, whiter suburban riders over improving accessibility for current transit users. A policy that refocuses transit dollars on the most transit-dependent communities is an anti-racist policy. As research has demonstrated, investment that reduces commute times will, in the long term, raise the chances of upward mobility for communities across America.

J.D./M.P.P., expected 2022, The George Washington University; M.A., Economics, 2016, Columbia University; B.A., Political Science and Economics, 2015, McGill University.

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