Saturday, February 4, 2012

Special Report: Metro and Title VI

Unless you’ve been living under a rock since before Christmas, you know that Metro’s semi-annual service change program was abruptly suspended a mere two days before its scheduled December 18 implementation. In the days following that suspension, it was learned that the reason was the release of a Federal Transit Administration (FTA) audit of Metro’s Title VI review process.

So, what is this Title VI, you may be asking? Title VI is a part of the 1964 Civil Rights Act, which protects against a disparate impact of transit service and fare decisions, based on race, color, and national origin. Specifically, Title VI protects policies that are designed to be racially neutral from having an unintentional discriminatory effect. The FTA conducted a compliance review of Metro and other agencies in California (including San Diego and the Bay Area) and found deficiencies in five of 12 areas. The FTA also used the review process to provide assistance to Metro in better understanding the requirements of Title VI.

What the review wasn’t was an investigation, as the Bus Riders Union (BRU) had claimed at every opportunity while it was in process. Metro was not singled out for the review, and the FTA found similar issues at the other agencies they reviewed. Nor were any of the findings called violations, as the BRU is now claiming; the FTA calls them “deficiencies” and no agency received any kind of fine or other punitive action.

As to the specifics: The required Notice to Beneficiaries was missing from Metro’s vehicles and stations, and a temporary notice was quickly created and posted. (If you ride Metro, you’ve already seen them; they are long black vertical rectangles with white printing, with more than half of the space consisting of notices in several languages pointing non-English speakers at translated versions. A more permanent version will be finalized and reviewed by the FTA before posting later in the year.

And that leads to the question of how to deal with those who have Limited English Proficiency (LEP), as the FTA calls it. A four-factor analysis is being undertaken to identify which non-English languages require assistance in order to access Metro information and use the system; this will determine the number of LEP persons (or their percentage of the region’s population) likely to be encountered using public transit, the frequency of contact of those persons with Metro, the importance of public transit to those LEPs (how essential public transit is to those demographic groups), and what the cost will be to create the materials needed to address those groups’ needs. What is important to know is that the FTA doesn’t expect every single non-English speaking person to receive materials in his or her native language; given that resources are not unlimited, Metro will be allowed to make determinations of what the major non-English languages are and concentrate on creating materials for those. (The initial estimate is that somewhere between 12 and 20 languages will require translations, as it will only be considered a requirement if 5% of the region’s population speaks a particular language or more than 1000 of a given language’s speakers are users of Metro service.)

Where the Title VI matter impacts service changes and fare changes is that Metro had inconsistent standards and implementation of same. Much of this is being dealt with by changing policies and procedures and does not require reversing previous service or fare changes (as the BRU had falsely claimed). New service policies – including the definition of what constitutes a “major service change” – are expected to be approved by the Board at the February 23 meeting, along with the certification of Title VI reviews of the 2011 service change programs and the most recent fare changes. Believe it or not, the lowering of the day pass to $5.00 and conversion of the monthly pass to a 30-day rolling pass were supposed to have Title VI reviews, even though most people would see those changes as improvements that would not be discriminatory … or as Chairman Antonio Villaraigosa asked, “who got discriminated against by the day pass going down by a dollar?”

There are other areas to be addressed in the coming months, including the distribution of newer equipment in a way that prevents any area from having unreliable buses, security, and service monitoring (which will now rely less on passenger surveys and more on performance standards).

A lot of this did not go down well with the BRU, of course. Having now been slapped down for their claim that they forced an investigation which turned out to be much less and inclusive of more agencies, they now appear to believe that they should be in charge of remaking Metro’s Title VI policies. And their stridency has already cost them more of their rapidly-dwindling credibility; when they attempted to make demands, interrupting the report by Metro Director of Civil Rights Compliance Dan Levy, Villarigosa gavelled them down, saying “I am asking the questions and I will receive the answers.”

Undaunted, during public comment a BRU member revived the demand for the monthly pass to be returned to the $42 level it was at back in the days of the consent decree. That was followed by another clueless individual who thought Title VI should force LADOT to once again honor Metro’s passes. And John Walsh was chastised by Villaraigosa for continuing to call the agency racist.

Villaraigosa put forward a nice-sounding but meaningless motion calling for compliance with Title VI and the completion of corrective action plans with monthly reports to the Board … in other words, what staff would have done anyway. Director Mark Ridley-Thomas, in his usual quest to sound important, called the entire matter “embarrassing” (okay, I’ll concede that point) and that “our credibility is on the line.”

And now, my take on the matter:

First, the FTA should have clarified their own regulations on Title VI long before now. I find it rather disingenuous that they found “deficiencies” in Metro’s policies and procedures that likely would not have existed if better documentation had come from Washington as to what was expected. After all, it’s not like these regulations suddenly appeared out of the blue; the Civil Rights Act was passed in 1964, when Lyndon Johnson was President (more than a half-dozen administrations ago).

Second, if the BRU had not been so strident during the consent decree by having an attitude that they were somehow in charge, they might have formed a working relationship with Metro that lasted beyond the ten years of the decree. Had such a relationship existed, it’s very likely that few (if any) of the deficiencies would have existed because there would have been ongoing work on these issues.

Third, the dependence on performance standards rather than passenger surveys and the like is likely to bring an end to the Board interceding to “save” low-performing bus service, because giving favored treatment will likely violate the process that will have to be established for Title VI compliance. (The Line 442 passengers better start preparing for the end.)

Fourth, there will need to be a dependence on the five local Service Councils to remove proposed service changes that may not be viable based on the new requirements, rather than the near-ubiquitous “proposal withdrawn by staff” that has been used more and more often in recent years to avoid these issues. The Councils and the Board will need to share responsibility for ensuring that service change programs are compliant, and neither will want to defer that responsibility to the planners.

Out of necessity, I’ve simplified the discussion of what has happened and what will need to happen down the road. For those who want to delve into the subject more deeply, I offer these links to PDF documents on Metro's website: