March 9, 2011 | 5:56 pm

A Forward Looking Decision in Civil Rights

Posted by  David A. Lehrer

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A couple of weeks ago the federal Ninth Circuit Court of Appeals, one of the most liberal, if not the most liberal, federal appellate court in the country, handed down an opinion that has slipped under the radar of the news media and the punditry who are normally attuned to events that mark major change.

The case, Darensburg v. Metropolitan Transit Commission, is an appeal from a federal district court decision involving allegations of discrimination in the decision of the Transit Commission to favor greater investment in future rail projects over bus expansion in the Bay area. The plaintiffs—a group of racial minorities who ride buses operated by the Alameda-Contra Costa Transit District, a community-based organization, and a labor union—alleged that the MTC intentionally discriminated and made decisions, that, even if not intentionally discriminatory, had a disparate and unfair impact on minorities.

The trial court had found that there was absolutely no evidence of intentional discrimination by the MTC but allowed a trial as to whether there was a disparate impact on minorities by the decision to favor rail investment over buses. After hearing all the evidence, the trial court found no disparate impact.  The appellate agreed with the trial court, but broke important ground in the reasoning it applied to its rejection of the plaintiffs’ assertions.

Judge Barry Silverman (a Clinton appointee) wrote:

The statistical measure upon which Plaintiffs relied to establish a prima facie case is unsound, and their claim rests upon a logical fallacy. Although Plaintiffs’ statistical evidence shows that minorities make up a greater percentage of the regional population of bus riders than rail riders, it does not necessarily follow that an expansion plan that emphasizes rail projects over bus projects will harm minorities…..Not only does plaintiffs’ statistical evidence fail to prove discrimination, but their circumstantial evidence does not support any inference that MTC’s adoption of the Regional Transit Expansion Plan was motivated by racial bias.

The unanimous three judge court rejected wholesale the kind of statistical data that is often accepted as dispositive. For example, the plaintiffs presented the fact that minority ridership on BART (the Bay area’s rapid transit rail system) is 53% while the minority ridership on Alameda County Transit (the bus system that plaintiffs favor) is 78%. The plaintiffs’ conclusion being that any action that benefited rail over bus was necessarily discriminatory in impact, if not intent.  The court wisely looks beyond the superficially troubling data to conclude that the rapid transit expansion plan,

“Does not affect solely bus riders or solely AC Transit rider—it affects an entire integrated transit system’s users….Plaintiffs’ regional-level population statistics fail to explain with any precision the effect the Regional Transit Expansion Plan will have on minority transit users. Under Plaintiffs’ theory, so long as the population of bus riders contains a greater percentage of minorities than the population of rail riders, any RTEP that emphasizes rail expansion over bus expansion, even where such a plan may confer a far greater benefit upon minorities than whites, would be subject to legal challenge.”

The reasoning of the court has serious implications in countless other areas where a disparity in numbers between minorities and non-minorities is often taken as evidence of discrimination without a deeper examination of the issues at play and the dynamics of complex human interactions that aren’t revealed by simple statistical disparities.

The concurring opinion by Justice Noonan (Reagan appointee) succinctly explicates what is wrong with the case he had to decide and the process it reflects:

A federal court is asked to review the allocation of billions of dollars among a variety of state agencies, some of them not before the court. The court is asked to look into the future to gauge the fairness of the allocations. The court is asked to assume the identity and interests of various parts of the population characterized by the litigants in terms of categories created by racial origins of the persons living here today. Using these categories—hopelessly outdated in the Bay Area—-this litigation presents a controversy in which the court is asked to determine the fairness of future plans dependent on at least seven factors which the court would have to measure, combine, and evaluate as a balanced or unbalanced combination…..

The twentieth century racial categories so confidently deployed no longer correspond to American life among the young…..What is true of the young is already characteristic of the Bay Area where social change has been fostered by liberal political attitudes, and a culture of tolerance. An individual bigot may be found, perhaps even a pocket of racists. The notion of a Bay Area board bent on racist goals is a specter that only desperate litigation could entertain.

This is a refreshing breath of fresh air in the realm of civil rights litigation—-an acknowledgement of the changing attitudes of Americans and their implications for legal theories. Rather than easily rely on the invocation of stale and ossified theories based on the social dynamics of the 1950’s and 60’s this court has looked to see what is really going on and came to the right decision.

It has shed the notion, prevalent for decades that presumed that there was often a hidden agenda that laws affecting broad swaths of people failed to reveal. Minorities and poor folks were the targets and legislators and bureaucrats masked their real intentions. This opinion doesn’t assume an evil subtext. It grants that the decisions made are difficult ones and that multiple interest groups were at play. But it concluded that, barring dispositive evidence that poor folks and minorities were to be victims, the court’s role should be minimal. It gave the benefit of the doubt to a body politic that has matured and become far different from what it was just forty years ago.