Revisiting Federal Title VI Regulations

Today, the “floor” for measuring transit equity is set by the Federal Transit Administration’s implementation of Title VI of the 1964 Civil Rights Act, which prohibits discrimination based on race, ethnicity, and national origin in programs receiving federal funds. 

The FTA’s current Title VI Circular (guidance) dates to 2012. It requires that before transit agencies enact a “major” change to their fares or service, they conduct an analysis to show that the change does not have a “disparate impact” on people of color. These requirements are narrow, easily gamed, and insufficient as a mechanism to secure equitable transit.

Title VI’s regulatory power is too weak. The requirements are standardized and straightforward for any U.S. transit agency to complete. But they lack robust instruction, allotting too much discretion to each transit agency conducting an analysis. As a result, methods are inconsistent across agencies, rather than a standardized evaluation of equity.

Transit agencies have the authority to define what counts as a “major change” and a “disparate impact.” If a proposed fare or service change would have a disparate impact on people of color, the agency can still enact the change by arguing that it is “the least discriminatory” option available. Thresholds and binaries simplify the analysis but make the results vulnerable to manipulation. Evaluations also cover a discrete time period, which can mask the net effect of changes over time. Theoretically, an agency can “phase in” a major service change with disparate impact, without conducting a Title VI analysis, by making a series of  incremental adjustments over time.

The Title VI Circular stipulates some universal parameters, but in ways that yield inconsistent results for agencies of different service areas, sizes, and ridership. The Title VI analysis is meant to scrutinize service changes to “minority routes,” for example, but what constitutes a minority route differs for every agency. A transit route is deemed “minority” if the percentage of non-white residents living nearby is higher than the percentage of non-white residents in the transit agency service area. Under this standard, a suburban agency’s minority routes might be much whiter than those of a neighboring urban agency.   

Title VI disregards the regional nature of transit equity. Each transit agency evaluates how a policy change would alter the balance of equity in its own system. But most transit riders live in regions with complex networks of transit systems, operated by multiple transit agencies. 

A Title VI analysis might identify that service cuts in a majority-Black neighborhood do not have a disproportionate impact on people of color, if the agency’s ridership is majority people of color. But using a regional scope to analyze the same service change might show disproportionate harm to Black people if they face service cuts while many of the region’s white residents, served by another agency, do not.  

Title VI produces oversimplified analyses. The FTA requires that transit agencies analyze ridership (the demographics of riders affected by a fare or service change, based on survey data that is expensive, and therefore collected irregularly) or proximity (the demographics of the people living near transit who will be affected by a fare or service change, based on Census data).

Because it relies on Census data, the proximity analysis is the simplest for most agencies to conduct, but it is also deeply flawed as a measure of the equity of a proposed change. The proximity analysis looks at who lives near transit, but this can be quite different from who benefits from transit.

For example, lowering commuter rail fares and increasing service between a city and a predominantly white suburb may look inequitable using a proximity analysis, even if most new riders are low-income people of color who gain affordable access to suburban job centers. (Such changes could also look inequitable using a ridership analysis if most current commuter rail riders are white, even if the changes would lead to substantial new ridership by people of color.)

Many agencies have the ability to do more comprehensive equity analysis, but are still required to conduct the oversimplified Title VI analysis. And because the FTA has not provided other guidance around equity, the Title VI process has become the de facto industry standard for defining and addressing transit equity, for which it is ill-equipped.

The scope of Title VI analysis is too narrow. Title VI analysis aims to determine whether a proposed change is equitable, but says nothing about whether existing transit service is equitable.

As we describe in the case study interview with Alex Karner, the FTA has commissioned research that recommends more comprehensive analyses, including:

• Access to opportunities. How many opportunities (e.g. jobs) can someone reach on transit in an amount of time? The metric uses OpenTrip Planner and Census demographic and jobs data.
• Trip characteristics. What are the travel times, transfers, fares, or other characteristics of transit trips that people make? The metric uses rider survey data if available, or Census Transportation Planning Product (CTPP) data on commute patterns.
• Logsum measures. Given a transit service change, how do people’s travel times change? The metric is weighted by population and trips made. It uses FTA’s STOPS travel demand model and CTPP data.

Each of these measures reveals more detail about the equity of transit outcomes than the analyses currently required in the Title VI Circular.

The FTA should promote the adoption of the “next generation” equity analyses that it has developed but not yet released. It should:

• Work with transit agencies to understand the internal capacity needed to effectively conduct these analyses, and to determine how to define a “disparate impact” with these metrics.
• Update the Title VI Circular to allow agencies to use these metrics to comply with TItle VI requirements instead of the current proximity and ridership measures.
• Potentially update the Circular to require the use of these metrics instead of the current proximity and ridership measures.

Federal, regional, and local leaders should work with equity advocates to replace or supplement the narrow Title VI analysis (which measures the equity of proposed changes) with a prospective standard that measures the equity of the existing transit system (for example, by showing gaps in transit access between different demographic groups) and whether a region is making progress toward equitable transit access. 

• This standard should include both quantitative measurement of transit access and whether local agencies have adopted equitable planning processes – for example, whether they are using comprehensive equity analysis and have representative community participation.
• The fair housing field shows a path for reforming Title VI requirements: In 2015, the U.S. Department of Housing and Urban Development issued a new regulation, termed Affirmatively Furthering Fair Housing, to require funding recipients to comprehensively evaluate barriers to fair housing. This replaced previous requirements which led to narrow, quantitative analyses that are close equivalents to the Title VI analyses that transit agencies conduct. (The 2015 regulation was rescinded by the Trump administration but is likely to be reinstated under the Biden administration.)

Currently, at least two measures of ridership — passenger revenue miles and unlinked passenger trips — help determine the amount of federal transit funding a region receives. (The federal “urban formula” [section 5307] program contains an “incentive tier” that rewards agencies with a high ratio of passenger miles to operating cost; the “small transit intensive cities” program apportions funds to regions with populations below 200,000 depending on their performance on six measures including unlinked passenger trips per capita, passenger trips per vehicle mile, and passenger trips per vehicle hour.) This creates a financial disincentive for service changes that advance equity but may reduce performance on these measures.  The federal government should create new incentives in grant programs that support equitable transit service — for example, an incentive for transit investments that expand access to opportunities for low-income people.

Thoughtful preparation, an inclusive analysis process, and critical application of the conclusions are indispensable components of any equity evaluation. 

An equity impact assessment of proposed policies should be conducted well before they are finalized, so the results can factor into the final decision. 

• Equity should be weighted at least as heavily as other considerations, like fiscal impact. This means an equity assessment should be completed and considered at the same time as other evaluations that factor into decision-making.
• Conducting an equity analysis only after a policy decision has been reached can have a damaging effect, robbing the equity evaluation of any practical impact, minimizing public input (if any was collected), and damaging riders’ trust in the agency. However, a post-implementation reevaluation is appropriate to determine if the policy change had the desired positive effect on equity.

Agencies should establish how equity evaluations are conducted in advance. Guidelines should specify what prompts an evaluation, what will be measured, which types of data will be used, who will conduct the analysis, and who will review it. Guidelines should also specify how results will trigger or influence next steps. These factors should be determined collectively and transparently, then institutionalized and consistently applied across departments.  

• The equity evaluation process should be consistent with agency-wide equity principles and can be included in the agency’s equity strategy.