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Let the people ride: Bringing buses to Beavercreek and revitalizing civil rights enforcement

Let the people ride: Bringing buses to Beavercreek and revitalizing civil rights enforcement

ABLE attorney Ellis Jacobs recounts the story of the hard-earned victory of Dayton-area citizens who were able to reverse a discriminatory decision regarding bus routes in Beavercreek. Jacobs was lead attorney on this case. This article was published in Ohio Lawyer, a publication of the Ohio State Bar Association.

A lead attorney in the case recounts the story of the hard-earned victory of Dayton-area citizens who were able to reverse a discriminatory decision regarding bus routes in Beavercreek.‚Äč

The singing began when the bus left the stop at Wright State University in Fairborn and continued until the bus came to rest at the next stop a mile and a half away near the Fairfield Commons Mall in Beavercreek. It was 6 a.m. on Sunday, Jan. 12, 2014. There was snow on the ground and the sun wasn't up yet.

Most of the 40 people on that bus were there to celebrate a hard-earned victory. But the first person on the bus that morning was a young man who had boarded the bus in Dayton to get to his job at Walmart near the mall in Beavercreek. He was just glad that he no longer had to get off the bus in Fairborn and make the dangerous walk from Fairborn to Beavercreek along the narrow, gravel-strewn, shoulder of the dark, long overpass over I-675 to get to work.

This story begins four years earlier, when the greater Dayton Regional Transit Authority (RTA) asked the city of Beavercreek for permission to extend an existing bus line that began in the city of Dayton and ended at Wright State University in Fairborn, where it turned around to return to Dayton.

The RTA wanted the bus to cross I-675 and stop in Beavercreek near a mall, a community college, and a new regional hospital before looping back to the city of Dayton.

Beavercreek is a predominantly white, fast-growing suburban city perched on the eastern edge of Dayton. The area around the Beavercreek Mall is one of high job growth, and study after study has pointed to the need for public transit to the area. Dayton's population is 43 percent African-American with 35 percent of its residents living in poverty. A former industrial city, it was hit hard when the auto industry moved out, leaving it smaller and poorer than it was several decades ago.

The relationship between these two cities is much like other city/suburb relationships throughout Ohio. Years ago, when African-Americans were moving from the south to northern industrial cities like Dayton, they were met by restrictive covenants and redlining maps that allowed them to live only in certain neighborhoods. In the 1960s and 1970s, when segregation was being dismantled, many whites abandoned the cities and moved to the suburbs.

Expansion of the highways and ring roads like I-675, which separates Fairborn from Beavercreek, helped move this along. Developers discovered just how profitable corn fields could be. Factories closed. The suburbs thrived; the cities did not. The result we see today is a substantial disconnect between where many people, particularly African-Americans, live and where opportunities thrive.

In March 2010, the RTA and Beavercreek began to discuss extending the bus route. Beavercreek has an ordinance that covers bus stops and requires them to meet certain "design criteria" with the city council ultimately having the final say. In the back-and-forth between the RTA and the Beavercreek director of public works, the RTA's plan was changed from six stops to three, and in November 2010 the RTA satisfied all of the design criteria and the application was ready for a vote in the city council.

What started as an administrative process designed to ensure functional and aesthetic compatibility then became a political process with troubling racial overtones.

After some council members initially expressed support for the bus stops, they all began to receive emails from Beavercreek residents expressing opposition to the application. Some of the emails insisted that RTA bus service would bring crime from the city of Dayton. Others warned that, "...we cannot allow West Dayton to strong arm its way into Beavercreek." West Dayton is the predominantly African-American part of Dayton.

At the meetings leading up to the vote, council members began to voice concerns about increased crime and highlight citizen opposition to the stops.

Several days before their vote, the council produced a list of 11 additional requirements for the RTA. Some went far beyond or contradicted the design criteria outright. For example, Beavercreek wanted RTA to provide heated and air-conditioned bus shelters, video surveillance of the bus shelters and an 18" thick concrete pad at each stop, when its guidelines called for 10."

The RTA director objected and pointed out that the only heated and air-conditioned bus shelters he had ever heard of were in Dubai and that 18 inch concrete pads were only needed if you were landing large airplanes.

When the city council voted 6-0 to reject the RTA's application in March 2011, much of the larger community was shocked and disappointed. The Dayton Daily News, which had extensively covered the issue, wrote an editorial entitled, "B-creek vote against RTA embarrassing." The editorial ended with these words, "...many recognize the objections council gave as a ruse for some people's prejudices."

That's when the Leaders for Equality and Action in Dayton (LEAD) came to Advocates for Basic Legally Equality to see if we could help. LEAD is a church-based social action group that works to solve local problems. It was at the forefront of those encouraging the RTA to expand bus service to areas of high job growth like Beavercreek.

My co-counsel Stan Hirtle and I saw the significance of the problem and thought it was important to represent a community group that was actively working to address such a critical issue, particularly if we could do it in a way that would empower that group and expand its capability to address other issues in the future.

We agreed to investigate and discovered that over the years Beavercreek had received tens of millions of dollars of federal highway money to build and improve streets. In fact, at that time it had 14 projects scheduled to receive $10 million in federal funds. Indeed, the bridge over I-675, which the RTA bus would pass while driving from its existing stops to the proposed new stops in Beavercreek, was going to be widened using almost $1 million in federal money.

Title VI of the Civil Rights Act of 1964 prohibits recipients of federal funding from excluding persons from participating in programs or denying persons the benefit of programs on the basis of race.1 Recipients are precluded from using criteria or methods in administrating programs that have the effect of subjecting persons to discrimination on the grounds of race.2

It was clear that not allowing bus stops in Beavercreek would have a disproportionate impact on African-Americans. Seventy-three percent of RTA riders are minority while only 27 percent are white. Nearly 12 percent of African-Americans in Dayton ride the bus to work, compared to 3.7 percent of whites. Dayton is 43 percent African-American, while Beavercreek is less than 3 percent.

For many years private federal litigation seeking to enforce Title VI was an important tool for fighting public discrimination. That ended with Alexander v. Sandoval in 2001, which found no private right of action to enforce the disparate impact regulations of Title VI.3

Despite the circumstances surrounding the Beavercreek decision, we knew that it would be difficult to prove that a public body intended to discriminate. So we began to consider filing an administrative complaint with the Federal Highway Administration (FHWA) focusing on the disparate impact of the city's decision and decision-making process.

We filed that complaint with the FHWA and the U.S. Department of Transportation (DOT) in August 2011.4

Initially, the DOT sent the complaint to the Federal Transit Authority, which has jurisdiction over public transit systems. It took a while for us to convince the DOT that, no, in this instance the mass transit system was the good guy. It was the City of Beavercreek that was taking federal highway money and then making decisions about how its streets could be used that had the effect of discriminating. This was relatively new territory for the Federal Highway Administration, but they ultimately assigned an excellent investigator to the complaint.

LEAD continued to protest, petition and speak out about the need for bus service in Beavercreek while the investigation proceeded.

That investigation moved slowly, but it did move. In April 2012 the FHWA sent a team to the area to meet with Beavercreek and RTA officials. They rode the bus and took the treacherous walk from the Wright State bus stop across the bridge into Beavercreek.

They also held a meeting open to the community. Two hundred people packed the College Hill Community Church for that meeting. There were job seekers and job counselors, community members and community leaders who told the federal investigators how inaccessible Beavercreek was to people who didn't own cars and the importance of bus transportation to the places where jobs are now located.

Time passed and there was no decision. LEAD continued to speak out about the issue, but after a year of waiting, community members became concerned and planned a large march across the bridge from Wright State to Beavercreek. The Beavercreek police chief initially insisted on an exorbitant bond to grant a permit for the march. He relented when reminded about the First Amendment implications of such a demand.

On April 29, 2013, hundreds of people marched the 1.5 miles across the overpass, getting a visceral feel for what bus riders who had jobs at the mall had to experience every day.

In June the Federal Highway administration issued its decision, finding that Beavercreek was in violation of Title VI.5 It was the first time the Federal Highway Administration had ever found a city in violation of Title VI based on a citizen complaint. The decision attracted attention around the country and was viewed as potentially revitalizing an important tool against discrimination that had been dormant for a number of years.

The FHWA's lengthy and tightly reasoned decision found that African-Americans disproportionately rely on RTA transit service compared to whites, and that as a result they would be disproportionately affected by the city's denial of the RTA's application to install the bus stops.

The decision looked at whether the city stated a substantial legitimate justification for the denial, examining carefully each of the reasons given for the denial. It found that none of them were necessary for the city to meet a legitimate, important goal that was integral to the city's mission.

The FHWA gave the city 90 days to comply. If it failed to do so, the FHWA could use its authority under Title VI to suspend or terminate federal highway assistance to the city.

After some discussion, Beavercreek decided to comply in November 2013, leading to the first bus ride to Beavercreek that cold early morning in January, almost four years after the stops were first proposed.

While the victory of the bus stops doesn't end the economic isolation of urban communities, it is one small step in the right direction. In some ways the bigger victory was the way this small triumph was greeted in the community. It was seen as an example of what citizens could accomplish if they organized themselves, stayed focused and fought hard to achieve justice. As Gladys Turner Finney, one of the riders on that first bus trip said, "It brings hope. It brings hope that if we work together, other things can change as well."