Ruling the Surface

July 3, 2024

The Supreme Court just killed Chevron, so what’s next for USDOT’s Civil Rights Programs?

The Supreme Court of the United States (SCOTUS) ruled 6-3 in favor of a group of fishing companies and against the Biden administration in a 35-page opinion published on June 28, 2024 (Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al. or “Loper”). This decision will have massive implications on the federal regulatory regime that has ruled for the past 40 years. The US Department of Transportation (USDOT) has three primary civil rights programs, and they were all developed during the Chevron era that SCOTUS just ended. But this does not mean these programs will suffer a similar fate, that depends much more on politics.

A quick overview of USDOT’s three main civil rights programs:

• The Americans with Disabilities Act (ADA) ensures accessible facilities, systems, vehicles, and policies. The ADA is not contingent on federal funding, it applies to everyone all the time. USDOT has authority over transportation-related entities.

• Title VI of the Civil Rights Acts of 1964 (Title 6) prohibits discrimination on the basis of race, national origin, and color (but not sex/gender) in federally-funded services and programs. USDOT has a range of regulations (well, sort of) that implement this law.

• The Disadvanatged Business Enterprise (DBE) program ensures nondiscrimination in the award and administration of USDOT-funded contracts (but not all). USDOT has a body of regulations and guidance that implement the program.

EK’s Bottom Line: The ADA statute is detailed and USDOT’s regulations are not that different from the statute, so the ADA rules are probably safe; the political environment is favorable to the ADA, but politics could derail any future rulemaking efforts by USDOT. The Title 6 program is likely to be put in a politically induced coma for the foreseeable future, and may never recover. The DBE program will likely suffer some cosmetic damage in the near-term, and the current political environment suggests that it will be reshaped entirely.

The ADA

The SCOTUS decision killed Chevron because agencies were coming up with rules that did not track closely enough to the actual law passed by Congress (i.e., the statute). Up until now, as long as the agency could come up with a half-decent reason for why the regulation is needed to carry out the law, the agency could write pretty much whatever regulation it wanted. Now, agencies will need a much stronger statutory basis for the regulations they develop and implement. Fortunately for proponents of accessible transportation, USDOT’s ADA implementing regulations track very closely to the law passed by Congress in 1990 (and a couple updates).

The ADA as passed by Congress is conveniently located at www.ada.gov (specifically, here). The ADA statute contains many details, and in most provisions there is not much room for interpretation on what Congress intended the law to do (and there are detailed committee reports). The USDOT regulations that carry out the ADA are found at 49 CFR parts 27, 37, 38, and 39 (note that this does not include air travel, which is covered by the Air Carrier Access Act). No, USDOT did not simply copy and paste Congress’s work, but they are similar enough to qualify as plagiaristic. Paratransit in Part 37 is probably the most dissimilar, but only because this is an area where Congress mostly deferred to USDOT to set the rules.

So, the current USDOT ADA regulations would probably survive most challenges. And unlike many civil rights programs, the ADA is philosophically supported by Republicans and Democrats alike, so the risk of a meaningful challenge is relatively low. If there is a serious challenge to the ADA, it will likely focus on paratransit regulations in Part 37 and the Federal Transit Administration’s (FTA) ADA Circular.

But what about future regulations? USDOT has shared that it is working on new ADA regulations. Surely, USDOT is not oblivious to recent legal developments and is aware of the politics. So, we can expect that USDOT’s proposed regulations will avoid making new policy. On the other hand, the ADA would be a smart way for Chevron supporters (mourners?) to test the Loper decision, given the political support for the ADA. Thus, politics will likely decide how far USDOT goes in its ADA rulemaking activities, but the ADA seems the safest of all civil rights programs.

Title 6

Unlike the ADA, Congress did not spend much time explaining the “how” of Title 6, and essentially just instructs USDOT to develop regulations that will prevent discrimination in federally-funded transportation activities. You can find Title VI of the Civil Rights Act of 1964 on the Department of Justice’s website (https://www.justice.gov/crt/fcs/TitleVI). USDOT’s Title 6 regulatory framework is more than just regulations, and is comprised of guidance and executive orders, the primary regulations are found at 49 CFR part 21. But the regulations do not do much, most of the “requirements” are found in guidance documents that are not as enforceable. For example, FTA’s Title 6 Circular functions as the implementing requirements for Title 6 compliance by transit agencies. Though SCOTUS does not directly address agency guidance materials in Loper, we can be sure that this SCOTUS would apply at least as high a standard for guidance as it does for regulations.

This is bad news for supporters of USDOT’s Title 6 rules. Of course, discrimination will still be illegal. But without regulations and guidance it will be difficult for USDOT to exercise its oversight authority, meaning that those who choose to illegally discriminate will be less likely to get caught. Politics is the other big problem for USDOT’s Title 6 rules – diversity, equity, and inclusion (DEI) programs are facing aggressive backlash from the political right and the left seems more focused on other issues. Given the current judicial landscape, razor-thin margins in Congress, and competitive presidential race, we cannot expect USDOT to make any moves to expand Title 6, or even aggressively enforce it. And if the current anti-DEI movement is resilient, it may be successful in rolling back what is required, or prohibited, under USDOT’s Title 6 regulations.

DBE

USDOT’s DBE program can be viewed as two separate programs: DBE Certification and DBE Program Operation. The DBE program requires each state to have an entity that certifies small businesses as DBEs, and each state and local agency receiving funds from FTA, the Federal Aviation Administration (FAA), or the Federal Highway Administration (FHWA), has to operate a program that ensures DBEs have access to federally-funded contracts. You can find the DBE regulations at 49 CFR part 26. Unlike the ADA and Title 6, the DBE program is created by authorizing legislation for surface transportation programs, most recently the Bipartisan Infrastructure Law ((BIL) or Infrastructure Investment and Jobs Act (IIJA)). With respect to DBE certification, USDOT’s regulations are relatively close to the language in BIL/IIJA, and represent a fairly obvious means of carrying out Congressional intent. Regarding DBE program operations, though, BIL does not say much about what the regulations should do. Considering that Congress was drafting BIL around the same time USDOT was drafting updates to the DBE program, and assuming Congress was coordinating with USDOT during these efforts, we can be relatively confident that the regulations are at least tolerated by Congress if not directly supported. Still, there are certain aspects of the DBE program, such as “contract goals,” that many view as a step too far and may offer an opportunity for opponents of the program to challenge USDOT’s regulations.

DBE contract goals are not quotas, but they sound like it and you need a few sentences to explain the difference. Worse for USDOT, the regulations and guidance USDOT has on this topic represent a policy decision on how to achieve Congressional intent, and sometimes contradict each other. So, contract goals represent a vulnerability in this post-Chevron environment. Contract goals are just one part of the DBE program, though, and savvy agencies that prefer using contract goals will likely find ways to effectively maintain the practice even if USDOT’s regulations are struck down by the courts (assuming the overall DBE program survives).

Yet again, politics has the greater potential to end the DBE program. The DBE program is always popular with the political left, and the right ranges from lukewarm to hostile depending on the broader political environment. The current environment is rather hostile. USDOT recently updated the DBE program regulations, making them ripe for challenge. It is worth noting that there is current litigation against the DBE program involving the certification criteria, but this focuses more on legal issues unrelated to USDOT’s interpretation of the statute. The bigger political risk is that the DBE program is either not reauthorized in the next surface transportation legislation or the universe of DBE firms is dramatically expanded on contracted (for example, opening the program to all small businesses or limiting it to women-owned only), and we know equity programs will be targets.

Conclusion

As we leave the Chevron regime and enter the Loper era, USDOT needs to adapt its civil rights programs and expect challenges to its regulations. The ADA regulations are well-positioned to withstand any attacks because they are similar to what Congress provided in the ADA statute. The Title 6 program is at the greatest risk because USDOT’s regulations and guidance are predominantly agency-made and only tacitly approved by Congress. The DBE program regulations are at risk for targeted attacks, and their recent update makes attacks more likely but the overall program more resilient. Proponents of USDOT’s civil rights programs should be more concerned about what Chevron’s demise means in the current political environment – the bar has been raised on what agencies can require and prohibit in a political battlefront.