Federal rules do not prevent the CTA from making smart cuts

Explaining Title VI of the Civil Rights Act

Cars in the CTA’s Kimball railyard. Source: CTA

On May 31st, the Illinois legislature failed to approve funding for the CTA that would enable the agency to avoid a looming fiscal cliff.¹ In the absence of additional state money, the CTA is going to have to cut service, raise fares, or do both just to stay solvent. In order to avoid a transit death spiral, where service cuts trigger ridership reductions that force even more service cuts, the CTA needs to make those changes as efficiently as possible – maximizing the ridership (and farebox revenue) that it can hold onto.

But that’s easier said than done. Notably, Title VI of the Civil Rights Act imposes some important rules to prevent transit agencies from discriminating against racial minorities and low income riders when making cuts. There hasn’t been a lot of coverage of those Title VI rules, but they’ll play an important part in the CTA’s actions over the next few months. They’re also often misunderstood. Here’s the Chicago Tribune’s explanation of them back in June:

Because the agencies receive federal funding, they will almost certainly go through a Title VI process to make sure that any proposed cuts — or fare increases — do not disproportionately affect people of color or low-income people.

For instance, the agencies will have to show that if they are cutting service 40% for riders overall, they are not cutting service by a significantly higher percentage for Black riders or low-income riders. If there will be a disparate impact from proposed cuts, they will have to show that they are taking steps to mitigate those effects. The Title VI process would include public hearings with the opportunity for riders to share their concerns.

That’s not entirely correct. The Title VI process is important – and it’s very important that the CTA try to minimize the burden of cuts or fare hikes on vulnerable populations. But Title VI does not prevent the CTA from making the most efficient ridership cuts necessary to protect the system. It just requires that the CTA look carefully at the alternatives - and that it achieves its primary objective while minimizing any disproportionate impact on minority and low-income riders.

In this post, I will go over what Title VI demands, and what it does not. Then, I will examine how Chicago and the CTA deal with Title VI, and how we as a city apply Title VI’s requirements. Finally, I will discuss a few likely scenarios for the CTA cuts, and explain why Title VI does not prohibit any of them.

What is Title VI?

Title VI is intended to ensure that the federal government does not fund local transit agencies that engage in bigotry. The law itself states the following:

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance” - Section 601 of Title VI of the Civil Rights Act of 1964.

Title VI also charges the FTA with overseeing these transit providers and making sure that Title VI is actually being adhered to. The FTA mandates that transit providers conduct regular studies about the demographics of their riders, and should the agency make any major service changes, explain how they followed the correct analysis in a report. If the FTA finds that the transit agency failed to adhere to Title VI, it has a range of options about what it could do to bring the agency back into compliance. These include potentially cutting off federal funding to the agency, or seeking an injunction in court through the DOJ.

In practice, this means that if a local transit authority decides to make a “major change” to their service, the Federal Transit Administration (FTA) requires it to submit an analysis of the potential impact on protected classes. These protected classes can be one’s race, or national origin, but it can also be the class’s ability to speak English, or their economic class. For the purposes of this analysis, the two most relevant classes are race and income, so that’s what we’ll look at here.

The FTA also requires different analyses for different impacted classes. For changes impacting minority riders, transit agencies must conduct a “disparate impact” analysis. To assess changes impacting low-income riders, agencies must do a “disproportionate burden” analysis. For changes impacting riders who fall into both categories, only a disparate impact analysis is required.

Disparate impact

The FTA defines “disparate impact” as any “fascially neutral policy or practice that disproportionately affects members of a group identified by race, color, or national origin,” and that policy “lacks a substantial legitimate justification, and where there exists one or more alternatives that would serve the same legitimate objectives but with less disproportionate effects on the basis of race, color, or national origin.”

So for a given major service change to have a disparate impact, and therefore run afoul of Title VI, a policy or practice has to:

1. Disproportionately affect a group identifiable by their race or national origin, AND

   1. There’s no real, legitimate reason to do that policy, OR

   2. There is a legitimate goal to the policy, but there is some other way to achieve that aim without that disproportionate impact.²

Disproportionate burden

A major service change causes a disproportionate burden when an otherwise neutral policy or practice affects low-income people more than non-low-income people. If it does, then the transit authority has to try to find alternatives and blunt the effect where they can. This has nothing to do with the race or national origin of the affected riders.

So to determine if a policy has a disproportionate burden, the transit policy has to:

1. Determine if the policy places a disproportionate burden on low income riders (more on this below), and if so

   1. Avoid or mitigate the burden as much as practicable.

Importantly, Title VI does not prohibit projects from having these disparities. Remember, the purpose of Title VI is to make sure our federal tax dollars are not being used in a bigoted manner. The law envisioned this exact possibility, that there could be some cuts or even improvements to a transit system that are the right thing for the city to do, but for entirely race neutral reasons that have a negative impact on a minority or low income population. The only thing that Title VI forbids is to make these changes specifically because the city wants to harm these populations, or at least is so callous towards these harms it fails to take an equally practicable alternative.

In 1997, the CTA made service cuts which required a disparate impact analysis. This analysis provides a helpful guidepost for what sort of analysis the FTA likely will be looking for in 2025. One of the primary things that the FTA noted in its analysis of these cuts was whether they would ultimately end up benefiting the system as a whole, and thus benefiting minority riders. The FTA saw that a service reduction in the Blue Line accounted for a large percentage of the disparate impact to minority riders, but also noted that the line was the least efficient rail line, was in desperate need for repair, and that the CTA was seeking additional funds to repair the line. Therefore, it found that the service reduction, ultimately, would benefit minority riders.

A note on the Trump Administration

An astute reader may have noticed that the actual language Title VI provides does not specify that the racial group has to be “minority,” to trigger a disparate impact analysis, and that the statute has nothing to do with anybody’s poverty level. This is because of Executive Order 12898, signed by Bill Clinton, which directs the FTA to explicitly construe Title VI as an effort to protect minority and low income riders, and significantly broadened the scope and goals of Title VI.This Executive Order has since been repealed by Executive Order 14173 signed by President Trump.

This leaves the CTA in an unclear position. Most likely, the CTA still has to do the Title VI analysis explained above. The CTA board itself adopted these policies, and is self-bound to follow through with them, plus the CTA probably just does not want to unnecessarily and disproportionately hurt low income or minority riders.

The safest path forward, at least in terms of violating Title VI, is to comply with the old standards (and current CTA policy) and conduct the same analysis it always does. So that is how the remainder of the article is going forward. But it is at least worth noting that these rules are less ironclad than they were last year.

What does this mean for the next CTA budget?

So with all that established, let’s talk about how this should play out to protect as much of our transit system as possible.

First, the CTA should design a package of service cuts and fare hikes to maintain as much ridership and revenue as possible going forward. I recommend reading this post by Joshua Woods if you want to get a better idea of what this might look like. In Woods’ estimation, this involves cutting a lot of lower-volume bus routes to focus on key networks. He does not think cutting any rail would ultimately be worth the risk of triggering a death spiral, but looking at some of the anemic daily ridership numbers on the Forest Park Branch of the Blue Line, most of the Green Line, and the Yellow line, it is difficult to imagine that rail will be saved from service cuts, truncations, or maybe entire line eliminations.

Additionally, increasing fares, especially during commuting hours, are probably the most straightforward way for the CTA to increase revenue. Fares have only gone up $0.25 since 2009, so there’s probably some room for the CTA to raise fares without losing too much marginal ridership, especially if they are targeted at people making inelastic daily commutes to work.³

Second, the CTA will almost certainly have to conduct a Title VI analysis of those proposed cuts and fare hikes. Maybe there are some surgical series of cuts out there the CTA can conjure that dodge the 10% cut off, but with the RTA warning of 40% cuts in the future, it’s hard to count on that. Fare raises, if implemented by the CTA, automatically trigger a Title VI analysis.⁴

Hopefully, the optimal cuts to the system don’t disproportionately impact minority or low-income riders. But it would not be wise to count on this. For rail at least, the relative population density of the North side may mean that service cuts result in greater hits to ridership (and revenue) than equivalent cuts on South and West side lines. The Red Line Howard branch, for example, saw over 22,000,000 rides in 2024 compared to just over 7,000,000 on the Dan Ryan branch. The Blue Line had an ever harsher disparity, with the O’Hare branch of the Blue Line seeing 17,000,000 riders, while the Forest Park branch saw just 4,000,000.⁵

If that is the case, then the CTA should look to see if it can make adjustments that can be as cost-efficient while impacting those populations less. But if that’s the best it can do, the CTA should show its work and be confident that is in compliance with Title VI rules.

Title VI does not preclude necessary tradeoffs

At the end of the day, the CTA is facing a pretty simple resource management issue. It takes a lot of money to run the CTA as it currently runs, the CTA does not bring in enough money to cover those costs, and at least so far the Illinois legislature has proven unwilling to raise taxes to cover that gap. Nobody wants to see cuts – especially cuts that impact vulnerable Chicagoans. But if the CTA doesn’t do everything it can to preserve ridership, the entire system is at risk. That’s the worst possible outcome for all of us.

Chicago has a choice to make. We can make hard decisions today to cut costs while maintaining the majority of the system’s existing ridership, or we can throw up our hands, and let the CTA shamble forward as a pretty backdrop for sports promos and tourist photos. Title VI does not require that we pick the latter option.

1. This also impacts Metra, PACE, and downstate transit agencies

2. It is also important to distinguish disparate impact from disparate treatment, which is just when anybody is treated worse explicitly because of their race or national origin. To my knowledge disparate treatment does not come up a lot in Title VI analysis because it is rare for a transit agency to publicly announce they are discriminating against a protected class for no reason, but it is worth knowing about just to understand that it is a different analysis than disparate impact.

3. I don’t know for sure, but fare hikes for 9-5 commuters might also be one of the most progressive ways for the CTA to raise revenue: downtown office commuters are likely better off (on average) than Chicagoans trying to get across town for appointments without a car.

4. As an aside, the absolute best thing that Chicago, or even Illinois could do is raise the CTA fares by statute. Should these fare hikes come via lawmakers rather than by the CTA itself, Title VI is not implicated at all and should go through without any further analysis. However, given the cost of living crisis costing politicians the world over their careers at this point, the CTA probably should expect to have to raise fares themselves.

5. As Nik Hunder has noted here before, the collapse of the Western Blue Line is one of the most shameful legacies of the Dorval Carter era. In part because the CTA has let that part of the system rot during relatively good times (thanks to a combination of inattention and high capital costs), ridership is down and so service may have to be cut further. In effect, the CTA kicked off a death spiral on the West Side years before federal money ran out.