**6. Legal justifications for equal access to parks and recreation**

Park advocates in Los Angeles have used social science research on why parks matter and existing health disparities and park access inequities to support the use of state and federal civil rights and environmental laws to influence the investment of public resources to create new parks (García and Strongin, 2011).

In the United States, federal civil rights laws prohibit both intentional discrimination, and unjustified discriminatory impacts for which there are less discriminatory alternatives regardless of intent, in the provision of public resources, including access to parks and other public lands. States such as California have parallel laws.

Title VI of the Civil Rights of 1964 and its implementing regulations prohibit intentional discrimination based on race, color, or national origin by recipients of federal financial assistance.4 Cases of intentional discrimination are relatively difficult to uncover in contemporary society, although some cases do exist. Evidence of intentional discrimination includes: (1) the impact of the action and whether it bears more heavily on one group than another; (2) a history of discrimination; (3) departures from substantive norms in reaching a decision; (4) departures from procedural norms; (5) whether the decision maker knows of the harm a decision will cause; and (6) a pattern or practice of discrimination.5

Title VI also prohibits actions that have a discriminatory impact, regardless of whether the impact is intentional or not. The inquiry under the disparate impact standard is: (1) whether a practice has a disproportionate impact based on race, color or national origin; (2) if so, the recipient of public funds bears the burden of proving that such action is justified by business

<sup>5</sup> *See Village of Arlington Heights v. Metropolitan Housing Dev. Corp.*, 429 U.S. 252, 265 (1977); *Committee Concerning Cmty. Improvement v. City of Modesto,* 583 F.3d 690 (9th Cir. 2009) (statistical disparities in providing municipal services evidence of intentional discrimination under Title VI and 11135; U.S. Dep't Justice, Civil Rights Division, *Title VI Legal Manual (2001)*, available at http://www.justice.gov/crt/cor/coord/vimanual.php.

<sup>4</sup> *See, e.g.,* 40 C.F.R. §7.30 (nondiscrimination reguations for recipients of federal funds from the Environmental Protection Agency); 43 C.F.R. §7.30 (Department of Interior).

Social Science, Equal Justice and Public

laws, regulations, and policies."12

(California State Lands Commission, 2002).

of a diverse alliance.

prohibit both.

regulations).

12 Cal. Gov. Code § 65040.12.

Health Policy: Translating Research into Action Through the Urban Greening Movement 169

State law in California also prohibits both intentional discrimination and unjustified discriminatory impacts under Government Code section 11135 and its regulations, which are analogous to Title VI and its regulations.11 In addition, California law defines environmental justice as "the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental

The California Environmental Protection Agency has developed an Environmental Justice Action Plan, which addresses development of guidance on precautionary approaches, guidance on cumulative impacts analysis and guidance on public participation (California Environmental Protection Agency, 2004). The California State Lands Commission (CSLC) has developed and adopted an Environmental Justice Policy to ensure equity and fairness in its own processes and procedures. The CSLC adopted an amended Environmental Justice Policy in 2002 to ensure that "Environmental Justice is an essential consideration in the Commission's processes, decisions and programs and that all people who live in California have a meaningful way to participate in these activities." The policy commits the CSLC to consider Environmental Justice in its processes, decision-making, and regulatory affairs

The California Coastal Commission adopted a local coastal plan requiring Malibu to maximize public access to the beach while ensuring the fair treatment of people of all races, cultures, and incomes in 2002. This was the first time an agency implemented the statutory definition of Environmental Justice under California law. Then-Commissioner Pedro Nava told the *Los Angeles Times* he hoped to set a precedent for other communities, ensuring that visitors are not excluded from public land because of their income or race (Mehta, 2002). The Commission adopted the provision in response to the advocacy of The City Project on behalf

Despite cutbacks in enforcement of civil rights protections in federal courts, both intentional discrimination and unjustified discriminatory impacts remain unlawful under federal and state law. As a matter of simple justice, it is unfair to use public tax dollars to subsidize discriminatory intent and discriminatory impacts.13 Recipients of federal and state funds, including many municipalities and their park and recreation agencies, remain obligated to

Community alliances have relied on such evidence and laws to help create public lands and preserve access to existing lands in Los Angeles over the past ten years through advocacy in and out of court. Victories include the creation of Los Angeles State Historic Park and Rio de

<sup>11</sup> *See* Cal. Gov. Code § 11135; 22 CCR § 98101(i) (2007). *See Darensburg v. Metropolitan Transp. Comm'n*, No. C-05-01597 EDL, 2008 U.S. Dist. LEXIS 63991 (N.D. Cal. Aug. 21, 2008) (standing to sue publicly funded agency for discriminatory impacts on quality of life for people of color under 11135 and its

<sup>13</sup> *See, e.g., Alexander v. Sandoval*, 532 U.S. 275 (2001); *Gonzaga Univ. v. Doe,* 536 U.S. 273 (2002).

**7. Applying research and law to support equal access to parks** 

necessity; and (3) even if the action would otherwise be justified, the action is prohibited if there are less discriminatory alternatives to accomplish the same objective.6

As a result, recipients of federal financial assistance, such as cities and counties, are prohibited from engaging in practices that have the intent or the *effect* of discriminating based on race or ethnicity.7 To receive federal funds, which many municipalities depend on in part, a recipient must certify that its programs and activities comply with Title VI and its regulations.8 In furtherance of this obligation, recipients of federal financial assistance must collect, maintain, and provide upon request timely, complete, and accurate compliance information.9

Stated in positive terms, publicly funded proposals including park projects, plans and programs call for the preparation of an equity analysis that includes the following elements:



The U.S. Office of Management and Budget has circulated guidance specifying that recipients of federal funds are to comply with Title VI of the Civil Rights Act of 1964, as well as other equal opportunity laws and principles (Orzag, 2009). The United States Department of Justice under President Obama has re-emphasized the need for federal agencies to enforce, and recipients of federal funds to proactively comply with, equal justice laws and principles including Title VI (King, 2009). The Ninth Circuit has recently condemned the United States Environmental Protection Agency for its pattern of failing to investigate Environmental Justice including Title VI complaints.10

<sup>6</sup> *See, e.g., Larry P. v. Riles*, 793 F.2d 969, 981-83 (9th Cir. 1984). Agencies are obligated to comply with the Title VI regulations, even though private individuals and organizations have no standing to enforce the regulations in court. *Alexander v. Sandoval*, 532 U.S. 275, 293 (2001). Private individuals and

organizations do have standing to enforce 11135 regulations in court. *See Darensburg v. Metropolitan* 

*Transp. Comm'n*, No. C-05-01597 EDL, 2008 U.S. Dist. LEXIS 63991 (N.D. Cal. Aug. 21, 2008). 7 Title VI provides: "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." 42 U.S.C. § 2000d (2004). *Cf*. 43 C.F.R. 7.30 (Title VI regulations from the Department of Interior, which has jurisdiction over National Parks and other public lands). *See also* Executive Order 12,898 on Environmental Justice (Feb. 11, 1994). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and parallel state law also prohibits intentional discrimination. Cal. Const., Art. I § 7. *See also* Section 1983 of the Civil Rights Act of 1871.

<sup>8</sup> *Guardians Ass'n v. Civil Service Comm'n,* 463 U.S. 582, 629 (1983) (Justice Marshall, concurring in part and dissenting in part).

<sup>9</sup> *Cf*. Executive Order 12,898 on Environmental Justice (Feb. 11, 1994).

<sup>10</sup> *Rosemere Neighborhood Ass'n v. United States Envtl. Prot. Agency,* 581 F.3d 1169, 1175 (9th Cir. 2009)*.*

necessity; and (3) even if the action would otherwise be justified, the action is prohibited if

As a result, recipients of federal financial assistance, such as cities and counties, are prohibited from engaging in practices that have the intent or the *effect* of discriminating based on race or ethnicity.7 To receive federal funds, which many municipalities depend on in part, a recipient must certify that its programs and activities comply with Title VI and its regulations.8 In furtherance of this obligation, recipients of federal financial assistance must collect, maintain, and provide upon request timely, complete, and accurate compliance

Stated in positive terms, publicly funded proposals including park projects, plans and programs call for the preparation of an equity analysis that includes the following elements:

2. an analysis of the impact on all populations, including minority and low-income

4. the documented inclusion of minority and low-income populations in the study and

5. an implementation plan to address any concerns identified in the equity analysis (The

The U.S. Office of Management and Budget has circulated guidance specifying that recipients of federal funds are to comply with Title VI of the Civil Rights Act of 1964, as well as other equal opportunity laws and principles (Orzag, 2009). The United States Department of Justice under President Obama has re-emphasized the need for federal agencies to enforce, and recipients of federal funds to proactively comply with, equal justice laws and principles including Title VI (King, 2009). The Ninth Circuit has recently condemned the United States Environmental Protection Agency for its pattern of failing to investigate

<sup>6</sup> *See, e.g., Larry P. v. Riles*, 793 F.2d 969, 981-83 (9th Cir. 1984). Agencies are obligated to comply with the Title VI regulations, even though private individuals and organizations have no standing to enforce the

<sup>8</sup> *Guardians Ass'n v. Civil Service Comm'n,* 463 U.S. 582, 629 (1983) (Justice Marshall, concurring in part

<sup>10</sup> *Rosemere Neighborhood Ass'n v. United States Envtl. Prot. Agency,* 581 F.3d 1169, 1175 (9th Cir. 2009)*.*

regulations in court. *Alexander v. Sandoval*, 532 U.S. 275, 293 (2001). Private individuals and organizations do have standing to enforce 11135 regulations in court. *See Darensburg v. Metropolitan Transp. Comm'n*, No. C-05-01597 EDL, 2008 U.S. Dist. LEXIS 63991 (N.D. Cal. Aug. 21, 2008). 7 Title VI provides: "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." 42 U.S.C. § 2000d (2004). *Cf*. 43 C.F.R. 7.30 (Title VI regulations from the Department of Interior, which has jurisdiction over National Parks and other public lands). *See also* Executive Order 12,898 on Environmental Justice (Feb. 11, 1994). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and parallel state law also prohibits intentional discrimination. Cal. Const., Art. I § 7. *See also* Section 1983 of the Civil Rights

there are less discriminatory alternatives to accomplish the same objective.6

information.9

Act of 1871.

and dissenting in part).

populations;

City Project, 2010).

1. a clear description of what is planned;

3. an analysis of available alternatives;

decision-making process; and

Environmental Justice including Title VI complaints.10

<sup>9</sup> *Cf*. Executive Order 12,898 on Environmental Justice (Feb. 11, 1994).

State law in California also prohibits both intentional discrimination and unjustified discriminatory impacts under Government Code section 11135 and its regulations, which are analogous to Title VI and its regulations.11 In addition, California law defines environmental justice as "the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies."12

The California Environmental Protection Agency has developed an Environmental Justice Action Plan, which addresses development of guidance on precautionary approaches, guidance on cumulative impacts analysis and guidance on public participation (California Environmental Protection Agency, 2004). The California State Lands Commission (CSLC) has developed and adopted an Environmental Justice Policy to ensure equity and fairness in its own processes and procedures. The CSLC adopted an amended Environmental Justice Policy in 2002 to ensure that "Environmental Justice is an essential consideration in the Commission's processes, decisions and programs and that all people who live in California have a meaningful way to participate in these activities." The policy commits the CSLC to consider Environmental Justice in its processes, decision-making, and regulatory affairs (California State Lands Commission, 2002).

The California Coastal Commission adopted a local coastal plan requiring Malibu to maximize public access to the beach while ensuring the fair treatment of people of all races, cultures, and incomes in 2002. This was the first time an agency implemented the statutory definition of Environmental Justice under California law. Then-Commissioner Pedro Nava told the *Los Angeles Times* he hoped to set a precedent for other communities, ensuring that visitors are not excluded from public land because of their income or race (Mehta, 2002). The Commission adopted the provision in response to the advocacy of The City Project on behalf of a diverse alliance.

Despite cutbacks in enforcement of civil rights protections in federal courts, both intentional discrimination and unjustified discriminatory impacts remain unlawful under federal and state law. As a matter of simple justice, it is unfair to use public tax dollars to subsidize discriminatory intent and discriminatory impacts.13 Recipients of federal and state funds, including many municipalities and their park and recreation agencies, remain obligated to prohibit both.
