106 Iowa L. Rev. 2369 (2021)
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In 2015, the Governor of Maryland cancelled a light rail project planned for Baltimore City. Around that time, governors in five states had also cancelled federally funded, mass transit rail projects. Each cancellation was similarly justified by claims that the transportation projects were unwise and unnecessary.This trend is concerning because public transportation is often crucial to low- and moderate-income people. The cancellations raise the question whether there should be some circumstances when a state should not be able to cancel transportation projects. The federal framework for public transportation funding allows seemingly unfettered discretion to cancel, while not acknowledging the perverse incentives that now exist to refuse funding for projects perceived as beneficial to stigmatized racial and class groups. Most strikingly, principles of development worked in reverse. Instead of pursuing economic development through guaranteed infrastructure investment and the multiplier potential of construction jobs and transit-oriented development likely to take place, the state decided to reject development under a rationale that such investment would be wasteful. This Essay argues that there is room in the federalism logic of the Spending Clause to ex ante consider pervasive and systemic racial hostility to public transportation and a discriminatory exercise of discretion. Federal mass transportation decision-making should be structured in a way that accounts for the pervasive, consistent, and structural hostility to Black mobility and projects perceived to benefit Black people. Because mobility is crucial to self-determination, economic survival and flourishing, the veto of rail projects like Baltimore’s Red Line is an opportunity to consider the limitations of ex post racial remedies such as the equity-infused planning framework and Title VI disparate impact litigation. The Essay considers how racial equity and racial realism principles can inform the obligations of federal public transportation funding decision-making.

Thursday, July 15, 2021