SCHOOL OF LAW LAW OFFICE OF THE UNIVERSITY OF TEXAS AT AUSTIN TEXAS RIOGRANDE LEGAL AID, INC. Austin Office 4920 N. I-35 Austin, TX 78751 Telephone (512) 374-2700 Toll Free (800) 369-9270 Fax (512) 447-3940 Environmental Clinic • 727 East Dean Keeton Street • Austin, Texas 78705 Phone: (512) 232-2454 Fax: (512) 232-2311 April 3, 2018 Via Electronic and Certified Mail Office for Civil Rights Dallas Office U.S. Department of Education 1999 Bryan Street, Suite 1620 Dallas, Texas 75201-6810 OCR.Dallas@ed.gov Ryan Fitzpatrick, Lead Civil Rights Analyst Office of Civil Rights U.S. Department of Transportation 1200 New Jersey Ave, S.E. Washington, DC 20590 ryan.fitzpatrick@dot.gov Daria Neal, Deputy Chief Federal Coordination and Compliance Section Civil Rights Division, U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 daria.neal@usdoj.gov Marisa Smith, Regional Manager Office for Civil Rights U.S. Dept of Health and Human Services 1301 Young Street, Suite 1169 Dallas, TX 75202 ocrmail@hhs.gov cc: Dr. Ruth A. Etzel, Director U.S. Environmental Protection Agency Office of Children's Health Protection MC1107T 1200 Pennsylvania Avenue, NW Washington, DC 20460 etzel.ruth@epa.gov cc: Matthew Tejada, Director U.S. Environmental Protection Agency Office of Environmental Justice MC 2201A 1200 Pennsylvania Avenue, NW Washington DC 20460 Tejada.Matthew@epa.gov Re: Complaint under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d On behalf of the community group, Familias Unidas del Chamizal (“Familias Unidas” or “Complainant”), Texas RioGrande Legal Aid and the Environmental Clinic at the University of Texas School of Law submit this Complaint regarding the El Paso Independent School District’s (“EPISD’s”) actions and imminent plans to relocate its Central Bus and Operations Hub to Bowie High School in the Chamizal Neighborhood in El Paso, Texas. Chamizal is a low-income, minority neighborhood with many foreign-born residents along the border with Mexico, and it already has high levels of air pollution, traffic, and other contamination from industrial sources and the nearby international bridge that harm students’ 1 and residents’ health. EPISD’s project as planned and the actions it has taken towards fulfilling this plan violate Title VI because it would cause disparate impacts to students at Bowie High School and nearby Chamizal residents, including increased harmful air pollution and traffic, based on race and national origin. Familias Unidas requests that DOE, DOT, DOJ, and HHS accept this Complaint and promptly investigate whether EPISD has violated and/or continues to violate Title VI and its implementing regulations through its plans and actions taken to relocate its Central Bus and Operations Hub to Bowie High School. 1 During this investigation, we request that all of EPISD’s plans to move forward with the bus hub, in particular any construction or awarding any contracts for the new facility, be put on hold until the investigation is resolved to prevent any irreparable harm from occurring. Familias Unidas also requests that any investigations by DOE, DOT, DOJ and HHS be consolidated and the federal agencies, led by the DOJ Federal Coordination and Compliance Section of the Civil Rights Division, collaborate and coordinate the development of remedial approaches, as well as consult with EPA regarding the applicable School Siting Guidelines, PM hot spot analysis, and environmental justice and public health impacts of this proposed bus hub. In order to remedy the violations described in detail below, Familias Unidas requests that each federal agency condition all future grants and awards of federal funds to EPISD on its compliance with Title VI, including EPISD agreeing to move the Central Bus and Operations Hub to a location other than Bowie High School. I. EPISD’S PLANNED BUS AND OPERATIONS HUB IN CHAMIZAL EPISD plans to site its Central Bus and Operations Hub at Bowie High School in the Chamizal Neighborhood (see Figures 1, 2 below). Because EPISD’s lease on the land at 6531 Boeing Drive, where its Central Bus and Operations hub is currently located, will end soon and the City of El Paso wants its land back, EPISD has decided to relocate the buses and maintenance operations to land owned by EPISD on the Bowie High School campus in the Chamizal neighborhood. The plan is to have 124 buses that serve numerous schools across the district kept at the new Central Hub. Additionally, maintenance and operations facilities serving the entire district will be at the site, including a maintenance garage with space for at least 12 buses, a storage yard, at least two floors of office space, employee parking, and a fueling station. 1 Complainant also specifically requests that if DOE, DOT, DOJ, or HHS rejects this complaint, the other agencies conduct an investigation alone or jointly with other federal agencies, as appropriate, in accordance with federal regulations. See 28 C.F.R. § 42.408(b) (“Where a federal agency lacks jurisdiction over a complaint, the agency shall, wherever possible, refer the complaint to another federal agency . . . .”). 2 Figure 1. Overview of the proposed Central Operations Hub at Bowie High School. The Bowie football field is visible to the right. Surrounding the bus hub are apartments in the Salazar public housing development. 2 Figure 2. Electrical blueprint of the hub. 3 2 See Attachment I, Facilities Committee Meeting Presentation Slides, Carlos Gallinar, El Paso Independent School District, at 14 (February 13, 2017). 3 Request for Proposal for E.P.I.S.D. Central Operations Hub Addendum No. 1, El Paso Independent School District, 6/39 (March 2, 2018). 3 EPISD has two other smaller bus hubs – the Northeast Annex and West Annex (see Figure 3 below). It is unclear based on the information we have received whether either of these or any other locations were considered for the central bus hub or the transportation and maintenance hub. But EPISD plans indicate that 12 buses will be relocated from the West Annex to the Bowie central bus hub location. 4 The Board has recently considered the Northeast location as a site for its new central administrative offices, but abandoned that plan in favor of a location it acquired near El Paso’s downtown. 5 Figure 3. Locations of the three current bus hubs as well as the planned hub at Bowie (in Google Maps). Despite repeated concerns from the Chamizal community once residents learned about this plan (detailed in Section III.F. below), EPISD is moving forward with this project in the near future. Specifically, EPISD recently posted an RFP and amendments for bids on the “EPISD Central Operations Hub” project with a deadline of March 26. The information included in this complaint about EPISD’s plans is based on a November 2017 letter from EPISD to Familias 4 Presentation Slides, Carmen Arrieta-Candelaria, Deputy Superintendent for Finance, “Relocation of Maintenance/Transportation Hub,” at 12 (November 2017). 5 EPISD buys EPCC land for $3.2 million for new offices, El Paso Times (Feb. 28, 2017), https://www.elpasotimes.com/story/news/education/episd/2017/02/28/episd-buys-epcc-land-32-million-newoffices/98538818/ 4 Unidas (Attachment E), documents received through public information requests, news articles, and other public sources cited within this Complaint. II. COMPLAINANTS Familias Unidas del Chamizal is a neighborhood-based organization focused on building community stability and a safe environment for the residents of the Chamizal neighborhood. Members work together to fight injustices they face and to advance wellbeing in the community. Familias Unidas has addressed multiple relevant local issues, including advocating for more resources for Chamizal schools, preserving affordable housing, demanding lead testing and environmental assessments at area schools and public housing sites, and working to address contamination and safety concerns from semi-truck traffic leading through the neighborhood to the Bridge of the Americas International Port of Entry. Many Familias Unidas members live near Bowie High School or have children attending the school, and would thus be directly affected by the establishment of a transportation hub in the area. They have voiced their concerns about existing air pollution and traffic in the neighborhood, and are worried about the increase in this pollution and traffic that would be caused by an influx of buses. For example, the following members of Familias Unidas are all either Hispanic residents living in Chamizal near Bowie High School, Hispanic parents with children attending Bowie High School, or both: Maria Ferrer lives one block from Paisano Drive, across from the Chamizal National Memorial. She has three children attending schools in the neighborhood, including one daughter, Alicia, who goes to Bowie High School. Two of her children have allergic and respiratory problems, and her family avoids spending time outside near their home because the children have allergic reactions and get bloody noses. When construction started on Bowie’s new baseball field in September 2017 (EPISD is moving the baseball field to make way for the bus hub), Alicia began experiencing severe allergic reactions, including throat inflammation and a skin rash. She sought help from a physician, who told her the reaction was likely caused by environmental factors. Maria arranged a meeting with school and district personnel to address this, but both denied responsibility and refused to mitigate any effects of construction. Maria is worried that the transportation hub project will make environmental problems worse in her community, and will exacerbate issues already caused by large construction projects, industrial operations, and the international bridge traffic. Nallely Melendez has lived in the Salazar Park Apartments across Paisano Drive from Bowie High School for 13 years. Her three sons attend the neighborhood elementary and middle 5 schools. Adan, one of her younger sons, had trouble breathing as a baby, and another son, Ethan, has been diagnosed with asthma. Ethan has been in and out of the hospital since he was six months old, and Nallely does not allow him to spend time outside and makes him wear a dust mask to and from school in order to avoid asthmatic episodes. Nallely’s mother lives with them and developed breathing problems and a bad cough after she moved in to the Salazar Park Apartments. She now wears a dust mask when outside. Maria Luisa Lara de Anaya owns a home across the street from Bowie High School, where she has lived since 1999. Currently, her two adult daughters and two grandchildren, who attend Beall Elementary, also live with her. Maria Luisa is worried about environmental contamination in the Chamizal community and has noticed that many children in the area have asthma and other respiratory problems, as well as learning deficiencies. Her grandson is currently undergoing tests and treatment linked to learning deficiencies, which Maria Luisa is worried stem from elevated lead levels due to her family’s proximity to the W. Silver recycling facility situated a few blocks away. Maria Luisa is also concerned about the truck traffic in and near the neighborhood because of the international bridge, and is bothered by the air contamination and late night noise levels caused by this traffic. Isela Alvarez lives outside the Chamizal neighborhood, but has a son who attends Bowie High School. Her son, Emmanuel, is a football, track, and basketball athlete. He complains of shortness of breath when competing outdoors at Bowie. Another of Isela’s sons, Angel, attended Bowie for three years and was also an athlete. He suffered from headaches and respiratory issues while at Bowie, but these health problems cleared up after he transferred to another school. Isela is worried about the truck traffic as well, and has trouble accessing the school due to truck traffic. She laments that her school-age children have to “dodge” trucks along the streets when leaving school. Hilda Villegas is a lead organizer of Familias Unidas and President of the Chamizal Neighborhood Association. Her daughter Katherine attends Bowie High School and her two younger children, Mary Ann and Damian, attend Beall Elementary. Katherine has voiced her opposition to the transportation hub at Board meetings and described contending with truck traffic in the neighborhood during track practices. Mary Ann suffers from allergies and is often sick, and Hilda has noticed that her allergic reactions worsen on days with high levels of air pollutants and dust. Hilda has also noticed similar health problems among many other children in the neighborhood. Increasing truck traffic and concerns about EPISD’s proposals to transform area schools led her to co-found Familias Unidas. 6 III. BACKGROUND ON THE CHAMIZAL NEIGHBORHOOD A. History The Chamizal neighborhood, located in the south-central part of El Paso along the U.S.Mexico border, has a long history of displacement. The neighborhood is among El Paso’s oldest and was an early site of contested title claims by Anglo settlers and Mexican and MexicanAmerican residents. Due to these title disputes and the shifting course of Rio Grande, the Chamizal was subject to a decades-long international boundary dispute starting around the turn of the 20th century. Nonetheless, a mostly Mexican-American community of working-class homeowners grew up in the Chamizal, though dozens of families were displaced to make way for the construction of Paisano Drive in the late 1940s. The boundary dispute went unresolved until 1963, when an international treaty turned over more than 350 acres of the Chamizal to Mexico. The treaty ultimately displaced 4,500 mostly Mexican-American residents. Mexico renounced its claim on a smaller tract of land that ultimately became the Chamizal National Memorial, the Bridge of the Americas, and the current Bowie High School campus. 6 B. Location 6 About the Chamizal boundary dispute, see Jeffrey M. Schultze, The Chamizal Blues: El Paso, the Wayward River, and the Peoples in Between, Western Historical Quarterly 43.3 (2012), 301-322. About displacement from Southside barrios, see Sandra Ivette Enriquez, ‘¡El Barrio Unido Jamás Será Vencido!:’ Neighborhood Grassroots Activism and Community Preservation in El Paso, Texas, PhD Dissertation, University of Houston (2016), especially 44-45 and 84. 7 Figure 4. Overview of the Chamizal neighborhood, bounded in blue. 7 The Chamizal neighborhood is “bounded to the north by Alameda Avenue, the east by Gateway South Boulevard, the south by Paisano Drive and Cesar Chavez Memorial Highway, and the west by Laurel Street and the Rail Road tracks” (see Figure 4 above). 8 Today, the Chamizal community is mostly residential interspersed with small manufacturing and industrial enterprises, including a textile factory, the multi-site W. Silver metal-recycling operation, mechanics’ shops, and multiple warehouse and distribution centers for long- and short-haul trucking. Residential structures include single-family homes and small apartment complexes and also three large public housing developments dating to the 1970s currently undergoing Rental Assistance Demonstration (RAD) conversions: the Salazar Park Apartments, Tays North, and Tays South. These three apartment complexes together contain over 600 low-income housing units and all lie within a half-mile radius of the planned bus hub. 9 7 Chamizal Neighborhood Revitalization Strategy, Community and Human Development Department City of El Paso, at 6 (2008), available at https://www.elpasotexas.gov/~/media/files/coep/community%20and%20human%20development/chamizal%20nrs.a shx?la=en. 8 Id. at 4. 9 See Housing Authority of the City of El Paso’s Property Catalog, http://www.hacep.org/housing-and-assistanceprograms/property-catalog. 8 The neighborhood is also in close proximity to highly industrialized maquiladora zones just across the U.S.-Mexico border, and the Bridge of the Americas International Port of Entry, located on the eastern edge of the Chamizal National Memorial at the intersection of Paisano Drive, Delta Drive, Loop 375, and U.S. Highway 54 (along with the Gateway access roads). The community is currently facing major construction projects to expand Delta Drive and add flyover ramps connecting the Loop 375, Paisano Drive, and Highway 54. The Bowie baseball field, which will be replaced by EPISD’s transportation hub, seen from Paisano Drive surrounded by the football field and Salazar Park Public Housing Apartments. The Loop 375 Freeway and U.S.-Mexico border are in the background. Photo from March 13, 2018. 9 Much of the Chamizal’s housing stock lies very near--in the case of these Salazar Park apartments, just feet from--major arterial roads and highways. Planned and already-underway construction projects will place even more flyover ramps and high-capacity roadway in the neighborhood. Photo from March 13, 2018. Piles of scrap metal at the W. Silver recycling facility loom over a Chamizal playground before being dumped into an outdoor shredding machine. Numerous manufacturing plants, freight container yards, and mechanic shops lie just next door to residential areas. Photo from March 13, 2018. 10 Neighborhood streets are clogged with truck traffic throughout the day. This scene on Olive Street is only a block away from single-family homes and minutes from Bowie High School. Photo from March 13, 2018. C. Demographics El Paso’s Census Tract 28, which includes a large swath of the Chamizal neighborhood, is 97.6% Hispanic, 1.5% Black, and 0.9% White, while those same groups comprise 80.7%, 3.6%, and 13.1% of El Paso’s total population, respectively. 10 40% of the census tract’s population are foreign-born, well over the 23.7% rate across El Paso. Over 90% speak Spanish and, of this group, 54.6% speak English less than “very well.” Similar statistics for the Chamizal community as a whole are cited in a City of El Paso report. 11 Median household income for the tract is $16,714, roughly two-fifths of median household income across El Paso. 81.6% of the area is low- and moderate-income and qualifies as a Revitalization area under HUD guidelines. Students in area schools are nearly entirely Hispanic, and include a large number of English-language learners compared to the rest of EPISD. During the 2016-2017 school year, 98.7% of the Bowie High School student body was Hispanic, with White students comprising 10 All statistics in this paragraph are from the 2016 American Community Survey (ACS), available at https://censusreporter.org/profiles/14000US48141002800-census-tract-28-el-paso-tx/ and https://censusreporter.org/profiles/16000US4824000-el-paso-tx/. 11 Chamizal Neighborhood Revitalization Strategy, at 14. 11 less than 1% of the total number of students. 12 In addition, more than half of the students, 50.2%, were English Language Learners, and 82.2% were considered economically disadvantaged. 13 For EPISD as a whole, 83.7% of the students were Hispanic, with 27.9% qualifying as English Language Learners and 69.5% considered economically disadvantaged. 14 The percentages for all the students in the state of Texas are even lower. 15 Thus, while the school district is predominantly Hispanic as a whole, Bowie’s student body still has a significantly higher percentage of minority students. It also has almost double the number of English Language Learners. D. Health Indicators in Chamizal The Chamizal and nearby Southside neighborhoods already experience a variety of health issues. A number of residents and students suffer from asthma and other respiratory illnesses and some even wear dust masks when they leave their homes or minimize their children’s outdoor playtime. Centers for Disease Control and Prevention data from the census tract that includes Bowie High School and a large part of the Chamizal neighborhood shows worse health outcomes when compared to the city as a whole in several pertinent categories: ● Percentage of Adults Reporting to Have Asthma: Census tract (8.16%), City of El Paso (6.52%) ● Percentage of Adults Ever Diagnosed with Chronic Obstructive Pulmonary Disease, Emphysema, or Chronic Bronchitis: Census tract (8.2%), City of El Paso (5.36%) ● Percentage of Adults Ever Diagnosed with High Blood Pressure (Hypertension): Census tract (40.96%), City of El Paso (33.92%) ● Percentage of Adults Reporting Seven or More Days of Poor Physical Health in the Past 30 Days: Census tract (35.22%), City of El Paso (23.99%) 16 12 2016-17 Texas Academic Performance Report, Bowie High School - El Paso ISD, Texas Education Agency, 13. Id. 14 Id. 15 Id. 16 Data for Census Tract 48141002800 and City of El Paso from CDC Behavioral Risk Factor Surveillance System; 2009-2013 Census American Community Survey, retrieved from PolicyMap, http://www.policymap.com. 13 12 Figure 5. Percentage of Adults Reporting to Have Asthma, PolicyMap. Figure 6. Percentage of Adults Ever Diagnosed with Chronic Obstructive Pulmonary Disease, Emphysema, or Chronic Bronchitis, PolicyMap. 13 Figure 7. Percentage of Adults Ever Diagnosed with High Blood Pressure (Hypertension), PolicyMap. Chamizal’s children are particularly at risk. Elementary school children in El Paso have a higher incidence of asthma and allergies than the U.S. average. 17 According to a study done in El Paso, those children who are poor, have a Spanish-speaking caretaker, or have a foreign-born caretaker, are all more likely to be hospitalized or have to seek emergency care for their respiratory problems. 18 These characteristics describe many children living in Chamizal. Other studies have suggested that proximity to traffic-related pollutants in El Paso exacerbate respiratory problems such as asthma in children. 19 Perhaps most tellingly, a recent study of EPISD school children found that students exposed to high levels of motor vehicle emissions had significantly lower GPAs even after controlling for other factors. The authors noted that “exposure to air toxins likely compounds the learning challenges faced by the average EPISD student, who comes from a low-income, limited English background … The confluence of social and environmental factors creates a situation of ‘multiple jeopardy’ for many El Paso school children,” and concluded that greater attention needed to be paid to air pollution indicators in school siting and land use decisions. 20 17 Grineski, et al., Social Disparities in Children’s Respiratory Health in El Paso, Texas, 11 Int. J. Environ. Res. Public Health (2014) at 2950. 18 Id. at 2948-50. 19 Erik R. Svendsen et. al., GIS-Modeled Indicators of Traffic-Related Air Pollutants and Adverse Pulmonary Health Among Children in El Paso, Texas, 176 Am. J. of Epidemiology (2012) at S139; Jennifer E. Zora, et. al., Associations between urban air pollution and pediatric asthma control in El Paso, Texas, 448 Sci. of the Total Enviro. (2013) at 64. 20 Sara E. Grineski, et al., School-based exposure to hazardous air pollution and grade point average: A multi-level study, 147 Environmental Research (2016) at 170. 14 E. Schools in Chamizal There are three elementary schools in Chamizal: Douglass, Beall, and Zavala. Douglass Elementary is sited next door to the W. Silver metal scrapping yard while Zavala Elementary is sited just feet from U.S. Highway 54 and the entry ramps to the Bridge of the Americas. Middle school students from the Chamizal attend Guillen Middle School in nearby Segundo Barrio. These schools feed into Bowie High School. Schools in the area have a long history of both suffering and standing up to discrimination. Schools south of the railroad tracks in Central El Paso (near current-day Alameda Avenue) were explicitly built and administered as segregated “Mexican schools” around the turn of the 20th century, and were found by courts to be subject to discriminatory and segregative policies as late as the 1970s. 21 In fact, a court found that the siting of the current Bowie High School campus itself “had segregatory consequences.” 22 Douglass School served as a segregated K-12 school for the city’s African-American community until desegregation in 1955. That same year, a Douglass graduate successfully sued to integrate El Paso’s Texas Western College. 23 The Bowie community is particularly proud of its place in Mexican-American history yet it still contends with deleterious conditions and practices. Its 1949 baseball team famously overcame segregation to win a state championship. 24 Students orchestrated walkouts in 1969 to overturn longstanding rules against speaking Spanish at school. 25 Bowie students and teachers won a 1992 decision by a federal judge ordering Border Patrol to desist from a long-standing practice of racially profiling residents in the Chamizal and on school grounds. 26 Since 2009, Bowie has been at the center of a cheating scandal that involved school and EPISD administrators unjustly transferring, reclassifying, or removing low-performing and English nonproficient Bowie students, including foreign-born students, in order to artificially inflate standardized test scores. The scheme, called the “Bowie Plan,” resulted in prosecutions of numerous EPISD administrators and the Texas Education Agency stripping the EPISD Board of Trustees of their authority in 2012. 27 Many residents believe that their neighborhood and 21 Alvarado v. El Paso Independent Sch. Dist., 426 F. Supp. 575 (W.D. Tex., 1976). Id. 23 Reserved Student Became Catalyst for Desegregation at TWC, UTEP News Service, http://news.utep.edu/reserved-student-became-catalyst-for-desegregation-at-twc/. 24 The Barrio Boys, Sports Illustrated (Jun. 27, 2011), https://www.si.com/vault/2011/06/27/106081983/the-barrioboys. 25 Militants Fight to Retain Spanish as Their Language, Los Angeles Times (Jan. 14, 1969), reproduced in Ruben Salazar, Border Correspondent: Selected Writings, 1955-1970 (Berkeley, University of California Press, 1995) at 193-194. 26 Murillo v. Musegades, EP-92-CA-319-B, (W.D. Tex., 1992), https://www.clearinghouse.net/chDocs/public/IMTX-0006-0001.pdf. 27 El Paso Schools Confront Scandal of Students Who ‘Disappeared’ at Test Time, New York Times (Oct. 13, 2012), https://www.nytimes.com/2012/10/14/education/el-paso-rattled-by-scandal-of-disappeared-students.html; TEA Commissioner Strips El Paso ISD Board of Authority, The Texas Tribune (Dec. 6, 2012), 22 15 schools continue to be neglected and discriminated against by government agencies and local decision-makers due to their race, national origin, and income. F. Community Efforts to Address Healthy, Safety, and Environmental Concerns Prior to this Complaint Chamizal residents have been actively working to address environmental contamination, safety, and educational issues in their community. Familias Unidas del Chamizal has pushed for lead and other contaminant testing at area schools and the Salazar Park Apartments, which lie next to the W. Silver metal scrapping yards. Familias Unidas has also brought attention to the truck traffic leading onto the Bridge of Americas, which includes dozens of trucks queuing every day during the afternoon and evening along Paisano Drive in front of Bowie High School and the Chamizal National Memorial. The group has attempted to engage government agencies including the City of El Paso, the Metropolitan Planning Organization, and Texas Commission on Environmental Quality in an effort to find solutions to the problems created by uncontrolled truck traffic throughout their community. The group organized a series of “Toxic Tours” in June 2016 and invited local decision-makers and media to highlight the myriad environmental concerns in their neighborhood. Despite their constant efforts, Familias Unidas members are frustrated that elected officials and government agencies have taken few concrete steps to address any of these problems. In 2015-2016, residents regularly voiced concerns to the EPISD Board of Trustees and staged a number of protests regarding an EPISD “consolidation plan” for the area’s elementary schools, which would have closed either Beall or Douglass Elementary, or both, and moved students to Zavala. Many residents regarded Zavala as the least desirable site to create a single “community school,” due to its location at the far eastern edge of their community and just feet from heavy traffic along U.S. Highway 54 and the Bridge of the Americas. Residents said they were concerned about the safety of their children walking long distances across busy streets as well as health and educational performance concerns due to emissions from highway traffic. 28 Though consolidation of the Chamizal schools was not included in the Board’s funding allocation from a 2016, it remains part of the district’s long-term plan. Familias Unidas noted that EPISD was largely unresponsive to their concerns and obtained legal representation through Texas RioGrande Legal Aid (TRLA) to help with their requests to the district. Familias Unidas formally requested EPISD conduct an environmental https://www.texastribune.org/2012/12/06/education-commissioner-replaces-el-paso-school-boa/; EPISD Cheating Scandal Timeline, El Paso Times (Apr. 27, 2016), https://www.elpasotimes.com/story/news/specialreports/episdcheating/2016/04/27/timeline-episd-cheating-scheme/83625500/ 28 See Beall school parents look to lawyers to keep school open, KFOX (Jul. 25, 2016), http://kfoxtv.com/news/local/beall-school-parents-look-to-lawyers-to-keep-school-open; EPISD to consider $66.8.7 million bond, El Paso Times (Aug. 2, 2016), https://www.elpasotimes.com/story/news/education/episd/2016/08/02/episd-consider-6687-million-bond/87967786/. 16 analysis at Zavala in a letter from TRLA dated July 19, 2016 (see Attachment B). A University of Texas at El Paso Professor, Dr. William Hargrove, performed soil testing at the four locations in Chamizal, which revealed potentially dangerous lead levels at Zavala Douglass Elementary as well as high copper concentrations at the Salazar apartments playground (see attachment F). EPISD subsequently replaced topsoil at a playground at Zavala and added new soil to a site at Douglass. No air pollution or traffic studies were performed. Familias Unidas wrote a follow-up letter to the district dated March 22, 2017 demanding a more comprehensive environmental and health analysis and clean up plan with community input (see Attachment C). The Bowie Bus Hub Over the last few years, Chamizal residents heard rumors regarding the possible siting of a bus hub at Bowie High School, and Familias Unidas members repeatedly voiced their safety and health concerns about the project at EPISD Board of Trustees meetings and through protests outside Bowie High School and the EPISD administrative offices as well as at an open house held by the district regarding changes at Bowie. TRLA wrote a letter dated May 2, 2017 to EPISD on behalf of Familias Unidas opposing the relocation of the bus hub to Bowie (see Attachment D). The scope and timeline of this project remained extremely vague to community members, however, until a November 17, 2017 letter from EPISD to TRLA (see Attachment E). Familias Unidas members believe EPISD has operated with a lack of transparency and largely ignored community input critical of its plans. Familias Unidas members Hilda Villegas and Guillermo Glenn have spoken against the bus hub during public comments at Board meetings, but said the Trustees have never addressed the issue in open session. The district did hold an open house on March 25, 2017 to present plans for an 80-vehicle bus hub and Bowie’s new baseball field, 29 yet Familias Unidas members left with the impression that the meeting was intended more for propaganda than gathering feedback. Villegas’s daughter Katherine, a Bowie junior, wrote in her school newspaper about the open house and described that parents, “were left unclear on what was to happen with buses and the baseball field … The district was looking to convince the parents on the location of the buses but the parents say they don’t want the buses at Bowie at all. [EPISD Facilities Director Carlos] Gallinar said the buses will be ‘tucked away’ safely but in reality they are being tucked away at the end of our school along with the smog and contamination that comes with it.” 30 Katherine has also spoken against the bus hub before the Board and told the El Paso Times, "I feel it’s not fair. I feel like our community and our schools are being neglected as we speak, and nobody is doing anything about it … [District administrators] haven’t informed the students about what’s happening, and it’s their school. They have a right to know how it’s going to affect them." EPISD responded to concerns about the bus 29 See meeting notice, Open House -- Bowie Area Bus Barn Project, Mar. 25, 2017, https://www.episd.org/site/Default.aspx?PageID=2&PageType=17&DomainID=4&ModuleInstanceID=1&EventDat eID=117 30 We hear both sides, Bowie Growler (May 4, 2017), 2. 17 hub in a statement to the media claiming that parents had been consulted and “[t]he improvements at Bowie High School will beautify the campus and provide students with modern learning facilities.” 31 Despite protests from community members, EPISD only revealed in the November 17, 2017 letter to counsel that they had decided to increase the total number of buses to 124. 32 EPISD’s only response in the letter to community concerns about the bus hub was that it hopes to “minimize any adverse effects, if any, to the Bowie campus” by using propane buses and building a “green space buffer that will consist of vegetation, including numerous trees, to create a barrier to the Bowie campus.” However, these mitigation measures do not resolve the community’s concerns, and the plans to enact them remain vague and unverified. Familias Unidas has explicitly characterized the placement of the transportation hub as discriminatory. An event invitation to kick off their “Campaign for Environmental Justice in Barrio Chamizal” stated, “These decisions were not only taken without the input of Chamizal residents and Bowie families … Putting a central operations facility along with 124 buses, will put students at a greater risk of respiratory illnesses and will compromise this community's health. This is environmental racism!” 33 Hilda Villegas noted to local media that, “I think they need to consider our children’s health … They cannot impose something like this on our community. It’s discrimination … We cannot accept that the only bond money coming to our community is for the buses, which will create problems in our community.” 34 Furthermore, the perception that EPISD unfairly neglects Southside El Paso schools is not limited to Familias Unidas. Opponents of a $668.7 million 2016 Bond proposal, including a group of Bowie alumni, argued that most of the bond money would go to more affluent communities on the Westside. “They somehow missed the South area. There are issues of accountability, of trust,” one Bowie graduate stated. 35 Even a former EPISD Trustee stated that he believed the district had a track record of favoring areas like the Westside: “we took that 31 Protesters urge EPISD to end plan for bus hub at Bowie, El Paso Times (Sept. 12, 2017), https://www.elpasotimes.com/story/news/education/episd/2017/09/12/protesters-urge-episd-end-plan-bus-hubbowie/654233001/. Familias Unidas has organized numerous demonstrations to protest the bus hub project. See for example, El Paso Group To March Against Bus Facility Near Bowie High School, KRWG (Sept. 27, 2017), http://krwg.org/post/el-paso-group-march-against-bus-facility-near-bowie-high-school; Residents living in Chamizal area plead with EPISD to not build bus hub, KVIA (Nov. 16, 2017), http://www.kvia.com/news/el-paso/residents-living-in-chamizal-area-plead-with-episd-to-not-build-bushub/657680694. 32 See Attachment E. 33 See event page, Campaign for Environmental Justice in Barrio Chamizal Kick-Off, Dec. 11, 2017, https://www.facebook.com/events/158241128126732/ 34 Protesters urge EPISD, supra. 35 Opponents say more bond funds should go to South Side, El Paso Times (Sept. 20, 2016), https://www.elpasotimes.com/story/news/education/episd/2016/09/20/opponents-say-more-bond-funds-should-gosouth-side/90750412/ 18 money [from a 2007 bond] and gave it to the West Side, and we’re always partial to the West Side”. 36 Opposition to the transportation hub project has also been voiced by community members outside of Familias Unidas. A Class of 1963 Bowie alumnus wrote to the school’s newspaper to express his opposition to the plan, stating that the district had neglected classroom needs and community input. He argued that, “It makes more sense to make use of one of the several EPISD schools [ . . . ] earmarked for closure to accommodate [t]he proposed bus terminal.” 37 Another alumnus wrote to the El Paso Times: The question must be asked as to why Bowie was chosen as the site to locate all of the district buses. Was it because the community is Hispanic, poor and the district leadership assumed that it would get no push back in questioning its decision? It angers me and other alumni, as well as the students and community, that EPISD continues to revert back to the previous practice of “dumping” at Bowie anything and everything that the district finds distasteful, unattractive and not an option to put anywhere else in the district, for instance, the West Side. ... It is time to stop treating Bowie High School as a second class citizen of EPISD. 38 IV. TITLE VI AND DISPARATE IMPACT: Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin by recipients of federal financial assistance. 39 Any “program or activity” that receives federal funding must not discriminate on these bases. The Department of Education (DOE), Department of Transportation (DOT), Department of Justice (DOJ), and Department of Health and Human Services (HHS) all have written regulations implementing Title VI, which are binding upon recipients of their federal financial assistance. These regulations not only prohibit intentional discrimination, they also prohibit practices that cause a disparate impact on a group because of their race, color, or national origin. The applicable regulations state: “A recipient … may not directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect 36 Unfulfilled 2007 promises hang over EPISD bond, El Paso Times (Oct. 8, 2016), https://www.elpasotimes.com/story/news/education/episd/2016/10/08/unfulfilled-2007-promises-hang-over-episdbond/91667874/. 37 Letter to the editor: We are fighters, Bowie Growler (May 4, 2017), 2. 38 Letter: EPISD once again showing lack of respect for Bowie community, El Paso Times (Oct. 4, 2017), http://www.elpasotimes.com/story/opinion/2017/10/04/episd-once-again-showing-lack-respect-bowie-communityreaders/719594001/. 39 42 U.S.C. 2000d et seq. 19 of subjecting individuals to discrimination because of their race, color or national origin […] ” 40 “In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this subpart applies, on the ground of race, color, or national origin […]” 41 Though there is no private right of action to prohibit disparate impacts under Title VI, individuals or organizations can file disparate impact complaints based on agency regulations. 42 Because EPISD receives federal funding from DOE, DOT, DOJ, and HHS it must comply with Title VI and follow these departments’ regulations. The regulations are meant to ensure that programs funded by the federal government do not perpetuate “the repercussions of past discrimination.” 43 Neutral policies must be examined to ensure that minorities are not excluded from benefits or do not have a disproportionate share of the harm placed upon them. 44 Any application for federal financial assistance must provide assurances that the program will be operated in compliance with Title VI and its implementing regulations. 45 In order to determine whether a policy or practice violates Title VI and an agency’s regulations, the individual filing the complaint bears the initial burden of establishing a prima facie case that a facially neutral policy or practice has caused a disproportionate adverse impact upon a race, color, or national origin group. 46 To do so, the complainant must: ● Identify the policy or practice at issue; ● Establish the adversity or harm that is occurring/will occur; ● Establish a disparate impact on a minority group; and ● Demonstrate the causal connection between the policy/practice and the disparate impact. 47 40 34 C.F.R. § 100.3(b)(2); 42 C.F.R. § 21.5(b)(2); 28 C.F.R. § 42.104(b)(2); 45 C.F.R. § 80.3(b)(2) (some minor wording differences between the different agencies’ regulations) 41 34 C.F.R. § 100.3(b)(3); 42 C.F.R. § 21.5(b)(3); 28 C.F.R. § 42.104(b)(3); 45 C.F.R. § 80.3(b)(3) (some minor wording differences between the different agencies’ regulations) 42 Alexander v. Sandoval, 532 U.S. 275, 292 (2001). 43 Civil Rights Division, Dep’t of Justice, Section VII: Proving Discrimination – Disparate Impact, Title VI Legal Manual, 4 (updated February 10, 2017). 44 Id. 45 34 C.F.R. § 100.4. 46 DOJ Manual, 8-9; S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 145 F.Supp.2d 446, 483 (D.N.J. 2001), rev’d on other grounds, 274 F.3d 771 (3d Cir. 2001). 47 DOJ Manual, at 11; see S. Camden, 145 F.Supp.2d at. 483. 20 Once this has been established, the burden then shifts to the recipient (here EPISD) to demonstrate the existence of a substantial legitimate justification for the policy or practice. 48 The justification must be important and “integral to the recipient’s institutional mission.” 49 Here, EPISD’s justification should stem from an educational necessity; 50 or, more broadly, they need to “show that the decision was necessary to meeting a legitimate, important goal integral to their mission of administering educational institutions.” 51 The justification must not be a pretext for discrimination. 52 If this substantial legitimate justification is shown, the existence of a less discriminatory, feasible alternative that still meets the recipient’s goal may still allow for the agency to find a Title VI violation. 53 When disparate impact lawsuits were still allowed, pre-Sandoval, it was the plaintiff’s duty to find less discriminatory alternatives. 54 In Title VI administrative investigations, it is the agency that must seek out alternatives, and the recipient must provide the relevant data. 55 V. EPISD MUST COMPLY WITH TITLE VI BECAUSE IT IS A “PROGRAM OR ACTIVITY” THAT RECEIVES FEDERAL FUNDING The El Paso Independent School District has been and continues to be a recipient of federal funding, both as a direct recipient and as a sub-recipient. In the financial year ending in June 2017, EPISD expended a total of $86,044,178 in federal awards. 56 More than half of this funding was received from DOE, which provided funds directly through Impact Aid, and indirectly through the Texas Education Agency. DOT, DOJ, and HHS also provided federal funding to EPISD in FY2017. 57 Under DOE regulations, EPISD meets the definition of “program or activity,” since it is a local education agency. 58 EPISD, as directed by the Board of Trustees, makes the decisions concerning the siting and construction of the potential new transportation hub. Because the district is a “program or activity” that receives federal funding, it is subject to Title VI and the regulations promulgated by DOE, DOT, DOJ, and HHS under Title VI when it makes such decisions. 48 DOJ Manual, 8; Larry P. v. Riles, 793 F.2d 969, 982 (9th Cir. 1986); Elston v. Talladega Cty. Bd. of Educ. 997 F.2d 1394, 1412 (11th Cir. 1985). 49 DOJ Manual, at 34; see Elston, 997 F.2d at 1413. 50 Larry P., 793 F.2d, at 982. 51 Elston, 997 F.2d at 1413. 52 DOJ Manual, at 8; Elston, 997 F.2d at 1407. 53 DOJ Manual, at 39; Elston, 997 F.2d at 1413; S. Camden, 145 F.Supp.2d at 483. 54 DOJ Manual, at 40; see Elston, 997 F.2d at 1413. 55 DOJ Manual, at 40. 56 See Attachment G, “EPISD Schedule of Expenditures of Federal Awards for the Year Ended June 30, 2017” 57 Id. 58 34 C.F.R. § 100.13(g)(2)(ii). 21 VI. THIS TITLE VI COMPLAINT IS TIMELY This complaint is being filed within 180 days of actions by the El Paso Independent School District to construct a transportation and central operations hub at Bowie High School. The School Board makes regular decisions during their meetings concerning the hub, one of which occurred on November 16, 2017. During this meeting, demand letters relating to the siting of the bus hub and other environmental risks in the Chamizal meeting were discussed during a closed session. The following day, a response letter concerning the potential neighborhood contamination and the bus hub was sent to Texas RioGrande Legal Aid (see Attachment E). EPISD also published a Request for Proposal for the project on February 25, 2018 and added an addendum on March 2, 2018. The decisions being made concerning the siting and construction of the transportation hub are continuous and ongoing and thus fall within the 180day deadline. VII. RELOCATING THE DISTRICT’S CENTRAL BUS AND OPERATIONS HUB TO BOWIE HIGH SCHOOL WILL CAUSE ADVERSE DISPARATE IMPACTS BASED ON RACE AND NATIONAL ORIGIN TO THE SCHOOL’S STUDENTS AND RESIDENTS OF THE CHAMIZAL NEIGHBORHOOD A. Siting a Bus and Operations Hub at Bowie High School Will Cause Adverse Effects Building and operating a bus hub and operations facility right next to Bowie High School will negatively impact the health, safety, and education of the students attending the high school and the residents of Chamizal living in the school’s immediate vicinity. As described below, the presence of more than 120 buses will increase the already high levels of air pollution in the area, exacerbating existing health problems, and will also increase the traffic and safety hazards on the surrounding streets. In addition to the large bus fleet that would be stationed at Bowie, there would also be offices, a maintenance facility and refueling station that would serve vehicles from across the district. The mitigation proposed by EPISD to “minimize the adverse effects” is wholly inadequate to address the disparate impacts. The attached Expert Report, “Review of Air Quality Effects from the Proposed Bus Hub at Bowie High School, El Paso, TX,” by Dr. Deb Niemeier of Sustainable Systems Research LLC examines the local air quality effects of relocating the central operations hub to Bowie as well as the mitigation measures proposed by EPISD (“Expert Report,” Attachment A). Findings from this report are referenced below. 22 1. Air Pollution The transportation and maintenance hub will cause an increase in harmful air pollution such as particulate matter (PM) and nitrous oxides (NOx) in and around Bowie High School. Children attending Bowie High School and those living nearby in Chamizal are already exposed to air pollution from traffic on the nearby highways. I-10 and the trucks waiting to cross the Bridge of the Americas are especially problematic, and create higher levels of localized air pollution near the main roads than the background levels of pollution. In particular, Dr. Niemeier’s expert report concludes that: ● [S]tudents may experience the equivalent of between 9 to 20 passively smoked cigaretteequivalents as a result of the PM and NO2 pollutants generated during idling by buses at, near or within the proposed bus hub 59 ● [T]he estimated emissions generated at other bus hubs are significantly less than those generated at the proposed Bowie Hub. ○ The Northeast hub will be approximately 36% lower than estimated yearly emissions generated at the proposed Bowie High School location. ○ The West hub will experience yearly emissions approximately 25% lower than those experienced at Bowie. 60 ● [T]his exposure comes on top of the exposure to localized air pollutants generated from the adjacent high volume roadway source already present at the high school. 61 ● [T]raffic-generated pollutants do not fall to background concentrations until between 200m and 400m from the roadway sources. Because Bowie High School falls within 400m of East Paisano Drive, localized emissions at the High School are expected to be much higher than background concentrations. ○ Studies measuring high particle number concentrations in the area are also consistent with higher than background localized air pollution levels. 62 ● Adding a bus hub to Bowie High School, under any configuration, is likely to exacerbate what already appears to be persistently high levels of local pollutants. 63 59 Expert Report (Attachment A), at 5. Id. at 5, 7. 61 Id. at 5–6. 62 Id. at 6–7. 63 Id. at 7. 60 23 Afternoon truck traffic on Paisano Drive leading onto the Bridge of the Americas. At its worst, the queue can stretch past Piedras Street and the main entryway to Bowie High School. Photo from February 5, 2016. Compared to adults, children are more vulnerable to the consequences of air pollution exposure. 64 Children “breathe 50 percent more air per pound of body weight than do adults.” 65 They breathe more rapidly, engage in more physical activity, and spend more time outdoors. 66 Changes in a child’s lungs continue through their adolescent years. 67 Thus, children can be particularly susceptible to air pollutants like particulate matter, nitrogen dioxide, and ozone, which increase the risk of respiratory illness and decrease lung function. 68 Since more air pollutants can lead to more respiratory illnesses, children in areas with many sources of air pollution, like Chamizal, are at a greater risk of missing school. As noted previously, studies performed in El Paso have shown that there is a correlation between a child’s GPA average and their exposure to diesel exhaust and other hazardous air pollutants (more exposure is associated with a lower GPA). 69 Additional studies have suggested that proximity to traffic-related air pollutants exacerbate existing respiratory problems in El Paso schoolchildren. 70 64 Ambient Air Pollution: Health Hazards to Children, Committee on Environmental Health, American Academy of Pediatrics, 144.6 Pediatrics, 1699 (December 2004). 65 What You Should Know About Diesel Exhaust and School Bus Idling, EPA, 1 (June 2003). 66 Committee on Environmental Health, supra, at 1699. 67 Id. 68 Id. 69 Grineski, et al., School-Based Exposure, supra, at 167-169. 70 Svendsen et. al., GIS-Modeled Indicators, supra, at S139; Zora, et. al., Associations between urban air pollution, supra, at 64. 24 Health issues can also lead to more missed days of school. Chronic absenteeism is linked to lower graduation rates, worse employment outcomes, and health problems later in life. 71 One of the most common causes of missed school is asthma. 72 All of the issues potentially caused by increased levels of air pollution are compounded by the fact that the bus hub will be situated directly next to the school’s football stadium and very close to tennis courts and the school’s new baseball field. 73 The exhaust fumes from the buses will be emitted directly next to the area where the high schoolers come outside to play sports and exercise. Exercising entails deeper, more rapid breathing, and has been linked to a magnified exposure to air pollution. 74 Students who attend Bowie have already complained of respiratory issues occurring when they play sports there. Siting the bus hub nearby will only exacerbate these negative reactions. The Chamizal neighborhood includes a mix of residential and industrial parcels (see Figure 8 below). 75 According to the Chamizal Neighborhood Revitalization Strategy Report, 57.5% of all parcels in the neighborhood are single-family residential, while 13.3% are multifamily use, and .5% are public housing. 76 While schools only account for .4% of the number of parcels, they encompass 29% of the land area in the neighborhood. 77 The neighborhood also includes industrial and light industrial facilities such as a scrap metal recycling facility, small warehouses, mechanics shops, and truck trailer yards. Not only would the presence of a bus hub and additional air pollution affect the children attending Bowie, it would also impact the nearby residents of Chamizal, in particular those living at Salazar Public Housing, who already deal with pollution, safety hazards, and nuisances from a checkerboard of industrial facilities. 71 Robert Wood Johnson Foundation, The Relationship Between School Attendance and Health, 4 (September 2016), https://www.rwjf.org/content/dam/farm/reports/issue_briefs/2016/rwjf431726. 72 Id. at 3. 73 EPISD decided to move the existing baseball field to make room for the transportation and maintenance hub. 74 A J Carlisle and N C C Sharp, Exercise and Outdoor Ambient Air Pollution, 35:2 British Journal of Sports Medicine, 214-222 (2001). 75 Chamizal Neighborhood Revitalization Strategy, 10. 76 Id. at 11. 77 Id. 25 Figure 8. Chamizal, with residential areas (yellow) surrounded by and mixed in with commercial (red) and industrial (purple) land use. 78 2. EPISD’s proposed mitigation does not adequately address the adverse impacts from increased air pollution from the Bus Hub In order to “minimize any adverse effects, if any, to the Bowie campus” the EPISD Superintendent and Board of Trustees wrote in a letter to Texas RioGrande Legal Aid in November 2017 that EPISD “is committed to using propane-powered buses” and plans to include a green space buffer that will consists of vegetation, including numerous trees, to create a barrier to the Bowie campus. However, neither of these assertions are supported by any specific plans or analysis demonstrating, for example, how EPISD plans to purchase new buses or switch to propane fuel, or how the buffer will be designed to actually reduce localized air pollution. After evaluating the information available about these proposed mitigation measures, Dr. Niemeier’s concludes in her expert report: 78 HNTB Corporation, Loop 375 César Chávez Highway (Border High West Extension) Preliminary Alternatives Assessment Draft Report, Exhibit 4 (November 2007), http://ftp.dot.state.tx.us/pub/txdot-info/spd/cda/borderhighway-west/rfq/project-documents/06-feasibility-studies/6c-preliminary-alternatives-assessment-draft-report-15pgs-nov-2007-0003.pdf. 26 • Based on the available evidence, there is little reason to expect: 1) new buses to be propane, and 2) even if new bus purchases are propane, that bus emissions will decrease. In fact, most emissions levels would be higher under new propane buses (compared to new diesel clean buses). 79 • The science on the use of vegetative barriers as a primary means of mitigating air pollutants is not sufficiently advanced enough to design a robust barrier that will ensure that localized air pollutants are mitigated from the proposed bus hub. 80 3. Traffic In addition to air pollution, siting a bus hub meant for more than 120 buses at Bowie High School will further congest the already busy streets around the school. Parents with children attending Bowie are worried for their children’s safety, which is already compromised by the truck traffic heading to the Bridge of the Americas and around the neighborhood’s industrial facilities. A 2011 traffic analysis showed that queue length on a typical day at the Bridge of the Americas extended for over half a mile along Paisano Drive, U.S. Highway 54, and the I-10, and that peak delays for commercial traffics extended to nearly 30 minutes. 81 Trucks already often block intersections and crosswalks, while vehicles dangerously swerve and hop curbs to get around truck traffic. Findings in Dr. Niemeier’s Expert Report confirm the high volume of existing traffic near Bowie high school: ● In 2015, traffic volumes on East Paisano ranged from 22,000 to 29,000 vehicles per day. Volumes are anticipated to grow to between 28,000 and 36,000 vehicles per day by 2025. ● In addition, there is strong evidence of significant queuing in relationship to the border crossing, which compounds the problem of on-going exposure to localized pollutants. 82 Siting 124 buses, more than are parked at either of the other bus hubs which are not directly next to a school, will increase the number of large vehicles on the roads surrounding Bowie. There is significant pedestrian traffic around Bowie, Douglass Elementary, the Salazar and Tays apartments, and the Bridge of the Americas Port-of-Entry that already has to contend 79 Expert Report (Attachment A), at 10. Id. at 11. 81 El Paso Regional Ports of Entry Operations Plan, Vol. I - Project Summary Report, by Cambridge Systematics, Inc., HNTB Corp, KPMG, LLC, Harris Interactive Services Bureau, UTEP (June 2011), at 4-2 and 6-9. 82 Expert Report (Attachment A), at 6. 80 27 with heavy and sometimes chaotic vehicular traffic. Students and parents will find it even more difficult and hazardous to cross roads, leading to increased safety and mobility concerns. Heavy truck traffic in the Chamizal neighborhood regularly leads to dangerous driving, such as vehicles hopping curbs near Bowie High School. Photo from March 13, 2018. 4. Impacts on children’s health and safety have not been evaluated per EPA standards for new sources of pollution near schools EPA’s School Siting Guidelines The EPA recognizes the unique vulnerability of children to environmental hazards. 83 Because of this, they have developed model guidelines for the appropriate authorities to take into account when selecting potential sites for schools. 84 While the guidelines are voluntary and do not apply retroactively, they recommend considering various environmental factors and hazards, including potential sources of air pollution, before a new site is built or an existing site is renovated. 85 EPA recommends that the local education agency “should seek to avoid locations that are in close proximity to land uses that may be incompatible with schools, such as those included in Exhibit 6: Screening Potential Environmental and Safety Hazards, particularly in 83 School Siting Guidelines, EPA, 1. Id. at 1-152. 85 Id. at 3-4, 117. 84 28 cases where acceptable alternative locations exist that may pose fewer environmental challenges and still meet other important school siting criteria.” 86 In particular, EPA has specifically listed in Exhibit 6 buses terminals or garages with more than 100 buses a day as a potentially problematic pollution-generating land use if within half a mile of a candidate school site. 87 EPA lists the following potentials hazards for a bus terminal of this size: ● Air pollution, including diesel emissions ● Soil contamination ● Groundwater contamination ● Surface water contamination ● Vapor intrusion ● Heavy truck or bus traffic 88 In addition, EPA highlights the importance of public involvement in “evaluating the impacts of nearby sources of air pollution. The [local education agency and school siting committee] should inform the public about the evaluation and give opportunities for public comment on assessment reports and, in cases where mitigation is needed, on potential mitigation measures.” 89 In the present case, the proposed hub would be within a half mile radius not only of Bowie, but also Douglass Elementary and the Salazar and Tays public housing complexes (see Figure 9 below), in an area already burdened by a significant amount of pollution and traffic. While Bowie and the other schools already exist, the relocation of the bus hub, maintenance area, and refueling station would be a renovation of the school and a new source of pollution, and thus according to the EPA Guidelines, should not be constructed in such close proximity to these existing schools without a site-specific analysis of the air pollution, traffic, and other potentially hazardous impacts, an evaluation of alternative sites, and the incorporation of meaningful public involvement. 86 Id. at 96. Id. at 57; In the Q&A portion of the guidelines, the EPA also says that “the recommendations in these guidelines can be used by planning and environmental agencies in land use and permitting issues to the extent applicable,” and that states, tribes, and communities should try to avoid siting new sources of pollution near schools. Id. at 130-31. 88 Id. at 57. 89 Id. at 96. 87 29 Figure 9. Half-mile radius drawn around the proposed hub, encompassing the entire Bowie campus, the Salazar housing complex, the Tays housing complex, and Douglass Elementary. EPA Air Quality Standards: PM Hot Spot Analysis and CO Maintenance Area The El Paso region continues to experience background PM concentrations close to or above both the 24-hour and annual NAAQS PM standards. El Paso County is part of Air Quality Control Region 153, currently classified as “Unclassifiable/Attainment” for the PM2.5 annual standard and moderate non-attainment for the PM10 24-hour standard. As recommended in the expert report by Dr. Niemeier, because of the concern about background PM levels in Chamizal, EPISD should perform a PM hot spot analysis to evaluate localized concentrations from the addition of the bus hub: Section 93.101 of 40 CFR defines a PM hotspot analysis as the means used to calculate future localized pollutant concentrations for comparison to the federal standards. Federal standards are focused on regional conformance to national air quality standards, the PM hotspot analysis can help to identify the levels of localized concentrations. A major new bus or intermodal terminal that involves a significant number of diesel buses or trucks is a candidate for hotspot analysis under section 93.101. In addition, EPA’s school siting guidelines also recommend that new or related bus terminals with greater than 100 buses undergo a site assessment. With the region’s PM federal standard designations, the local conditions are such that a PM Hotspot Analysis would be a prudent course of 30 action, and is consistent with EPA’s school siting recommendations, to ensure that students are not exposed to high and continuing levels of pollutants. 90 In addition to already being burdened by high levels of particular matter, Bowie High School is also within the El Paso Maintenance Area for Carbon Monoxide. Following implementation of the 1990 Federal Clean Air Act Amendments, a portion of El Paso just east of downtown along the U.S.-Mexico border was determined to be in violation of the NAAQS for Carbon Monoxide (CO) (see Figure 10 below). As a result, Texas was required to adopt revisions to its State Implementation Plan (“SIP”) to address major CO sources and to bring area CO levels into attainment with NAAQS. That maintenance plan is required under federal law to continue until at least 2028. CO has been a problem in the maintenance area due to a combination of on-road sources as well as topographical and meteorological conditions conducive to accumulation of air pollutants. While CO levels in the maintenance area have been trending downward, the addition of a bus hub immediately within the CO maintenance area at a minimum should be evaluated for compliance with the federal standards. 90 Expert Report (Attachment A), at 8. 31 Figure 10. Bowie High School and the Chamizal neighborhood fall within an EPA-mandated Carbon Monoxide Maintenance Area shown in yellow. 91 B. The Relocation of the Bus Hub to Bowie High School Will Cause Disparate Impacts Based on Race and National Origin The plan to relocate the district’s transportation and maintenance hub to Bowie High School is unlawful because it will cause disproportionate impacts based on race and national origin. The impacts discussed above will harm the students at Bowie high school as well as residents of the Chamizal neighborhood, both of which are almost entirely comprised of Hispanic individuals and have a very high number of English learners who speak Spanish in the home. Language can be used as a proxy for national origin, so the fact that so many students and 91 Nonattainment and Maintenance Boundaries, El Paso Metropolitan Planning Organization, available at http://www.elpasompo.org/other/gis/maps.htm. 32 individuals living in the neighborhood have limited English proficiency indicates a disparate impact based not only on race, but also on national origin. 92 Bowie High School also has a much higher percentage of Hispanic students and English Language Learner students than the district as a whole and in particular, the high schools closest to either of the other two bus hubs. In the 2016-17 school year, 98.7% of Bowie’s student body was Hispanic, while at Andress, the high school closest to the Northeast hub, that figure was 76.7%, and at Coronado, the high school closest to the West hub, it was 81.0%. Only 7.7% and 12.9% were English Language Learners at Andress and Coronado, respectively, compared to 50.2% at Bowie. There are also no schools within half of a mile of the West and Northeast bus hubs, while both Bowie High School and Douglass Elementary both would be within less than half of a mile of the new bus and operations hub. Comparison of Bowie, district-wide, and statewide demographics. 93 Comparison of Bowie, Andress, and Coronado High Schools demographics. 94 92 Lau v. Nichols, 414 U.S. 563 (1974); Yniguez v. Arizonans for Official English, 69 F.3d 920, 947 (9th Cir. 1995) (en banc) (noting that “language is a close and meaningful proxy for national origin”), vacated on other grounds sub nom, Arizonans for Official English v. Ariz., 520 U.S. 43 (1997). 93 2016-17 TAPR, supra, 13. 94 All Bowie High School, Andress High School, and Coronado High School demographics information was taken from their respective 2016-17 Texas Academic Performance Reports, prepared by the Texas Education Agency, and can be searched for at: https://tea.texas.gov/perfreport/tapr/index.html. 33 The Chamizal neighborhood, discussed more in the demographics Section IV.C. above, has a higher percentage of Hispanic, foreign-born, limited English proficiency, and low-income residents than the rest of El Paso and the state, as shown in this table: Comparison of Chamizal, the City of El Paso, and Texas demographics. 95 There is a growing body of evidence that “pollution burdens fall disproportionately on low-income and racial or ethnic minority communities.” 96 In addition, studies have demonstrated that more minority children are exposed to higher levels pollution around their schools than their white peers, and that greater air pollution exposure at school is linked with worse student performance. 97 Minority and low-income populations may also be more sensitive or uniquely vulnerable to pollutant exposure. The effects of cumulative exposure should be considered when determining the level of harm and the disparity of the adverse impact on an community like Chamizal. VIII. POTENTIAL LESS DISCRIMINATORY ALTERNATIVES It is unclear based on Complainant’s correspondence with EPISD and public records whether the Board of Trustees ever seriously considered an alternative location for the bus hub other than the site at Bowie, though it appears it did previously consider dividing the maintenance facility between Zavala Elementary and Schuster Elementary, which would have reduced the footprint of the hub, leaving the old Bowie baseball field intact. 95 Demographics from the 2016 American Community Survey. Census Track 28/Chamizal: https://censusreporter.org/profiles/14000US48141002800-census-tract-28-el-paso-tx/. El Paso: https://censusreporter.org/profiles/16000US4824000-el-paso-tx/. Texas: https://censusreporter.org/profiles/04000US48-texas/. 96 Paul Mohai, et al., Air Pollution Around Schools Is Linked to Poorer Student Health and Academic Performance, 30:5 Health Affairs, 853 (2011). 97 Id. at 853-58; Clark, et al., Changes in Transportation-Related Air Pollution Exposures by Race-Ethnicity and Socioeconomic Status: Outdoor Nitrogen Dioxide in the the United States in 2000 and 2010, 125:9 Environmental Health Perspectives, (September 2017), DOI:10.1289/EHP959. 34 EPISD’s cost analysis of the savings from moving the central hub to Bowie only compares the costs of the existing location of the central hub, where EPISD pays the City to lease the land, to the proposed Bowie location. 98 This analysis does not evaluate any other possible locations where EPISD already owns land and would therefore also not have to pay rent. Thus, any arguments that the move to Bowie is justified based on costs are disingenuous because EPISD did not appear to evaluate the costs of moving the Central Hub to any another locations. The Board did consider, however, moving its central administrative offices to land owned by the District near the current Northeast bus hub, before deciding to acquire property to move them downtown instead. 99 Therefore, the District owns additional land at the Northeast bus hub that should also be considered for the central bus and operations hub instead of the site at Bowie High School. Based on information available to Complainants, we believe the Northeast location would be a less discriminatory alternative for the central hub because the area serves a lower percentage of Hispanic, foreign-born, and low-income students compared to Chamizal, and it is not already burdened by elevated levels of localized air pollution and truck traffic from the border. In addition, this site would be further away from existing schools, and would thus comply with the recommendations in the EPA School Siting Guidelines. Other less discriminatory alternatives are likely also available, including other land EPISD already owns, and Complainant encourages DOE, DOT, DOJ, and HHS to do a full investigation into other possible less discriminatory alternatives. IX. CONCLUSION For the reasons set forth above, EPISD’s plans and actions taken to relocate its Central Bus and Operations Hub are not in compliance with Title VI of the Civil Rights Act of 1964. Accordingly, we request that DOE, DOT, DOJ, and HHS take all necessary steps to ensure that EPISD comes into full compliance with the requirements of Title VI. Thank you for your prompt attention to prevent further discrimination for the students and residents of the Chamizal neighborhood. Please let us know if we can provide any additional information to assist you in addressing these serious concerns. We can be contacted through TRLA attorney Erin Gaines at 512-374-2739 or egaines@trla.org. 98 See Attachment J, “EPISD Analysis of Current Maintenance/Transportation Location as of November 16, 2017” EPISD buys EPCC land for $3.2 million for new offices, El Paso Times (Feb. 28, 2017), https://www.elpasotimes.com/story/news/education/episd/2017/02/28/episd-buys-epcc-land-32-million-newoffices/98538818/ 99 35 Sincerely, _________________ Erin Gaines, Attorney Enrique Valdivia, Attorney Alan Dicker, Paralegal Texas RioGrande Legal Aid _________________ Loraine Hoane Clinic Student University of Texas School of Law Environmental Clinic List of Attachments: A. Dr. Deb Niemeier, Sustainable Systems Research LLC, Expert Report: “Review of Air Quality Effects from the Proposed Bus Hub at Bowie High School, El Paso, TX” (March 26, 2018) B. Letter from TRLA to EPISD Superintendent Juan Cabrera and Board of Trustees (July 19, 2016) C. Letter from TRLA to EPISD Superintendent Juan Cabrera (March 22, 2017) D. Letter from TRLA to EPISD Superintendent Juan Cabrera (May 2, 2017) E. Letter from EPISD Superintendent and Board members to Veronica Carbajal, Texas RioGrande Legal Aid (November 17, 2017) F. Dr. W. L. Hargrove et al, Center for Environmental Resource Management, The University of Texas El Paso, Executive Summary, “Soil Testing for Various Heavy Metals in and around Some Schools of El Paso Independent School District (EPISD)” (October 17, 2016) G. EPISD Schedule of Expenditures of Federal Awards for the Year Ended June 30, 2017 H. Carmen Arrieta-Candelaria, Deputy Superintendent for Finance, Presentation Slides, “Relocation of Maintenance/Transportation Hub” (November 2017) I. Carlos Gallinar, El Paso Independent School District, Presentation Slides at Facilities Committee Meeting (February 13, 2017) J. EPISD Analysis of Current Maintenance/Transportation Location (November 16, 2017) 36