Campaign of Sabotage

Transit users are second-class citizens in most American cities and suburbs. For example, the Boston metropolitan area has a subway system serving its urban core and a commuter train system serving its suburbs - yet even in metropolitan Boston, just 32% of entry-level employers are within one-quarter mile of a transit stop.¹ And the situation is even worse in smaller cities, many of which have no bus service after rush hour.²

Why do American communities have so little transit service? Pundits and politicians justify the status quo on the grounds that, in the words of Tom DeLay, public transit "has failed in this country . . . despite a taxpayers' investment of over $100 billion."³ The story told by transit critics is a simple one: government spends money on public transit, yet most Americans don't use it. Thus, public transit is a waste of money.

But this story overlooks an important fact: far from encouraging Americans to use buses and trains, government at all levels has inadvertently sabotaged public transit by:

• Funding the competition. Until the 1960s, the federal government spent billions of dollars on highway building,⁴ but did not support trains and streetcars (which were generally run by private companies until competition from government highways made them into money-losers).⁵ And today, the federal governments spends more than four times as much money on highways as on transit (over $30 billion per year for highways, about $7 billion for transit).⁶ New and widened roads often go to suburbs without significant transit service, and thereby open up those areas for development.⁷ Thus, highway spending shifts people and jobs to areas without public transit, thus gutting transit ridership.
• Unfunded mandates. The federal government has effectively reduced transit service by loading down transit agencies with unfunded mandates. For example, the Americans with Disabilities Act (which requires transit systems to provide accessible service to the disabled) costs transit providers $1.4 billion per year,⁸ and Section 13-c of the Federal Transit Act (which limits transit systems' ability to reduce labor costs by laying off employees)⁹ costs transit providers $2-3 billion per year.¹⁰ Thus, about half of federal transit subsidies are canceled out by the costs of federal regulation.
• Paying Americans to move to auto-dependent suburbs. Since 1934, the Federal Housing Administration (FHA) has insured home mortgages. For the first few decades of its existence, FHA insured mortgages only in "low-risk areas" (usually defined as newer, whiter areas, i.e., suburbs), thus making suburban homes cheaper than urban homes.¹¹ Because suburbs usually have less transit service than cities, FHA policies reduced transit ridership.
• Packing poverty into cities. New Deal-era public housing legislation encouraged cities to build public housing for the poor, but gave suburbs veto power over public housing,¹² and in fact discouraged suburbs from building public housing by mandating that one unit of substandard housing be eliminated for each unit of public housing built¹³ (thus ensuring that suburbs with little substandard housing could not build public housing). By packing public housing for the poor into cities, federal law packed poor people into cities. Because middle-class people tend to avoid the poor and problems associated with poverty (such as crime), federal public housing law encouraged middle-class flight to suburbia, which in turn reduced transit ridership as families moved from transit-packed cities to auto-dominated suburbs.
• Using school systems to drive commuters into suburbia. Most states mandate that students be assigned to schools based on their home address – which means urban children go to urban schools and suburban children go to suburban schools.¹⁴ Because cities tend to have more poverty than suburbs, city schools tend to have more children who are from low-income backgrounds (and thus harder to educate) than suburban schools. Thus, state laws effectively mandate that cities have worse schools than suburbs, thus encouraging middle-class flight from cities, thus reducing transit ridership.
• Using zoning laws to make suburbs as auto-oriented as possible. Many American municipalities have enacted minimum lot size laws to reduce population density; for example, the average Atlanta-area acre contains no more than a home or two.¹⁵ Public transit is less feasible in low-density areas: as residences are spread farther apart, fewer commuters can walk convenient distances to bus and train stops. Thus, zoning in its current form reduces transit ridership.

In sum, a wide variety of government policies have had the effect of sabotaging, rather than promoting, public transit. Nevertheless, transit ridership has actually been growing since 1995 - and if government ever reduces its anti-transit activism, this trend might continue.

Michael Lewyn is a native Atlantan and teaches at John Marshall Law School in Atlanta, Georgia.

Footnotes

1. Conservation Law Foundation, City Routes, City Rights 20 (1998). See also Michael Lewyn, Thou Shalt Put No Stumbling Blocks Before The Blind, 52 Hastings Law Journal 1037, 1041-43 (2001) (citing similar statistics for other cities and metropolitan areas).

2. Id. at 1042-43. See also David G. Oedel, The Legacy of Jim Crow in Macon, Georgia, in Just Transportation 97 (Robert D. Bullard and Glenn S. Johnson, eds. 1997).

3. 137 Cong. Record H8199-02 (1991), available at 1991 WL 213667.

4. Lewyn, supra at 1045-47 (discussing history of federal highway spending in more detail).

5. Paul Weyrich & William S. Lind, Conservatives and Mass Transit: Is It Time For A New Look? 10 (1996).

6. See Budget Plans to Shape TEA-21 Renewal, Transfer, March 14, 2003, available online at http://www.transact.org/transfer/trans03/03_14.asp#3 (noting current budget baseline of $31.6 billion for highways, $7.2
billion for transit).

7. See Lewyn, supra at 1048-51 (making argument in more detail, and in particular citing National Association of Home Builders survey showing that 55% of home buyer would move to a newer area if highway access improved); Sierra Club v. US DOT, 962 F. Supp. 1037, 1043 (N.D. Ill. 1997) ("Highways create demand for travel and [suburban] expansion by their very existence").

8. Testimony of the American Public Transportation Association, Subcommittee on Surface Transportation of the House Committee on Transportation and Infrastructure, Sept. 26, 1996, 1996 WL 10831544. See also Brian Doherty, Disabilities Act: Source of Unreasonable Accommodations, San Diego Union-Tribune, July 16, 1995 at G1 (ADA's paratransit provisions alone cost transit agencies $1.1 billion per year). Because these figures are several years old, they may underestimate the ADA's costs.

9. Editorial, Untied, Houston Chronicle, June 29, 1995 at 36, available at 1995 WL 5912413 (statute mandates that transit agencies pay six years' wages and benefits to employees affected by layoffs).

10. John-Walters, Bus-Jacking the Revolution, Policy Review, Jan/Feb. 1996 at 8.

11. Kenneth Jackson, Crabgrass Frontier 207 (1985).

12. Id. at 224.

13. Michael H. Schill & Susan Wachter, The Spatial Bias of Federal Housing Law and Policy, 143 U. Pennsylvania Law Review 1285, 1293 (1995).

14. Lewyn, supra at 1058.

15. Arthur C. Nelson, Exclusionary Practices and Urban Sprawl in Metropolitan Atlanta, 17 Ga. St. U. L. Rev. 1087 (2001) (discussing exclusionary zoning in Atlanta, and noting that as a result average lot size in metro Atlanta over 3/4 of acre).