The Ninth Circuit Court issues a rare smack-down to a civil rights group

Have the courts that have often been tolerant of questionable claims of racial discrimination finally begun to run out of patience?

This may be the case.  Recently the U.S. Ninth Circuit Court of Appeals raised eyebrows by issuing a stinging rebuke to civil rights lawyers who brought a lawsuit that claimed their plaintiffs – poor and largely minority public bus riders in the San Francisco Bay Area – had been the victims of discrimination.

The smack-down of the advocate’s lawsuit is significant because the Ninth Circuit is widely seen as one of the more liberal federal courts in the nation.

One of the primary civil rights groups who brought the case is the Equal Justice Society, a group based in San Francisco with a long history of radical activism and “social justice” legal work.  Undeterred by the loss in court, they issued a statement on their website that asked the question, “Can the Poor Get Justice?” 

It’s clear that in the minds of the civil rights groups that sued the Bay Area’s Metropolitan Transit Commission the answer to that question is … no.  But even though a normally friendly federal court had just told them their case was bogus, the Equal Justice Society claimed the court had virtually turned its back on poor, minority bus riders.

The primary plaintiff in the case of Darensburg v. Metropolitan Transit Commission was Sylvia Darensburg, identified as an African-American mother of three who lives in East Oakland.  She’s someone the Equal Justice Society says “experiences the reality of transit inequality.” 

That inequality, according to them, was her having to rely on public buses as her primary source of transportation to get her to work and the college classes she attended at night.  She “endured” long waits for the two buses she rode and had to walk 12 blocks to get to and from the closest bus stop.

According to the evidence presented by the plaintiff’s lawyers, nearly 80 percent of Bay Area bus riders are people of color, and over 70 percent have incomes that are below $30,000.  They argued that almost 60 percent of the bus riders are entirely dependent on public buses for transportation.

The Ninth Circuit examined the facts, heard the evidence and concluded that no discrimination was taking place.  The evidence presented by the plaintiff’s counsel was that a regional transit expansion plan would have a disparate impact on minorities; the Bay Area’s rail service predominantly benefits white riders; and the Metropolitan Transit Commission has an intentionally inconsistent application of criteria to bus and rail projects that displayed a bias in favor of rail riders over bus riders.

But the Court discovered that, in fact, over 51 percent of rail riders were members of racial minority groups.  The Court also said, “The statistical measure upon which Plaintiffs relied to establish a prima facie case is unsound, and their claim rests upon a logical fallacy.”  Addressing the claim that a rail expansion plan would harm minorities, the Court stated “… the evidence shows that Bay Area minorities already benefit substantially from rail service” and that “no court could possibly determine whether MTC’s long-term expansion plan will help or harm the region’s minority transit riders.” 

Sounding a bit perturbed, the Court’s ruling was that, “The Plaintiffs failure to provide an appropriate measure of disparate impact also fatally undermines their claim of intentional discrimination.”  It went on to state “Not only does Plaintiff’s statistical evidence fail to prove discrimination, but their circumstantial evidence does not support any inference” that the transit company was motivated by racial bias.

But mirroring the worst example contained in so-called Critical Race Theory, something that has infected liberal law schools around the nation and argues that whites will always and forever be inherently racist, the Equal Justice Society’s president, Eva Patterson, along with that organization’s director of law and policy, Reggie Shuford, wrote an article for New America media that attempts to tie a neat bow of victimhood around their clients.

Ignoring the fact that the Ninth Circuit judges had said the lawyers representing the Plaintiffs had flat failed to make their case, Patterson and Shuford reached deep into the Critical Race Theory bag to argue that the liberal-leaning Ninth Circuit was somehow hostile to poor, black folk.

While admitting that today’s America has virtually eliminated the segregationists and vile white supremacists like George Wallace, they nonetheless conclude that “the majority of racial bias is structural or implicit … defining who has access to goods, services and opportunities.” In other words, because Sylvia Darensburg has to rely on a bus to get around the city, has to walk blocks to a bus stop, and has to wait awhile for a bus, the shadow of George Wallace still lurks in Oakland.

But the world we exist in is not always a fair place, and what the original architects of the civil movement struggled for was the equality of opportunity, not equality of outcomes.  It would be preferable that people who have to ride buses could find them to be safe, affordable, easily accessible and always arrived on time.

But because that may not always be the case in cities all over America, it doesn’t mean that race or class-based discrimination is at work, or a cabal of racists is busy inside a major American city’s transit authority to make life miserable for racial minorities who have to ride buses.

In his concurring opinion, Judge John T. Noonan stated “In the Bay Area … social change has been fostered by liberal political attitudes, and a culture of tolerance.  An individual bigot may be found, perhaps even a pocket of racists.  The notion of a bay Area board bent on racist goals is a specter that only desperate litigation could entertain.”

Ouch … desperate litigation?  But what are today’s civil rights advocates desperate about?  Could it be that shrinking bigotry and increasingly liberal racial attitudes has caused a “desperate” need to insist they are still relevant – even if racism may today be something that’s only occasionally implicit?

Joe Hicks is the vice president of Community Advocates and host of’s the “Hicks File.”  David Lehrer is president of Community Advocates.