In March, when Congress passed its $1.9 trillion Covid-19 stimulus package, the legislation included a $4 billion loan forgiveness program targeted at Black and other minority farmers. Based on strong evidence that the U.S. Department of Agriculture had perennially discriminated against certain groups, placing them at much higher risk of foreclosure than white farmers, the program offered a one-time emergency payout to alleviate debt for what it called “socially disadvantaged” farmers.
The policy represented a worthy and long-overdue attempt to redress historic and ongoing discrimination by USDA. But now the program is under legal siege.
Over the past few months, white farmers and ranchers have filed about a dozen lawsuits against USDA, alleging that they were victims of racial discrimination because, unlike several minority groups, white people did not automatically qualify for the emergency debt relief. While the lawsuits have been filed in multiple states, a class action has been certified in a case in Texas, where five farmers sued with backing from Stephen Miller, President Donald Trump’s former adviser. To the chagrin of Black and other minority farmers long awaiting relief, several federal courts have issued temporary injunctions blocking payments while these cases are decided.
Now, the Biden administration must decide whether to soldier on in court to defend the program or seek legislative fixes to inoculate it from legal challenges. But whichever strategic choice Democrats make, the program is worth fighting for. There are strong legal arguments in its favor, and it represents a necessary effort by the U.S. government to disrupt and repair its own legacy of racism against Black and other Americans.
If the federal bureaucracy is ever going to make amends for its history of discrimination — at USDA and beyond — it is going to have to adopt race-conscious policies like the one the Biden administration is trying to implement for farmers. Reckoning with a past and present of racial discrimination requires race-consciousness, not colorblindness.
Under existing legal precedent, the government has a compelling interest in remedying racial discrimination and preventing its perpetuation. USDA’s history of pro-white and anti-Black policies over the past century has been well-documented. As long as programs like this one are narrowly tailored to redressing and preventing racial discrimination against discrete groups, they ought to pass constitutional muster. Of course, how individual judges and Supreme Court justices might rule on these issues is likely to turn on their own judicial philosophies. But the instinct, in law and politics, to turn away from mean facts about systems that disparately harm people of color deserves to be challenged.
In the near term, the results of the white farmers’ lawsuits could have a significant impact on farmers of color across the country. In particular, without relief payments that USDA was supposed to begin distributing this summer, some Black-owned farms inevitably will collapse — in an industry in which African Americans already have been reduced to 1.4 percent of all farmers, 95 percent of whom are white.
Much is also at stake for President Joe Biden and Democrats, as conservatives could weaponize the USDA program for political gain with aggrieved whites in the 2022 midterms — or try to use one of these lawsuits to entice the Roberts Court to jettison or curtail all race-conscious policies. The question of whether the USDA program is upheld ultimately has profound implications for the Biden administration’s efforts to promote racial equity in federal programs, and for the design of any program of reparations in the future.
USDA’s history of discrimination has been copiously documented, including by the Biden administration in its brief opposing the temporary injunctions that blocked the debt relief program. Federal policy in the 20th century embodied the ideology of white supremacy, with New Deal programs that were administered on a racially discriminatory basis to exclude Black Americans from some of the largest wealth-building public subsidies. As author Ira Katznelson writes in When Affirmative Action Was White, Southern members of Congress ensured that farm workers — that is, Black sharecroppers — were excluded from New Deal payments to bolster agricultural markets. Black farmers who owned their land were blocked by other means. Decentralized control of funds, administered by local committees from which Black people were excluded, ensured that federal agricultural subsidies largely remained in the hands of powerful white planters.
Even during the Civil Rights movement, as laws were enacted to dismantle Jim Crow, USDA continued its anti-Black practices. The U.S. Commission on Civil Rights reported in 1965 that USDA regularly discriminated against Black farmers when providing loans and financial aid. Historian Pete Daniel writes in his 2013 book, Dispossession: Discrimination Against African American Farmers in the Age of Civil Rights, that hundreds of thousands of Black farmers lost their land in this era because they were cut out of programs essential to capital-intensive farming — through a combination of bureaucratic obfuscation, intentional discrimination, violence and intimidation.
In the post-Civil Rights era, USDA pursued ostensibly neutral policies that in fact discriminated against Black farmers. According to a letter by 13 academic experts on agriculture, introduced into the Congressional Record, to this day federal farm programs perpetuate and exacerbate discrimination by subsidizing crops typically produced by white farmers and rewarding the largest farming operations, the vast majority of which are owned by white people. This, in turn, has distorted credit and farming markets, as well as input costs, to the disadvantage of Black and other minority farmers, the scholars stated.
The unvarnished truth is that discrimination by USDA bureaucrats facilitated the transfer of Black-owned land to whites. Over a century of discrimination, Black farmers lost 16 million acres, more than 90 percent of their land. Rather than being an equalizer, USDA made racial disparities in wealth and well-being between whites and nonwhites worse.
In 1997, Black farmers fought back — suing the agriculture department in a class action case, Pigford v. USDA, that alleged racial discrimination in the distribution of USDA loans and other payments. Two years later, the department offered a settlement, and in 2010, the Obama administration offered a second settlement, for a total of about $2.2 billion. But many farmers and activists were not satisfied because individual payments were meager, not enough injured farmers were reached and the USDA’s discriminatory bureaucracy was not fundamentally reformed. According to a Mother Jones analysis, “a typical payout [to an individual farmer under Pigford I] was about $50,000, which neither relieved most plaintiffs’ debts nor helped them regain their land.”
Black and minority farmers remain at a disadvantage. Sen. Debbie Stabenow (D-Mich.), chair of the Senate agriculture committee, has cited studies estimating lost opportunities to minority farmers due to USDA discrimination at more than $120 billion. Meanwhile, white farmers received the overwhelming majority of recent agricultural subsidies and pandemic relief doled out in 2020. Almost all of the $9.2 billion provided through USDA’s 2020 Coronavirus Food Assistance Program went to white farmers, as did the virtual entirety of a $21.2 billion Trump administration program created to offset a trade war with China that closed lucrative Chinese markets to American farmers.
The $4 billion debt relief program in the 2021 Covid relief package, signed by President Biden in March, was designed to ensure that the few remaining farmers of color in rural America would survive the pandemic; Black, Hispanic, Asian American and Indigenous farmers were disproportionately at risk of foreclosures and another tsunami of land loss. The policy also was meant to counteract the years-long perpetuation of discrimination at USDA. It would pay off USDA loans made to about 16,000 socially disadvantaged farmers and ranchers, which Congress defined as having been “subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities.” USDA has long interpreted “socially disadvantaged” farmers to include Americans of Asian, Black, Hispanic, Indigenous, and Native Hawaiian or Pacific Islander descent.
As Sen. Cory Booker (D-N.J.) emphasized in supporting the program, USDA’s “brutal legacy of discrimination” was what caused “Black farmers and other farmers of color [to be] in a far more precarious financial situation before the COVID-19 pandemic hit.” Debt relief was necessary for them to survive.
In their lawsuits, white farmers and ranchers have claimed that they were denied equal protection under the U.S. Constitution because “socially disadvantaged” was a racial category that excluded them from a government benefit. In other words, they contend that race should never be a basis for government largesse.
Race-conscious public policies, however, can be legally justified, depending on the context. Legal precedent suggests that federal, state and local governments that offer a “strong basis [of] evidence” of racial discrimination can pursue race-conscious policies as long as they are “narrowly tailored.” That is precisely what Congress did in enacting the farmers’ debt relief program.
With regard to evidence, members of Congress, particularly Sens. Booker and Stabenow, cited the well-documented discriminatory practices I have surveyed here. It is worth noting, as well, that race-neutral reform efforts had been tried in the past and failed to remedy systemic discrimination at USDA. Untargeted pandemic relief of 2020 also barely reached minority farmers. And minorities’ individual claims of racial discrimination often were stymied. During the George W. Bush administration, the USDA’s Office of Civil Rights made only one finding of discrimination among the more than 14,000 civil rights complaints it received. The Government Accountability Office has issued multiple reports surveying the agency’s failure to address complaints due to mismanagement and discrimination. The Trump administration was openly hostile to minority civil rights claims, and hostile or lax at civil rights enforcement at USDA and other agencies.
The debt relief program also meets the “narrowly tailored” standard in the sense that it is a one-time emergency payout — not a perpetual racial preference — and white farmers could request in writing to be considered eligible for debt relief on a case-by-case basis. White farmers were not automatically included in the program because there is no evidence of white people experiencing systemic exclusion from USDA assistance programs.
The argument made by white farmers suing over the USDA program is not a new one. For more than a century, cynics and supremacists, intent on dividing and conquering to hold on to power, have propagated the false idea that conferring equality on nonwhite people amounts to discrimination against whites. In the late 19th century, the Supreme Court struck down the Civil Rights Act of 1875, Congress’ first attempt to guarantee everyone equal access to transportation facilities, hotels, theaters and places of public amusement. In denying Congress the power to ban private discrimination against African Americans in 1883, the court rationalized that “there must be some stage” when a former slave “ceases to be the special favorite of the laws.” For decades afterward, judges often used legal formalities or willful fiction to convince themselves and others that separated Black Americans were treated as equal citizens. Today, advocates of “colorblind” constitutionalism would deny the state any power to consider race except to remedy recent acts of intentional discrimination.
This crabbed view of equal protection would denude the Fourteenth Amendment of its original purpose — to confer equal rights on African Americans that whites were bound to respect. The radical Republicans who drafted that amendment chose the broadest possible words — equal protection for “any person” — and specifically contemplated, for example, that Chinese immigrants battling exclusion on the West Coast also would gain constitutional protection from discrimination. In a reconstructed America, all persons were supposed to be free of the structures of supremacy. Of course, it is much easier to dog-whistle or “bullhorn” to stoke white resentment for ratings or votes than it is to grapple with a palpable legacy of white supremacy.
Yet, those who make the “white rights” argument should be dissuaded by more recent precedent, too. Justice Anthony Kennedy, while he was still on the Supreme Court, consistently refused to join colorblind constitutional conservatives, and instead carefully applied equal protection standards in individual cases. In 2016, Kennedy wrote an opinion upholding race-conscious affirmative action in college admissions at the University of Texas. In 2015, Kennedy provided the critical vote to uphold a theory of discrimination known as “disparate impact” under the Fair Housing Act of 1968. He acknowledged that Congress can, and has in several civil rights statutes, banned practices that are “fair in form, but discriminatory in operation.” He also acknowledged the federal government’s history of redlining and promoting segregated housing, and stated that the government had a compelling interest in redressing that history, subject to narrow tailoring. In an earlier case, Kennedy wrote that government has a compelling interest in fighting racial segregation in schooling and listed examples of race-conscious policies that would pass muster, including drawing school attendance zones to disrupt, rather than reinforce, the effects of segregated housing.
If the white farmers’ lawsuits were to be taken up by the Supreme Court, with its current conservative majority, the prospects for the debt relief program’s survival are grim. It is worth noting, however, that Kennedy’s former law clerks — Justices Neil Gorsuch and Brett Kavanaugh, who reportedly engages in affirmative action in hiring his own law clerks — would be disavowing Kennedy’s legacy were they to side with advocates of absolute colorblindness.
Whatever the Biden administration or Congress decides to do about legal challenges to the debt-relief program, relentlessly telling the truth about USDA’s past and present racism — and that of other government actors — is necessary to living up to our professed ideal of American equality.