Two different lawsuits now challenge a USDA loan forgiveness program for farmers of color, including Black farmers, contained within in the COVID relief package advanced in the initial days of the Biden administration and Democrat-controlled Congress. While USDA and Congressional authors defend the program, the lawsuits claim it creates reverse discrimination.
The American Rescue Plan included provisions for USDA to pay up to 120% of loan balances, as of January 1, 2021, for Farm Service Agency Direct and Guaranteed Farm Loans and Farm Storage Facility Loans debt relief to any socially disadvantaged producer who has a qualifying loan with FSA. However, unlike the past use of the definition of “socially disadvantaged producers,” the latest loan forgiveness does not apply to white women. Previously, all women were included in the socially disadvantaged categorization.
USDA says it has taken important steps toward enacting these debt relief provisions, including contacting lenders, distributing resources on loan forgiveness and collecting data on eligible borrowers.
Following the news of the lawsuits, a USDA spokesman says the agency is reviewing the complaint and working with the Department of Justice. “During this review, we will continue to implement the debt relief to qualified socially disadvantaged borrowers under the American Rescue Plan Act,” the spokesman says.
To date, no action has been formally taken on beginning to forgive loans.
Defending intent of righting wrongs
Sen. Cory Booker, D-N.J. authored the loan-forgiveness provisions and believes the lawsuit doesn’t have merit. He says there is a “well-documented history of overt discrimination by the USDA against Black farmers targeting Black farmers and denying them opportunities that were provided for others.”
Booker says in discussions with Midwest farmers many have great pride in original land grants from the 1800s through the Homestead Act. However, Blacks were excluded from those programs creating a need to create a “program that’s fair and just that begins to create opportunities for land grants for Black farmers and other farmers of color is really critical.”
While speaking to a group of agricultural journalists, Dr. Lakisha Odom, scientific program director for the Foundation for Food and Agriculture Research, says she struggles with the term “reverse racism,” because it implies that there’s a system of oppression that exists.
“Because we have not dealt with the current system, I don’t know that we’re creating another by addressing equity and parity,” Odom says. “Any policy put in place to address the centuries of systemic oppression that have been faced by Black and Brown farmers is a thing that’s much needed.”
John W. Boyd, Jr., founder and president of the National Black Farmers Association, says the debt relief provided in the American Rescue Plan is narrowly tailored to address the decades of systemically denying Black farmers and other farmers of color access to USDA loans and other benefits which created an uneven playing field that has “baked racism into these federal programs.”
Reverse discrimination claims
The first lawsuit challenges the constitutionality of equal rights considering the loan forgiveness does not apply to white farmers. It is filed by former President Trump employees now working at American First Legal on behalf of Sid Miller in a private capacity, although Miller also serves as the Texas Commissioner of Agriculture.
The suit notes that throughout American history, many white ethnic groups have been subject to “racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities,” including Irish, Italians, Germans, Jews and eastern Europeans. The suit claims members of these ethnic groups unambiguously qualify as members of a “socially disadvantaged group,” and as “socially disadvantaged farmers or ranchers.”
Boyd says comparing this long-standing discrimination by USDA against Black farmers to historic discrimination and prejudices against other ethnic groups misses the point. “USDA's definition of socially disadvantaged farmer and rancher borrowers is narrowly tailored to cover farmers of color because they have been disproportionately impacted by how USDA's loan programs were implemented,” Boyd points out.
The Texas filing challenges that there is no percentage of a “socially disadvantaged” ancestry to qualify for the aid forgiveness. Homer Plessy was one-eighth black, yet he was regarded as Black by the government of Louisiana and forbidden to sit in a railroad car reserved for white passengers in 1896. Sen. Elizabeth Warren, D-Mass., has been recognized as a Native American by Harvard Law, however, a recent DNA test shows that any Native American ancestry in her lineage would have been 6 to 10 generations ago.
Miller’s ancestry is overwhelmingly White, and primarily Scotch-Irish. However, he does have approximately 2% African American ancestry.
The second lawsuit filed in the U.S. District Court for the Eastern District of Wisconsin is on behalf of five Midwest farmers from Wisconsin, Minnesota, Ohio and South Dakota who have direct loans with the Farm Service Agency or USDA-backed loans. They are otherwise eligible for the loan-forgiveness program in ARPA, except for the color of their skin.
In Wisconsin, Adam Faust operates a 70-cow dairy farm and 200 acres for feed. In an interview with Fox News' Tucker Carlson, Faust, who is a double-leg amputee, says, “Racism against anyone is wrong. We can’t have a government that’s picking or choosing giving to what program to be based solely on the color of their skin.”
His lawyer, Rick Esenberg, says although the commentary about the lawsuit is a way to create equity, past civil rights movements and the Civil War established that all should be treated as individuals despite the color of their skin.
“This disturbing move we have now towards equity instead of equality of opportunity will not end well,” Esenberg says, adding it will lead to a war against all and those looking for “racial spoils.”