USDA faces uphill battle in making its promise to socially disadvantaged farmers

USDA has until Friday to respond to a judge’s ruling in a lawsuit over loan forgiveness for black farmers.

The payments were set to go out this month, as part of the American Rescue Plan, but they are now on hold while a discrimination suit works its way through the courts.

Advocates say that the relief is needed to “right the wrongs” of USDA which discriminated against farmers of color for more than a century.

Those actions are documented in the case now referred to as the Pigford Settlement. Although, USDA may have an uphill battle in defending this round of relief.

A temporary nationwide restraining order from a Wisconsin federal court is barring the Department of Agriculture from making its promised debt relief payments to socially disadvantaged farmers. A decision USDA plans to appeal.

According to Nicole Cook with the University of Maryland Agriculture Law Education Initiative, “The USDA would file its appeal seeking to overturn the judge’s order on the temporary restraining order, and then once they file their appeal brief, plaintiffs would then be able to, obviously, file a reply brief to their appeal and then it would be taken up by the circuit court. You might anticipate that it will either be an expedited process through the appeals court, or we may see them seek to take it up directly to the Supreme Court.”

Cook says that the USDA will have to defend the constitutionality of the program, especially its claims of discrimination.

“In this case, the court decision was that in fact, the USDA had lacked a compelling interest for the racial classification and that they had not established a loan forgiveness program targeted a specific episode of past or present discrimination,” she explains.

While some comparisons have been made to the Pigford class-action discrimination case, Cook says that the decision does not set a legal precedence for the current one.

“I would say that this raises a very clear and different question than the Pigford cases. And, this one is very deliberately targeting the use of race-based classification to distribute benefits, and again, plaintiffs argue that race-based classification, being the sole requirement, violates equal protection under the U.S. Constitution,” Cook states.

The Wisconsin Institute of Law and Liberty, which sued for the injunction on behalf of a group of twelve farmers from nine states, also says that it is unfair for white farmers.

“They argued that because there was a limited amount of funding set aside for Congress for this debt relief if USDA was to send out the relief, there would be no funds left for what they argue would be fair treatment to the remaining or the rest of the farmers who are not receiving relief on race-based criteria,” she adds.

In the meantime, Cook says that farmers should continue working with USDA: “They’ve said that they’re going to continue while the temporary restraining order is in place, they’re going to continue to send out letters and notify people that they qualify but of course they won’t be able to send out payments, unless or until the restraining order is lifted.”

USDA has until Friday to submit its appeal to the court. After that, it is still unclear how long the debt relief payments could be locked up in the appeals process.

In his written opinion, Judge William Greisbach said that he expects the plaintiffs will be successful in their request for a full injunction.

Here is a portion of his written opinion:

“The obvious response to a government agency that claims it continues to discriminate against farmers because of their race or national origin is to direct it to stop: it is not to direct it to intentionally discriminate against others on the basis of their race and national origin.”


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