Last week, a federal judge in Green Bay, Wisconsin, issued a nationwide order halting a Department of Agriculture program to give debt relief to farmers of color.

The reason? It discriminates against the whites.

In Faust v. Vilsack — and no, it did not escape our attention that the lead plaintiff is literally named Faust — Eastern District of Wisconsin Judge William Griesbach, a W. appointee, found the loan forgiveness program discriminated on the basis of race and was presumptively unconstitutional.

Before, the order, the USDA was set this month to start sending out payments to some 16,000 farmers. Now the future of the program is in limbo, while 12 white farmers and their rightwing lawyers continue the litigation.


The Background

If you know but anything about American history, it shouldn't surprise you that the USDA has a history steeped in racism. While white farmers received help and expanded their farms, farmers of color were left behind. In the last century, southern Black farmers have lost some 90 percent of their land — a loss of $250-350 billion. Some Black farmers even refer to the agency as "the last plantation."

To the credit of its current leadership, the USDA is now trying to do some things to help the people it left behind. As part of the 2021 American Resue Plan, the USDA established a loan forgiveness program for "socially disadvantaged" farmers and ranchers. Announcing the debt relief plan, the USDA acknowledged that,

For much of the history of the USDA, socially disadvantaged farmers and ranchers have faced discrimination—sometimes overt and sometimes through deeply embedded rules and policies—that have prevented them from achieving as much as their counterparts who do not face these documented acts of discrimination. Over the past 30 years, several major civil rights lawsuits have compensated farmers for specific acts of discrimination—including Pigford I and Pigford II, Keepseagle, and the Garcia cases. However, those settlements and other related actions did not address the systemic and cumulative impacts of discrimination over a number of decades that the American Rescue Plan now begins to address.
The Wisconsin Institute for Law and Liberty, a reactionary nonprofit that brags about how many times it's been mentioned in the Wall Street Journal on its homepage, represents 12 racist white farmers who are mad they didn't qualify for a program intended to correct a legacy of racism.

The Decision

This case is about the 14th Amendment's equal protection clause. Sadly, though predictably, American jurisprudence around the equal protection clause entirely fails to recognize the fact that the 14th Amendment was ratified to correct massive injustices. Efforts to provide remediation for people of color harmed by racism are evaluated by the same standards as laws that say "whites only."

The American Rescue Plan itself doesn't mention race, but federal law defines "socially disadvantaged farmer or rancher" as "a farmer or rancher who is member of a socially disadvantaged group whose members have been subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities." According to a FAQ section on the USDA's website, members of socially disadvantaged groups "include, but are not limited to" American Indians, Alaskan Natives, Asians, Black and African Americans, Native Hawaiians, Pacific Islanders, and Hispanics/Latinos. It doesn't rule out including other marginalized groups, saying "[t]he Secretary of Agriculture will determine on a case-by-case basis whether additional groups qualify under this definition in response to a written request with supporting explanation."
Amazingly, despite mountains of evidence and two previous civil rights cases finding USDA racial discrimination, the judge in this case found that the USDA did not have a compelling interest in correcting the agency's past racial discrimination. The USDA (accurately) argued that "Congress targeted the debt payments in Section 1005 to the minority groups that it determined had suffered discrimination in the USDA programs and that had been largely left out of recent agricultural funding and pandemic relief."

That was not enough for Judge Griesbach, who said the USDA "point[s] to statistical and anecdotal evidence of a history of discrimination within the agricultural industry" and did not "establish[] that the loan-forgiveness program targets a specific episode of past or present discrimination."

So That Sucks

Temporary restraining orders aren't appealable, but this case is going to end up in the Seventh Circuit sooner rather than later. The next step will be a decision about whether to enter a preliminary injunction — and, since the standard for a preliminary injunction is essentially identical to the standard for issuing a temporary restraining order, that will probably happen soon. (The real difference between a TRO and a PI is just timing — a temporary restraining order is intended to last for only a short period of time to stop an imminent harm, while a preliminary injunction can last for the entire duration of a court case. Sometimes, they are even issued at the same time.)

For its part, the USDA stands behind the program, saying it "will continue to forcefully defend its ability to carry out this act of Congress and deliver debt relief to socially disadvantaged borrowers."

After decades of discrimination and broken promises, Black farmers were already skeptical of the $4 billion plan — and many are not surprised that it might lead to nothing.

"Talk is cheap. I can't buy grain with it. I want to know when you're going to help some farmers," said Lloyd Wright, a Virginia farmer who served as the director of the USDA's Office of Civil Rights in the late 1990s and early 2000s.

Wright said Black farmers have been promised relief from federal discrimination in the past, only to be repeatedly disappointed. He suggests eligible farmers continue paying on loans, so they do not end up behind if the program is permanently blocked.


Here's the opinion:


[ WPR / NPR / USDA / Order / EWG / Reuters ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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