With a historic program to provide debt relief for farmers of color tied up in litigation, the Biden administration and Congress must use additional tools to get financial support to struggling farmers, experts say. Though they remain confident in USDA’s support of the program, attorneys, advocates and policymakers say that Congress should use the budget reconciliation process to avoid any further delay in providing essential relief to minority farmers.
“Given the well documented history of discrimination by USDA against Black farmers and other farmers of color, I believe that the courts should allow the debt forgiveness that Congress previously approved to move forward,” said Senator Cory Booker, a member of the Senate Agriculture Committee and sponsor of several pieces of legislation to aid farmers of color.
“That said, because of the urgency of the need for assistance by these farmers, I refuse to sit back and wait for the courts to do the right thing and I am working with my Senate colleagues to include provisions in the upcoming reconciliation bill that will provide debt forgiveness immediately.”
The debt relief program was passed in March as part of the American Rescue Plan Act. The $4 billion initiative would pay off USDA loans held by 16,000 “socially disadvantaged” farmers, a category used by USDA to describe Black, Native American, Alaskan Native, Asian American, Pacific Islander, and Hispanic and Latino farmers.
But white farmers have filed at least 13 lawsuits against the program, including one class action, alleging it is racially discriminatory. Three judges have issued preliminary injunctions in those cases, temporarily blocking the program from distributing funds. The Department of Justice chose not to appeal one of the injunctions by an Aug. 23 deadline.
The decision to forgo appeal doesn’t necessarily indicate that the administration isn’t working on the issue, says Sheryll D. Cashin, an author and the Carmack Waterhouse Professor of Law, Civil Rights and Social Justice at Georgetown University.
“Even if they choose not to appeal the preliminary injunction in the class action case, that doesn’t mean they’re not vigorously defending the program,” Cashin says. “I think people may be attaching too much significance to them not appealing in one particular case.”
The Biden administration is likely wary of bringing the debt relief program before a conservative judiciary and Supreme Court, Cashin says, which could threaten affirmative action and other “race-conscious” federal policies.
“There are strong disincentives to rushing an appeal at the higher court,” she says. “The risk is that judges that are ideologically committed to colorblind constitutionalism could use this case to do some real damage.”
Yet the administration now needs to allocate more resources to making the program’s importance clear to the courts, says Keisha Stokes-Hough, senior supervising attorney at the economic justice program of the Southern Poverty Law Center.
“They should produce evidence not only of historical discrimination at USDA but also ongoing discrimination,” says Stokes-Hough. “More can be done to incorporate the perspectives and lived experience of socially disadvantaged farmers that would make it clearer for the courts about why this relief was necessary.”
An amicus brief submitted by 26 farm organizations in one of the lawsuits includes testimony from Latino, Black, and Asian farmers detailing the economic hardship they’ve faced during the Covid-19 pandemic and discrimination they’ve faced from USDA. One Latino farmer recounts being told by a USDA employee, as he sought a farm loan, that “Mexicans were more suited to being farmworkers, not farm owners.”
USDA has said that it plans to continue to fight the lawsuits.
USDA’s long history of discrimination against farmers of color, and the hardship faced by minority and low-income farmers due to loan and land ownership issues, has been well documented. An attempt to rectify the relationship between USDA and Black farmers with the class-action Pigford v. Glickman settlement resulted in modest payouts of $50,000 per claimant, not nearly enough to pay off farm loans that can total in the millions.
Historical discrimination at the agency, known among farmers as the “lender of last resort,” has contributed to lower representation of farmers of color in the agriculture industry. The Government Accountability office has found that woman and minority farmers represent a disproportionately small share of federal farm lending. Today, more than 95 percent of farmers in the United States are white, according to the 2017 census of agriculture.
Farmers of color are still underrepresented and underserved in farm loan and stimulus programs. As of late May, farmers of color were far more likely to be delinquent on a government farm loan than white farmers, according to the Associated Press. And 97 percent of the $9.2 billion provided by the Coronavirus Food Assistance Program was distributed to white farmers, according to the Environmental Working Group.
With the debt relief program stalled, policymakers and advocates are now looking to the budget reconciliation process as a possible vehicle for implementation. The Senate Budget Committee included debt relief as a priority for the Agriculture Committee in its early August reconciliation instructions. A coalition of advocacy groups including Center for Food Safety, National Young Farmers Coalition, and Rural Coalition has called on Democrats to use reconciliation to fund $10 billion in debt relief “to stabilize the operations of producers who have not received a fair share of aid from recent federal support programs.”
But this policy approach is relatively untried, experts say. “With the reconciliation process, we are entering into new territory,” says Antonio Tovar, a policy associate with the National Family Farm Coalition (NFFC). “There’s a lot of unknowns in terms of what’s going to go through, the levels of funding.”
Meanwhile, further delay in getting debt relief to farmers of color “places a substantial percentage of these farmers at risk of farm loss and foreclosure,” says Stokes-Hough. “For many of these farmers, their family home is also attached to the farmland…This is a dangerous time.”
Some farmers may have already stopped paying down farm loans because they anticipated receiving the federal relief, says Jordan Treakle, policy and program coordinator at NFFC.
Another debt relief measure that could bring support to farmers is Sen. Kirsten Gillibrand’s Relief for America’s Small Farmers Act, introduced in June, which would provide one-time debt relief of up to $250,000 in USDA Farm Service Agency loans to small farms. That bill would also aid farmers of color, who typically have smaller landholdings in part because of discrimination in lending, Treakle says.
White farmers who are suing to end the debt relief program have argued that its race-conscious approach is inherently discriminatory against the descendants of white ethnic groups. But legal experts have pointed out that white farmers are not excluded from USDA’s debt relief program — they would just have to submit an application to be considered for the program on a case-by-case basis.
The involvement in the litigation of America First Legal, a law firm founded by Stephen Miller, former aide to Donald Trump and architect of the Trump administration’s aggressive immigration agenda, worries advocates who see the lawsuits as part of a broader legal strategy to undermine the policies of the Biden administration and advance white nationalism. The firm is supporting Texas Agriculture Commissioner Sid Miller in his lawsuit against the program.
But a race-neutral policy approach won’t solve the problems facing farmers of color, says Stokes-Hough, which are in part caused by farm loan programs that have shaped an agriculture industry where farmers of color are under-represented.
“If you dig a little deeper into USDA discrimination, you’ll learn that farm size isn’t a race-neutral characteristic,” she says. “Part of the reason why socially disadvantaged farmers have smaller farm size is because of discrimination itself.”