The courts are standing up for racial equality, where do you stand?

New rulings on a loan forgiveness program aimed at disadvantaged farmers and ranchers reaffirm America’s commitment to equality under the law.  The government cannot address discrimination in the past with discrimination in the present.  This fundamental principle stands strong, for now at least… 

The American Rescue Plan signed into law by President Joe Biden earlier this year contained multiple programs that treated American’s differently based on their racial and ethnic heritage.  One program was aimed at restaurateurs, providing early access to loans for certain groups deemed disadvantaged by the government.  That program was halted by the Sixth Circuit Court of Appeals in Cincinnati last month.  Another program aimed at ranchers and farmers targeting a similar disadvantaged group and also granting privileged access to government resources has now been halted by multiple judges including District Court Judge Willam C. Griesbach, who issued a temporary restraining order in June and just last week, District Court Judge S. Thomas Anderson, District Court Judge Reed O’ Conner, and District Court Judge Marcia Morales Howard, who issued preliminary injunctions.

All of the judges objected specifically to the racial preference component.  While the cases have not been fully adjudicated yet and things could certainly change, these are rulings with potentially huge consequences for American life.  First, a little background.  The American Rescue Plan contained a program to provide debt relief to racially disadvantaged farmers and ranchers, some $4 billion dollars, plus another $1 billion to create a racial equity commission.  The money would be allocated through the United States Department of Agriculture (USDA) and enable disadvantaged farmers to write off outstanding loans, up to 120%.  The program covered both delinquent and current loans, even loans in collection, and though supposedly targeted as coronavirus relief, there was no requirement that the farm in question was negatively affected by the pandemic.

There was a provision, however, that white people need not apply.  In order to qualify, you needed to be part of a group the Biden Administration considers disadvantaged.  For purposes of this program, “The term ‘socially disadvantaged farmer or rancher’ means 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.”  The eligible groups included American Indians or Alaskan Natives, Asians, Blacks or African Americans, Native Hawaiians or other Pacific Islanders, and Hispanics or Latinos.

Individuals from other ethnic groups who feel they were disadvantaged can also apply and their claim could be approved at the agency’s discretion.  Interestingly, this definition of disadvantaged wasn’t the same as the one used in the restaurant relief portion of the same bill.  Those loans considered women of any race or ethnicity to be disadvantaged and also people of Indian or Pakistani descent.  Oddly, in both cases, Middle Easterners were not considered disadvantaged, even though the region includes war torn countries such as Syria, Afghanistan, and Libya.

According to the Biden Administration, the impetus for the racially disadvantaged loan program was to address a long history of discrimination against farmers of color.  “The fact is that there was discrimination in the ‘70s and ‘80s and into the ‘90s at USDA that made it very difficult for socially disadvantaged producers to access fully and completely the programs at USDA.  The result, of course, is that over a period of time, they get further and further behind,” Secretary of Agriculture Tom Vilsack explained to NPR in March.  According to government reports, black-run farms represented about 14% of the total in 1920, but only 2% today, and even those are smaller in size, accounting for about .5% of the farmland in the United States.

The decline in black farming is attributed to, according to NPR, “white people” working to “prevent them from owning land.”  “Black farmers could be pushed off their lands by force or through tax fraud. Banks were unwilling to lend and farm equipment sellers wouldn’t sell to Black farmers.  Local offices with the Department of Agriculture would also deny or delay loans to Black farmers, documented in a series of government reports starting in the 1960s.”  There is apparently some truth to these claims as they were the subject of a class-action lawsuit in the 1990s, when Timothy Pigford, a North Carolina farmer, and 400 other African Americans sued the FDA for bias in farm loans and assistance.   The farmers were ultimately awarded $2.3 billion, money paid out through August 2013.  The majority of the payout was in the form of $50,000 payments to 33,256 individual black farmers or their heirs, plus an additional $12,500 to pay taxes on the award.

Still, District Court Judge Paul Friedman claimed at the time that the history of discrimination against black farmers was so long, “it is probable that no amount of money can fully compensate class members for past acts of discrimination” and “$50,000 is not full compensation in most cases.”  In fact, NPR claims that even $2.3 billion later, “The government’s ongoing pattern of discrimination toward farmers of color has bred skepticism among some growers and ranchers, who say they remain unsure of whether the USDA will follow through on its most recent promise.”  “It’s like the fox watching the hen house,” explained John Boyd, a Virginia farmer.  Lucious Abrams, a fourth generation Georgia farmer asked, “If you go and stick your hand in a hole and a rattlesnake bites it the first time, then you go back there a second time, it bites you the second time, what do you think you are going to do the third time?”

The Biden Administration appears to agree.  Secretary Vilsack told a group of farmers in Fort Valley, GA last month that “The Department of Agriculture has a lot of work to do.”  He said the new program is “a very, very important first step,” and “It’s not the beginning and end with our announcement today.  It’s the beginning of a beginning.”

The courts, however, don’t see it that way, at least so far.  “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,” Judge Griesbach, who issued an initial restraining order wrote.  At issue is the incredibly broad definition of disadvantaged and long-standing laws, from the Equal Protection Amendment to the Civil Rights Act, that prevent discrimination based on race except in very narrowly tailored circumstances.  Simply put, American law is color-blind and any program that isn’t requires a compelling reason why.

“The government has created a program that distributes government benefits based solely on the race of the farmer, and Supreme Court precedent is very clear the government can’t do that without a very good reason,” explained Luke Berg, deputy counsel from the Wisconsin Institute for Law & Liberty.  “The government hasn’t identified such a reason. It’s only pointed to societal discrimination, systemic discrimination, but the courts are clear that that’s not enough.”  Mr. Berg himself acknowledges the long history of discrimination, but noted that the law is not tailored to affected farmers and “Instead it chose to pick certain racial groups and not others for complete loan forgiveness and entirely exclude other racial groups, and that is breathtaking in its scope and clearly unconstitutional.”

Leisl Carpenter is a sixth generation rancher and one of the parties to the suit before Judge Anderson.  As she explains, “Biden’s law is seemingly designed to racially humiliate Americans like me.  To qualify under the bill, an applicant or his farm needn’t have experienced racial discrimination,” she continued. “There is not even a requirement that the applicant have suffered any direct economic loss due to the lockdowns. Skin color is the most important consideration.”  She might also have noted that only certain skin colors need apply for obvious reasons:  Even if the history of discrimination against Black farmers is accurate and some recompense is warranted beyond the $2.3 billion settlement, why does disadvantaged farmers include Asians, one of the highest paid and performing ethnic groups in the country?  The average Asian household income is $87,243; the average white household income is $65,902.  In what world does it make sense to funnel money to a more privileged class?

Likewise, in the ruling against the restaurant loan program, Judge Amul Thupar wrote, “[I]ndividuals who trace their ancestry to Pakistan and India qualify for special treatment. But those from Afghanistan, Iran, and Iraq do not. Those from China, Japan, and Hong Kong all qualify. But those from Tunisia, Libya, and Morocco do not.”  He continued, “Imagine two childhood friends—one Indian, one Afghan. Both own restaurants, and both have suffered devastating losses during the pandemic. If both apply to the Restaurant Revitalization Fund, the Indian applicant will presumptively receive priority consideration over his Afghan friend. Why?”

Ultimately, the total amount of money at stake between the two programs, some $33 billion, is tiny, not even a rounding error in the close to $2 trillion bill, much less what the government spends overall, but there is a much larger principle at stake:  What type of society do we want to live in, one where the law treats people equally regardless of color or background, and targets any payments for discrimination to those who have actually suffered, specifically, or another where the government arbitrarily picks and chooses groups for special treatment based on whatever criteria it feels like at the moment?

Think of it this way:  A black farmer could’ve arrived as an immigrant in 2013, after the settlement was made and suffered no discrimination, and yet he would qualify for the loan forgiveness while a white family farm that survived the Great Depression would not. This sort of thinking runs completely counter to equality under the law and our hope for a society where people are judged on the content of their character, but it is a philosophy that is rapidly being embraced by the Biden Administration and their more progressive supporters.

As Ibram X. Kendi explained, “The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.” This, thankfully, is unacceptable under current law, at least for now. Some one should ask them all how one can absolve the sins of the past by committing the very same sins in the present. Everyone else should ask themselves, what type of society do you want to live in?

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