IN 1999 THE Agriculture Department settled a class action lawsuit brought by African American farmers. The farmers alleged that the government had systematically discriminated against them in distributing agricultural benefits. The underlying conduct was egregious, and the settlement established a system for compensating the wronged farmers. More than five years later, serious questions have arisen as to whether the settlement has worked. A recent report by the Environmental Working Group -- a research group that, among other things, advocates reform of farm subsidy programs -- alleges that the government has "stonewall[ed]" farmers in implementing the program and "denied payment to 86 percent" of the black farmers who sought restitution -- including 9,000 who were supposed to get "automatic" payments of $50,000 and debt relief. The department, the report alleges, "has willfully obstructed justice by deliberately undermining the terms" of the settlement.
The reality is more complicated. While the department clearly played hardball, the overwhelming majority of those farmers who were denied payments, about 72,000, were denied not because of any USDA decision but because they filed their applications late. The decision not to accept those late applications was made by an independent arbitrator, not by the government. Nor is it clear how many of these claims have merit. The potential class turned out to be far bigger than people imagined, and many may not have found out about their rights under the settlement until it was too late.
Among those who did get into the class on time, the nearly 9,000 people denied restitution were generally found -- again, not by the government -- to have failed to prove that white farmers in their areas had been given access to the benefits they were denied. The difficulty in proving this was partly the fault of the government, which was not forthcoming with relevant information. But lawyers for the farmers clearly underestimated as well the difficulty they would have in demonstrating discriminatory effect in each case.
Under normal circumstances, the proper response to this problem might be "tough luck." A deal is a deal, after all, and mass justice is never perfect. But the magnitude of the underlying wrongdoing here -- decades of discrimination that have helped make black-owned farms a rarity in the United States -- calls for a more generous approach. Congress should extend the deadline to let the tens of thousands of applicants who filed late at least get hearings on their claims. And it should force the USDA to release the information that would substantiate or refute individual allegations concerning racial disparities. This is not a situation in which the normal rough and tumble of litigation will do.