The Washington PostDemocracy Dies in Darkness

Debt forgiveness for Black farmers is clearly constitutional

The USDA program aims to mitigate years of injustice

Lateef Dowdell watches the sunrise from what remains of land once belonging to his uncle Gil Alexander, who was the last active Black farmer in the community of Nicodemus, Kan., in January. (Charlie Riedel/AP)
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Two federal judges have recently halted a $4 billion federal loan forgiveness program for farmers of color, enjoining the U.S. Department of Agriculture from implementing the program. The federal loan relief program, which Congress included as part of the latest stimulus bill, is aimed at remedying past discrimination against Black, Native American, Latino, Asian American and other racial and ethnic minority groups.

Many White farmers decried the loan relief program as discriminatory, unconstitutional and corrosive to democracy. They argued the program unfairly excluded them from its benefits and foolishly widened the nation’s racial cleavages. Some of those farmers won early — though possibly short-lived — victories in court earlier this month.

Aggrieved White farmers and conservatives are cheering the new legal misfortunes of farmers of color — which might strike some as a grim, ignoble business — but they shouldn’t celebrate too early: USDA has insisted the agency will continue to vigorously defend the policy alongside the Justice Department. And so it should. The loan forgiveness program is constitutionally defensible. It also strengthens our democracy.

The constitutionality of the loan relief program is clear if it serves a compelling state interest and is narrowly tailored. It plainly satisfies this test. Among other worthy goals, the loan relief program serves a compelling state interest in redressing the farm sector’s titanic legacy of race discrimination — a legacy that has proved impervious to prior attempts at intervention. Few federal agencies as USDA have as rich a collection of evidence documenting discriminatory actions resulting in bankruptcy, failure and land loss on a mammoth scale for Americans of color.

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America’s number of Black farmers has plummeted since the 1920s — falling by 98 percent between 1930 and 1992. The U.S. Commission on Civil Rights determined in 1982 that USDA consistently denied or gave inferior loans to Black farmers, contributing to enormous rates of Black land loss. In 1997, USDA found it had subjected Black, Native American, Hispanic and Asian American farmers to arbitrary loan delays, reductions and even approvals of loan funds that never reached their destinations. The result was significant losses of land and income for these groups.

Laws also stacked the deck against farmers of color. Asian land laws, including the California Alien Land Law of 1913, prohibited certain noncitizens — including Chinese, Indian, Japanese and Korean immigrants — from owning and leasing agricultural land. Federal laws buttressed the violent removal of Native American people from their homelands, while the federal Homestead Acts delivered subsidized land overwhelmingly to White people and to corporations.

In the late 1990s, several class-action lawsuits, including the Pigford v. Glickman and Keepseagle v. Vilsack cases, produced settlement agreements that raised the possibility of compensation for eligible class members for discrimination claims against USDA. Yet the sums of money doled out by the federal government were mere drops in the bucket compared to the vast amounts of wealth lost by farmers of color over the past century, and most farmers of color were excluded from the cases’ ambit. Just 1.4 percent of 3.4 million American farmers identified as Black in 2017, according to the most recent national data. Farmers identifying as Native American or Alaskan Native constituted only 2.3 percent of the nation’s farmers in 2017, while self-identified Asian American farmers made up fewer than 1 percent of America’s farmers.

The injustices that led up to this cannot be remedied by individual claims of discrimination. The government’s systemic denial of loans and subsidies to farmers of color throughout the 20th century resulted in mammoth losses of intergenerational wealth. The effects of these losses compounded over time as USDA evolved to powerfully favor wealthy, large-scale agribusinesses. Between 2012 and 2014, White people generated 97 percent of all income produced from farm operation. White-owned farms are still showered with cash from federal coffers: Nearly 100 percent of a $8.5 billion investment in trade war offsets went to White farmers during the Trump administration.

USDA’s civil rights office has also historically been complicit in the department’s legacy of discrimination. The civil rights office was shuttered for a time by the Regan administration, which reportedly routinely tossed Black farmers’ civil rights complaints into the trash. It allowed countless discrimination claims to expire without investigation during the George W. Bush administration. The office under Bush upheld just one discrimination claim as meritorious out of more than 14,000 such claims. Even as USDA suggested that a civil rights renaissance had occurred during the Obama administration, the department persisted in ignoring race discrimination complaints. It ran out the clock on complaints bound by a two-year statute of limitations, and foreclosed on many farmers of color with pending complaints.

The loan relief program is narrowly tailored to its constitutional aims because race-neutral alternatives have clearly failed. It is also time-limited and flexible: Other racial groups that can demonstrate race discrimination may apply to the program and White farmers are unburdened by its application.

Claims by White farmers and conservative groups that the embattled loan forgiveness policy foments racial tensions and undermines democracy are misguided, and they miss the big picture. White farmers today receive the overwhelming majority of agricultural benefits, and farmers of color remain underrepresented or inadequately represented in USDA grant and loan programs.

That segregation, not attempts to mitigate it, is what exacerbates racial tension. The near-complete erasure of farmers of color from rural America — the trajectory on which the nation is headed — would have devastating consequences for democracy. In a diverse country, the health of a democracy depends not only on social cohesion, but also on diverse communities and the opportunity for meaningful connections between different racial and other demographic groups. Studies suggest racial integration fosters racial tolerance and cross-racial empathy, whereas segregation sews division and fear. The exodus of large numbers of Americans of color from rural areas has, accordingly, contributed substantially to the polarization that afflicts our politics today.

The full-blown transformation of the farm sector’s managerial class into a racial monolith would disastrously destabilize the nation’s already-weakened capacity to sustain political dialogue and cultural exchange.

Small White “family” farmers have good reason to find common ground with farmers of color. Both groups have motive to oppose industry consolidation and to support fair prices, fair access to markets and more investment in local food production, among other things. But White farmers will only be able to build bridges if farmers of color continue to exist and, slowly, hopefully, begin to thrive.