Racial reparations at the USDA

The worst conceived Biden administration policy you’ve probably never heard of is Section 1005 of the American Rescue Plan Act of 2021. Section 1005 provides a remedy for past discrimination against minority farmers in lending and other practices by the U.S. Department of Agriculture (USDA). The problem is not the premise of Section 1005. The USDA has a long, ugly history of favoring White farmers over Black farmers. 

The problem is the remedy. Section 1005 sets up a minority farmers only, white farmers need not apply, debt relief program to forgive outstanding USDA loans to “socially disadvantaged” farmers, whom the USDA defines by race: “Black/African American, American Indian, Alaskan Native, Hispanic/Latino, Asian, or Pacific Islander.” 

Any farmer in these categories is eligible for debt relief without having to show that he or she was a victim of discrimination and regardless of financial circumstances. The program could cost $4 billion.

Section 1005, to put it mildly, hasn’t been a success. White farmers are angry; in fact, thousands posted resentful comments on online farm forums. As one White farmer in Missouri told the New York Times, “They’re not even thinking about the fact that they are discriminating against us.” 

A federal judge, implicitly agreeing with him, blocked the program as race discrimination in violation of the 14th Amendment. The USDA raised the hopes of thousands of minority farmers by sending them written offers of debt relief. But these farmers are likely to be disappointed because they will not benefit from the program for a long time, if ever. Republicans have another talking point for next year’s midterms: The Democrats are the party of reverse racial discrimination. 

The Senate sponsors of Section 1005 – Sens. Debbie Stabenow (D-Mich.), the chair of the Senate Agricultural Committee, Cory Booker (D-N.J.), Raphael Warnock (D-Ga.) and Ben Ray Luján (D-N.M.) – believe that the magnitude of the terrible wrongs done to minority farmers requires remedies of a drastic nature. But that understandable historical and emotional perspective led them straight into legal and political minefields. 

The legal minefield has already blown up on them. Under the Equal Protection Clause of the 14th Amendment, the government must provide a compelling justification for using racial classifications even when remedying its own past discrimination. In a lawsuit brought by 12 White farmers in nine states against the USDA, Federal District Court Judge William C. Griesbach, who was appointed by President George W. Bush, entered an interim order halting the debt relief program at the outset of the lawsuit because the government was unlikely to demonstrate a compelling justification for Section 1005. 

Among other problems with Section 1005, Judge Griesbach pointed out, Congress did not consider more narrowly tailored, race-neutral alternatives, such as providing financial assistance to farmers based on individual need, that could have helped disadvantaged minority farmers without discriminating against White farmers. And an appeal ultimately faces a serious obstacle at the Supreme Court in Chief Justice John Roberts who, in opposing the use of racial classifications to remedy school segregation in a 2007 case, famously wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 

The other minefield is that Section 1005 sounds like a reparations program. In fact, Sen. Stabenow described the measure as an “important piece of reparations.” A perception that Section 1005 could be a stalking horse for a more far-reaching reparations program may account for the intensity of its support and opposition. 

Reparations is a political explosion waiting to happen. More than six in 10 Americans oppose reparations and that’s without knowing the details. Some advocates of reparations insist that a just amount is $10-12 trillion, which will certainly cause sticker shock. Will White ethnic groups who have been the victims of discrimination be included? How will persons with mixed White-minority ancestry be compensated? Will reparations only worsen racial tensions, as Section 1005 has done? 

The lesson of Section 1005 is that any program seeking to compensate minority victims of past discrimination must be carefully crafted if it is to survive the minefields. That certainly was not the approach taken by the sponsors of Section 1005.            

Gregory J. Wallance, a writer in New York City, was a federal prosecutor during the Carter and Reagan administrations, where he was a member of the ABSCAM prosecution team that convicted a U.S. senator and six congressmen of bribery. He is a long-time human rights activist and the author of the historical novel “Two Men Before the Storm: Arba Crane’s Recollection of Dred Scott and the Supreme Court Case That Started The Civil War.” Follow him on Twitter @gregorywallance.