by Rachel Long*
The United States Department of Agriculture (USDA) has a long history of discrimination against Black farmers. While there have been some successful attempts at seeking compensation,[i] USDA – and the country – have a long way to go before justice is served to Black farmers.[ii] I wrote a paper on potential remedies to past discrimination against Black farmers.
In 2021, Congress attempted to remedy some of the historic discrimination against Black farmers: the American Rescue Plan Act (ARPA) included two provisions aimed at helping Black and other socially disadvantaged farmers (SDFs).[iii] The provisions purported to forgive up to 120% of certain loans of qualified farmers[iv] and was intended to “respond to the cumulative impacts of systemic discrimination and barriers to access” that such farmers have historically faced from USDA.[v]
The ARPA provisions were challenged almost immediately by white farmers across the country.[vi] Several district courts found the provisions likely violated the Equal Protection Clause of the Fourteenth Amendment, and issued preliminary injunctions prohibiting the government from disbursing the debt payments.[vii] In response, the government repealed the challenged ARPA provisions, and replaced them with loan relief for “distressed” farmers in the Inflation Reduction Act (IRA).[viii] As a result, a coalition of Black farmers sued the U.S. government for breach of contract in Boyd v. United States.[ix] They claimed that when the government sent out letters informing Black farmers and other SDFs of their eligibility for loan forgiveness, the government was extending a contractual offer.[x] The Black farmers accepted, and when Congress repealed the ARPA provisions, it breached the contract.[xi] At the end of April 2023, the Court of Federal Claims dismissed the lawsuit, finding that no contract existed, and the farmers had no claim.[xii]
My paper discussed the potential of the ARPA provisions – or potential similar provisions, as the ARPA provisions were repealed – as remedies to past discrimination against Black farmers. The paper briefly analyzed the Boyd claims, as the lawsuit had been dismissed. It concluded that even as plaintiffs appeal, the crux of the issue would be whether a contract was ever formed, not the underlying Equal Protection issues.
My paper then addressed the repeal of ARPA and analyzed the new provisions under the IRA. I argued that while the IRA provisions avoided the Equal Protection issues of ARPA, they are insufficient to address the underlying aims of ARPA – that is, to “respond to the cumulative impacts of systemic discrimination and barriers to access” that Black farmers faced from USDA.[xiii] This is because the relief in the IRA represents merely a fraction of what these farmers were promised, and a drop in the bucket compared to the wealth lost as a result of historic discrimination by USDA.
Next, my paper analyzed how the ARPA provisions, and other similar provisions, would fare under our current Equal Protection framework. I concluded that the insistence on colorblindness in Equal Protection jurisprudence would likely defeat any similar measures, but that the government has some options to argue that ARPA or similar provisions actually target newer, specific instances of discrimination, or that they aim to expand diversity in farming, which is a compelling government interest.
Finally, my paper argued that a rethinking of our Equal Protection jurisprudence is necessary if we want to address the systemic discrimination against Black farmers. I proposed two ways to reimagine the Equal Protection Clause: firstly, establishing that remedying past discrimination against certain racial groups is, in itself, a compelling government interest that justifies race-conscious measures. The second approach would be to differentiate between “benign” and “suspect” racial classifications, and to subject benign classifications to a lower standard of review that would allow for race-conscious remedial measures.
My paper concluded that whatever the approach, a revised framework for Equal Protection jurisprudence is necessary to ensure that Black farmers – and any group that has historically been discriminated against – receive full justice for the harms perpetuated against them. Requiring proof of specific and individualized instances of discrimination ignores the ways in which historical discriminatory actions and systems have shaped modern inequalities. By changing our approach, we ensure that we take into account the ways historical discrimination persist into the present and ensure that Black farmers are on truly equal footing with white farmers. Only by reimagining the system can we live up to the promise of true equal standing under the law.
To receive a copy of the paper, email Diana Winters at winters@law.ucla.
* Rachel Long is a rising 3L at UCLA Law specializing in Public Interest Law & Policy and Critical Race Studies. She grew up in Las Vegas, NV and is interested in labor and employment law.
[i] See Pigford v. Glickman, 185 F.R.D. 82 (1999).
[ii] See Megan Buechler, The Never-Ending Drought for Black Farmers: The Lasting Effects of Pigford and the Continuance of USDA Discrimination, 61 U. Louisville L. Rev. 223, 240-41 (2023) (“[R]esearchers conservatively estimate that the dispossession of black farmland over the last century . . . resulted in the loss of, at the very least, hundreds of billions of dollars of black wealth.”) (footnote omitted).
[iii] American Rescue Plan Act of 2021, H.R. 1319, PL 117-2 §§ 1005-1006 (Mar. 11, 2021).
[iv] Id. §1005(a)(2).
[v] Thomas J. Vilsack, Opening Statement of Thomas J. Vilsack Before the House Committee on Agriculture – Remarks as Prepared, in “A Hearing to Review the State of Black Farmers in the U.S.”, United States House of Representatives Committee on Agriculture, (Mar. 25, 2021), available at https://docs.house.gov/meetings/AG/AG00/20210325/111400/HHRG-117-AG00-Wstate-VilsackT-20210325.pdf.
[vi] See, e.g., Faust v. Vilsack, Case No. 1:21-cv-00548-WCG, Complaint for Declaratory and Injunctive Relief (E.D. Wis. Apr. 29, 2021).
[vii] See, e.g., Faust v. Vilsack, Case No. 1:21-cv-00548-WCG, Decision and Order Granting Plaintiffs’ Motion for a Temporary Restraining Order (E.D. Wis. June 10, 2021).
[viii] Inflation Reduction Act, P.L. 117-169, §§ 22006 and 22008 (2022).
[ix] Boyd v. United States, Case 1:22-cv-01473-EJD, Class Action Complaint (filed Oct. 7, 2022).
[x] Id. at 2 para. 5.
[xi] Id. at 2-3 para. 6-8.
[xii] Boyd v. United States, Case 1:22-cv-01473-EJD, Opinion and Order (filed April 27, 2023).
[xiii] Vilsack, supra note 6.
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