Earlier this year, Congress enacted the $1.9 trillion American Rescue Plan Act, which President Joe Biden signed into law in March. Proponents lauded the act as a way to promote opportunity for “working people” and to give them a “fighting chance” after the devastation wrought by the COVID-19 pandemic. Yet one provision, which provides $4 billion to farmers and ranchers solely on the basis of race, was defended on another ground: equity.
The ARP directs the Department of Agriculture to pay up to 120% of the loan amount held by “socially disadvantaged” farmers and ranchers at the beginning of this year. Eligible loans include private loans guaranteed by the department as well as those that the department offers directly to farmers. Many of these loans are geared toward “beginning farmers” and require a would-be borrower to show an inability to obtain sufficient credit elsewhere.
The path of opportunity, one would think, should be open to all of these farmers. But the act defines “social disadvantage” in a crude way. That term is not defined by any objective criteria such as a farmer’s income, experience, or losses suffered as a result of the pandemic. Instead, it is based solely on one’s membership in a racial group. Minority farmers are considered “socially disadvantaged” and are entitled to a payment — no matter their circumstances. White farmers, such as Pacific Legal Foundation clients Julie Owen, a single mother in Virginia, and James Dunlap, who works two jobs and 100-hour weeks to provide for his 1-year-old in Oregon, are categorically excluded.
Why? Less than two weeks after the program was signed into law, Secretary of Agriculture Tom Vilsack explained his view that the law was necessary “to address long-standing equity issues” and “respond to cumulative impacts of systemic discrimination.”
Four federal courts — in Florida, Wisconsin, Texas, and Tennessee — have considered these arguments and rejected them. Perhaps the most thoughtful of those came from Judge Marcia Morales Howard, who ruled in favor of PLF client Scott Wynn and issued the first nationwide injunction prohibiting the government from distributing loan assistance on the basis of race.
Notably, the court’s opinion acknowledged a fact uncontested by the parties: that the Department of Agriculture “had a dark history of past discrimination against minority farmers.” Yet it also noted “significant remedial measures” undertaken by Congress in the past decades to correct the department’s sad history of racial discrimination. These measures include $2.4 billion in payments to farmers who were discriminated against and extending the statutory limitations period to ensure that individuals who were the victims of racial discrimination would have their day in court.
As four courts have found, the government could not present evidence that these measures have failed to remedy past discrimination. Thus, the department was put to the task of showing that the past discrimination lingers in agriculture today.
This it failed to do. To be sure, the department cited articles claiming that the vast majority of pandemic relief in agriculture went to white farmers. But, as the court noted, the parties agreed that the relief was distributed on race-neutral grounds, such as farm size and crops grown. Thus, a number of race-neutral options, such as one that distributes relief to smaller farms, would help farmers who were shut out of previous rounds of funding. Such a program would disproportionately benefit minority farmers, but it would not do so by resorting to crude classifications or to “unthinking stereotypes” that farmers are socially disadvantaged merely because they belong to a minority group.
Further, racial disparities do not say anything by themselves. In a free society where individuals are able to make their own choices, we’d presume that there would be disparities based on race, height, and a host of other factors. Racial balancing, by contrast, is rightly verboten. That endeavor can require the government to tell a person otherwise entitled to a job, a seat at a school, or another opportunity that the path is closed merely because there are too many of the same race already there. To the extent that disparities reflect the downstream effects of past discrimination, the government should endeavor to remove barriers such as onerous licensing requirements to ensure that every individual, regardless of heritage, can avail herself of the opportunity to succeed.
For those of us who believe everyone deserves equal treatment by the government regardless of their racial identity, race-based loan forgiveness is a mistake. In attempting to make up for the department’s past discrimination, the government has reinstituted one of America’s worst and most illiberal traditions: treating citizens unequally on the basis of race.
This op-ed was originally published by The Washington Examiner on November 22, 2021.