Excerpted From: Kathryn Fitzgerald, Remnants of Caste: Black Farmers, White Farmers, Congress, and the USDA, 23 University of Maryland Law Journal of Race, Religion, Gender and Class 81 (Spring, 2023) (169 Footnotes) (Full Document)


KathrynFitzgeraldFor decades, Black farmers faced discriminatory practices at the hands of the United States Department of Agriculture (USDA). Recently, however, a group of white farmers claimed reverse discrimination over government fund allocation to “socially disadvantaged farmers and ranchers” in a number of lawsuits filed in the spring of 2021. One complaint filed on April 26, 2021, resulted in a class-action lawsuit against the USDA alleging that Sections 1005 and 1006 of the American Rescue Plan Act of 2021 (ARPA) violated both the Constitution and Title VI of the Civil Rights Act for “discriminating on the grounds of race, color, and national origin in administering its programs.”

The claim focuses on the term “socially disadvantaged farmers and ranchers” used to earmark funds for debt relief to farmers and ranchers who were “subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities.” Other white farmers filed eleven additional lawsuits of a similar nature. Notably, the suit filed in Wisconsin plainly alleged in its complaint that each claimant would be eligible for the debt relief described in Section 1005 of the ARPA due to them “except” for the fact that “[they are] white.”

The question that arises from these cases is not that dissimilar from a question facing the Supreme Court as it reconsiders the role of affirmative action in education today: is there still a need for race-based classification to level the playing field throughout the country, have we moved beyond that need, or do we still need it in some places, but not others? In considering the well-documented, unfortunate history of rampant racial discrimination by the USDA since its inception and the resulting impact on Black land ownership loss throughout at least the Twentieth Century, these race-based classifications appear to still be relevant in the context of the American agricultural landscape.

For Black farmers to have a chance at surviving, the Court and ultimately the legal community, need to adopt an anti-subordination view of the Equal Protection Clause of the Fourteenth Amendment. Part II of this paper includes a brief discussion of the USDA's history of discrimination and the resulting Pigford cases. Part III of this paper looks at the language of both ARPA and the Inflation Reduction Act (IRA) as well as the emerging impact of the litigation brought by the white farmers for violations of their rights under the Fourteenth Amendment's Equal Protection Clause. Finally, in Part IV, this Comment concludes with a review of the anti-subordination principle and its essential role in ensuring the survival of Black farmers in this country.

[. . .]

The plight of Black farmers will continue until the courts and this country are willing to acknowledge the importance of the anti-sub-ordination principle of the Equal Protection Clause. While it seems unlikely that the current conservative bench on the Supreme Court will lean in this direction, Congress cannot continue to make the job of the judiciary easier by simply rolling over when tough legal battles slow the extremely important progress they are attempting to make to preserve what is left of the Black and minority farming communities. To not make stronger, clearer attempts to rectify the discriminatory actions and devastating results of the USDA's troubling past reflects a cynicism in this country that does not just devastate an entire livelihood for a group of its citizens, but also suggests a genuine dysfunction with our understanding of what it means to be a citizen of value and worth. More than “[r]emnants of caste persist” in the agricultural arm of our society. Until Congress and the judiciary acknowledge this, Black farmers will continue to march towards extinction.

J.D. Candidate 2024, University of Maryland Francis King Carey School of Law.