WEDNESDAY, MAY 01, 2013

University of Arkansas School of Law

The New York Times published an article last week titled, U.S. Opens Spigot After Farmers Claim Discrimination. I read the article with interest, as I have been teaching advanced law classes in Agricultural Finance & Credit for many years in the LL.M. Program in Agricultural & Food Law. I teach a unit on USDA discrimination each year in my class.

Discrimination in the delivery of USDA programs is a painful and complex subject. I was alarmed to see errors, omissions, and misleading references in the Times article. I am very disappointed that the author appeared more interested in producing a salacious story than in treating the issue with the respect and depth that it deserved. I offer corrections and additional information.

First, the article mischaracterizes the terms of the Pigford settlement, implying falsely that all claimants received payment. In fact, 31% of those who were eligible to file claims, almost one-third of claimants, were denied relief. Clearly, some of the examples of false claims provided by the article's anonymous sources were of claims that were denied. For additional information, the Federation of Southern Cooperatives issued a Press Release that explains the claims process, correcting the misinformation provided by the Times.

Second, the article fails to explain that in each of the discrimination cases referenced, claimants were required to submit evidence that shows that they experienced discrimination and that they complained about the discrimination. Specific written documentation was not always required for some forms of relief because there was frequently no written documentation available. The failure of USDA to keep copies of discrimination complaints, borrower records, or any paper trail that would evidence illegal activities during this time period should not be used to preclude recovery by legitimate victims. Recall that these cases go back to the 1980s-90s, when USDA did not keep electronic records of their loan files and for a number of years did not even have an Office of Civil Rights to process complaints.

Third, the article implies that discrimination at USDA was a pre-1997 problem, referencing two unnamed studies on loan application approval rates in 1997. However, there are numerous studies from 1997 through 2008 that document the serious and continuing discrimination problems at the USDA.

For example:

Moreover, any reference to loan approval rates as a definitive indication of levels of discrimination is as naive as it is inaccurate. There are far more insidious ways to discriminate. An operating loan may be granted, but reduced to an insufficient amount. Loan proceeds needed for planting in early spring can be delayed until summer, long after optimal planting time. A higher interest rate might be charged. Information about special programs, such as reduced loan rates or disaster assistance may be provided to some farmers, but not to others. Favored borrowers may get assistance with complicated government paperwork and reminders of deadlines, while others do not. Some borrowers are told that the loan funds have run out, but are conveniently not told about the waiting list for future funds. The Wall Street Journal detailed many of these problems in Roger Thurow's landmark article, Soiled Legacy: Black Farmers Hit the Road to Confront A 'Cycle of Racism' - Many Lost Lands, Dignity As USDA Denied Loans Whites Routinely Got (May 28, 1998).

When Secretary Vilsack assumed office as head of the USDA in 2009, he inherited a department plagued by decades of documented discrimination. He was confronted with official government reports stating that discrimination claims were still not being handled properly. While Pigford had been settled, many African American farmers who had missed the filing deadline complained that they had not had an opportunity to even make their case. See, e.g., Environmental Working Group series, Obstruction of Justice. Yet within the department, some long-time employees resented the settlement; indeed, no one at USDA was terminated in connection with the abuses evidenced in Pigford.

Secretary Vilsack also inherited the Keepseagle case alleging USDA discrimination against Native American farmers during the same years as Pigford, 1981-1999. This case had been in litigation for 10 years; class certification was granted 8 years before Vilsack took office; discovery had been ongoing for over 5 years. The Native American plaintiffs produced strong evidence of discrimination. The question that the Times article should have asked was - given years of official documentation of discrimination against minorities at USDA, why did it take the Department of Justice over a decade to agree to any type of settlement in Keepseagle?

While the Times article criticizes Pigford for producing too many potential claimants, the article criticizes Keepseagle for producing too few. Implicit is the allegation that there was not the level of discrimination alleged. That assumption is again naïve and misguided. The lower level of participation among Native farmers is much more accurately explained by the reality that the government's 10 year delay made a fair resolution of the case nearly impossible. The sad reality is that many of the potential claimants had died and their heirs had no way to establish their claim. Others simply could not produce the necessary information so many years after the fact. The numbers also reflect the profound mistrust of the U.S. government that is still pervasive in the Native community.

The article also failed to mention the significant non-monetary relief provisions included in the Keepseagle settlement - provisions that are designed to help build better connections and strengthen Native agriculture going forward. If settlement funds remain and can be dedicated to these types of additional efforts, is this a problem?

In 1997, the USDA's own Civil Rights Action Team (CRAT) concluded that "[d]espite the fact that discrimination in program delivery and employment has been documented and discussed, it continues to exist to a large degree unabated." And, while "every Secretary of Agriculture has said that improving civil rights is a priority at USDA," the report found "that with few exceptions, senior managers at the Department have not invested the time, effort, energy, and resources needed to produce any fundamental change."

In 2007, in the Bush Administration, the USDA's Office of Inspector General designated civil rights as a major management challenge for USDA. In 2008, the Government Accountability Office (GAO) provided testimony to Congress that USDA was still was unable to effectively address discrimination complaints or to provide accurate data to report to Congress on its efforts. GAO suggested that these deficiencies called in the question "USDA's commitment to efficiently and effectively address discrimination complaints."

Early in his tenure, Secretary Vilsack pledged to address these problems head on and "turn the page" on discrimination at USDA. He has worked very hard to do so. As noted in the Times article, not everyone at USDA appreciates his efforts. The settlement process has not been perfect. But, casting the story in the cynical tone of political agendas is profoundly insensitive to the many, many deserving claimants who just wanted their government to treat them the same way that it treated a white male farmer. The Times article missed the opportunity to accurately acknowledge the difficulties in righting past wrongs, the complexities of the different cases, and the inability of some in agriculture to move forward. I applaud Secretary Vilsack for his efforts, though imperfect. Others may not have even tried.