When the American Rescue Plan Act (ARPA) was signed on March 11, 2021, an estimated 16,000 farmers and ranchers of color were informed by the USDA’s Farm Service Agency that their direct and guaranteed loans were fully forgiven.
Included within ARPA, $4 billion was allocated to the Emergency Relief for Farmers of Color Act (ERFCA), a program intended to address the “cumulative effects of discrimination among socially disadvantaged producers,” defined as American Indians, Alaskan natives, Asians, Blacks, Pacific Islanders, and Hispanics.
In an explanation of the debt relief, the U.S. Department of Agriculture acknowledges its history of systemic discrimination toward these producers, which was “sometimes overt and sometimes through deeply embedded rules and policies” since its founding in 1862. The loans were intended to be canceled at the rate of 120% to cover tax liabilities and other associated debt payment fees, and the payments were intended to “begin a new era of building trust” between the USDA and socially disadvantaged producers.
In April 2021, along with a bevy of other lawsuits across the nation, Texas Agricultural Commissioner Sid Miller filed a class action lawsuit to halt the payments, claiming the debt relief is unconstitutional because it discriminates on the basis of race, excluding white farmers.
The lawsuit has left many farmers of color in the lurch, particularly in Texas.
‘You want to own the land’
When Jonathan and Jason Jackson of Berkshire Farms in Ferris, Texas, were initially told their next FSA loan payment was canceled, they used the saved money to buy $3,500 in livestock, plant more seeds, and add trellises and fencing to their vineyards.
A month later, the brothers received a 30-day notice that their next payment was in fact still due. In order to make the payment on time, they sold back their recently purchased livestock. “Luckily, two cows had babies,” Jonathan reports, but he would’ve preferred to have kept the livestock.
He says it felt “really weird” to learn that what prevented him from receiving the promised debt relief was lawsuits filed by white farmers.
“I’ve never been in the way of any other farmers. This doesn’t seem like how farmers are,” he says. “When I talk to other farmers, we just talk about the industry and our difficulties. We never talk about, ‘Let’s not let this farmer be a farmer.’”
Jonathan says that their local USDA offices in Forney and Waxahachie have always been extremely helpful, and that their representatives seemed genuinely disappointed when delivering the news that payments on their $80,000 direct loan were still due.
The Jackson brothers started Berkshire Farms in 2011 by raising pigs on land they leased after perceiving what Jonathan describes as a generational gap in farming.
When they learned about the possibility of a FSA loan and got approved in 2017, the brothers purchased land and expanded production to its current level with free-range pigs and 3 acres of grazing per cow — practices they learned from their grandparents who farmed in Ore City. The loan also allowed them to expand into growing grapes and launching Berkshire Farms Winery the same year.
“It makes a difference that we own the land we’re on,” Jonathan says. “It’s a way to build the company and pass it on to the next generation. We could pass our skill, but that’s not going to get you too far.
“If you’re doing business, you want to own the land that produces your assets, because someone could always take it away from you.”
Unfortunately, a lot of Black farmers aren’t even aware of the possibility of securing loans from the USDA, he says.
‘We’re not even in the game’
P. Wade Ross, a Black farmer and rancher in Bryan, Texas, founded the Texas Small Farmers and Ranchers Community Based Organization (CBO) in 1998 in order to be a conduit between historically underserved producers and the USDA.
Speaking of the stalled debt relief for farmers of color, he says, “The perception is that we’re not getting our fair share in the game, but the truth is we’re not even in the game. …You can’t get relief for a loan you never received in the first place.”
He references data reported by CNN that shows the USDA rejected 42% of direct loan applications by Black farmers and 37% by Asian farmers in 2021, a five-year high for both groups. In contrast, 9% of white farmers were denied loans last year, nationally.
In Texas, data obtained by The Dallas Morning News shows that Asian and Black farmers are also rejected for direct loans by the USDA at the highest rates. Last year, 71% of Asian farmers and 61% of Black farmers were rejected, compared with 23% of white farmers who were denied loans. Statistics from 2020 reflect similar disparities.
“Are they consciously saying no? I don’t know, but there’s something wrong with those numbers,” Ross says. “There’s no one policing these taxpayer funds. Whoever is in charge at the local level is the one making the decision.”
A legislative fix
To avert a lengthy court process that could potentially be appealed to the Supreme Court and jeopardize other social justice government programs like affirmative action, the legislative fix currently underway is to amend ERFCA within the Build Back Better (BBB) plan to include debt cancellation for “at risk” and “socially distressed” farmers, explains Stephen Carpenter. Carpenter is the deputy director and senior staff attorney at Minnesota-based Farmers’ Legal Action Group (FLAG), a nonprofit law center that supports family farmers and receives substantial financial support from country singer and farmer advocate, Willie Nelson.
However, with BBB dead in the water at this point, and no indication that even a “skinny BBB” will pass, Carpenter says the debt relief is frozen in place. If Miller’s lawsuit is “left to play itself out in the courts, the fastest imaginable result is many months.”
He describes farmers as feeling “whipsawed” after making plans with money they were told they could keep and then being required to make payments or default.
But even modifying ERFCA to include “at risk” farmers instead of farmers of color is “more of the same,” Ross says.
“It’s all smoke screens,” he says. “They’re ignoring the fact that Black people in this country have had a different journey, and until they do, it’s just more of the same. It’s been going on since slavery.”
Ross paid off his $35,000 FSA loan after learning about Miller’s lawsuit. He says he’s not counting on getting it back.
Miller explains lawsuit
In an interview with The Dallas Morning News, Commissioner Miller says he has “no doubt in his mind” that the debt relief is unconstitutional.
“This is discrimination [based] on the color of your skin. Our constitution forbids that,” he says. “You can’t end discrimination by creating more discrimination.”
Miller sees three problems with what he describes as a “goofy program.” To qualify, “you have to have dark skin,” he says. In his view, it also disregards the actual economic situation of recipients, some of whom might not need the funding, and there were already two rounds of pandemic relief under President Donald Trump.
As a matter of fact, during President Trump’s last year in office in 2020, agricultural subsidies and direct payments to farmers reached an all-time high of $46 billion, about quadruple the amount of pre-Trump years. Current U.S. Agriculture Secretary Tom Vilsack later told The Washington Post that 99% of the funding went to white farmers. Many of them were large producers that did not need it, reported NPR.
Data from a farm subsidy database also shows that between 1995 and 2020, Miller himself received $176,128 in agricultural subsidies for his own crops that will never have to be paid back.
Miller says he filed the class action lawsuit as a private citizen rather than as Texas Agriculture Commissioner in order to keep from wasting taxpayer dollars, and so that other “disenfranchised farmers” could join the suit. He furthermore maintains that because he filed as a private citizen, the lawsuit doesn’t interfere with his public role, part of which is to oversee topics relating to the economic development of the state. Notably, Texas has the most Black farmers of any state, according to the latest available census data.
Miller acknowledges discrimination by the USDA in the past, but points out that Black farmers have already sued the USDA and won in the Pigford v. Glickman cases that were settled in 1999, where approximately $1 billion was paid to 22,721 Black farmers.
Miller says if farmers of color experience discrimination today, they should sue, and he hopes they would win. But as far as redress for historical disenfranchisement — like the fact that Black American farmers have lost more than 12 million acres of farmland in the last century — Miller doesn’t believe government programs are the way to resolve it.
“There’s still a little bit of racism, but I don’t think we’re a racist country,” he says.
Miller’s legal team is America First Legal, led by former Trump advisors and cabinet members, Stephen Miller, Mark Meadows, and Matthew Whitaker. The newly founded 501(c)(3) public charity is “turning the legal tables on the radical activist left” by defending against executive overreach and protecting free speech, its website says.
Miller expressed confidence in the unconstitutionality of the program given that the Department of Justice did not appeal the judge’s order to block the program last summer.
In a statement provided to The Dallas Morning News, a USDA spokesperson said the department will continue “to work closely with the Department of Justice to vigorously defend the ARPA Section 1005 program [debt payments] in federal district courts.”
A history of discrimination
Currently, Black-run farms are 300 acres smaller than the average farm in the U.S., and the number of Black farmers is also dramatically diminishing. There were nearly one million Black farmers in 1920, and by 2017, only 48,000.
The fact that there are so few farmers of color today “is indicative of a system ripe with racism,” says Fruth Farms owner, Caroline Fruth.
She says even older white farmers like her father-in-law, Archie Fruth, can tell stories of racism and discrimination, like when he returned from World War II and applied for a farm loan at an Ohio USDA office, where he and fellow servicemen were told they would get preferential treatment. Of the 30 white men and 12 Black men who returned from the war and applied, Archie Fruth said every white farmer walked out with a loan, while not one Black farmer did.
“The government allowed these men to fight, and gave them nothing,” Archie said. Between the time of our interview in January and his death on March 10, 2022, Archie told Caroline that he was glad the truth was finally coming out.
As a woman rancher with a USDA loan, Caroline says she also experiences insensitivity and sometimes wonders why other male ranchers she knows have had their loans forgiven, especially when they are under the same provisions as her and oftentimes have fewer cows.
“I thought by the ‘80s or ‘90s, this would stop. But when I got into ranching, I realized, ‘I’m only feeling maybe 10 percent of what those gentlemen felt,’” she says, referencing the Ohio servicemen.
“It’s been going on forever,” she says. “I don’t get it. I guess I’m not supposed to.”