If black farmers claiming racial discrimination can walk off with a large bundle of money – and with a promise of more to come – Hispanic farmers possessed of similar grievances don’t see why they can’t enjoy the same benefits. It appears as if they’ve guessed correctly. On May 26, the Justice Department offered up to $1.33 billion to settle a class-action suit filed by a group of Hispanic farmers against the U.S. Department of Agriculture (USDA) alleging ethnic discrimination in various programs. The settlement figure incorporates a sum sought in a separate suit by female farmers. As with the black-farmer actions, the claims are at best specious. Yet the lead plaintiffs’ attorney is denouncing the offer as a pittance.
To recap, this past February USDA lawyers and thousands of black farmers reached a $1.25 billion class-action agreement to settle claims that the department had engaged in racial discrimination in various grant and loan programs during 1983-97. This was on top of $1 billion settlement money black farmers had won back in 1999 based on similar claims; certain eligible parties hadn’t been able to file before the deadline. National Legal and Policy Center argued, and with strong evidence, that the lawsuits from the beginning have been shakedowns masquerading as “civil rights.” The black farmer action in particular was based on conclusions from a highly flawed USDA-commissioned consulting report that pointed to variations in the department’s treatment of minorities and women. Then-Agriculture Secretary Dan Glickman, rather than resist, appointed a task force to study ways to combat bias. Two black North Carolina farmers, Timothy Pigford and Cecil Brewington, filed suits against the USDA in 1997 several months apart. Their lawyers managed to drum up about 400 additional co-plaintiffs. The department chose mediation. It was, predictably, a costly strategy.
Plaintiffs’ attorneys managed to locate well over a thousand additional aggrieved parties. Because the backlog was so high, the Agriculture Department, against the better judgment of the Justice Department, acceded to a plaintiffs’ demand for blanket mediation. Victory for the plaintiffs would come soon enough. On April 14, 1999 U.S. District Judge Paul Friedman, a Clinton appointee, approved a consent decree that allowed farmers to choose between “Track A” and “Track B” monetary settlements. Virtually all chose Track A, making them eligible for $50,000 per family plus relief from outstanding loans and tax liability. All this occurred despite the fact that the original complaint cited no cases of discrimination, only a guilt-ridden “admission” by Secretary Glickman that discrimination somehow was rampant in his department. A claimant didn’t even have to prove ownership of, or even employment at, a farm; any claim of being rejected for a loan or grant, substantiated or not, could qualify as having “attempted to farm.” Many of the black “farmers” turned out to be fraudsters. No matter – due to supposed technicalities, many black farmers unable to file a claim before the deadline remained eligible. Congress, in response, reopened the case (known as “Pigford II”) two years ago, authorizing up to $100 million in civil damages. Lawmakers, under pressure from black civil rights leaders, stand poised to appropriate another $1.15 billion to meet the terms of this February’s $1.25 billion settlement.
As is so often the case in rent-seeking behavior, once an interest group receives favored status from the State, other like-minded interest groups quickly seek favor as well. Thus it came to pass that Hispanic, Indian and women farmers filed lawsuits of their own. The Hispanic action, filed in 2000 and now known as Guadalupe L. Garcia Jr. v. Vilsack, has languished. In large measure, it’s because unlike the black farmer case, this one failed to win class-action certification from a federal judge or (on appeal) the U.S. Supreme Court. But the Obama administration has proven eager to expand the federal civil-rights money train. Last month the Justice Department reversed course and granted class-action status to the plaintiffs, combining the case with an active suit on behalf of women farmers, Love v. Vilsack, which also had failed to obtain class-action certification. Shortly thereafter, the USDA began negotiations. Agriculture Secretary Tom Vilsack, in full capitulation mode, explains his own department’s position: “We are committed to resolving cases involving allegations of past discrimination because we are intent on ensuring that every farmer and rancher is treated equally and fairly. We have made significant progress on addressing USDA’s civil rights record to close this chapter in the Department’s history.”
Predictably, the $1.33 billion offer from the Justice Department may wind up being revised upward. “It is disappointing in that the number on the table is woefully inadequate and it reflects a continuation of the discrimination against the Hispanic farmers that this case is all about,” remarked lead plaintiffs’ attorney Stephen Hill of the Washington, D.C. litigation shop of Howrey LLP. Why does Hill think so little of the government’s offer? Simple arithmetic, he argues. The USDA’s 2007 Census of Agriculture, he notes, shows that while black-owned farms numbered only a little over 30,000, Hispanic-owned farms numbered more than 55,000. Thus, if the total settlement of black farmer suits was $2.25 billion, Hispanics ought to receive at least that much. “There is no rhyme or reason to in any way justify or explain that kind of disparity, with respect to the dollar amount,” said Hill. “For the life of us, we can’t figure out why damage to Hispanics’ lives is given so much less value than their black counterparts.”
The ignorance and arrogance of such statements is almost breathtaking. Hill in essence is saying that solely because Hispanic farmers outnumber black farmers, they deserve at least as much money. What he’s ignoring is the possibility that not all, and possibly not any, of the farmers in either case have been victims of discrimination. It’s as if a mere accusation suffices as evidence. Hill asserts, without evidence, that the USDA caused “damage to Hispanics’ lives.” Yes, many Hispanic farmers have lost their farms over the years. But so have many white farmers. Should they have standing to sue as well?
Reprehensible as the plaintiffs and their lawyers have been, in a real sense it was the federal government that created the problem. As the black plaintiffs’ case provided no evidence of systematic discrimination, the Department of Agriculture should have been quick out of the gate to dismiss the pending money hustle. It didn’t. That’s why that case, and all subsequent ones, managed to become so expensive. By fostering a perception of its weakness, the department became its own worst enemy.
This pattern has continued in the current administration. Agriculture Secretary Vilsack, without specifying any examples, has called the past behavior of his department “sordid.” A recent blog contributor, though clearly on the wrong side, understood that Vilsack and his predecessors, by not fighting back, effectively legitimized all accusations against them. “I find it interesting that Agriculture Secretary Tom Vilsack admitted to the Associated Press that he wants these lawsuits settled so as to close a ‘sordid’ chapter in the way the Agriculture Department used to behave,” the post read. “Which basically means there is an admission on the part of high-ranking federal officials that this case has some legitimacy, no matter how much certain conservatives want to rant and rage all over the Internet about the great injustice being imposed on the Agriculture Department.” In this light, the government’s ‘take-it-or-leave-it’ $1.33 billion offer is way too high, not way too low, a reflection of its unwillingness to challenge the civil-rights bullies and serve the interests of taxpayers, the ultimate bearer of settlement costs.