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There’s No Such Thing as Separate But Equal: Black Farmer Discrimination



Excerpt from The Carrot is the Stick:

Food as a Weapon of Systemic Oppression for Black Consumers

and the Disenfranchisement of Black Farmers


It would seem the most logical way to encourage the independence of freedmen in the South would have been to encourage them to use their existing skill sets. Enslaved Blacks were largely agrarian, laboring in the fields and enduring the physical toil of farming pre-Industrial Revolution at the behest of their “masters.”[1] What might have been established was a replacement agricultural economy, whereby the formerly enslaved people continued to grow all manner of agricultural products as commercial farmers, maintained contracts for production as business owners, and rebuilt the South as a global supplier via free trade.[2] Whether this was the intention of men like William Tecumseh Sherman and Otis Howard, we will never know. But history informs us that they were a part of multiple attempts to provide a real opportunity for the freedmen to become self-sufficient.


William Sherman’s Special Field Orders No. 15 provided “of not more than (40) forty acres of tillable ground designated for the settlement of the negroes now made free by the acts of war and the proclamation of the President of the United States.”[3] Sherman’s Reserve established with Field Order No. 15 “reserved for settlement exclusively by former slaves the sea islands along the coast between Charleston, South Carolina, and the St. Johns River in northern Florida, together with the abandoned rice plantations extending inland for thirty miles.”[4] Alas, challenges to possessory titles, Johnson’s veto canceling the order, and the inability of many freedpeople to validate their ownership led to them being turned off their land.[5] In fact, Johnson “ordered the removal of former slaves from the coastal lands they had settled under the conditions of Sherman’s Special Field Orders No. 15” returning them to former plantation owners.[6]


The Freedmen’s Bureau Act also provided for “not more than 40 acres” to be provided to male freedmen land to lease at “three years’ annual rent not exceeding 6 percent of the value of the land based on the appraisal of the state tax authorities in 1860. ”[7] This was effectuated by freedmen working on “government farms” that had been seized from Confederate landowners and included an option to purchase after three years.[8] However, President Johnson’s amnesty and pardon policies, not to mention his predilection to restore the land to the former proprietors, made land ownership for freedmen complicated to say the least.[9]


Under the Southern Homestead Act of 1866, freedmen “were to receive land in the southern states at a price of $5 for 80 acres.”[10] The Act “opened 46 million acres of federal land in Alabama, Arkansas, Florida, Louisiana, and Mississippi,”[11] but freedmen found it difficult to participate.[12] The 1866 Act is distinguished from the Homestead Act of 1862 which gave an opportunity for citizens “who had never borne arms against the U.S. government” to claim up to 160 acres of public land.[13] However, the Homestead Act of 1862 granted a total of “84 million acres to settlers willing to move West, and other laws granting 127 million acres of land to railroad companies.”[14]


The USDA preceded emancipation with its inception in 1862.[15] It was established “to acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture, rural development, aquaculture, and human nutrition, in the most general and comprehensive sense of those terms, and to procure, propagate, and distribute among the people new and valuable seeds and plants.”[16] The responsibility of the USDA was to protect the rights, farms, and homesteads of all landowners.[17] Alas, “[s]ince its inception, the USDA has been accused of being a leader in discrimination among federal agencies and the major cause of black land loss in the modern era. ”[18]


Despite the challenges, Black farmers managed to acquire, work, and retain ownership of land at a rate that reached its zenith “in 1910 at 16-19 million acres, according to the Census of Agriculture.”[19] The acreage owned by Black farmers has dropped to 4 million acres, which is around 2 percent [20] of the total land available for farming, also according to the 2017 Census of Agriculture.[21] Although there are discrete contributing factors, Black farmers would likely say that diminished number is the direct result of systemic racism effectuated by the USDA and their representatives inflicting discriminatory policies and practices that brought financial ruin to Black farmers in the South.[22] And the courts have agreed.


In 1997, Black Farmers filed suit against then-Secretary Dan Glickman claiming the USDA discriminated against them and Black farmers on the whole in their administration of programs. Black farmers specifically claimed that “ county officials have exercised their power in a racially discriminatory manner, resulting in delayed processing or denial of applications for credit and benefits by African-American farmers not experienced by white farmers who are similarly situated.”[23] Moreso, the “dismantling of the USDA’s Office of Civil Rights in 1983 violated the Fifth Amendment, the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and the Equal Credit Opportunity Act ('ECOA'), 15 U.S.C. § 1691, prohibiting discrimination in consumer credit.”[24]


There were two Tracks (A & B) under which a remedy was available, the former being a fast-track settlement process that required less rigorous review and documentation.[25]


Under the resulting Consent Decree, a farmer claiming discrimination in a credit transaction had four conjunctive burdens to meet for Track A:

  1. that he owned or leased, or attempted to own or lease, farmland;

  2. that he applied for a specific credit transaction at a USDA county office between January 1, 1981, and December 31, 1996;

  3. that the loan was denied, provided late, approved for a lesser amount than requested, encumbered by restrictive conditions, or USDA failed to provide appropriate loan service, and such treatment was less favorable than that accorded specifically identified, similarly situated white farmers; and

  4. that USDA's treatment of the loan application led to economic damage to the class member.[26]

Should the adjudicator find in favor of the farmer they would receive:

  1. a cash payment of $50,000;

  2. forgiveness of all debt owed to the USDA incurred under or affected by the program that formed the basis of the claim;

  3. a tax payment directly to the IRS in the amount of 25% of the total debt forgiveness and cash payment;

  4. immediate termination of any foreclosure proceedings that USDA initiated in connection with the loan(s) at issue in the claim; and

  5. injunctive relief including one-time priority loan consideration and technical assistance.[27]

In a report compiled by the Congressional Research Service “[c]umulative data show that as of December 31, 2011, 15,645 (69%) of the 22,721 eligible class members had final adjudications approved under the Track A process, and 104 (62%) prevailed in the Track B process for a total cost of approximately $1.06 billion in cash relief, tax payments, and debt relief.”[28] Around 89,000 claim forms were mailed and nearly 34,000 were returned completely and timely. This partly sparked In re Black Farmers Discrimination Litigation (or Pigford II).


The 2008 Farm Bill permitted any claimant filing late under Pigford and “who had not previously obtained a determination on the merits of his or her claim to petition in federal court,” meaning they could file a new suit.[29] Multiple individual lawsuits were filed in response and were then consolidated into Pigford II.[30] Something must have been wrong with the notice because nearly 60,000 applications were returned late.[31]


And though $2.3 billion dollars has been paid to compensate Black farmers who were injured by the USDA’s discrimination, billions more remain unpaid and thousands of farmers are yet to be made whole. It is illogical to presume the very system of food oppression that disenfranchised the farmers initially would effectively self-police and right its own wrongs. But we as a society continue to expect it and seem surprised that we have carried the kernel of age-old discrimination forward into the twenty-first century. The use of law to subjugate and disenfranchise is not a new process. We perhaps have become a little more sophisticated in our implementation and have modernized the vehicles of oppression, but the racism that supports the physical debilitation of socially subordinate groups never went out of style.

Cited Sources

[1] Vance, supra note 88, at 15. [2] “Free trade” is defined as “a policy by which a government does not discriminate against imports or interfere with exports by applying tariffs (to imports) or subsidies (to exports).” Free Trade, Britannica.com, https://www.britannica.com/topic/free-trade [https://perma.cc/6NAY-54F7] (last visited Aug. 30, 2020). [3] William Darity, Jr. & William A. Darrity, Jr., Forty Acres and a Mule in the 21st Century, 89 Soc. Sci. Q. 656, 660 (2008). See also William T. Sherman, Special Field Order No. 15 (Jan. 16, 1865). [4] Renã Hayden et al., Freedom: A Documentary History of Emancipation, 1861-1867: Series 3, Volume 2: Land and Labor, 1866–1867, at 216 (2013). 2020). See also Sherman, supra note 115. [5] Hayden et al., supra note 123, 217–21. [6] Darity & Darrity, supra note 122, at 661. [7] Id. at 660. [8] Hayden et al., supra note 123, at 213. [9] Id. at 212-13. [10] Darity & Darrity, supra note 122, at 661. [11] Southern Homestead, supra note 17. [12] “Since the Homestead Act was signed into law by Lincoln in May 1862, few people from the South initially received any benefit from it. Yet given that it remained in place until 1934, well over a million and a half white families – both American-born and immigrant – profited from it.” Keri Leigh Merritt, Race, Reconstruction, and Reparations, Black Perspectives (Feb. 9, 2016), https://www.aaihs.org/race-reconstruction/ [https://perma.cc/GF9Z-MQE4]. [13] Homestead Act of 1862, Pub. L. No. 37-64 (1862). [14] Nash, supra note 16. [15] 7 U.S.C.A. § 2201 (1862). [16] Id. [17] Monica M. Clark, So Near, Yet So Far: The Past, Present, and Future of the Complaints Process within the USDA, 32 S.U. L. Rev. 139, 141 (2005). [18] Id. [19] Jess Gilbert, Spencer D. Wood, & Gwen Sharp, Who Owns the Land? Agricultural Land Ownership by Race/Ethnicity, 17 Rural Am. 55, 55 (2002). [20] Id. See values numbers provided in the report. [21] Nat’l Agric. Stats. Serv., USDA, Selected Farm Characteristics by Race: 2017 72 (2017), https://www.nass.usda.gov/Publications/AgCensus/2017/Full_Report/Volume_1,_Chapter_1_US/st99_1_0061_0061.pdf [https://perma.cc/FD8J-WG9Y]. [22] See Pigford v. Glickman, 206 F.3d 1212 (D.C. Cir. 2000) [23] Id. at 1214. [24] Id. at 1215. [25] Id. [26] Pigford v. Glickman, 185 F.R.D. 82, 96 (D.D.C. 1999). [27] Id. at 97. [28] Tadlock Cowan & Jody Feder, Cong. Rsch. Serv., RS20430, The Pigford Cases: USDA Settlement of Discrimination Suits by Black Farmers, at i (2013). [29] Id. at 7. [30] See In re Black Farmers Discrimination Litig., 856 F.Supp.2d 1, 24 (D.D.C. 2011). [31] Id. at 18.







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