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Saturday, June 12th, 2021
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MADISON — Christopher Baird owns a dairy farm near Ferryville in southwest Wisconsin, not far from the Mississippi River. He milks about 50 cows and farms approximately 80 acres of pasture. Like a lot of farmers, Baird has direct loans through the U.S. Department of Agriculture’s Farm Service Agency.

But the dairy farmer isn’t entitled to a new FSA loan-forgiveness program provided in the $2 trillion American Rescue Plan Act.

He’s white.

Only “socially disadvantaged” farmers may apply for the approximately $4 billion in loan-forgiveness money, which includes direct payments of up to 20 percent of the value of the loan. Specifically, only “Black/African American(s), American Indian(s) or Alaskan native(s), Hispanic(s) or Latino(s), or Asian American(s) or Pacific Islander(s),” need apply.

“There is a case for loan forgiveness for individuals,” Baird said, “but we shouldn’t be looking at the color of someone’s skin and saying this person needs more help or less help based on the color of their skin. That’s just wrong.”

Baird is among five farmers, all white, — from Wisconsin, Minnesota, Ohio and South Dakota — suing USDA Secretary Tom Vilsack and FSA administrator Zach Ducheneaux on charges of racial discrimination and constitutional violations of their right to equal protection. The lawsuit was filed Thursday in the U.S. District Court in Wisconsin’s Eastern District.

The farmers’ attorneys at the Wisconsin Institute for Law & Liberty are seeking a temporary injunction preventing the Biden administration from applying racial classifications in determining eligibility for loan modifications and payments. The Milwaukee-based law firm ultimately seeks a declaratory judgment holding what other courts have held: that such racial classifications in determining federal benefits are unconstitutional.

“WILL is committed to ensuring that the current threats to the bedrock principle of equality under the law, something that many generations have worked tirelessly to achieve, are challenged and fought,” said Rick Esenberg, president and general counsel for the law firm.

USDA is reviewing the complaint and working with the U.S. Department of Justice, the agency tells Empower Wisconsin. USDA has no intention of halting the targeted loan-forgiveness program.

“During this review, we will continue to implement the debt relief to qualified socially disadvantaged borrowers under the American Rescue Plan Act,” the department said.

FSA officials did not return a request for comment.

The controversial ARPA provision has raised similar concerns of discrimination nationwide, while proponents defend the relief package to minority groups as long overdue.

Vilsack and Ducheneaux have publicly stated the goal of the program is ending the “systemic racism” that has “plague[d] the programs at USDA, especially the Farm Loan Program.” Vilsack asserts ARPA “provides funding to address longstanding racial equity issues with the Department and across agriculture.”

But such broad goals do not override the constitutional ban on race discrimination, the complaint states. The U.S. Supreme Court has “rejected the interest in remedying societal discrimination because it had no logical stopping point.”

In short, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The farmers suing the USDA argue the program that aims to exclude them is just more discrimination.

“There should absolutely be no federal dollars going anywhere just based on race. The economic impact from COVID-19 didn’t hurt any race more than another as far as agriculture goes,” Adam Faust, a plaintiff in the lawsuit who owns a dairy farm in Wisconsin’s Calumet County, near Chilton.

Faust is a double-amputee who milks about 70 cows and farms 200 acres for feed. He, too, is white, and not eligible for the FSA loan-forgiveness program.

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