The American Rescue Plan Act of 2021 (the ARP) – with its inclusion of emergency debt relief for farmers of color – is the most significant legislation for Black farmers since the Civil Rights Act of 1964. That Act was the beginning of the end of 100 years of Jim Crow in America. The ARP has the potential to mark the beginning of the end of the decline of Black farmers and the loss of Black-owned farmland in America – but only if the Act is correctly and faithfully implemented. The U.S. Department of Agriculture’s (USDA) history has rightfully made Black farmers wary that this will be the case.

The ARP presents a key opportunity for the United States to start taking meaningful steps to address the long history of racial injustice against Black farmers. To “live up to America’s founding ideals” and its role as an international leader, the United States must address the long-running, structural inequalities baked into its domestic institutions – as others have explained, addressing racial injustice at home is critical to strengthening national security and necessary to regaining respect among peers in the international arena. An often overlooked part of this problem is the racial injustice against Black farmers at USDA. While the ARP is an important first step, it only begins to scratch the surface of addressing hundreds of years of racial injustice and oppression of Black farmers and Black communities in the United States.

40 Acres and a Mule

At the end of the Civil War, formerly enslaved Black Americans were promised “40 acres and a mule.” But the vast majority of them did not get this land, and those who received land had it taken back after President Andrew Johnson reversed the policy. Despite this egregious broken promise, the number of Black farmers in America reached its height in 1920, when there were about 926,000 Black farmers. They comprised 14 percent of all farmers in America and owned 16 million acres of land. Since 1920, the number of Black farmers has declined by more than 96 percent. In 2017, there were only 35,470 black-operated farms, which owned less than 1 percent of the farmland in America.

The precipitous decline in the number of Black farmers and Black-owned land is a result of a long history of discrimination and broken promises. In 1982, the U.S. Commission on Civil Rights highlighted the “urgency” of the dramatic loss of land by Black farmers and USDA’s major role in this decline. Over the past century, Congress has passed a number of emergency support programs to help farmers. These federal programs, however, were administered by USDA’s local county committees, which prevented Black farmers from accessing most of these services. A subsequent USDA-commissioned study analyzed crop payments, disaster payments, and loans made between 1990 and 1995 and found that minority farmers “received less than their fair share of USDA money” in these programs.

The U.S. Commission on Civil Rights’ report also noted that lynching and other means were used to ensure that Blacks did not seek to get their share of USDA benefits. Consequently, when unexpected weather, pest, or market challenges threatened to drive farms out of business, White-owned farms were able to survive with USDA administered federal benefits, while Black-owned farms were deprived of this critical support. USDA responded to the report by closing its Office of Civil Rights in 1983.

One Step Forward and Several Steps Back

There have been a number of efforts to address racial discrimination at USDA, including by reopening its Office of Civil Rights in 1997. In 1997, I became the Director of USDA’s Office of Civil Rights and began processing the backlog of civil rights complaints. For two years, my team investigated and settled cases from the backlog where “findings of discrimination” were made. I ensured that all of these settlements provided full debt relief on USDA loans. We also provided farmers with financial compensation for actual damages and prospective relief, including priority consideration in future USDA programs, technical assistance, and access to USDA inventory land.

Our ability to resolve subsequent civil rights complaints administratively, however, was limited by the Pigford lawsuit. In 1997, Timothy Pigford filed a class action lawsuit, alleging that from 1983 to 1997, USDA discriminated against Black farmers in processing their financial assistance applications and failing to investigate complaints of discrimination.

The Pigford lawsuit was eventually resolved by a consent decree in 1999. Under the consent decree, Black farmers who experienced discrimination by USDA between 1981 and 1996 could submit claims for financial compensation and debt relief. The consent decree also provided injunctive relief, including priority consideration for future USDA programs, technical assistance in filling out forms, and access to USDA inventory land.

But only a small number of Black farmers actually received full debt relief under Pigford, and many Black farmers were worse off than they were before the settlement. After the court approved the consent decree, the Justice Department and the Pigford farmers’ attorneys negotiated a stipulation order that imposed additional restrictions on the ability of Black farmers to access the benefits they were promised. In the end, less than 5 percent of the settlement funds went to debt forgiveness and only 371 of the 22,721 farmers who filed claims received debt relief on some of their USDA loans. Many Black farmers were also advised they didn’t need to make payments on their loans while awaiting their Pigford benefits, which resulted in foreclosures or increases in their debts to USDA.

Black farmers experienced another setback from 2001 through 2008 when the Bush administration’s USDA disregarded and destroyed civil rights complaints. Although 14,000 civil rights complaints were filed, USDA made only one finding of discrimination.

In 2009, I headed a USDA task force to review and resolve these 14,000 cases. The task force determined that 3,800 complaints had merit and should be addressed, but the two-year statute of limitations had expired. Although legislation to extend the statute of limitations passed the House twice, it failed in the Senate. In the end, Black farmers who experienced discrimination during this 8-year period did not get debt relief.

From 2008 through 2016, the USDA’s Office of Civil Rights repaired the complaint tracking system. However, because its leadership believed the concerns with discrimination related to lack of training on civil rights, the office focused on educating and training USDA employees, and very few cases of discrimination were found.

During the Trump Administration, it is not clear if USDA made any findings of discrimination for socially disadvantaged farmers or ranchers. But of the $38 billion of coronavirus aid distributed to farmers, 99 percent went to White farmers.

How To Ensure the ARP Provides Real Debt Relief This Time

It is against this backdrop of discrimination and broken promises that USDA will implement the ARP with its emergency debt relief for farmers of color. The ARP provides $5 billion to help socially disadvantaged farmers and ranchers with debt relief and other support services. This should help to save the few remaining Black farmers, who have been seeking this relief for more than 40 years. But the question remains of whether USDA will distribute these funds in a way that provides the full debt relief that Congress intended.

Section 1005 of the ARP provides $4 billion to fully pay out USDA loans held by socially disadvantaged farmers and ranchers as of January 1, 2021. These loans include direct, guaranteed, and storage facility loans. The ARP also provides payments of up to an additional 20 percent of the loan to cover taxes.

To ensure that Black farmers actually obtain real debt relief, USDA must work to immediately pay off the loans rather than using tiered or staggered payments. The language in the ARP is clear that the debt relief payments are to “pay off the loan.” Delays in implementing the debt relief provisions can undermine this purpose of full debt relief. Some USDA officials are considering a 3-year “tiered” approach to paying off these loans to avoid high tax bills for the farmers. These officials note that a large lump-sum debt payment might cause the farmers to have a high income, and therefore a high tax bill, for that year.

Providing tiered debt relief payments over time, however, will likely cause further harm to Black farmers. During this time, USDA has advised that farmers should continue making regularly scheduled loan payments and liens will remain on their property, preventing them from using that property to get timely local loans. Moreover, a history of broken promises and  discrimination against Black farmers over the last 150 years has eroded trust in USDA by Black farmers. A tiered debt payment system will likely be viewed with skepticism, even if presented with claims of tax savings.

USDA has stated that it is “seeking input from borrowers and incorporating their suggestions into the implementation.” The input I have received from Black farmers is that they would like for USDA to (1) pay off all ARP-covered debts prior to Memorial Day, (2) remove all related liens on real and personal properties, and (3) send the additional funding intended to cover taxes directly to the IRS. In light of USDA’s history, many Black farmers fear that USDA is delaying debt relief in hope that someone or something will stop the debt relief process. Two lawsuits – one in Texas and one in Wisconsin – have already been filed in an effort to challenge the ARP’s provisions to benefit socially disadvantaged farmers and ranchers. USDA, however, has stated it will continue to implement ARP’s debt relief provisions while it reviews these lawsuits.

To the extent there are tax concerns, Section 1006 of the ARP can be used to provide Black farmers with tax assistance. Section 1006 provides $1.01 billion for, among other things, “outreach, mediation, financial training, capacity building training, cooperative development training and support, and other technical assistance” for members of socially disadvantaged groups.

Given the erosion of trust between USDA and Black farmers, many community leaders recommend that Section 1006 funds be provided to the SDFR Policy Center at Alcorn State University to develop a tax training tool for minority-serving land-grant universities and institutions as well as minority-serving community-based organizations (CBO). These entities, which have existing relationships and trust with Black farmers, can then use the tool to provide income tax training to socially disadvantaged farmers and ranchers at the local level.

A Critical Opportunity

Section 1006 provides another critical opportunity to start to address some of the long-term impacts of discrimination at USDA. One of its five categories of funding is financial assistance to socially disadvantaged farmers, ranchers, or forest landowners who are former farm loan borrowers and have suffered related adverse actions or past discrimination or bias in USDA programs.

Although the ARP’s debt relief provisions are great for Black farmers, they will not help those who have already lost their farms, who were not able to get a USDA loan in the first place, or who were part of the 14,000 disregarded civil rights complaints. For these farmers and others who experienced discrimination, the financial assistance provided under Section 1006 can help begin to restore some of the loss they suffered. The ARP allows USDA to use between $50.5 million and $853 million for this purpose, and many leaders in the Black farmer community would like maximum funding for this financial assistance. But it remains to be seen how much of these funds USDA will dedicate to addressing past discrimination.

While the funds provided by the ARP would only begin to scratch the surface of addressing the long history of discrimination Black farmers have faced, it is a welcome opportunity for USDA to provide meaningful relief to Black farmers, if USDA chooses to take it.

IMAGE: METTER, GEORGIA – APRIL 20: Handy Kennedy, founder of AgriUnity cooperative, prepares feed for his cows on HK Farms on April 20, 2021 in Cobbtown, Georgia. The AgriUnity cooperative is a group of Black farmers formed to better their chances of success by putting their resources together in order to reduce their overhead costs of farming, allowing for market expansion and creating a demand for their products to help bring higher profits and building a sustainable economic plan. The American Rescue Plan that was signed into law by President Joe Biden on March 11, 2021, gives $10.4 billion to support agriculture, with half going to disadvantaged farmers, benefiting Black farmers in a way that has not happened since the Civil Rights Act of 1964. (Photo by Michael M. Santiago/Getty Images)