The New York Times’ Unfortunate Misunderstanding of the USDA Claims Program

You may have read in the New York Times last Friday about the U.S. Department of Agriculture (USDA) claims program for Hispanic farmers and ranchers.  For an organization like NCLR, which has worked hard to promote some level of compensation for Hispanics who have suffered discriminatory practices by the U.S. government, it was a deeply disappointing article, full of innuendo and short on facts.  Below we address the most egregious assertions.

• The article suggests outright fraud on the part of Black and Native American farmers, and it seems to imply the same for Hispanic farmers.  However, it does not include a single allegation of fraud from Hispanic claimants, relying on an anonymous quote from a Department of Justice (DOJ) official and nothing more.  To be clear, if there is fraud, we support investigating it.  Indeed, according to the Government Accountability Office, there already exists an adequate process for deterring and punishing fraud (see section X of the DOJ Framework).  However, it is unacceptable for the Times to attack a program that is likely underused, not over-enrolled.

• There is a good reason why hard documents aren’t required in every case.  Many instances of discrimination occurred decades ago; a Hispanic farmer, for example, would be hard-pressed to document how USDA incorrectly told him that he was ineligible for a loan 20 years ago.  Even if someone filed a loan application, was denied, and saw a similarly situated White neighbor receive a loan, the claimant is still relying on the agency he is suing to prove documentation for the claim.  Furthermore, certain cases are being filed by the heirs of deceased folks who were originally denied loans, an added complication to providing documentation.  For many Hispanic farmers who lost their land or experienced substantial financial damages because of a denied loan or other discriminatory practice, these evidentiary hurdles in the current process are simply excessive.

• Even in “Tier Two” cases with lower evidentiary burdens, while individuals can receive up to $50,000, they could receive less.  Moreover, an experienced, independent claims adjudicator (JAM, Inc.) makes that determination.  If someone submits an application based solely on their word, or anything else for that matter, it is still reviewed by someone capable of identifying bad applications. According to Section X(A) of the DOJ framework, “If the Adjudicator suspects fraud regarding a particular claim, the Adjudicator may require [author’s emphasis] that the claimant provide additional documentation or information.”  See also section V(E) of the Framework:  you take an oath under penalty of perjury and “claimants who make false, fictitious, or fraudulent claims may also be subject to fines or imprisonment as provided in 18 U.S.C. § 287.”

• The article alleges that there is a “cottage industry” surrounding claims but does not include any evidence pointing to Hispanic farmers in particular.  Furthermore, it notes that only 1,900 Hispanics in this country have submitted claims so far.  This compares to 22,500 Black farmers who received compensation through the Pigford I settlement and 4,500 Native American farmers who received compensation through the Keepseagle settlement.  Research suggests that there are more Latino farmers than Black farmers in the U.S., which, if anything, implies severe underrepresentation—not fraud—in the current program.

• The article suggests that DOJ just rolled over under the political weight of the administration.  Really?  Anyone even remotely knowledgeable about the U.S. government will tell you that DOJ doesn’t just roll over for anyone.  To the impartial observer, it appears that DOJ protected the judgment fund money through hard-nosed negotiations and that the resulting compromise framework is a reflection of that process.

• Most importantly, the article quotes a number of lawyers who suggest that the government should have fought these claims to the end because it probably would have prevailed in court.  It is understandable for highly competitive attorneys to think this way, who seem to prioritize keeping score or preventing the expenditure of taxpayer money.  But what about justice? Everyone knows that damages were committed by the U.S. government.  Everyone understands that many, or perhaps most, of these claims could not be proven definitively in court decades after the fact.  Everyone knows that bringing litigation of this kind against the government is enormously expensive and difficult.  And yes, everyone knows that some number of unmeritorious claimants might benefit.  But our system of justice is founded on the notion that providing due process to one and all is necessary to protect the innocent.  In much the same way, providing justice to as many as we can, even decades after the fact, is necessary to right the wrongs committed in the past.

• Finally, in an apparent attempt to throw every allegation against the wall and see what sticks, the article makes contradictory points.  On the one hand, it suggests that too many claims, including fraudulent ones, are being filed.  On the other hand, it points to a lower number of claims than expected as a failure of the program.  The Times would have been better off reflecting the complexity of the situation than fitting a thesis to its preconceptions.  For years, government agencies, including USDA, discriminated against minorities, often with horrible consequences.  Decades later, some attempts are being made to remedy those injuries.  The solutions inevitably are imperfect, but to write this kind of diatribe without including even one of the hundreds of fact-based claims readily available in public records reveals a deep, disturbing bias.  This is uncharacteristic of the quality of reporting one should expect from the country’s “newspaper of record.”