Excerpted From: Megan Buechler, The Never-ending Drought for Black Farmers: The Lasting Effects of Pigford and the Continuance of USDA Discrimination, 61 University of Louisville Law Review 223 (Spring, 2023) (262 Footnotes) (Full Document)


MeganBuechlerForty acres and a mule--William Sherman promised this redistribution of land in forty-acre plots to African Americans during the Reconstruction era in Special Field Order No. 15. Shortly thereafter, the government broke that promise to African American farmers when President Andrew Johnson vetoed the congressional act which would have approved the order. Ever since Abraham Lincoln founded the United States Department of Agriculture (USDA)-- just years before in 1862, branding it as “the People's Department”--the black farmer in America has been trying to seek inclusion in President Lincoln's mid-19 century governmental experiment. Rather than “the People's Department” that Lincoln envisioned, the USDA quickly became known to many as the “last plantation” because of its crucial role in the forcing of many minority, disadvantaged farmers out of the profession. And so began a long history of broken promises relating to the USDA and the black farming community for generations to come. Today, the USDA has grown into a 21 behemoth with 120 billion dollars' worth of programs and policies. Nevertheless, despite having the largest civil rights settlement in U.S. history under his belt, the black farmer still must fight for recognition, respect, and literal restitution.

In 1997, a class of black farmers and landowners led by Timothy Pigford sued the USDA, alleging the agency had discriminated against African Americans in the allocation of farm loans and assistance, as well as in the agency's failure to respond to discrimination complaints between 1983 and 1997. Such patterns of discrimination were connected to significant losses of black-owned farmland throughout the 20 century. In 2010, a second historic agreement, known as Pigford II, provided another avenue for farmers excluded from the initial class to bring complaints, resulting in an additional $1.25 billion for settlement payments. While some cite Pigford as the largest and most successful civil rights case in recent decades, many viewed the settlements as a disappointment, because more than a decade after Pigford II, black farmers continue to suffer the effects of structural inequality and racial discrimination within U.S. Agriculture.

This Note analyzes the past, present, and future of the black farming community and the modern-day significance of the Pigford cases within the American tort system. It seeks to uncover why black farmers are still facing similar results today that they were a century ago, even in the aftermath of the Pigford cases. It proposes that there is a consistent pattern of discrimination against black farmers that is intentional and rationalized by a set of ostensibly neutral policies and institutions.

The second section of this Note provides a background of the history between black farmers and U.S. agriculture, specifically black farmers' tumultuous relationship with the USDA. It discusses the historical circumstances that allowed black farmers to suffer at the hands of the U.S. government for decades, ultimately leading to the Pigford settlement. The third section analyzes the continued impacts of Pigford within modern American jurisprudence. The fourth section addresses issues left unanswered by Pigford and seeks to uncover why black farmers are still facing issues today similar to those they faced a century ago, even in the aftermath of the Pigford cases. Utilizing Daria Roithmayr's Lock-In Model as a guiding framework, this Note proposes an expansion of the regulatory definition of discrimination amongst government agencies, such as the USDA, and making small but effective changes to USDA policies and procedures to regulate discriminatory practices. Finally, the Note's conclusion reaffirms that the settlement process did not adequately reform the culture of the USDA to curtail ongoing discrimination and suggests that the USDA needs a structural remedy to dismantle inequality and address inevitable future harms.

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Although progressive policymakers and Pigford have made strides in addressing past discrimination against black farmers and the resulting loss of land and generational wealth, there is still much work to be done in dismantling the structural racism embedded within the USDA. While Pigford left much to be desired in terms of changing the cultural landscape within U.S. Agricultural Programs, it gave credence to the many issues that previously remained hidden under the surface of the powerful USDA and provided the grounds for transformative frameworks, like the Lock-In Model.

Monitoring the continued impacts of Pigford within modern jurisprudence, expanding the regulatory definition of discrimination amongst government agencies, and making small but effective changes to USDA policies and procedures is a start in devoting renewed attention to the USDA's culture.

Mike Epsy, the 25 Secretary of Agriculture and Former Member of Congress, stated, “When two branches of government, the Executive and Legislative, can't get it done, our nation allows the option to aggressively engage the third, the Judiciary, for redress.” However, when the Judiciary does just that, change will only result from continued pressure on the Executive and Legislative branches of government. More needs to be done, and only a continuing commitment to the USDA's process of cultural transformation looking forward will make a lasting difference.

J.D. Candidate, May 2023, University of Louisville Brandeis School of Law; B.A. in Public Relations, May 2020, University of South Carolina.