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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`FORT WORTH DIVISION
`
`
`CASE NO. 4:21-CV-595-O
`
`
`SID MILLER, GREG MACHA, JAMES MEEK, JEFF PETERS, and LORINDA
`O’SHAUGHNESSY, on behalf of themselves and others similarly situated,
`
`Plaintiffs,
`
`v.
`
`THOMAS J. VILSACK, in his official capacity as Secretary the U.S. Department of Agriculture,
`
`Defendant.
`
`
`BRIEF OF AMICI CURIAE
`THE RURAL COALITION, THE INTERTRIBAL AGRICULTURE COUNCIL,
`NORTH CAROLINA ASSOCIATION OF BLACK LAWYERS LAND LOSS
`PREVENTION PROJECT, AND
`23 ADDITIONAL FARMING ADVOCACY ORGANIZATIONS
`IN OPPOSITION TO PLAINTIFFS’
`MOTION FOR PRELIMINARY INJUNCTION
`
`
`Art Brender
`THE BRENDER LAW FIRM
`600 Eighth Avenue
`Fort Worth, Texas 76104
`Tel: (817) 334-0171
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`
`
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`
`
`
`
`
`
`Keisha Stokes-Hough
`Alexandra M. Jordan
`SOUTHERN POVERTY LAW CENTER
`400 Washington Avenue
`Montgomery, AL 36104
`Tel: (334) 956-8200
`
`Counsel for Amici Curiae
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`

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`TABLE OF AUTHORITIES ......................................................................................................... iv
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`TABLE OF CONTENTS
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`BRIEF STATEMENT OF AMICI CURIAE .................................................................................. 1
`
`INTRODUCTION .......................................................................................................................... 2
`
`ARGUMENT .................................................................................................................................. 3
`
`I. Congress Enacted Section 1005 to Address Two Compelling Government
`Interests: Remedying Discrimination Against Minority Farmers, and Ensuring
`that COVID-19 Relief Reaches Those Most Impacted by the Crisis. .......................... 3
`
`A. Minority farmers have been harmed by persistent discrimination in the
`USDA’s farm loan programs. ................................................................................. 3
`
`financial circumstances have been
`farmers’ precarious
`B. Minority
`exacerbated by the COVID-19 pandemic. .............................................................. 6
`
`II. Section 1005 Is a Narrowly Tailored Measure, Employing the Least Restrictive
`Means to Achieve Congress’s Policy Goals. ................................................................ 9
`
`A. Race-neutral efforts have been attempted, and failed to remedy the effects
`of USDA’s long and persistent history of discrimination. ...................................... 9
`
`B. Relief under Section 1005 will benefit the most vulnerable and underserved
`farmers: those impacted by USDA discrimination and at the greatest risk of
`failure. ................................................................................................................... 12
`
`C. Section 1005 provides temporary relief in response to the exigencies of the
`COVID-19 pandemic. ........................................................................................... 14
`
`III. The Balance of Harms Weighs Strongly Against a Preliminary Injunction,
`Because Minority Farmers and the Public Will Be Harmed, But Plaintiffs Are
`Not Harmed. ................................................................................................................ 14
`
`A. Discrimination in lending has made it more difficult for minority farmers to
`survive times of crisis. .......................................................................................... 15
`
`B. Delay in delivering debt relief will irreparably harm minority farmers. .............. 16
`
`C. Delaying assistance to minority farmers is also harmful to the public
`interest. .................................................................................................................. 18
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`D. An injunction of Section 1005 would undermine Congress’s goal of
`remedying ongoing inequities in USDA funding. ................................................ 19
`
`CONCLUSION ............................................................................................................................. 21
`ii
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`CERTIFICATE OF SERVICE ..................................................................................................... 23
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`Appendix: Interest Statements of Amici Curiae ............................................................................. 1
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`Exhibit A: Declaration of Alfonso A. Abeyta .............................................................................. A
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`Exhibit B: Declaration of Nathaniel Bradford ............................................................................... B
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`Exhibit C: Declaration of Leroy Brinkley, Jr................................................................................. C
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`Exhibit D: Declaration of Henry Brown ....................................................................................... D
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`Exhibit E: Declaration of Jane Doe ............................................................................................... E
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`Exhibit F: Declaration of George McNary III ............................................................................... F
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`Exhibit G: Declaration of Cassandra P. ........................................................................................ G
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`Exhibit H: Statement of Rural Coalition to the H. Comm. on Agric. Hearing on the State
`of Black Farmers (March 25, 2021) ......................................................................................... H
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`Exhibit I: Declaration of Maykia Xiong ......................................................................................... I
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`iii
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`TABLE OF AUTHORITIES
`
`Cases
`
`Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ......................................................... 3, 8
`
`City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ........................................................... 9
`
`Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004) ........................................................................... 4
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`Grutter v. Bolinger, 539 U.S. 306 (2003) ................................................................................... 3, 9
`
`Keepseagle v. Veneman, No. Civ.A.9903119EGS1712, 2001 WL 34676944
`(D.D.C. Dec. 12, 2001) ............................................................................................................. 4
`
`Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999) ....................................................................... 4
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`Shaw v. Hunt, 517 U.S. 899 (1996) ................................................................................................ 3
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`Sherbrooke Turf, Inc. v. Minn. Dep’t of Transp., 345 F.3d 964 (8th Cir. 2003) ............................ 9
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`United States v. Paradise, 480 U.S. 149 (1987) ............................................................................. 9
`
`Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ................................................................... 6
`
`
`
`Statutes
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`7 U.S.C. § 2279 ............................................................................................................................... 2
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`American Rescue Plan Act of 2021 § 1005, Pub. L. No. 117-2 ..................................................... 2
`
`Department of Agriculture Reorganization Act of 1994, Subtitle H, 7 U.S.C.
`§§ 6991–7002.......................................................................................................................... 12
`
`
`
`Regulations
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`Selection and Functions of Farm Service Agency State and County Committees, 7
`C.F.R. §§ 7.1–.34 (2012) ........................................................................................................ 11
`
`
`
`Other Authorities
`
`Carol Canada, Cong. Research Serv., R40179, Farm Service Agency County
`Committees: In Brief (2021) ................................................................................................... 11
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`iv
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`
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`Civil Rights Action Team, U.S. Dep’t of Agric., Civil Rights at the U.S. Department
`of Agriculture (Feb. 1997) ................................................................................................ 14, 15
`
`
`
`Decline of Minority Farming in the United States: Hearing Before the Gov’t Just.,
`Info., & Agric. Subcomm. of the H. Comm. on Gov’t Operations, 101st Cong.
`(July 25, 1990) ................................................................................................................ 4, 5, 13
`
`Emily M. Broad Leib, et al., Harvard L. School Food L. & Pol’y Clinic, An
`Evaluation of the Farmers to Families Food Box Program (Feb. 2021) ............................... 21
`
`Emily Miller and Tyneshia Griffin, Nat’l Sustainable Agric. Coalition, Lending to
`Farmers of Color and Women: New Report Examines Trends and Barriers,
`NSAC’s Blog (Aug. 27, 2019) ................................................................................................ 11
`
`Farm Serv. Agency, U.S. Dep’t of Agric., County Committee Elections 2021 (May
`2021) ....................................................................................................................................... 11
`
`H.R. Rep. No. 117-7 (2021) .......................................................................................................... 16
`
`J. Rabin, Excess Farm Indebtedness: Not a Sustainable Practice, Rutgers
`Cooperative Extension: Sustainable Farming on the Urban Fringe (Oct. 15,
`2010) ....................................................................................................................................... 14
`
`Jared Hayes, USDA Data: Nearly All Pandemic Bailout Funds Went to White
`Farmers, Environmental Working Group (Feb. 18, 2021) ........................................... 7, 11, 19
`
`Management of Civil Rights at the USDA: Hearing Before the Subcomm. On Gov’t
`Mgmt., Org., & Procurement of The H. Comm. On Oversight and Gov’t Reform,
`110th Cong. (May 4, 2008) ................................................................................................. 4, 13
`
`Mark Hugo Lopez et al., Financial And Health Impacts of COVID-19 Vary Widely
`By Race And Ethnicity, Pew Research Center (May 5, 2020) .................................................. 6
`
`Nat’l Agric. Statistics Serv., U.S. Dep’t of Agric., American Indian/Alaskan Native
`Producers, 2017 Census of Agriculture: Highlights (2019) ............................................. 18, 20
`
`Nat’l Agric. Statistics Serv., U.S. Dep’t of Agric., Black Producers, 2017 Census
`of Agriculture: Highlights (2019) ........................................................................................... 18
`
`Nat’l Agric. Statistics Serv., U.S. Dep’t of Agric., Hispanic Producers, 2017
`Census of Agriculture: Highlights (2019)............................................................................... 18
`
`Nishesh Chalise & Violeta Gutkowski, How COVID-19’s Economic Impact Varies
`by Geography and Race, Federal Reserve Bank of St. Louis: Open Vault Blog
`(April 21, 2021) ........................................................................................................................ 6
`
`Pamela Browning, et al., U.S. Comm’n on Civil Rights, The Decline of Black
`Farming in America (1982) ................................................................................................ 4, 10
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`v
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`Pete Daniel, Dispossession: Discrimination Against African American Farmers in
`the Age of Civil Rights (2013) ................................................................................................. 11
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`
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`Risk for COVID-19 Infection, Hospitalization, and Death by Race/Ethnicity, Ctrs.
`for Disease Control and Prevention .......................................................................................... 7
`
`Susan Youngblood Ashmore, Carry It On: The War on Poverty and the Civil Rights
`Movement in Alabama 1964–1972 (2008) .............................................................................. 11
`
`U.S. Gov’t Accountability Off., GAO-19-539, Agricultural Lending: Information
`on Credit and Outreach to Socially Disadvantaged Farmers and Ranchers Is
`Limited (July 2019) ..................................................................................................... 10, 13, 18
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`Vanessa Bitterman, U.S. Dep’t of Agric., Your Guide to FSA Farm Loans (2012) ............... 10, 12
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`vi
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`BRIEF STATEMENT OF AMICI CURIAE
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`Rural Coalition, Intertribal Agriculture Council, North Carolina Association of Black
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`Lawyers Land Loss Prevention Project, Natural Resources Defense Council, Inc., Rural
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`Advancement Fund of the National Sharecroppers Fund, Inc., National Latino Farmers and
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`Ranchers Trade Association, American Indian Mothers, Inc., Cottage House Incorporation, Family
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`Farm Defenders, Kansas Black Farmers Association, National Young Farmers Coalition,
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`Oklahoma Black Historical Research Project, Inc., Operation Spring Plant, Inc., Texas Coalition
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`of Rural Landowners, World Farmers, Inc., Farm Aid, HEAL Food Alliance, National Family
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`Farm Coalition, Rural Advancement Foundation International-USA, National Sustainable
`
`Agriculture Coalition, California FarmLink, Community Farm Alliance, Women, Food, and
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`Agriculture Network, Steward Holdings, Concerned Citizens of Tillery, and Black Farmers and
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`Agriculturalists Association file this amicus brief in opposition to Plaintiffs’ motion for a
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`preliminary injunction.
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`Amici curiae are twenty-six farmers’ organizations that work with, on behalf of, or
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`represent socially disadvantaged farmers who are eligible for emergency debt relief under Section
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`1005 of the American Rescue Plan Act, and who would therefore be harmed should the Court
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`enjoin the law.1
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`1 Interest statements for each amicus curiae are contained in the Appendix to this brief.
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`1
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`INTRODUCTION
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`A preliminary injunction in this case will unnecessarily deprive minority farmers of debt
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`relief, compounding harm from decades of racial discrimination and the COVID-19 crisis. The
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`American Rescue Plan Act (ARPA) was signed into law on March 11, 2021. Section 1005 of the
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`ARPA provides direct, emergency debt relief for socially disadvantaged farmers and ranchers, to
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`ensure their survival in the wake of the COVID-19 crisis. Congress recognized that minority
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`farmers were already operating at a disadvantage when the COVID-19 pandemic struck, and
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`needed immediate support. Accordingly, the legislation authorized the U.S. Department of
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`Agriculture (USDA) to spend “sums as may be necessary” to relieve certain debt burdens for
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`socially disadvantaged producers. Pub. L. No. 117-2, § 1005 (a)(1) (2021).2
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`Longstanding federal law defines “socially disadvantaged farmer or rancher” as “a member
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`of a socially disadvantaged group . . . whose members have been subjected to racial or ethnic
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`prejudice because of their identity as members of a group without regard to their individual
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`qualities.” 7 U.S.C. § 2279(a)(5)–(6). In its Notice of Funds Availability, USDA explained that
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`such groups “include, but are not limited to: American Indians or Alaskan Natives; Asians; Blacks
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`or African Americans; Native Hawaiians or other Pacific Islanders; and Hispanics or Latinos.”3
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`Plaintiffs seek a preliminary injunction to forestall implementation of Section 1005,
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`arguing that relief to socially disadvantaged farmers and ranchers amounts to a constitutionally
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`impermissible racial classification. But Supreme Court precedent is clear that Congress may
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`employ race-conscious measures if needed to address a compelling government interest, see, e.g.,
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`2 See also USDA Notice of Funds Availability (NOFA), https://public-inspection.federalregister.gov/2021-
`11155.pdf (noting that USDA “received emergency approval” from Office of Management and Budget for ARPA
`information collection).
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`3 See NOFA, supra note 2, at 6 (emphasis added).
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`2
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`Grutter v. Bolinger, 539 U.S. 306, 326–27 (2003), and the balance of harms weighs strongly
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`against injunctive relief.
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`As discussed below, Section 1005 is a measured response to past and present
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`discrimination in USDA’s programs, and the disproportionate impact of the COVID-19 pandemic
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`on the nation’s most vulnerable farmers. Having been underserved by prior USDA lending and aid
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`programs, socially disadvantaged farmers are relying on Section 1005 to meet their farming needs
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`this season, and will be irreparably harmed if the promised assistance is delayed or denied.
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`ARGUMENT
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`I. Congress Enacted Section 1005 to Address Two Compelling Government Interests:
`Remedying Discrimination Against Minority Farmers, and Ensuring that COVID-19
`Relief Reaches Those Most Impacted by the Crisis.
`
`“The unhappy persistence of both the practice and the lingering effects of racial
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`discrimination against minority groups in this country is an unfortunate reality, and government is
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`not disqualified from acting in response to it.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
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`237 (1995).
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`In crafting Section 1005, Congress was acting in response to two compelling, appreciable
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`problems that have particularly disadvantaged minorities: a clear and persistent pattern of racial
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`and ethnic discrimination in USDA’s loan and assistance programs, and the disproportionate
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`economic impact of the COVID-19 pandemic on minority farmers, which threatens to perpetuate
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`the lingering effects of USDA’s discriminatory practices.
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`A. Minority farmers have been harmed by persistent discrimination in the USDA’s farm
`loan programs.
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`The Supreme Court has recognized that the government has a compelling interest in
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`“remedying the effects of past or present racial discrimination.” Shaw v. Hunt, 517 U.S. 899, 909
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`(1996). And as the Secretary has acknowledged in this case, “throughout USDA’s history and up
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`3
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`to present day, minority farmers have been ‘hurt’ more than helped due to discrimination in
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`USDA’s farm loan programs.”4
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`Through its Farm Service Agency (FSA) and, formerly, Farmers Home Administration
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`(FmHA), the USDA has operated as the “‘lender of last resort’ to small farmers — a source of
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`direct farm financing for those borrowers who cannot obtain credit elsewhere.”5 But minority
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`farmers have often been excluded from the benefits of this assistance. In various fora over the last
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`four decades, including congressional hearings,6 civil rights reports,7 and class action litigation,8
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`minority farmers have decried unfair and discriminatory lending practices in USDA programs.
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`Such practices include failing to provide minority farmers with loan program information and
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`applications;9 awarding minority farmers smaller loans, at higher interest rates, than white
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`farmers;10 frequent delays in processing loans for minority farmers;11 applying minority farmers’
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`4 Doc. 27, p. 13.
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`
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`5 Decline of Minority Farming in the United States: Hearing Before the Gov’t Info., Just., & Agric. Subcomm. of the
`H. Comm. on Gov’t Operations, 101st Cong. 27 (July 25, 1990) (statement of David Harris, Jr., Executive Director,
`Land Loss Prevention Project),
`https://www.google.com/books/edition/Decline_of_Minority_Farming_in_the_Unite/XdD4pV3tgeEC?hl=en&gbpv
`=1.
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`6 See, e.g., Management of Civil Rights at the USDA: Hearing Before the Subcomm. On Gov’t Mgmt., Org., &
`Procurement of The H. Comm. On Oversight and Gov’t Reform, 110th Cong. (May 4, 2008),
`https://www.google.com/books/edition/Management_of_Civil_Rights_at_the_USDA/uU-
`8FKm6V3cC?hl=en&gbpv=0.
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`7 See, e.g., Pamela Browning, et al., U.S. Comm’n on Civil Rights, The Decline of Black Farming in America 85–
`134 (1982), https://files.eric.ed.gov/fulltext/ED222604.pdf.
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`8 See, e.g., Keepseagle v. Veneman, No. Civ.A.9903119EGS1712, 2001 WL 34676944 (D.D.C. Dec. 12, 2001)
`(class action of Native American farmers); Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999) (class action of Black
`farmers); see also Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004) (putative class of Hispanic farmers).
`
`9 See Browning, et al., supra note 7, at 87.
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`10 See id.; Exhibit H, p. 2 (Statement of Rural Coalition to the H. Comm. on Agric. Hearing on the State of Black
`Farmers (March 25, 2021)).
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`11 See Browning, et al., supra note 7, at 87.
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`4
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`loan payments to the wrong accounts;12 and accelerating minority farmers’ loans without
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`explanation.13
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`Amici represent thousands of minority farmers, many of whom have directly suffered
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`economic injury due to discriminatory practices in the administration of USDA’s loan programs.
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`For instance, Alfonso A. Abeyta, a Latino rancher in Antonito, Colorado, has a 400-acre ranch
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`where he raises sheep and cows.14 He recalls several painful instances of discrimination by USDA
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`representatives. When he first sought a USDA loan to own and operate a ranch, a USDA employee
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`told him that “Mexicans were more suited to being farm workers, not farm owners.”15 He later
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`attempted to take out USDA loans because of several natural disasters. However, USDA
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`representatives denied his applications because he and his family worked other jobs to supplement
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`their income.16 To Mr. Abeyta’s knowledge, white farmers in his area have routinely been able to
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`take out USDA loans even though they worked outside of their ranches.17 He estimates that his
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`losses from USDA lending discrimination are in excess of $2.9 million.18
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`Nathaniel Bradford is a Black farmer and rancher from Creek County, Oklahoma, who has
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`worked in agriculture for 30 years.19 He has been repeatedly discriminated against by FSA offices
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`12 See Decline of Minority Farming, supra note 5, at 9 (statement of Rep. Mike Espy of Mississippi).
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`13 Id.
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`14 See Exhibit A (Declaration of Alfonso A. Abeyta), ¶¶ 3–4.
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`15 Id. at ¶ 7.
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`16 Id. at ¶ 9.
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`17 Id.
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`18 Id. at ¶ 8.
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`19 See Exhibit B (Declaration of Nathaniel Bradford), p. 1.
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`5
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`in neighboring Payne and Okfuskee Counties.20 For the past 15 years, he has been repaying an
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`
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`FSA loan without adequate servicing.21 Last year, he applied for a new FSA loan to replace a 100-
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`year-old barn.22 Instead of giving him a loan to build a new barn, FSA appraised the old, derelict
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`barn at $30,000, and told Mr. Bradford that he would need to pay the full amount in order to
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`remove USDA’s lien.23
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`In enacting Section 1005, Congress took action in response to a longstanding and well-
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`documented pattern of discrimination against minority farmers in USDA programs. As Section
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`1005 authorizes USDA to remedy discrimination that is “traceable to its own actions,” the relief
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`afforded to socially disadvantaged farmers is clearly appropriate under existing Supreme Court
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`precedent. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 288 (1986) (O’Connor, J., concurring
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`in part and concurring in the judgment).
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`B. Minority farmers’ precarious financial circumstances have been exacerbated by the
`COVID-19 pandemic.
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`When crafting Section 1005, Congress not only grappled with USDA’s extensive history
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`of racial discrimination, but also confronted the devastating economic impact of the COVID-19
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`pandemic on already struggling minority farmers. Researchers have identified clear racial
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`disparities in the impact of COVID-19: minorities are more likely to lose jobs and wages due to
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`the pandemic;24 and Black, Hispanic, and Native American people are approximately three times
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`
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`20 Id.
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`21 Id. at p. 2.
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`22 Id.
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`23 Id.
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`24 See Nishesh Chalise & Violeta Gutkowski, How COVID-19’s Economic Impact Varies by Geography and Race,
`Federal Reserve Bank of St. Louis: Open Vault Blog (April 21, 2021), https://www.stlouisfed.org/open-
`vault/2021/april/how-covid-19-economic-impact-varies-by-geography-and-race; Mark Hugo Lopez et al., Financial
`And Health Impacts of COVID-19 Vary Widely By Race And Ethnicity, Pew Research Center (May 5, 2020),
`
`
`
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`6
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`as likely to be hospitalized, and twice as likely to die, from COVID-19 infection.25 While minority
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`
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`farmers have been disproportionately impacted by the pandemic, prior COVID-19 relief through
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`USDA has failed to reach many of them.26 Nearly 97% of the $9.2 billion appropriated through
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`USDA’s Coronavirus Food Assistance Program (CFAP) went to white farmers.27
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`Amici represent minority farmers who have been impacted by COVID-19, but received
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`little or no relief under previous USDA pandemic assistance programs. For instance, Mr. Bradford
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`tried to participate in CFAP, but was subjected to extra processes and scrutiny relative to white
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`farmers.28 Other Black farmers he knows were treated similarly, and Mr. Bradford believes that
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`such roadblocks to participation were initiated by FSA county committees.29 As a result, white
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`farmers received more government support, including emergency assistance.30
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`Leroy Brinkley, Jr., is a Black rancher who lives in Haskell, Oklahoma.31 He has operated
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`his 80-acre ranch for 23 years.32 Both his family and business suffered due to COVID-19. Mr.
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`Brinkley, his wife, and his two-week-old granddaughter all contracted COVID-19.33 The entire
`
`
`https://www.pewresearch.org/fact-tank/2020/05/05/financial-and-health-impacts-of-covid-19-vary-widely-by-race-
`and-ethnicity/#:~:text=3The%20COVID%2D19%20economic,according%20to%20the%20April%20survey.
`
`25 Risk for COVID-19 Infection, Hospitalization, and Death by Race/Ethnicity, Ctrs. for Disease Control and
`Prevention (updated June 17, 2021), https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-
`discovery/hospitalization-death-by-race-ethnicity.html.
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`26 Jared Hayes, USDA Data: Nearly All Pandemic Bailout Funds Went to White Farmers, Environmental Working
`Group (Feb. 18, 2021), https://www.ewg.org/news-insights/news/usda-data-nearly-all-pandemic-bailout-funds-went-
`white-farmers.
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`27 Id.
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`28 See Exhibit B, p. 2.
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`29 Id. at pp. 2–3.
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`30 Id. at p. 3.
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`31 See Exhibit C (Declaration of Leroy Brinkley, Jr.), ¶ 3.
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`32 Id. at ¶ 4.
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`33 Id. at ¶ 8.
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`family had to quarantine apart from each other for 21 days, and his wife was hospitalized for nine
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`days. Due to the pandemic, Mr. Brinkley could not work for two months, and was only able to
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`work part-time for nearly a year.34 His ranch was impacted as well, due to lost customers, and
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`higher costs for feed, fuel, and production. Mr. Brinkley hopes to use the debt relief from Section
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`1005 to cover his losses related to COVID-19.
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`Henry Brown, a 71-year-old Black farmer, found prior COVID assistance programs
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`impossible to navigate to his benefit.35 His cow-calf business experienced significant income loss
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`during the pandemic.36 In addition, from March 2020 to February 2021, his off-farm household
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`income decreased by $2,200 per month, due to economic costs associated with the COVID-19
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`pandemic.37 Mr. Brown made a successful application to the Small Business Administration (SBA)
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`for an Economic Injury Disaster Loan to help with his farm.38 But he was ultimately penalized by
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`USDA for participating in SBA’s coronavirus relief program.39
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`By providing debt relief to the most disproportionately impacted farmers, who were largely
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`left out of prior COVID assistance, Section 1005 lawfully redresses the “persistence” and
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`“lingering effects” of discrimination in USDA’s loan programs. Adarand, 515 U.S. at 237.
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`Congress has spent decades receiving and reviewing complaints from minority farmers,
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`holding hearings on and studying the problem of racial discrimination in USDA’s programs, and
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`relying on race-neutral alternatives that have proven ineffective in remedying the harm of past and
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`34 Id.
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`35 See Exhibit D (Declaration of Henry Brown).
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`36 Id. at ¶ 5.
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`37 Id. at ¶ 7.
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`38 Id. at ¶ 8.
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`39 Id. at p. 3.
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`present USDA discrimination. Cf. Sherbrooke Turf, Inc. v. Minn. Dep’t of Transp., 345 F.3d 964,
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`970 (8th Cir. 2003) (approving race-conscious measures where “Congress has spent decades
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`compiling evidence of race discrimination in government highway contracting, of barriers to the
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`formation of minority-owned construction businesses, and of barriers to entry”). In enacting
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`Section 1005, Congress was also taking urgent action to support the continued viability of minority
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`farmers, who were already economically distressed, due in part to longstanding discrimination in
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`USDA’s programs, and whom evidence confirms are disproportionally impacted by COVID-19.40
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`As there is a “strong basis in the evidence” to support Section 1005, and compelling government
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`interests are implicated, the debt relief to socially disadvantaged farmers is constitutionally
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`permissible. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989) (citation omitted).
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`II.
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`Section 1005 Is a Narrowly Tailored Measure, Employing the Least Restrictive Means
`to Achieve Congress’s Policy Goals.
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`The government’s consideration of race must be narrowly tailored to further its compelling
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`interests. Croson, 488 U.S. at 507. Although “[n]arrow tailoring does not require exhaustion of
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`every conceivable race-neutral alternative,” it does “require serious, good faith consideration of
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`workable race-neutral alternatives.” Grutter, 539 U.S. at 339. Reviewing courts should also
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`consider “the flexibility and duration of the relief” provided. United States v. Paradise, 480 U.S.
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`149, 171 (1987).
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`A. Race-neutral efforts have been attempted, and failed to remedy the effects of USDA’s
`long and persistent history of discrimination.
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`Discrimination based on race and ethnicity has been pervasive in USDA’s programs for
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`decades.41 In response to complaints about discriminatory and arbitrary implementation, USDA
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`40 See supra notes 24–26.
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`41 See, e.g., Exhibit H (Statement of Rural Coalition to the H. Comm. on Agric. Hearing on the State of Black
`Farmers (March 25, 2021)).
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`has