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Pigford and Discrimination
Does rectifying discrimination mean allowing widespread fraud?

Black farmers rally at the Agriculture Department in Washington, February, 2010.

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Daniel Foster

After the New York Times caught up to us and published a recent exposé of the Pigford scandal, in which thousands received potentially undeserved and fraudulent discrimination settlements from the USDA, one of the few readable liberals to bother to respond was Mother Jones’s Kevin Drum. While he deserves credit for engaging the story instead of ignoring it, the substance of his response is actually pretty weak. The “eternal” dilemma of discrimination cases, Drum argues, is whether to set the evidentiary bar too high and risk bona fide victims going uncompensated, or too low and risk widespread fraud:

Roughly speaking, it sounds like the government chose the second course, and lots of money has been paid out to people who never farmed, never applied to farm, and never had any intention of farming. But it was raining money, so they put out their hats.

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It’s hard to know what to think of this. Obviously it’s hard to understand why the Agriculture Department didn’t adopt a stricter standard, one that wouldn’t have paid out thousands of fraudulent claims to people who didn’t deserve it. At the same time, it’s hard not to think of the flip side: all the valid discrimination cases that have been brought over the years, but tossed out because the evidentiary bar was too high and it was impossible to prove that discrimination actually took place. Those kinds of cases don’t get a lot of headlines, but they’re every bit as bad.

So I don’t know. You’d think there would be some kind of reasonable middle ground, but we sure do seem to have a hard time finding it. And while there’s obviously plenty to criticize about how Pigford II has been handled, I have to say that I’m sure not looking forward to the inevitable ugliness this is going to generate.

Drum here writes in wishy-washy, “on the one hand . . . ” platitudes about the generally good intentions behind this specifically bad outcome. This is both a fine, longstanding blogging tradition and completely understandable given how awkward it is for the Left to talk about Pigford now that the Gray Lady herself has reified it, transforming it from a right-wing boogieman to a respectable scandal. But in this case we don’t have to rely on measured generalities, we have an actual case with actual facts. So let’s review them and see what they tell us about evidentiary standards for discrimination cases and Pigford in particular.

Timothy Pigford and a small cohort of honest-to-goodness farmers had fought doggedly for years to get the government to acknowledge they had been discriminated against. The effort left Pigford’s family emotionally and financially frayed. But by 1997, the Clinton administration’s agriculture secretary had offered a public apology for past discrimination and the administration was ready to settle.

Trouble is, there was now blood in the water, attracting high-powered trial lawyer (and former DOJ hand) Al Pires to Pigford’s cause. Pires didn’t particularly want to settle, and took a heavy hand in mediation sessions, so much so that government lawyers formally accused him of trying to sabotage the process. The hardball worked, and Pires secured more favorable settlement terms for his clients — and himself. In 1999 a judge issued a consent decree granting class-action relief to a wide swath of black farmers who had farmed between 1983 and 1997, applied for and were denied federal loans, and filed written discrimination complaints to the USDA during that period.

If you acknowledge that the original Pigford class of about 400 plaintiffs had made a credible case that they were real victims of racial discrimination (and I do), it’s so-far-so-good up to this point. The problems really start with the resolution mechanism written into the settlement. Claimants were offered two “tracks” for collecting damages. “Track B” claimants were granted one-day “mini-trials” before court-appointed arbitrators under a fairly straightforward “preponderance” standard of evidence common in civil litigation. There was no cap on their potential awards. But because USDA records from the era of alleged discrimination were poor, making proof of discrimination elusive, the “Track A” route offered, in the words of the case’s judge, “those class members with little or no documentary evidence . . . a virtually automatic cash payment of $50,000, and forgiveness of debt owed to the USDA.”

It was “Track A” that led to a fraud bonanza of a 100,000-plus claimants. (Though, to be fair, who could have guessed unscrupulous folks would be drawn to “virtually automatic cash payment[s] of $50,000”?)



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