Pigford’s Harvest
From the Feb. 21, 2010, issue of NR.


Daniel Foster

Both sides acknowledged that the class size wasn’t likely to exceed 2,500. But the seeds of abuse were already sown. Despite the fact that the class was at first strictly limited to those who had “filed a written discrimination complaint” with the USDA, the settlement crucially allowed that most members of the class lacked any documentation of these complaints, purportedly owing to poor record-keeping by the USDA. So the resolution mechanism offered potential claimants two “tracks” toward settlement money. Track B required a higher bar for evidence — the “preponderance” standard traditional in civil actions, demonstrated during one-day “mini-trials” before court-appointed arbitrators — but it came with no cap on potential awards. Track A provided, in the words of the case’s judge, “those class members with little or no documentary evidence with a virtually automatic cash payment of $50,000, and forgiveness of debt owed to the USDA.” Track A claimants would also get their taxes on that debt paid directly to the IRS for them, and priority consideration on their next USDA loan application.

To get their checks, Track A claimants were required to show court-appointed facilitators “substantial evidence” that they had had “communication” with the USDA, a member of Congress, the White House, or any federal, state, county, or local official regarding a discrimination complaint. How “substantial”? According to the consent decree, “something more than a ‘mere scintilla’” — in practice, as little as the corroboration of one’s story by a single individual who was not immediate family. The definitions of “communication” and “complaint” were stretched as well: Under the agreement, even participating in a “listening session” with USDA officials was as good as filing a discrimination complaint. And in cases where there was no documentary evidence whatsoever of communication with the USDA, a popular defense was for claimants to explain that USDA officers would not even give them the forms and applications they requested — in one fell swoop both demonstrating the discrimination and accounting for the lack of a paper trail. Thus could blacks who had never cultivated land they’d owned or rented — who in point of fact might never have mown a lawn or tended to a shrub — claim that systemic racism thwarted their farming careers before they ever started. Such claimants came to be known as the “attempted to farm” class, and by some estimates as many as 92 percent of all Pigford filers marched under their banner.

What followed was a feeding frenzy of claimants egged on by fee-seeking tractor-chasers. The original 400 members of the Pigford class had swelled to 14,000, and a total of $1.25 billion had been paid out. The largest single settlement — some $13,000,000 — went to a communal farm in Georgia called New Communities, Inc., headed by Charles Sherrod and his wife, Shirley, who would be hired by the USDA, where she would gain a measure of notoriety, just three days after she received her settlement.

Even after the deadline for submission passed in 1999, claims kept — and to this day, keep — pouring in, such that the number of claimants now stands at nearly 100,000. But there is a curious thing: A 1997 agricultural census found only 18,500 black farmers nationwide, and even the most liberal third-party estimates suggest that there never were more than about 33,000 at any point during the period of eligibility between 1981 and 1996. Even if you accept as sound the decree’s reasoning that persons are entitled to compensation for “attempting to farm,” the numbers force the conclusion that for every black farmer actually working the land there were four or five who’d been prevented from speeding the plow.

If the queerness of those numbers doesn’t stand out on its own, consider that while the USDA’s credit and benefit programs are federally funded, decisions on individual applications are made at the county level, usually by small committees of local farmers and ranchers elected by their peers. The Pigford settlement would have you believe that racism was universal, not just inside the institution of the USDA but across all those semi-autonomous county offices: even in places like Jefferson County, Ark., where numerous discrimination claims came in despite the fact that all the supervisors at that office were black.