My piece from NRODT on the checkered history of the Pigford settlements has been let out from behind the firewall, and I do hope you’ll read it. But before it was available online, a couple of bloggers who hadn’t even read it (guess they’re not subscribers!) came out with criticisms based on a Conor Friedersdorf summary. Mark Thompson of the League of Ordinary Gentleman offers a number of arguments that the claim there was widespread fraud in the case is “poppycock.” Ta-nehisi Coates, in a post unhelpfully entitled “Somewhere, Someone Black Is Getting Away With Something” thinks it is wrongheaded in the first instance to focus on the fraud stemming from the attempt to fix a racial injustice, rather than on the injustice itself.

I think my piece largely speaks for itself (although there was certainly some stuff that had to be cut: the original draft was twice as long as what ended up in the mag), and so I hope Coates and Thompson will read it. But let me briefly try to answer their criticisms, in order. (Apologies: if you haven’t read it, some of this will lack context).

Thompson has seven points. Here’s one:

. . . this reporting elides the extreme severity of discrimination against black farmer, especially as perpetrated by the USDA: the average market value of a farm operated by a black farmer is only about 20% of the market value of an average farm operated by a white farmer, and even in 2007 black farmers applying for federal loans were able to receive loans of only about 1/3 of the amount of the average federal loan provided to white farmers.  Notably, in its settlement agreement in Pigford I, the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs.

Okay, the story fully grants that there is statistical evidence of discrimination against black farmers in the relevant time period, so we’re not in disagreement there. To say, though, that “the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs” in the settlement is a bit off. It’s sort of a “when did you stop beating your wife?” question. The settlement meant that the USDA didn’t have to admit, in the legal sense, to discrimination (though we’ll see later that they fell all over themselves to admit it in the moral sense), and that they could avoid the messy process of investigating and adjudicating it. Like many (most, all?) settlements, the USDA traded cash for the risk of legal liability.

Here’s two, four, and five, and seven, which are related:

Second, using the number of black-owned farms extant in 1997 as the sole baseline for comparison is absurd on its face, particularly in light of the fact that the number of black-owned farms declined by almost 50% between 1983 and 1997, and in light of the fact that the settlements cover discrimination over a 15 year period.  At the very least, then, the far more appropriate benchmark would need to be 33,250, the number of black-owned farms existing in 1983.

[. . . ]

Fourth, until 2002, no statistical distinction was made between “black farmers” and “black-owned farms,” which is important in light of the fact that any farmer would have been eligible to apply for one of these loans.  We do know that when this distinction started to be made, in 2002, there were at least 50% more “black farmers” than “black-0wned farms.”  Assuming these statistics would have been similar in 1982, then the number of “black farmers” in 1983 would have been at least 50,000.

Fifth, these claims ignore the possibility of farms changing ownership during that 15 year period, thus creating multiple possible claimants.

[. . .]

Lastly, there are certainly going to be other legitimate claimants who would not fall into the categories outlined above.  But even if there are not, a quick look at the numbers I’ve put together here quickly reveals that we are well within the realm of reasonableness: if the remaining claims are all approved at the same rate as the Pigford I claims, there will be a total of between 60,000 and 65,000 approved claims.  We know that, at a minimum, there were 50,000 black farmers in 1983 who were eligible to apply for these loans.  Given that, is it conceivable that there were at least an additional 10-15,000 people who attempted to become farmers but were denied the needed loans from the USDA or who simply obtained their farms (whether through inheritance or otherwise) subsequent to 1983?  I think the answer to that is “absolutely.”

As to the number of black farmers, I mention both the 18,500 and 33,000 numbers in my piece; neither jibes with the number of claims that have poured in. The point about the difference between black-owned farms and black farmers isn’t really true either. Take a look at this table from the 1992/1997 Ag census. It does in fact distinguish between black-owned farms and black-leased or -rented farms, and it provides numbers for black tenant farmers. They hew closely to the 18,500 figure. But even if we take the biggest number that Thompson’s multi-step statistical conjecture produces — 50,000 black farmers — we’re still missing half the claimants. It’s also worth noting that the type of loans and assistance the USDA is alleged to have withheld from blacks were for farm operators, not agricultural workers broadly construed. So if that’s what Thompson had in mind in making his distinction then it’s not clearly relevant. Look, I — and parties on both sides of the case — yield that USDA record-keeping makes it difficult to pin down how many black farmers there were at any given time. In fact, much of my article is basically an argument that that problem is what opened the case up to fraud.

Doubling back now to Thompson’s third point:

Third, the settlement quite appropriately covers not only actual farmers but also people who sought to acquire or start a farm and applied for a loan from the USDA.  These persons would never appear in statistics of “black farmers” since, by definition, they needed the loans to become farmers.

Aye, there’s the rub. The original Pigford class contained a few hundred farmers, and while the settlement was being negotiated, both sides agreed that when it was all said and done, there would likely be no more than 2,500 or so potential claimants. But trial lawyers and a sympathetic judge wrote the claims process in such a way that almost no proof was required to collect $50,000. Not only did you not have to prove that you were actually discriminated against by the USDA — you didn’t have to prove by a preponderance of evidence that you had even applied for a loan. Again, this is all in the piece and I won’t rehearse it here. But ask whistle-blower Pigford claimants and even advocates for Pigford II about the category of “attempting to farm” claimants, which by some measures account for the vast majority of outstanding claims.

And lastly Thompson’s sixth point:

Sixth, nowhere in Conor’s post or Breitbart’s original reporting is there a mention of the fact that just because a claim is made does not mean it will be granted; instead, both seem to believe that claims will be rubber stamped once made.  But to the contrary, 30% of claims that were made under Pigford Iwere ultimately denied, and there’s no reason to believe that the rate will be any lower under Pigford II; this is an abnormally high rate of denial for a class action settlement, suggesting that the USDA is in fact reviewing claims quite carefully.

Once you’ve read the bit in my piece about the standards of evidence required to collect $50,000 under the settlement you’ll laugh out loud at that last sentence. And if you read Andrew Breitbart’s report, in which he interviews USDA workers who actually rubber-stamped the claims, you’ll see that approval was nearly automatic in a number of jurisdictions.

Now let’s deal with Coates. Here’s the meat of his criticism:

This is where you see “conservative” effectively becoming a synonym for “white populist.” You would think that the government discriminating against a class of farmers over 15 years, under three different presidential administrations, from two different parties, not in the distant, but recently, would be a pet cause for people disturbed by the overreach of government. In fact those who claim that banner, are disturbed by the remedy applied–not the problem, itself. 

Indeed it would be extremely worrisome if the federal government under three different presidents and two different parties had discriminated wholesale against black farmers. But the queer thing about the USDA programs at the heart of the Pigford case is that they were locally administered. The USDA bankrolled these loan programs, but they were actually run by hundreds or thousands of county boards in dozens of states, virtually all of them elected by the local farmers. Centralized, top-down, discrimination by the federal government would be awful but plausible; the sheer number and geographic scope of the claims suggests a remarkable universality. Maybe it is the case that a thousand different county boards, independently, thought blacks didn’t deserve farm operating loans. But there are also anecdotes about claims coming out of the Washington, D.C., suburbs; out of Chicago; out of a county in Arkansas where the entire loan board was black. . . .

As to his point about what this case, and my story, says about racial politics in America, I can only reiterate: There was discrimination against black farmers, and it was shameful. But so too is the race-hustling, trial-lawyer greed and fraud that has come out of the settlements. I didn’t even include in the piece stuff about reparations activists and unsavory Nation of Islam types glomming onto Pigford as a proxy for their own goals. E.g. Gary Grant, President of the Black Farmers & Agriculturalist Association (BFAA), which played a pivotal role in expanding Pigford settlements, went so far as to tell Fox News in 2001 that he doesn’t care if all the claimants are really farmers. “If you are an African-American, you deserve $50,000 because your roots are in farming and your folks have already been cheated,” he said. “You are collecting what your grandparents didn’t have the opportunity to.” In 2003, BFAA vice-president Ridgely Muhammad, who moonlights as “minister of agriculture” in the Nation of Islam, wrote on a black nationalist web site that the Pigford settlement illustrated both promise and peril for the reparations movement: the promise of showing how to navigate the “legal flaws in current reparations lawsuits” and the peril of allowing “white ‘do gooder’ lawyers’” to profit from the proceedings. Faya Ora Rose Touré (Rose Sanders until she elected to step away from her “slave name”) is a Selma, Alabama civil-rights lawyer who won an appellate court ruling to extend the filing deadline for Pigford claimants. She has also long been a dogged fighter for reparations, having once gone to court alongside Johnny Cochran to seek compensation from corporations that profited from slavery. Today, she is Shirley Sherrod’s lawyer. And then there is Dorothy Tillman, a former (Obama endorsed) Chicago alderman who during her tenure in public life has made reparations her signature political issue, and who has been recognized by Rep. John Conyers (D., Mich.), Congress’s greatest champion of reparations, for her work for “Black farmers and for justice.” The list goes on.

Breitbart and documentary filmmaker Lee Stranahan, who is working on a Pigford project, tell me they have recently recorded evidence of a black activist giving what Breitbart called a “demented Princeton Review” seminar on how to game the settlement to a packed black church in the South. I haven’t seen the tape so I didn’t run with it and I’ll reserve judgment, but I do know (and again, it’s in the piece) that real black farmers who were really discriminated against are still hurting, because the settlements were structured to spread the money far and wide, and right quick, not to actually bring relief to struggling black farmers who are still working the land.

To paraphrase Coates, the point is this: You would think that a bunch of fraudsters and fringe ideologues using legitimate claims of past discrimination to bilk taxpayer dollars and propagate a divisive program of grievance politics, not in the distant or recent past, but today, would be a pet cause for people interested in overcoming the legacy of racism in this country. In fact those who claim that banner are disturbed by the exposure of that problem — not the problem itself.