- The Washington Times - Wednesday, July 16, 2003

With Republicans making inroads among Hispanics, it was no surprise last week that Democrats went on the attack, accusing the administration of giving Hispanics nothing but lip service. In truth, the president’s record is eminently defensible. His actions as governor of Texas helped him win more Hispanic votes in 2000 than any previous Republican. As president, he’s appointed an Hispanic cabinet officer (Mel Martinez) and an Hispanic White House Counsel (Alberto Gonzales), and he’s stood fast in the nomination fight over Miguel Estrada. In all likelihood, he will appoint the first Hispanic Supreme Court justice.

But there is at least one more thing this administration could do: Tell the Department of Justice to stop stonewalling thousands of Hispanic farmers discriminated against for decades by the U.S. Department of Agriculture (USDA).

It is an unchallenged fact that USDA’s farm programs have been riddled with racial discrimination since they got their start under the New Deal, in part because the agency has always relied on information from county-level committees of farmers to decide which farmers get loans, and which ones don’t. It’s not surprising that such committees often represent “old boy” networks, or that they usually don’t include many minority farmers (94 percent include no minorities at all). As a USDA official said in 1991, minority farmers have suffered a “pattern and practice of institutional discrimination.” House Agriculture Committee Chairman Bob Goodlatte, Virginia Republican agrees, stating last year that “there is no doubt that certain instances in USDA’s past violated the civil rights of American citizens.”

And they are citizens, because, to be clear, this issue has nothing with illegal immigration or migrant workers. Nor, for that matter, does it involve affirmative action programs or preferences of any kind. This is a simple case of a U.S. government agency that has systematically excluded American citizens from participating in a government program because of their race.

In 1997, a group of black farmers — the Pigford class — brought suit against USDA. But, despite the merits of the case, the Justice Department decided to fight, raising technical objection after objection. Most significantly, the Department of Justice (DOJ) argued that even if the farmers had been wronged, they did not meet the technical criteria to be named a “class,” and would have to bring their suits individually. For poor farmers in rural America, many of whom suffered injuries that are big for them but tiny compared to the costs of bringing a suit against the United States of America, that simply wasn’t an option.

Ultimately, Congress and the White House intervened. Congress passed legislation that voided some of DOJ’s technical objections; the White House — no doubt in part for political reasons — pressed DOJ lawyers to settle the case.

The resulting 1999 consent decree wasn’t pretty. It arguably allowed for far too many claims to be filed, and in some cases resulted in payments that may have exceeded substantially the actual damages. At the time, the plaintiffs estimated that 3,000 to 5,000 claims would be filed; in fact, there have been more than 60,000, costing the government more than $600 million. Most remarkably of all, the settlement contained no provisions for going-forward reform: Compensation was provided for injuries suffered in the past, but the system that caused the problem remains in place.

Against this background, Hispanic farmers, led by one Lupe Garcia, filed their own class action in October 2000. Given the obvious problems of the Pigford settlement, the Garcia plaintiffs have bent over backward to make clear their priorities: Reform first, compensation — targeted and fair — second. As Garcia attorney Stephen Hill told the court, “Our clients tell us over and over again when we meet with them, ‘what we want to have done here is to have this system fixed so that we can continue to farm, so that our children will have the same opportunity we have, and maybe their children as well…’ We are sincere and heartfelt that job number one here is to fix the system.”

No doubt the election of Mr. Bush buoyed hopes among the Garcia plaintiffs that such a settlement could be achieved: Who, after all, would be more likely than George W. Bush to make sure they received a fair hearing?

But instead of a fair hearing, the Bush White House has turned a deaf ear, putting Mr. Garcia’s fate back in the hands of low-level attorneys at the Justice Department whose only apparent goal is to win the case. The department is playing legal hardball, spurning settlement negotiations of any kind, fighting discovery, and falling back on the same legal technicalities it argued against the black farmers. If their scorched-earth litigation strategy is successful, the vast majority of Hispanic farmers will receive no compensation at all, and, worse, the current discriminatory system will remain in place indefinitely.

Recently, Lupe Garcia wrote personally to Mr. Bush, asking him to intervene. Quoting the president’s remarks at the May 15 Hispanic Prayer Breakfast, he noted that “faith without works is dead.” “We are certain you agree that discrimination based on race or ethnicity is wrong,” Mr. Garcia continued. “In the case at hand, the discrimination is all the more intolerable because it is being perpetrated by an agency of the United States government at the taxpayers expense, and your administration has the power to end this discrimination once and for all.”

The White House, one hopes, will take heed. Mr. Bush may not need the votes of a few thousand Hispanic farmers to win re-election next year — even ones located in such 2000 toss-up states as Colorado, Florida and New Mexico. But the case for ending racial discrimination at the Department of Agriculture is, in the end, above politics. It’s simply the right thing to do.

Jeffrey A. Eisenach is Executive Vice Chairman of CapAnalysis LLC, the economic analysis arm of Howrey Simon Arnold & White, which represents the Garcia class.

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