Pigford II and the Eternal Problem of How to Prove Discrimination


The New York Times has an epic piece today about fraud in a government program originally designed to compensate black farmers who had been unfairly denied Agriculture Department loans in the 80s and 90s. The original compensation program, usually called Pigford after the class-action lawsuit that got it going, eventually led to a second settlement, Pigford II, that covered a broader class, including women, Hispanics, and Native Americans:

Some 66,000 claims poured in after the 1999 deadline. Noting that the government had given “extensive” notice, Judge Friedman ruled the door closed to late filers. “That is simply how class actions work,” he wrote.

But it was not how politics worked. The next nine years brought a concerted effort to allow the late filers to seek awards….Legislators from both parties, including Mr. Obama as a senator in 2007, sponsored bills to grant the late filers relief.

….Congress finally inserted a provision in the 2008 farm bill allowing late filers to bring new lawsuits, with their claims to be decided by the same standard of evidence as before. The bill also declared a sense of Congress that minority farmers’ bias claims and lawsuits should be quickly and justly resolved.

Congress overrode a veto by Mr. Bush, who objected to other provisions in the bill. But as Mr. Bush left Washington, Congress had appropriated only $100 million for compensation, hardly enough to pay for processing claims.

Within months of taking office, President Obama promised to seek an additional $1.15 billion. In November 2010, Congress approved the funds. To protect against fraud, legislators ordered the Government Accountability Office and the Agriculture Department’s inspector general to audit the payment process.

The problem here is one that’s common in discrimination cases: even after you’ve agreed that illegal discrimination happened in general, how do you decide which individuals were discriminated against? Proving individual discrimination is incredibly hard, because in most individual cases there are plenty of plausible reasons for the discriminatory action. This was doubly hard in the Pigford cases because the Agriculture Department simply didn’t keep records of lots of the loan applications in questions, and there were never any applications in the first place for people who were flatly turned down before they could even apply.

Given that, you have two choices. You can either set a high bar for evidence of discrimination, knowing that it will unfairly deny compensation to lots of people who were treated wrongly. Or you can set a low bar, knowing that this will unfairly give money to lots of people who don’t deserve it. 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.

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.

OUR NEW CORRUPTION PROJECT

The more we thought about how MoJo's journalism can have the most impact heading into the 2020 election, the more we realized that so many of today's stories come down to corruption: democracy and the rule of law being undermined by the wealthy and powerful for their own gain.

So we're launching a new Mother Jones Corruption Project to do deep, time-intensive reporting on systemic corruption. We aim to hire, build a team, and give them the time and space needed to understand how we got here and how we might get out. We'll publish what we find as a major series in the summer of 2020, including a special issue of our magazine, a dedicated online portal, and video and podcast series so it doesn't get lost in the daily deluge of breaking news.

It's unlike anything we've done before and we've got seed funding to get started, but we're asking readers to help crowdfund this new beat with an additional $500,000 so we can go even bigger. You can read why we're taking this approach and what we want to accomplish in "Corruption Isn't Just Another Scandal. It's the Rot Beneath All of Them," and if you like how it sounds, please help fund it with a tax-deductible donation today.

We Recommend

Latest

Sign up for our newsletters

Subscribe and we'll send Mother Jones straight to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate