DALLAS - White farmers from Marion County who sued the U.S. locally to challenge their exclusion from a loan forgiveness program must join a national class action in Texas, U.S. District Judge Reed O’Connor ruled on Oct. 13.
O'Connor denied a motion of Ryan Kent, Joshua Morton, Matthew Morton, and 22 farmers in other courts to opt out of a racial discrimination class he certified in July.
He found they couldn’t explain as a practical matter how he could exclude them.
He wrote that he entered an injunction against the program, and the United States could discriminate against anyone who opted out.
“To the extent defendant takes race into account for one applicant, it necessarily discriminates against all other applicants on the basis of race," O'Connor wrote.
Kent, Morton, and Morton provided notice of his decision to Chief Judge Nancy Rosenstengel of the Southern District of Illinois, who presided over their case, on Oct. 14.
They claim Congress violated the Constitution by passing the forgiveness program as Section 1005 of a virus relief bill in March.
It would allow the Department of Agriculture to forgive up to 120 percent of any loan it guaranteed for any farmer in any group except white.
Plaintiffs in O’Connor’s court moved for class certification, and he held a hearing in June.
He asked plaintiff counsel Gene Hamilton of Washington D.C. if he would carve out applications case by case.
Hamilton said, “I don’t know that it’s possible for this legislative program to be remedied in a manner that would be workable. Congress asked the Department of Agriculture to explicitly discriminate against its American citizens on the basis of their race.”
The record is “a smattering of random selected evidence by the United States Congress, by the Department of Agriculture in their filings with this case, to justify blatant invidious racial discrimination,” Hamilton said.
O’Connor said the government argued that if white farmers prevail, Congress appropriated necessary funds to fulfill its obligations.
Assistant attorney general Emily Newton said, “Not only are funds not going to run out but they don’t even need to be expended in this fiscal year. They will continue to be available thereafter,” she said.
Newton said the Supreme Court permits racial classifications that serve compelling interests.
She said minority farmers have disproportionately higher rates of delinquency and foreclosure.
O’Connor asked why the department continues to discriminate against minorities, and she said the government’s position is not that it does.
She said Section 1005 wasn’t meant to remedy discrimnation.
O’Connor asked her to point to the most recent evidence of intentional discrimination, and she said she wasn’t required to prove discrimination.
He asked how Congress concluded that the civil rights office was ineffective and changing the structure of field and regional offices was ineffective.
“We make the conclusion that we’ve tried those and because those have been ineffective, we now need to set up a race based classification to award those benefits," she said.
O’Connor asked her to explain about there being no danger of running out of funds.
She said entitlement programs were a perfect example.
“Those aren’t appropriations in the same way but it says that an individual is entitled to government funds,” she said.
O’Connor said, “Why not make it to all farmers so no farmer will have to lose his land because of the devastating economic effects of covid?”
“It’s not an unlimited pot in the sense of an infinite sense," she said.
He asked if a Jewish person would be eligible and she said, “How those actual determinations will be made hasn’t been established yet.”
He asked if she would take someone’s racial designation at face value, and she said she didn’t know if that had been worked out.
He certified a class the next day, finding the government put forward no evidence of intentional discimination by the department in at least ten years.
He found the government based its claim on a faulty premise equating equal protection with equal results.
"While the government may at times act like it, the public fisc is not bottomless and at any time Congress can turn off the spigot,” he wrote.
Erin Wilcox of Pacific Legal Foundation in Sacramento moved to opt out of the class in September, on behalf of the Marion County farmers and others.
She claimed a mandatory class amounted to unlawful deprivation of property interests.
O’Connor’s order denying the motion stated that his injunction was class wide and it wasn’t clear what it would mean to opt out.