President Joe Biden is facing an embarrassing and growing problem as he continues to declare his focus on ending racial discrimination: another federal court appears close to ruling that his Administration is engaging in raw racial discrimination. Milwaukee District Judge William Griesbach issued a temporary restraining order in Wisconsin halting Biden’s controversial $4 billion race-based federal relief program for farmers.  The awarding of relief based on race immediately raised objections of racial discrimination. The ruling is based on the court’s view that the white farmers challenging the program are likely to prevail.

The order was made in favor of twelve plaintiffs from nine different states who sued the Secretary of Agriculture and the Administrator of the Farm Service Agency to enjoin the Biden Administration from implementing a loan-forgiveness program for farmers and ranchers under Section 1005 of the American Rescue Plan Act of 2021 (ARPA). The program pays up to 120% of direct or guaranteed farm loan balances for Black, American Indian, Hispanic, Asian American or Pacific Islander farmers.

As part of the ARPA, Congress appropriated “such sums as may be necessary” to pay for the cost of loan modifications and payments to “socially disadvantaged” farmers and ranchers. § 1005(a)(1). The term “socially disadvantaged farmer or rancher” is defined under 7 U.S.C. § 2279(a). § 1005(b)(3) as a farmer or rancher who is a member of a “socially disadvantaged group.” § 2279(a)(5).

“Socially disadvantaged group” is then defined as “a group whose members have been subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities.” § 2279(a)(6).

The Biden Administration defines “socially disadvantaged farmer or rancher” to include individuals “who are one or more of the following: Black/African American, American Indian, Alaskan native, Hispanic/Latino, Asian, or Pacific Islander.” American Rescue Plan Debt Payments, U.S. DEPARTMENT OF AGRICULTURE, available at https://www.farmers.gov /americanrescueplan (last visited June 7, 2021).

The lawsuit was previously criticized as baseless or, as NBC reported, part of a “war against equity” by Trump supporters.

The Court found that the program was unambiguously discriminatory since “the only consideration in determining whether a farmer or rancher’s loans should be completely forgiven is the person’s race or national origin.” As such, “Plaintiffs are excluded from the program based on their race and are thus experiencing discrimination at the hands of their government.”

The Court found on the required compelling interest that the Administration failed to state a case:

Here, Defendants lack a compelling interest for the racial classifications. Defendants assert that ‘Congress targeted the debt payments in Section 1005 to the minority groups that it determined had suffered discrimination in the USDA programs and that had been largely left out of recent agricultural funding and pandemic relief.’ Dkt. No. 17 at 17. But Defendants have not established that the loan-forgiveness program targets a specific episode of past or present discrimination. Defendants point to statistical and anecdotal evidence of a history of discrimination within the agricultural industry. Id. at 16–17. But Defendants cannot rely on a ‘generalized assertion that there has been past discrimination in an entire industry’ to establish a compelling interest. J.A. Croson Co., 488 U.S. at 498; see also Parents Involved, 551 U.S. at 731 (plurality opinion) (‘remedying past societal discrimination does not justify race-conscious government action’). Defendants’ evidence of more recent discrimination includes assertions that the vast majority of funding from more recent agriculture subsidies and pandemic relief efforts did not reach minority farmers and statistical disparities. Id. at 17.

Judge Griesbach further rejected the government’s arguments on the narrow tailoring prong:

Defendants have not established that the remedy is narrowly tailored. To do so, the government must show ‘serious, good faith consideration of workable race-neutral alternatives.’ Grutter v. Bollinger, 539 U.S. 306, 339 (2003). Defendants contend that Congress has unsuccessfully implemented race-neutral alternatives for decades, but they have not shown that Congress engaged ‘in a genuine effort to determine whether alternative policies could address the alleged harm’ here. Vitolo, 2021 WL 2172181, at *6. The obvious response to a government agency that claims it continues to discriminate against farmers because of their race or national origin is to direct it to stop: it is not to direct it to intentionally discriminate against others on the basis of their race and national origin.

This is the latest opinion finding that the Biden Administration is engaging in presumptive racial discrimination. As discussed previously, in Texas, Judge Reed O’Connor found that the Biden administration engaged in systemic gender and race discrimination to implement COVID-19 relief for American restaurants.

In Oregon, however, a challenge was rejected over racially dependent benefits. A state COVID-19 program for black businesses, called the Oregon Cares Fund, was challenged by a Mexican-American café owner and others under the Equal Protection Clause. While legislative counsel and some legal experts raised concerns over the constitutionality of the law, a trial court rejected the challenge.

Even if such categories pass constitutional muster, there is the question of selecting groups for favored treatment. In the case of Oregon’s fund, Latino owners were excluded. Under the American Rescue Plan, anyone can qualify for preferential treatment if they claim to be part of a group that has “been subjected to racial or ethnic prejudice or cultural bias within American society.” It is the legislative version of the special graduation held at the University of Portland for “QTBIPOC (LGBTQIA and/or BIPOC).” Once the inclusions were defined, the only major exclusion was straight white males.

These challenges could find a receptive majority on the Supreme Court. In a 2007 case, Chief Justice John Roberts stated that position most succinctly by declaring that the “way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

Notably, Judge Griesbach rejected the call of the Biden Administration for a limited injunction” “To ensure that Plaintiffs receive complete relief and that similarly-situated nonparties are protected, a universal temporary restraining order in this case is proper.”

Here is the opinion: Faust v. Vilsack