MADISON, Wis. — Christopher Baird owns a dairy farm near Ferryville in southwest Wisconsin, not far from the Mississippi River. He milks about 50 cows and farms approximately 80 acres of pasture.

Like a lot of farmers, Baird has direct loans through the U.S. Department of Agriculture’s Farm Service Agency.

But the dairy farmer isn’t entitled to a new FSA loan-forgiveness program provided as part of COVID-19 relief in the $2 trillion American Rescue Plan Act, legislation touted Wednesday night by President Joe Biden in his address to Congress.

Baird is white. He joined four other white farmers Thursday in suing federal officials over being left out.

Only “socially disadvantaged” farmers may apply for some of the $4 billion in loan-forgiveness funds, which include direct payments to farmers of up to 20% of the value of the loan. Specifically, the law says those eligible must be “Black/African American, American Indian or Alaskan native, Hispanic or Latino, or Asian American or Pacific Islander.”

“There is a case for loan forgiveness for individuals,” Baird said, “but we shouldn’t be looking at the color of someone’s skin and saying, ‘This person needs more help or less help based on the color of their skin.’ That’s just wrong.”

Baird is among five white farmers from Wisconsin, Minnesota, Ohio, and South Dakota who are suing Agriculture Secretary Tom Vilsack and FSA Administrator Zach Ducheneaux, alleging racial discrimination and violation of their right to equal protection under the Constitution.

The other Wisconsin farmer who sued, Adam Faust, said the federal government shouldn’t provide taxpayer money “just based on race.”

Baird, Faust, and the three other farmers filed the lawsuit Thursday in the U.S. District Court in Wisconsin’s Eastern District.

The farmers’ lawyer, the Wisconsin Institute for Law & Liberty, seeks a temporary injunction preventing the Biden administration from applying racial classifications in determining eligibility for loan modifications and payments.

The Milwaukee-based law firm ultimately seeks a declaratory judgment holding what other courts have held: that such racial classifications in determining federal benefits are unconstitutional.

The Wisconsin Institute for Law & Liberty “is committed to ensuring that the current threats to the bedrock principle of equality under the law, something that many generations have worked tirelessly to achieve, are challenged and fought,” said Rick Esenberg, president and general counsel for the law firm.

The Agriculture Department is reviewing the complaint and working with the Justice Department, a spokesman told Empower Wisconsin, but USDA has no intention of halting the targeted loan-forgiveness program.

“During this review, we will continue to implement the debt relief to qualified socially disadvantaged borrowers under the American Rescue Plan Act,” the spokesman said.

FSA officials did not reply to a request for comment.

The controversial provision in the American Rescue Plan Act has raised similar concerns of discrimination nationwide. Proponents, however, defend the relief package for minority groups as long overdue.

Vilsack and Ducheneaux have stated publicly that the goal of the program is ending “systemic racism” that has “plague[d] the programs at USDA, especially the Farm Loan Program.”

Vilsack has said that the legislation “provides funding to address longstanding racial equity issues with the department and across agriculture.”

Such broad goals do not override the constitutional ban on discrimination by race, the farmers’ complaint states. It says the U.S. Supreme Court has “rejected the interest in remedying societal discrimination because it had no logical stopping point.”

In short, the complaint says, the way “to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The farmers suing the USDA argue that a program that excludes them is just more discrimination.

Faust owns a dairy farm near Chilton, in Calumet County. A double amputee, he milks about 70 cows and farms 200 acres for feed. Because he is white, Faust isn’t eligible for the loan-forgiveness program.

“There should absolutely be no federal dollars going anywhere just based on race,” Faust said. “The economic impact from COVID-19 didn’t hurt any race more than another as far as agriculture goes.”

M.D. Kittle is the executive director of Empower Wisconsin. 

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