Students for Fair Admissions and the Future of Affirmative Action for Women in American Agriculture

The federal government has a well-documented history of discrimination against women in American agriculture. And the government now has many compelling reasons—from remedying past discrimination to shoring up food security—to provide targeted support to women farmers. But the Biden Administration’s attempts to provide targeted financial support to Black farmers through the American Rescue Plan Act were halted by federal courts that view affirmative action with increasing suspicion, as evidenced by the Supreme Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA). Does the Supreme Court’s upending of decades of precedent governing race-based affirmative action in SFFA also spell the end for gender-based programs in agriculture?

This Note argues that the federal government can and should retain and expand affirmative action programs for women in agriculture even in the post-SFFA legal landscape. Part I traces the history of women’s participation in American agriculture and discusses the benefits associated with such participation from an environmental, public health, and social justice perspective. Part II traces the federal courts’ jurisprudence on both race-based and gender-based affirmative action programs and posits that because gender-based programs are subject to a lower level of constitutional scrutiny than race-based programs, they can withstand constitutional scrutiny—even post-SFFA—where their race-based counterparts may not. And Part III suggests various ways for the federal government to design gender-based affirmative action programs in agriculture that are most likely to withstand constitutional scrutiny. Part III also puts forward a series of gender-neutral alternatives that would achieve many of the same goals as gender-based programs without singling them out for benefits in a potentially unconstitutional manner.

Although this Note primarily focuses on federal support for women in agriculture, its constitutional arguments are applicable to a variety of gender-based affirmative action programs across economic sectors.

Table of Contents Show

Introduction

The Supreme Court’s June 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA), a case that rejected the use of race in higher education admissions, upended decades of American constitutional law jurisprudence governing affirmative action and educational and workforce diversity.[1] Although SFFA theoretically only pertains to the use of race-based preferences (rather than preferences related to other protected characteristics such as gender or national origin) and only discussed higher education admissions (rather than other sectors or purposes such as funding allocation, vocational training, and employment), many observers view SFFA as effectively ending all forms of affirmative action for underrepresented and minority groups.[2] And indeed, the impact of SFFA and the legal landscape that gave rise to its holding has already been keenly felt in one key sector: agriculture.

In lower court cases decided around the same time as SFFA, such as Wynn v. Vilsack in the Middle District of Florida, judges—defying or failing to mention Supreme Court precedents permitting the use of affirmative action for minority groups—invalidated provisions of federal laws that specifically allocate funding to Black and minority farmers as unconstitutional.[3] And in contemporaneous cases, including Vitolo v. Guzman in the Sixth Circuit, judges similarly shirked Supreme Court precedent related to gender-based affirmative action and invalidated federal funding programs targeting women.[4]

These legal shifts related to affirmative action are taking place at a key moment for women in American agriculture.[5] Over the past few decades, women’s representation in the sector has increased dramatically, and women are disproportionately involved in sustainable and community-based agricultural projects that have positive environmental, economic, and public health externalities.[6] The federal government, which seeks to accelerate America’s green transition, improve economic resiliency, and combat gender inequality, has many compelling reasons to provide financial and vocational support to women in agriculture. But can the government do so without running afoul of precedent like SFFA, or encountering the kind of judicial hostility toward affirmative action demonstrated by the Wynn and Vitolo courts?

This Note argues that the federal government can and should retain and expand its affirmative action programs for women in agriculture. To do so, it first traces the history of women’s participation in American agriculture and recounts how women have reclaimed control and ownership of the sector in recent years. Next, it discusses the benefits associated with women’s participation in agriculture¾namely, greater environmental sustainability, increased food security, improved public health outcomes, and reductions in poverty for women and families¾and posits that the federal government should invest in women’s participation in agriculture to reap these benefits.

Finally, this Note traces the federal courts’ jurisprudence on both race-based and gender-based affirmative action programs and argues that because gender-based programs are subject to a lower level of constitutional scrutiny than race-based programs, they can withstand constitutional scrutiny—even post-SFFA—where their race-based counterparts may not. It suggests various ways for the federal government to design gender-based affirmative action programs in agriculture that are most likely to withstand constitutional scrutiny. And it puts forward a series of gender-neutral alternatives that would achieve many of the same goals as gender-based programs without singling them out for benefits in a potentially unconstitutional manner. Although this Note primarily focuses on federal support for women in agriculture, its constitutional arguments are applicable to a variety of gender-based affirmative action programs across economic sectors including, for example, construction and hospitality.

I. Women in American Agriculture

Prior to the twentieth century, women provided much of the labor on American farms, but they were generally unable to benefit from the profits of their labor. This was especially true for Black and Indigenous women who were, respectively, unjustly enslaved and displaced by European colonizers. The onset of the World Wars opened new opportunities for American women in agriculture in the twentieth century, including federally funded programs that encouraged women to work on farms while men were serving overseas. However, the benefits of these programs were unequally distributed to white women. By the twenty-first century, women began entering agriculture at higher rates, and women now represent 36 percent of all farmers in the United States.[7] Even so, challenges remain for women in farming, especially for women of color, and federal funding and incentives are necessary to facilitate women’s continued entry into agriculture.

A.   Women in Agriculture Prior to the Twentieth Century

Women were historically highly involved, yet undercompensated, for their labor in American agriculture, and their experiences and treatment in the sector varied greatly based on race. From the colonial period until the early twentieth century, most American women lived in rural areas and provided labor that “produced subsistence for their families and profitable returns on the landowner’s investment.”[8] The nature of white women’s agricultural contributions often depended on their marital status: Single women were more frequently hired out as farm laborers, while both married and single women produced agricultural goods for use on their families’ farms and for sale in local, regional, and national markets.[9] But the profits from these women’s labor were generally reinvested in land owned by their fathers, husbands, or brothers.[10]

Black women in early America, in contrast, provided much of the agricultural labor for tenancy and slavery, two oppressive “systems of labor control” that also facilitated the ownership of large tracts of agricultural land by “a few white men.”[11] During the period of slavery, enslaved Black women in agriculture worked largely as “manual laborers and house servants” and were a major component of the plantation system in the South.[12] Although the Emancipation Proclamation in 1863, followed by the passage of the Thirteenth Amendment in 1865, officially marked the end of slavery, it did not end the system of exploitative plantation labor that was so harmful to Black women. Rather, it resulted in the creation of the sharecropping system under which Black women provided extensive labor for white landlords who owned the land, seeds, equipment, and other inputs.[13] In return for their labor, Black women and families received a small share of their landlord’s harvest but were otherwise deprived of the profits from their extensive labor as sharecroppers.[14] Both slavery and tenancy made it nearly impossible for Black Americans, and especially Black women, to own land or build wealth through agricultural work.

Indigenous women were leaders in crop development prior to European colonization and were responsible for growing and harvesting most of the food for their communities.[15] And when Europeans arrived in the United States, they benefitted from Indigenous women’s agricultural knowledge.[16] But many American government officials viewed agricultural labor as unsuitable work for women, and the fact that Indigenous women oversaw agrarian production was used by colonizers as “evidence of the inferior functioning of tribal culture” to justify the displacement of and violence against Indigenous communities.[17] More than 1.5 billion acres of land were taken from Indigenous communities through American treaties and homestead acts,[18] and the proliferation of European patriarchal norms robbed Indigenous women of their equal status both in agriculture and society writ large.

Although women’s work has always been a major contributor to the “economic solvency” of American farms and the American agricultural system writ large,[19] women’s labor was historically overlooked and undervalued due to the cultural perception of agricultural work as “male work” and the overarching sexism and racism of American society.[20] Public policies in early America, reflecting the prevailing cultural view of agricultural work as male, discriminated against women in agriculture.[21] Male authority over farming (and business ventures in general) stemmed from English common law traditions like feme covert—the idea that married women had no legal civil identity separate from their husbands.[22] Throughout early American history, only single adult women or widows could negotiate the legally binding contracts required to operate farms; married women’s husbands had the sole authority to do so.[23] And although state laws began chipping away at feme covert during the 1820s by, for example, granting married women authority over their wages, it took decades before most states afforded married women authority over their property and finances.[24] This meant that many women were unable to own land and had no legal entitlement to the profits of their farm work.[25] As described above, slavery and colonialism, along with many other racially oppressive laws and institutions, intersected with sexist public policies to increase the burden of discrimination against Black women, Indigenous women, and other women of color in the agricultural sector, making it nearly impossible for them to own land or retain the profits of their labor on farms.

B.   Women’s Evolving Participation in American Agriculture from 1900 to the Present

The tide began to turn for American women in agriculture around World War I, in part due to the creation of the Women’s Land Army (WLA).[26] The WLA was established in 1917 by middle-class women in New York City in response to war-related increases in food prices that precipitated a series of riots led by working-class mothers.[27] The WLA intended to increase the nation’s food supply and ensure that “wasted harvests and diminished agricultural production” could be avoided while the men who were usually responsible for tending to American farms were overseas serving in the war.[28] The WLA established farming units in thirty-three states, with its most successful units in California, New York, Maryland, Pennsylvania, New Jersey, and Illinois. In the period from 1918 to 1919, between fifteen thousand and twenty thousand women worked for the WLA to harvest the nation’s food supply.[29]

The WLA’s successes, however significant, were ephemeral and incomplete.[30] WLA women came from a variety of backgrounds: Members included college-educated women, union activists, working-class immigrants, Jews, Catholics, and a limited number of Black women. Nonetheless, the WLA’s leaders often promoted racist stereotypes, such as advertising the benefits of farm labor by “intelligent” (and implicitly white) women over the labor of immigrants and women of color.[31] And after World War I ended, the large numbers of women working with the WLA and the wartime agricultural workforce soon diminished as soldiers returned home.[32] Still, the WLA gave many “farmerettes” first-time training on how to cultivate and harvest crops, provided them with opportunities to work outside of the home for the first time, and helped women organize politically on issues outside of agriculture, such as voting rights.[33] The WLA laid the groundwork for subsequent initiatives that further incorporated women into the American agricultural workforce.[34]

One such movement was the U.S. Department of Agriculture’s (USDA’s) United States Crop Corps, a federal agency program responsible for overseeing civilian agricultural efforts during World War II. [35] The Crop Corps resurrected the WLA, training and putting an estimated 1.5 million women to work between 1943 and 1945 to perform duties such as driving tractors, picking fruit, milking cows, and trucking produce.[36] During this period, the WLA worked to place urban women on rural farms. This practice forced women in the program to contend with male farmers’ sexist attitudes, especially in the Midwest where farm women were viewed as reserve labor for the field and were often relegated to performing household labor.[37] But by 1945, historians report that the “[t]he biases of earlier years mostly disappeared once the competence, patriotism, and reliability of the women were experienced by farmers and members of the national farm community.”[38]

The Crop Corps also created the Victory Farms Volunteer (VFV) program, which recruited approximately 2.5 million urban-dwelling American teenagers to work on farms in support of the war effort between 1943 and 1947.[39] Although it is difficult to ascertain how many teenage girls participated in the VFV program overall, historical records show that VFV recruiters worked closely with the Girl Scouts of America and the Young Women’s Christian Association.[40] And state records suggest that girls often participated in the VFV at a higher rate than boys.[41]

Between the WLA, the VFV program, and other Crop Corps initiatives, an estimated three million women were working on farms in June of 1943.[42] The U.S. Women’s Bureau reported that the percentage of women working in agriculture rose from 8 percent in 1940 to around 22 percent in 1945, and the USDA estimated that it had placed approximately 1.5 million ”nonfarm” women in farm jobs between 1943 and 1945.[43] The Crop Corps, much like the World War I-era WLA, gave many women—especially urban women—valuable agricultural training, provided them the opportunity to work outside the home for the first time, and chipped away at the perception of agricultural work as “male.”[44]

Following World War II, advances in mechanization and increasing availability of agricultural chemicals led to “economies of scale” that rapidly increased the average farm size.[45] In 1945, around 50 percent of the American population lived in a rural community, and 16 percent of the labor force was employed in agriculture.[46] These numbers shrank to approximately 30 percent and 4 percent, respectively, by 1970, and around 20 percent and 2 percent in 2000.[47] But interestingly—and perhaps due to shifting attitudes about women’s participation in farming—while the number of overall American farms dropped during the latter half of the twentieth century, the number of women farmers rose.[48]

Data from the 1978 Census of Agriculture, which was the first to publish data on farms by “sex of operator,” found that 5.2 percent of American farms were operated by women.[49] This census found that the share of women employed principally as farmers or farm managers increased from about 3 to 10 percent of the total between 1950 and 1980, meaning that over 127,000 women were working as farmers and farm managers by 1980.[50] Women during this time period were more likely than their male counterparts to own small farms and grow fruits, nuts, and other specialty crops.[51] But women farmers between 1950 and 2000 were, on average, older than their male counterparts, both because many women farmers were widows who had inherited land from their spouses and because the start-up costs of farming were too high for younger women to enter the profession independently.[52]

Since the early 2000s, agriculture has continued to become increasingly female, but the demographics of women farmers have changed.[53] Per the most recent census data, women now comprise 36 percent of all American farmers, or 1.2 million out of 3.4 million total producers.[54] The USDA reports that the number of women-operated farms—which are defined as “farms with one or more female producers responsible for making decisions about the farm’s operation”—increased by 23 percent between 2012 and 2017.[55] Women-operated farms accounted for 41 percent of U.S. agriculture sales, or 148 billion dollars, in 2022, and covered 46 percent of U.S. farmland.[56] In California, America’s agricultural powerhouse, women currently represent 37 percent of all the agricultural producers in the state.[57]

But in contrast to women farmers in the late twentieth century, farming women in the United States are now “slightly younger . . . and more likely to be [] beginning farmer[s]” than their male counterparts, indicating that women are now more likely to be farming anew rather than inheriting farms from spouses or male relatives.[58] Reflecting this trend, younger women are now outpacing men in agricultural education; University of California, Davis, for example, reports that 75 percent of the students who earned a bachelor’s degree in agriculture-related majors during the 2019–2020 school year identified as women.[59]

C.   Remaining Challenges for Women in Agriculture

Although women’s participation and leadership in American agriculture have increased over the past century, there is still significant room for improvement in gender equity in American farming. According to the most recent USDA census, only 11 percent of the 1.2 million female producers in 2022 operated farms where they were the only producer, and only 9 percent of American farms are run entirely by women.[60] Only 34 percent of women farmers reported farming as their primary occupation, compared to almost 50 percent of male farmers. This is likely because women are often secondary operators on mixed-gender farms, while their male business partners run day-to-day operations and are the primary agricultural and financial decision-makers.[61] Women’s secondary status on mixed-gender farms likely relates first to the lack of childcare in rural areas, which means that the burden of domestic labor within farming families falls on women; and second, to the fact that many mechanized agricultural tools are not suited for women’s bodies, which means that women have a harder time working the field, especially on large, industrial farms.[62]

In addition, women in the United States struggle to break into and profit from farming given that it is a highly consolidated industry dominated by powerful corporations and large, industrial farms.[63] Women farmers—especially those who are the primary operators of their own farms—tend to own smaller farms than men and are more likely to be working on fledgling farms that are less than ten years old.[64] Due to this lack of land and the start-up costs associated with running a new farm, women’s profits from farming are typically lower than men’s. Only 21 percent of women-operated farms made more than $50,000 per year, compared with 28 percent of male-operated farms.[65] Around 58 percent of women farmers work on farms that make less than $10,000, compared with 51 percent of male farmers.[66] And as of 2017, women-operated farms earn 40 percent less income compared to male-dominated farms.[67]

These gendered economic disparities are compounded by the fact that many women farmers continue to experience discrimination in obtaining agricultural credit, and disproportionately fewer USDA loans are made to women farmers.[68] The USDA tried to address sexism in farm lending via the Hispanic and Women Farmers and Ranchers Claims Resolution Process, a claims resolution mechanism created in 2011. This process, as described below, sets aside cash awards, tax relief payments, and farm debt relief for women farmers and ranchers who the USDA had discriminated against between 1981 and 2000.[69] However, in 2018, the Government Accountability Office concluded that even after this claims resolution process surfaced a pattern of gendered discrimination within the USDA, women-operated farms reported that they continue to experience discrimination in farm lending and receive fewer USDA benefits than male-operated farms.[70]

Women of color also remain significantly underrepresented in agriculture.[71] The latest figures indicate that white women represent 95 percent of all women farmers and 94 percent of all female primary farmers (defined as farmers who are “essentially the key person running the farm”).[72] A mere 2.2 percent of women farmers identify as Native, 1.1 percent identify as Black, and 3 percent identify as Hispanic.[73] And female producers of color are even more financially challenged than white women in agriculture. For example, income from products sold and government payments was, on average, $50,000 and $40,000 lower for Black and Indigenous women primary farmers, respectively, than for white women primary farmers.[74] More work is necessary to ensure that women are able to act as primary decision-makers on American farms, that women-operated farms receive more financial support, and that women of color are able to enter agriculture on equal footing with both male farmers and white women.

D.   Reasons for the Federal Government to Invest in the Feminization of Agriculture

There are many compelling reasons for the federal government to support increased gender diversity in American agriculture. Gender diversity in agriculture would, for example, improve America’s climate resiliency and help the country meet its emissions reduction and sustainability goals.[75] Women, for the structural and attitudinal reasons described below, are far more likely than men to participate in sustainable and organic farming versus environmentally harmful industrial agriculture. For example, while women represent 36 percent of all farmers and 11 percent of sole producers in the United States, they comprise 21 percent of organic farmers.[76]

First, regarding the structural factors that encourage women to enter green agriculture, women have more limited access than men to start-up capital and capital-intensive agricultural assets like heavy machinery, making them less likely than men to purchase, own, or operate large industrial farms.[77] Due to gender biases in the agriculture sector, women are also less likely to inherit legacy industrial farms; 73 percent of farmers who have both sons and daughters have chosen their son as the main successor.[78] Thus, as demonstrated by the most recent USDA census data, discussed in Part I.C, women farmers are far more likely than men to operate small farms and/or beginning farms rather than industrial ones.[79]

Second, the gender disparity in attitudes about climate change and the environment facilitates women’s high rate of entry into sustainable agriculture—and influences women’s business practices upon entry into the sector. American women are 17 percent more likely than men to view climate change as a serious problem,[80] and women “make up 60 to 80 percent of membership in mainstream environmental organizations and even higher percentages in grassroots movements.”[81] Social scientists suggest that women are more pro-environment than men, both because they are more concerned about others and because of an increased likelihood to connect environmental conditions with their own values, such as sensitivity, empathy, interdependence, and responsibility to self, family, and community.[82]

Regardless of whether women’s pro-environmental attitudes are inherent or merely a product of gendered social pressures that encourage women to be more altruistic,[83] these attitudes have positive environmental externalities in the agricultural sector. Large-scale industrial agriculture “consumes fossil fuel, water, and topsoil at unsustainable rates,” contributes to various forms of environmental degradation, such as air and water pollution, soil depletion, diminishing biodiversity, and fish die-offs, and exposes farm workers and surrounding communities to harmful pesticides.[84] Because women farmers increasingly practice sustainable and organic techniques like “soil testing and conservation, cover crops, permanent vegetation, composting[,] and crop rotation”[85] and are less likely than male farmers to engage in chemical-intensive production,[86] their environmental impact is more positive than male farmers.[87]

Production and distribution trends on women-owned farms also tend to make them greener than their male counterparts. Women farmers are more likely to “produce for local markets or work with ecologically-responsible distributors,” which reduces lengthy food chains and minimizes their carbon footprints.[88] Because women grow fruits, vegetables, and other diversified specialty crops at a higher rate than men, they are less likely to engage in the kind of carbon-intensive and ecologically harmful animal agriculture or monocropping of wheat, corn, and other grains than men.[89] And because women are more likely to use nonchemical agricultural methods or less persistent chemicals, they are less likely to use pesticides that contribute to water pollution and are harmful to the health of farmworkers and surrounding communities.[90] If the United States seeks to reduce its overall carbon emissions—almost 11 percent of which currently come from the agricultural sector[91]—and minimize agriculture-related soil and water pollution, facilitating women’s entry into farming would be an effective way to do so.

Relatedly, the federal government would reap economic and public health benefits by increasing federal support for women farmers. In addition to sharing a strong “land care ethic,” or interest in sustainable farming, surveys suggest that women in agriculture report sharing a commitment to “providing alternatives to commodified food and to food security through the development of smaller scale sustainable food networks.”[92] Women farmers more frequently participate in an economy that includes “barter, community supported agriculture, and farmers’ markets.”[93] These practice promotes local job creation and the provision of fresh food for local communities.[94] The more localized nature of women-run farms may become a lifeline for consumers as the climate crisis escalates and pressure on supply chains intensifies.[95] Already in California, for example, women-owned farms ensured community food access during the pandemic and contributed healthy produce to communities struck by the devastating Paradise wildfires in 2018.[96] Increasing the number of women in agriculture has the potential to make healthy food more accessible and the American economy more resilient.

Encouraging women to enter the agriculture sector, and supporting them once they have done so, may also permit the federal government to combat the gendered nature of poverty in the United States. According to U.S. Census Bureau data, of the 38.1 million people living in poverty in 2018, 56 percent were women.[97] In 2018, around 12.9 percent of women lived in poverty, compared with 10.6 percent of men, and around ten million women lived in deep poverty, defined as falling below 50 percent of the federal poverty line.[98] Women of all races experience poverty at higher rates than men, but the disparity is especially pronounced for Indigenous, Black, and Latina women.[99] And almost one in four unmarried women with children live in poverty.[100]

American women’s higher rate of poverty can be attributed in part to: 1) the gender wage gap, meaning that women—due to a combination of factors such as hours worked, differences in experience and education level, and discrimination—earn less than men for performing similar jobs; 2) the gender wealth gap, meaning that because women earn less than men, they are more likely to be denied or overcharged for mortgages and hold more debt, and they are less likely to have the savings and wealth necessary to weather financial shocks and provide for themselves; and 3) the lack of affordable and reliable child care, which often forces women to work fewer hours or leave the workforce entirely.[101] If the federal government increased its support for women in agriculture by providing services such as targeted lending and financial support, vocational training, and improved childcare services in rural areas, it could erode the wage and wealth gaps for women in the farm sector, lifting women and their families out of poverty in the process.

In addition, the federal government has racial justice-related incentives for supporting women’s entry into and participation in American agriculture that intersect with the environmental and economic benefits described above. Many Black women, whose communities were historically dispossessed from farmland and enslaved or forced to work as sharecroppers for white farmers, view farming as a political activity that promotes food sovereignty and racial justice.[102] Supporting Black women in agriculture—in both rural areas and in cities like Detroit, where Black women are leading the urban farming movement—is a particularly important response to structural, racial inequalities, including “limited access to land, capital, and education as well as grocery stores, farmers markets, and other food sources.”[103] For Indigenous women, many of whom have retained their cultural connections to the land despite centuries of genocide and displacement, farming serves as a means of both preserving Indigenous food growing practices and mitigating climate change.[104] Further research outside of the scope of this Note is necessary to explore how federal support for women of color in agriculture could serve as a form of reparations for Black women, Indigenous women, and other American women of color whose ancestors experienced gender and racial discrimination in the farm sector.

II. The Constitutionality of Gender-Based Incentives for Women in Agriculture

A.   Current and Proposed Support for Women in American Agriculture

The federal government currently offers several sources of financial and educational support to women farmers.[105] The Farm Bill, a major package of agricultural legislation that Congress generally reauthorizes every five years, provides financial support to women through several USDA programs. Because women qualify as “Socially Disadvantaged Applicants” under the statute, the USDA Farm Service Agency (FSA) provides women preferential access to certain loan funds, direct operating and direct farm ownership loan funds, microloan funds, and youth loans.[106] Under the Farm Bill, the USDA also waives the administrative fee for women seeking crop disaster assistance, grants women eligibility for a 50 percent premium reduction on insurance coverage, and provides women with priority purchasing access to farmland held in the FSA’s inventory.[107] Since 1990, the Farm Bill has also allocated funds under a program commonly referred to as Section 2501, which provides grants to organizations that serve women farmers, ranchers, and foresters who have historically experienced limited access to USDA programs and services.[108] Under Section 2501, the USDA supports non-profits like the National Women in Agriculture Association (NWIAA), which seek to help women start agricultural business ventures and access agricultural education.[109]

More recently, the Biden Administration passed Section 22007 of the Inflation Reduction Act, which allocated $2.2 billion in financial assistance to farmers who have “[previously] experienced discrimination in USDA’s farm lending programs.”[110] Section 22007 originated as an attempt by the Biden Administration to provide federal funding specifically to Black farmers through the American Rescue Plan Act (ARPA) before it became constitutionally untenable for the administration to do so based on developments in the lower courts during the leadup to Students for Fair Admissions.[111] Because the Biden Administration pivoted from providing financial support to Black farmers in the ARPA to all “socially disadvantaged applicants” in Section 22007, this program does not specifically set aside funds for women farmers, and Congress’s intent in passing Section 22007 was more closely tied to racial justice than gender parity.[112] But women are eligible for financial relief under Section 22007, given that the federal government has a long and proven history of discrimination against women in agriculture.[113]

However, the programs described above—FSA loans, the Farm Bill’s 2501 program, and Section 22007 of the Inflation Reduction Act—are not specifically targeted toward women farmers. Each of these programs sets aside a gender-neutral pool of funding not just for women but also for other groups, such as minority and veteran farmers, ranchers, and foresters.[114] And unfortunately, women farmers are both dramatically outnumbered by male farmers and often lack the financial education or literacy necessary to apply for these benefit programs. Thus, although these programs theoretically provide financial support to women in agriculture, male farmers from other underrepresented groups are the programs’ primary beneficiaries.[115]

In response to the limited practical impact of these gender-neutral funding sources on women farmers’ financial security, and considering the many benefits associated with supporting women in agriculture, many advocacy groups and politicians have called on the federal government to support women farmers more directly. One such proposal is the bipartisan Women in Agriculture Act (WIAA), proposed in 2023 by Congresswomen Teresa Leger Fernández of New Mexico, Jen Kiggans of Virginia, Chellie Pingree of Maine, and Jenniffer González-Colón of Puerto Rico. The WIAA would create a Women Farmers and Ranchers Liaison at the USDA, establish a research priority for agriculture machinery and equipment designed to be used by women, and prioritize funding for childcare facilities in rural areas.[116] The WIAA intends to remedy the childcare shortages and equipment problems for women farmers described above but does not call for the allocation of direct financial support for women farmers.

In addition to passing the WIAA, this Note argues that Congress should affirmatively allocate a specific pool of funding to women farmers, much like it attempted to allocate $4 billion in debt relief funds and $1 billion in training and technical assistance funds to Black and minority farmers via Section 1005 of the American Rescue Plan Act. As described above, Congress enacted Section 1005 to remedy “[d]ecades-long discrimination” by the USDA against Black and minority farmers and ranchers, which historically placed Black farmers on unequal footing with white farmers in terms of access to credit and USDA safety net programs.[117] Women, much like Black and minority farmers, also struggle to access credit and USDA programs due to a history of discrimination against them both in society at large and by the USDA specifically. True, Section 1005, as outlined in Part II.B, failed after being struck down by lower courts as a violation of the Equal Protection Clause of the Fourteenth Amendment. But as Part II.C and Part III of this Note argue, a gender-based equivalent to Section 1005 targeting women farmers rather than Black farmers is more likely to be viable under the Equal Protection Clause, and the federal government could proactively design such a program in a manner that would survive constitutional scrutiny.

B.   Recent Constitutional Challenges to Race-Based Affirmative Action in Agriculture

On June 29, 2023, the United States Supreme Court issued its decision in SFFA[118]—and in so doing, threatened the future of affirmative action programs in every field from education to agriculture. In SFFA, the Court struck down Harvard College’s race-based affirmative action program, which allowed university admissions officers to consider race “as part of a holistic review process” to achieve classroom diversity.[119] The Supreme Court reviewed the constitutionality of the Harvard affirmative action program, as it does for all laws that create racial classifications, using strict scrutiny. This is the most stringent form of constitutional scrutiny, which requires racial classifications to be “narrowly tailored” to achieve a “compelling governmental interest[].”[120]

Prior to SFFA, the Supreme Court had permitted affirmative action programs predicated on the compelling interest of increasing diversity in the classroom to proceed, so long as these programs did not rely on “illegitimate . . . stereotyp[ing]” of racial minorities, did not cause undue harm to nonminority applicants, and had a discernible end date.[121] But for the first time, in SFFA, the Court held that classroom diversity and its associated benefits (e.g., training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens) were not a “sufficiently coherent” state interest for purposes of strict scrutiny.[122] The Court therefore invalidated Harvard’s race-based affirmative action program under the Equal Protection Clause of the Fourteenth Amendment.[123]

In SFFA, the Supreme Court indicated that it would no longer accept “diversity” as a compelling state interest when evaluating race-based affirmative action programs. And in the decades prior to this case, the Supreme Court also declared unconstitutional race-based affirmative action programs justified by state interests such as remedying past racial bias and increasing racial diversity within the workforce.[124] But in SFFA, the Court left the door open to the use of another state interest in affirmative action that it had previously deemed sufficient to meet strict scrutiny—namely, remedying proven discrimination by a specific government entity against a minority group.

In two cases from the 1980s, for example, the pre-SFFA Supreme Court sanctioned the use of race-based affirmative action programs predicated on this proffered state interest.[125] In United States v. Paradise, the Court upheld an Alabama Department of Public Safety program that required the department to hire one Black policeman for every white policeman.[126] It reasoned that ”the pervasive, systematic, and obstinate discriminatory conduct of the Department created a profound need and a firm justification for the race-conscious relief.”[127] In Wygant v. Jackson Board of Education, the Court again suggested that while remedying general societal discrimination against a racial minority group is not a compelling government interest, a government entity’s attempt to remedy its own record of a specific form of discrimination via affirmative action may be compelling enough to meet strict scrutiny.[128]

In SFFA, the Court’s majority opinion only briefly touches upon this state interest, merely noting that its precedents had identified “remediating specific, identified instances of past discrimination that violated the Constitution or a statute” as a compelling interest that “permit[ted] resort to race-based government action.”[129] The Court failed to state whether it views this precedent as good law. It remains unclear whether the use of race-conscious remedies for this purpose has purchase among a majority of the Justices. Thus, the question remains: Can government entities seeking to remedy their own proven discrimination against specific minority groups still engage in race-conscious affirmative action?

The government recently (and unsuccessfully) relied upon this compelling state interest to defend its attempts to redress the USDA’s “long and shameful record” of discrimination against Black Americans and other minority farmers.[130] For context, in the 1990s, a group of Black farmers brought a class action lawsuit against the USDA, and the lawsuit uncovered evidence of systemic racial discrimination within the agency.[131] The class action suit, Pigford, involved claims by Black farmers that the USDA discriminated against them between 1981 and 1996 by wrongfully denying them “farm loans, loan servicing, and other benefits, or giving them loans with unfair terms.”[132] This claim was backed up by empirical evidence: Studies show that USDA discrimination against Black farmers in farm loans played a major role in driving them out of the farm sector throughout the twentieth century.[133] And in Pigford, based on incriminating documents uncovered during the litigation, the USDA was forced to acknowledge for the first time that it had discriminated against Black farmers, acting as “a stubborn bureaucracy that refuse[d] to provide equal opportunity for all as the law requires.”[134] Pigford resulted in over $1.15 billion in payouts to Black farmers.[135] It also set a precedent for subsequent programs, such as the Hispanic and Women Farmers and Ranchers Claims Resolution Process, in which the USDA made available at least $1.33 billion for cash awards and tax relief payments, plus up to $160 million in farm debt relief, for Hispanic or women farmers and ranchers who experienced USDA discrimination between 1981 and 2000.[136] But many critics of Pigford claimed that the settlement reached too few eligible farmers and did not do enough to remedy discrimination against Black farmers by the USDA.[137]

Responding to this criticism, and attempting to further address the USDA’s discrimination against Black and minority farmers, Congress and the Biden Administration passed Section 1005 of the American Rescue Plan Act (ARPA) in March of 2021.[138] This section of the ARPA aimed to provide debt relief to ‘‘socially disadvantaged farmers and ranchers” (SDFRs) by authorizing the Secretary of Agriculture to pay up to 120 percent of the indebtedness, as of January 1, 2021, of an SDFR’s direct Farm Service Agency (FSA) loans and any farm loan guaranteed by the Secretary.[139] Racial or ethnic groups that categorically qualified as socially disadvantaged were “Black, American Indian/Alaskan Native, Hispanic, Asian, and Pacific Islander.”[140]

In passing Section 1005 of the ARPA, Congress seemingly engaged in the kind of race-based affirmative action that the Supreme Court condoned in Paradise and Wygant because Section 1005 attempted to remedy specific and proven discrimination by the USDA against Black farmers by providing them debt relief, a remedy narrowly tailored to the USDA misconduct at issue (i.e., denying Black farmers farm loans).[141] But in April and May 2021, white farmers brought suit in the U.S. District Courts for the Eastern District of Wisconsin, the Northern District of Texas, and the Middle District of Florida, arguing that Section 1005 violated the Equal Protection Clause of the Constitution by denying them loan forgiveness solely because of their race.[142] And in all three cases, the district courts held that Section 1005 failed to meet strict scrutiny and was likely a violation of the Equal Protection Clause. The USDA was therefore forced to halt its implementation of Section 1005.[143]

Notably, all three courts dismissed extensive evidence proffered by the government—academic studies, congressional testimony, and interviews with farmers—showing that the USDA engaged in “a long, sad history of discrimination against SDFRs in the provision and receipt of USDA loans and programs.” [144] The courts held that Section 1005 did not serve a compelling state interest because the government’s evidence merely demonstrated disparate impact in USDA lending rather than intentional discrimination against Black farmers within the agency.[145] Going forward, this suggests that, even if the government provides convincing proof of past discrimination by a specific government entity, courts may be willing to mischaracterize it as mere evidence of disparate impact rather than discrimination that is insufficient to meet the compelling interest standard.

Additionally, all three courts held that Section 1005 was not narrowly tailored. Per Judge Marcia Howard in the Middle District of Florida, Section 1005 did not solely attempt to remedy the USDA’s past discrimination against SDFRs and was “untethered to an attempt to remedy any specific instance of past discrimination” against specific SDFRs that had been denied loans by the USDA.[146] The court held that a more appropriately tailored solution would be for the USDA to provide loans to farmers who had previously been denied access to them. This holding is both incompatible with Paradise, in which the court’s holding was not limited only to prospective officers who themselves had been denied jobs in the past, and would (in practice) be impossible for the USDA to implement, given the difficulties associated with enforcing broad “bans” on discrimination in individual cases.[147] The court in the Eastern District of Wisconsin went as far as to suggest that the most narrowly tailored response to a government agency’s discrimination against minority farmers “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”—another holding that is incompatible with the Supreme Court’s precedent and impossible to achieve given the disconnect between “bans” on discrimination and the government’s ability (or lack thereof) to address pervasive gender [SD1] [RT2] discrimination in individual cases.[148]

The Supreme Court’s current hostility toward affirmative action likely factored into these district courts’ decisions to declare Section 1005 unconstitutional in a manner that seems to flagrantly misinterpret the Court’s precedent. Although the Supreme Court had yet to decide SFFA when these Section 1005 cases were decided, the case was moving through the lower courts in 2021, when Wynn and its companion cases were handed down. And when the Supreme Court granted certiorari in SFFA in January 2022, legal analysts at the time widely believed that the Court would use the case as an opportunity to strike down race-conscious affirmative action programs, including those outside of the educational context.[149]

If lower courts were comfortable construing precedents like Paradise and Wygant narrowly enough (or incorrectly enough) to render them meaningless prior to SFFA, it seems unlikely that the vague language contained in the SFFA majority opinion regarding the use of remedying a government entity’s specific past discrimination will prevent them from continuing to do so. This unfavorable judicial landscape is likely why the Biden Administration ultimately replaced Section 1005 with a race-neutral provision of the Inflation Reduction Act that provided aid to socially disadvantaged farmers.[150] And it indicates that going forward, even race-based affirmative action programs predicated on the state interest of remedying a government entity’s proven discrimination against a specific minority group are unlikely to withstand constitutional challenges at the district court level.

C.   The Uncertain Future of Gender-Based Affirmative Action Programs in Agriculture

Of course, SFFA, Pigford, and cases like Wynn in the Middle District of Florida all pertain to race-based rather than gender-based affirmative action programs in the farm sector. As described in Part II.A, the federal government runs various programs intended to give women preferential access to farm loans, land, and educational resources. More recent proposals, like the WIAA, would increase support for women in agriculture, and this Note proposes that the federal government expand its support for women farmers via a Section 1005 equivalent for women farmers.[151] The future of these various gender-based programs for women farmers depends on courts’ view of their constitutionality under the Equal Protection Clause. This begs the question: Does the end of race-based affirmative action necessarily spell the end for gender-based affirmative action programs in the farming sector as well?

As in the context of race, this depends on whether courts will be willing to find the government’s proffered interests in advancing such programs sufficient to meet constitutional scrutiny. The government could justify programs supporting women farmers by claiming that increased gender diversity in agriculture would have broader societal benefits, as described above. But this diversity-based rationale for gender-based affirmative action mirrors the rationale rejected by the Supreme Court in SFFA. Alternatively, the government could claim that its support for women farmers intends to remedy the historical discrimination against American women in agriculture explored above—again, a similar rationale to the one that lower courts rejected when striking down Section 1005 as a violation of the Equal Protection Clause. The constitutionality of the current and proposed support for women farmers discussed in Part II.A, then, depends on whether courts will find these rationales persuasive in the context of gender when they would not do so in the context of race.

One reason that courts may be willing to accept “remedying discrimination” or “increasing diversity” as rationales for gender-based affirmative action programs is that such programs should be held to a lower level of constitutional scrutiny. Courts review race-based affirmative action programs using strict scrutiny, whereas gender-based programs are often assessed under a more relaxed standard.[152] The Supreme Court has never specifically weighed the constitutionality of a gender-based affirmative action program. However, in United States v. Virginia, it defined the general standard of review for gender classifications, which lower courts typically apply when evaluating gender-based affirmative action.[153] Per Virginia, parties who seek to defend gender-based government action must therefore demonstrate an “exceedingly persuasive justification” for that action, rather than the “compelling state interest” required to meet strict scrutiny.[154]

Many lower courts, and Justice Scalia in his Virginia dissent, have interpreted Virginia’s standard as a modified form of intermediate scrutiny, meaning that a gender classification will be upheld if it is substantially related to an important government purpose.[155] This interpretation of Virginia’s “exceedingly persuasive” standard is supported by other Supreme Court cases such as Craig v. Boren,[156] in which the Court applied intermediate scrutiny to a law that permitted women to purchase beer at a younger age than men, and Rostker v. Goldberg, where the Court upheld gendered draft registration under intermediate scrutiny.[157] However, some lower courts have interpreted Virginia’s “exceedingly persuasive justification” standard to require a form of intermediate scrutiny with “bite,” or even strict scrutiny.[158]

Relatedly, another key difference between race and gender is that Supreme Court precedent suggests that gender-based affirmative action programs (versus their race-based counterparts) may be constitutional even if they target the broad social history of discrimination against women in America, rather than proven discrimination against specific women.[159] In Califano v. Webster, the Supreme Court upheld under intermediate scrutiny a provision of the Social Security Act that resulted in slightly higher wages for women and, in doing so, indicated that broad remedies for societal gender discrimination are constitutionally permissible.[160] The Califano court reasoned, first, that the “[r]eduction of the disparity in economic condition between men and women caused by the long history of discrimination against women” was an important government purpose and, second, that allowing women to increase their Social Security payments by eliminating certain low-earning years from the calculation of their retirement benefits was substantially related to this purpose.[161] Califano suggests that gender-based affirmative action programs that target generalized, historical discrimination against women are constitutionally valid. And taken together with Virginia, Califano indicates that a Section 1005-like program targeted toward women farmers (rather than Black and minority farmers) may pass constitutional muster under intermediate scrutiny.

But whether lower courts in the SFFA era will follow the Supreme Court’s guidance in Virginia and Califano or treat gender-based affirmative action programs with the heightened skepticism supposedly reserved for their race-based programs remains unclear. Because the constitutionality of the various federal programs targeting women in agriculture described above has yet to be challenged in the courts and the Supreme Court has never explicitly dealt with gender-based affirmative action, lower court cases dealing with sex-specific affirmative action programs outside of agriculture are perhaps the best predictor of their future. One such case is Vitolo v. Guzman, which was decided in May 2021, the same month that district courts in Texas and Wisconsin struck down Section 1005 of the ARPA.[162] In Vitolo, the Sixth Circuit preliminarily enjoined a provision of the ARPA (Section 5003(c)) which gave priority access to pandemic relief funds to privately owned restaurants that were “at least 51% owned and controlled by women.”[163] The court also enjoined a related provision of Section 5003, which gave priority to restaurants whose owners identified as members of a racial minority group.[164]

The Sixth Circuit’s reasoning in Vitolo regarding the gender-based provision of Section 5003 mirrors that of the courts in Wynn and its companion cases in Wisconsin and Texas. True, the Vitolo court applied intermediate rather than strict scrutiny to Section 5003(c), meaning that the provision had to “serve [an] important governmental objective[],” and be “substantially and directly related” to the government’s objectives.[165] But it held that the government failed both prongs of the intermediate scrutiny analysis.

First, using language directly pulled from various race-based affirmative action cases, the Sixth Circuit held that the government failed to show that Section 5003(c) was justified by an important governmental interest, because “general claims of societal discrimination” against women was not sufficient evidence of “proof of intentional discrimination against women” by a specific government agency and therefore could not “serve a valid governmental objective.”[166] The government proffered a survey demonstrating that women who received Paycheck Protection Program loans asked for 40 percent less funding on average than their male counterparts, but the Sixth Circuit held that the survey did “nothing to support an inference of intentional discrimination.”[167] The Vitolo court did not cite Califano or discuss the Supreme Court’s prior approval of programs intended to remedy broad societal discrimination against women.

Second, and again using language reminiscent of Wynn and SFFA, the Sixth Circuit held that Section 5003(c) was not “substantially and directly related” to the government’s “remedial objective” of supporting “economically disadvantaged” female-owned restaurants because under Section 5003(c), all women-owned restaurants were prioritized—even if they were not struggling financially.[168] The government contended that women had “struggled to receive pandemic relief from the Federal government” from prior aid programs and should therefore be granted priority access to Section 5003(c) funds.[169] But the Vitolo court, just like the court in Wynn, noted that a more appropriate solution would be to “give priority to restaurant owners who did not receive prior aid” rather than relying on a gender-based proxy.[170]

Vitolo indicates that although gender-based affirmative action is technically subject to a less rigorous form of constitutional scrutiny than race-based affirmative action, courts may (rightly or wrongly) import the analytical frameworks that they apply in the context of race to gender-based programs. And in doing so, they may ignore gender-specific precedent like Califano which would counsel in favor of upholding federal programs intending to remedy the “long and unfortunate history of sex discrimination” in American society.[171] The fact that—as was the case in Vitolo—white male plaintiffs can challenge race- and gender-based incentive or funding programs within the same lawsuit may also encourage courts to conflate these related but separate forms of remedial relief for historically marginalized groups.

Other circuit courts, however, have taken a different approach than the Sixth when weighing the constitutionality of gender-based affirmative action. The Ninth Circuit and the First Circuit, for example, have both applied some form of intermediate scrutiny to gender-based affirmative action programs.[172] The Ninth Circuit, in one particularly relevant case, upheld under intermediate scrutiny a federal funding program that authorized the use of gender-based preferences in transportation contracts. In this case, Western States, the court held 1) because the government had provided data demonstrating a specific history of discrimination against women in transportation contracting and 2) because the regulations in question set “aspirational” and flexible goals rather than quotas for funding to be allocated to women owned businesses, the program easily met intermediate—and would have met strict—scrutiny.[173]

Notably, the Ninth Circuit in Western States, like the Sixth Circuit in Vitolo, was evaluating a race-based transportation contracting program affirmative action program alongside the gender-based program.[174] But whereas the Vitolo court applied strict scrutiny to strike down both the race-based and gender-based provisions of the ARPA, seemingly conflating the two, the Western States court upheld the race-based program under strict scrutiny and the gender-based program under intermediate scrutiny.[175] Cases like Western States suggest that in circuits like the Ninth, an affirmative action program that gives preference to women farmers would likely be evaluated under the more lenient intermediate scrutiny standard, and therefore, that post-SFFA antagonism toward race-based affirmative action may not have spillover effects for gender-based programs.

There is another more pragmatic reason that courts may be willing to accept “remedying discrimination” or “increasing diversity” as rationales for gender-based affirmative action programs. Practically, the conservative legal movement also has a political incentive not to fight gender-based affirmative action: It benefits men, particularly white men, in college admissions.[176] Conservative legal organizations, like the Federalist Society, tend to litigate in ways that limit the rights of women and people of color, while working in favor of white men’s political and social interests, and white men have a vested interest in gender-based affirmative action; in fact, they are its primary beneficiaries.[177] American girls and women have long “outpaced” boys and men in school, “earning higher grades and applying to college in larger numbers.”[178] The gender gap in education has grown immensely over the past few decades, such that women are now 60 percent of university graduates.[179] To attain a gender balance in their classes, many elite colleges now use gender-based preferences in admissions, meaning that it is relatively easier for boys to be admitted to college than girls.[180] And in the post-SFFA environment, given that universities are unable to use race in admissions, a university’s preference for men will often implicitly be a preference for white men.[181]

If conservatives were to mount a full-throated campaign against gender-based affirmative action, as they did against race-based preferences in educational admissions and other benefit programs like Section 1005, the result would likely be increased exclusion of white men from prestigious educational institutions.[182] Because this result would likely be incompatible with the overarching goals of the conservative legal movement, gender-based programs like the USDA’s benefits for women farmers or a potential Section 1005-like program for women may encounter fewer constitutional challenges than their race-based counterparts.

III. Ensuring Continued Federal Support for Women farmers

A.   Designing Affirmative Action Programs for Women in Agriculture That Can Withstand Constitutional Scrutiny

This Note posits that the federal government should retain and expand affirmative action programs targeting women farmers, because such programs have immense potential to foster gender diversity in agriculture. True, many of the environmental and economic benefits of women’s participation in farming can be achieved via the gender-neutral means outlined infra—the government could speed up the shift to sustainable agriculture, for example, simply by increasing funding for all farmers employing sustainable methods. But since women are outnumbered by men in farming, report lower levels of financial literacy than male farmers, and are less likely than men to apply for government agricultural subsidies, men will most likely be the primary beneficiaries of any gender-neutral programs targeting sustainable or community-supported agriculture.[183] And gender-neutral programs are likely less effective than gender-based programs at capturing many of the other benefits associated with supporting women farmers, including reducing the gendered wage gap and combating family poverty (though, as described in Part III.B, gender-neutral programs may be designed to achieve at least some of these outcomes, albeit indirectly).[184] As such, gender-based affirmative action programs are still worthwhile investments for the federal government as it seeks to improve the sustainability, economic, and health benefits of agriculture, as well as to combat gender inequality in the farming sector.

However, Congress must design these affirmative action programs in a pragmatic manner that maximizes their chances of surviving constitutional scrutiny. Therefore, first, as a pragmatic consideration, Congress should separate funding for women farmers from other pools of funding that it uses to allocate financial support to minority farmers. The government should, for example, prioritize funding gender-specific programs such as the WIAA or a Section 1005 equivalent for women farmers. And it should separate out funds for women farmers from funding allocated based on race within FSA loans, the Farm Bill’s 2501 program, and Section 22007 of the Inflation Reduction Act.

As described above, federal courts have demonstrated hostility toward race-based affirmative action programs in recent years, and this hostility may inflect the way many courts view gender-based programs. This seems especially likely in cases like Vitolo, where the Sixth Circuit negatively evaluated a provision of the ARPA that gave preference to business owners identifying as women and racial minorities.[185] By separating race- and gender-based affirmative action programs, Congress can limit courts’ (subconscious or intentional) conflation of race with gender, and subtly encourage courts to hold gender-based programs to the proper level of scrutiny (intermediate) rather than strict scrutiny as they would for race.

Second, the federal government should ensure that any affirmative action programs for women farmers would plausibly meet strict scrutiny. Thus, it should justify them based on its interest in remedying specific and proven discrimination by the USDA against women farmers. Congress could, for example, pass a preferential loan program intended to remedy the USDA’s history of discrimination against women farmers in its loan and credit programs, as was documented during the Hispanic and Women Farmers and Ranchers claims resolution process described above.[186] In doing so, Congress should ensure that the legislative record for such programs reflects its desire to remedy, first and foremost, the USDA’s proven discrimination against women farmers, in addition to the government’s longstanding history of discrimination against women in American agriculture and current disparities in USDA lending to women farmers. Although under Califano it is possible that courts may be willing to accept remedying the broader social history of discrimination against women in American agriculture as a compelling state interest, this rationale seems unlikely to pass muster in courts that review gender-based affirmative action programs under intermediate scrutiny with “bite” or strict scrutiny.[187]

Relatedly, the federal government should avoid using “increasing diversity” in the farm sector as a rationale for gender-based affirmative action programs like the WIAA or a Section 1005 equivalent for women. Given SFFA’s hostility to using diversity even as one factor in determining whether a benefit should be given to a racial minority group, this “compelling interest” seems sure to fail in front of courts that insist upon using strict scrutiny to review gender-based classifications. In contrast, the SFFA majority’s language on the use of “remedying specific and proven discrimination” is far more ambiguous. It indicates to lower courts that the use of compelling interests like those described as constitutional in Paradise and Wygant may be constitutionally valid under all levels of scrutiny.[188]

Third, Congress should directly tie the relief it grants to the remedy at hand (e.g., matching debt relief under a proposed Section 1005 equivalent to the USDA’s discriminatory refusal to grant farm loans to women throughout its history). Although courts like the Eastern District of Wisconsin or the Northern District of Texas may not accept this as a narrowly tailored remedy—especially if they view the government’s only valid recourse against gendered discrimination in agriculture to be “direct[ing] it to stop”—other courts like the Ninth Circuit (based on the logic of its Western States holding) would likely find this approach narrowly tailored enough to achieve the government’s stated interest under intermediate or even strict scrutiny.[189]

Fourth, reflecting the Ninth Circuit’s holding in Western States, Congress should set flexible targets and goals rather than quotas when passing affirmative action programs for women in agriculture.[190] Under the WIAA or a potential Section 1005 for women, for example, Congress should avoid saying that it will provide agricultural education to a specific number of women or that it must allocate a specific amount of funding. Instead, it should set aspirational targets, such as by saying that Congress is willing to give out up to a certain amount of funding or hopes to provide agricultural education to a certain number of women. By baking flexibility and generality into its statutory language, Congress can further improve the chances that these programs will not be struck down as impermissible gender-based quotas.

Ultimately, Congress should do its best to ensure that any affirmative action programs that it passes for women farmers are designed such that reviewing courts could plausibly find them constitutional under strict scrutiny. Regardless of what the proper level of scrutiny for gender-based classifications is, cases like Vitolo indicate that lower courts hostile to affirmative action (whether based on race or another protected characteristic) may require them to meet strict scrutiny.[191] And while the political motives behind attacks on gender-based affirmative action are more complicated for conservatives than those on their race-based counterparts—which may bolster gender-based programs’ long-term viability—the federal government should err on the side of caution by anticipating constitutional attacks and ensuring that (unlike for Section 1005) it does not have to change course in response to litigation before it can get much needed financial and vocational support to deserving recipients.

B.   Pragmatic Gender-Neutral Alternatives to Gender-Based Affirmative Action in Agriculture

Just as the federal government should be pragmatic in designing programs for women farmers that can withstand constitutional scrutiny, so too should it anticipate that constitutional challenges to these programs may ultimately succeed and render these programs nonviable. How, then, can it capture the benefits associated with facilitating women’s entry into the agriculture sector? Luckily, many of these benefits—such as improving the sustainability and community-based effects of farming—can also be achieved through gender-neutral means. The federal government should pursue select gender-neutral policies alongside gender-based affirmative action programs, as they have the potential to have positive environmental and economic impacts and may still have secondary benefits for women farmers.

The federal government, for example, should set aside additional funding for specialty crops in the Farm Bill. The term “specialty crops” is defined as “fruits and vegetables, tree nuts, dried fruits, horticulture and nursery crops (including floriculture),” a definition which encompasses, for example, blueberries, kale, cucumber, eggplant, and sweet potato but excludes heavily subsidized industrial crops like wheat, corn, and soybeans.[192] Although the most recent Farm Bill set aside $9 million for specialty crops, most federal money still goes toward animal agriculture as well as the production of crops like wheat, corn, and soybeans.[193] The government’s failure to subsidize specialty crops has led to an increase in U.S. imports of agricultural commodities like grapes and cherries over the past two decades, and has hiked up the price of locally produced fruits and vegetables like cherries and asparagus.[194]

Because women are likelier than men to grow specialty crops (even if they remain a minority of the total number of specialty growers), providing additional support to this sector could help combat the gendered wage and wealth gaps in agriculture.[195] From an ecological perspective, farms focusing on specialty crops are generally more sustainable than their industrial counterparts, so supporting them would also be environmentally beneficial.[196] Specialty crops are, for example, less likely to be grown on large tracts of land or using monocropping than industrial commodities, and are therefore less likely to degrade local soil health and water quality.[197] In addition, specialty crops are more likely than industrial crops to be sold at local farmers’ markets or other points of sale nearer to its growing locations, including in urban areas where specialty crops are grown on urban farms or in community gardens.[198] Increasing federal funding for specialty crop growers could improve access to and lower the prices of fresh food in both urban and rural communities that currently suffer from shortages of affordable, healthy produce.[199]

Relatedly, the federal government should leverage the Farm Bill to subsidize production for farmers that sell at farmers’ markets and via community-supported agriculture (CSA) programs. It should also permit recipients of federal food assistance such as Temporary Assistance for Needy Families (TANF) and Women, Infants, and Children (WIC) to purchase produce from these growers.[200] Farmers’ markets are “public and recurring assembl[ies] of farmers or their representatives selling the food that they produced directly to consumers,”[201] and CSAs allow customers to buy local food directly from a farmer; customers purchase a “share” and become a farm “member,” and the farm delivers a box of seasonal goods regularly throughout the season.[202] Producers selling at farmers’ markets or via the CSA model are often producers of organic, specialty crops, and they often sell directly to the consumer rather than relying on large, industrialized agricultural corporations as intermediaries.[203]

Supporting farmers’ markets and CSA programs and ensuring that TANF and WIC recipients can more easily access them would have gendered economic benefits for women farmers and women consumers. Women are more likely than men to participate in farmers’ markets and CSA programs as producers, so increasing sources of revenue for these programs (via both government grants and consumers’ TANF and WIC funds) could help lift women out of poverty and make a small dent in decreasing the gendered wealth and wage gaps in agriculture.[204]

Further, allowing families receiving TANF and WIC benefits to use them at farmers’ markets or CSAs—while simultaneously making farmers’ markets and CSAs more available nationwide—would have public health and food sovereignty benefits. Supporting these programs would increase the prevalence and availability of fresh produce in low-income communities—including in communities sometimes referred to as food deserts, within which residents are often forced to rely on fast food and convenience stores for their food supply.[205] With greater access to farmers’ markets and CSAs, families could more easily choose to purchase healthier foods, which could reduce their risk of developing food-related diseases such as diabetes.[206] And giving communities the opportunity to purchase fresh produce would increase their food sovereignty, defined as their right to “healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agriculture systems.”[207] Farmers’ markets and CSAs would give low-income women increased choice to purchase foods from farmers rooted in their communities rather than relying on multinational corporations, keeping income circulating locally and giving residents back control over their food systems.

Finally, the federal government should allocate funding within the Farm Bill to support beginning farmers, or those with farms less than ten years old. Women are much more likely to operate beginning farms than their established counterparts, in part because they are less likely to inherit family farms or have the start-up capital to invest in legacy industrial farms. Thus, funds for beginning farms would reach more women than funds for industrial farms, potentially chipping away at the gender wage and wealth gap in the farm sector in the process. From an environmental perspective, beginning farms are generally smaller and more likely to be sustainable or certified organic than established farms, so they have fewer negative environmental externalities (such as soil and water pollution from pesticides or methane pollution caused by industrial animal agriculture).[208]

Conclusion

This comprehensive analysis of women’s important role in American agriculture, as well as women’s participation in environmentally friendly and societally beneficial agriculture, highlights the importance of ensuring continued governmental support for women farmers. At the same time, this Note clarifies the ways in which recent federal court decisions concerning affirmative action may make it more difficult for the government to provide this support to women in agriculture.

This Note foregrounds agriculture as a sector where gender-based incentives may be both legally viable and socially and environmentally beneficial, even as their critically important race-based counterparts face intense constitutional scrutiny post-SFFA. However, the constitutional validity of gender-based affirmative action programs is consistent across sectors, meaning that government actors could use many of the strategies described above to design gendered incentive programs able to withstand constitutional challenges in other key economic sectors such as construction and hospitality. As such, further research should closely examine the externalities of gender-based affirmative action programs across a range of economic sectors, as well as federal courts’ practice vis-à-vis the constitutionality of such programs.

By designing constitutionally sound affirmative action programs for women in agriculture, while simultaneously funding gender-neutral programs that have the potential to capture many of the same positive externalities as their gender-based counterparts, the federal government can improve the country’s environmental and economic sustainability and security.

Copyright © 2025 Rachel Mucha, J.D. and Ph.D. Student, University of California, Berkeley, School of Law & Political Science Department. I am extremely grateful to Professor Molly Van Houweling and to the California Law Review team for their efforts to make this piece the best it could be. And of course, thank you to my family and Sam Reiss for their constant support in everything I do.

          [1].     Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 211–13 (2023).

          [2].     Id.; see also Bryn Hines, Will Students for Fair Admissions End Affirmative Action?, Regul. Rev. (Feb. 22, 2024), https://www.theregreview.org/2024/02/22/hines-will-students-for-fair-admissions-end-affirmative-action/ [https://perma.cc/R43T-2P69].

          [3].     Wynn v. Vilsack, 545 F. Supp. 3d 1271, 1275, 1294 (M.D. Fla. 2021).

          [4].     999 F.3d 353, 356–57 (6th Cir. 2021).

          [5].     When this Note uses the term “women” or related terms, it embraces all who identify as women, including transgender women and gender non-conforming people. This Note encourages the federal government to use this inclusive definition when determining eligibility for federal funding directed at women in the agriculture sector.

          [6].     Alexandra Nseir, Honoring Female Farmers and Ranchers This Women’s History Month, USDA (Mar. 15, 2023), https://www.usda.gov/media/blog/2023/03/15/honoring-female-farmers-and-ranchers-womens-history-month [https://perma.cc/3GSC-TLFR]; see also Rachel Sarah, The Fuller Project, ‘Filling in the Gaps’ for Food Access: Women-run Farms Rethink California Agriculture, Guardian (Feb. 15, 2023), https://www.theguardian.com/news/2023/feb/15/california-women-led-farms-food-equity [https://perma.cc/Z6GR-PDUP].

          [7].     Nat’l Agric. Stat. Serv., USDA, 2022 Census of Agriculture Highlights: Female Producers 1 (2024), https://www.nass.usda.gov/Publications/Highlights/2024/Census22_HL_FemaleProducers.pdf [https://perma.cc/L2WP-QMYP].

          [8].     Wava G. Haney & Jane B. Knowles, Introduction: Making the ‘Invisible Farmer’ Visible, in Women and Farming: Changing Roles and Responsibilities 1, 3 (Wava G. Haney & Jane B. Knowles eds. 2021).

          [9].     Id. at 3–4.

        [10].     Id. at 4.

        [11].     Id.

        [12].     Minnie Miller Brown, Black Women in American Agriculture, 50 Agric. Hist. 202, 204 (1976).

        [13].     Id.

        [14].     Id.

        [15].     See Women & The Am. Story, Indigenous Agricultural Innovation, N.Y. Hist. Soc’y, https://wams.nyhistory.org/early-encounters/french-colonies/native-women-and-agriculture [https://perma.cc/XJ39-W2VF].

        [16].     See generally Mary C. Wright, Economic Development and Native American Women in the Early Nineteenth Century, 33 Am. Q. 525 (1981).

        [17].     Kathleen A. Ward, Before and After the White Man: Indian Women, Property, Progress, and Power, 6 Conn. Pub. Int. L.J. 245, 261 (2007).

        [18].     Rickey Gard Diamond, As the U.S. Looks to Revamp the Farm Bill, Women Must Be at the Table, Ms. Mag. (Jan. 18, 2023), https://msmagazine.com/2023/01/18/us-farm-bill-agriculture-women/ [https://perma.cc/CEL4-MEHL].

        [19].     Women and Farm Work, 1790s-1930s, Henry Ford Museum (Oct. 29, 2021), https://www.thehenryford.org/explore/blog/women-and-farm-work-1790s-1930s [https://perma.cc/AK47-AC8E].

        [20].     Haney & Knowles, supra note 8, at 4.

        [21].     Id.

        [22].     Women and Farm Work, 1790s–1930s, supra note 19.

        [23].     Id.

        [24].     Id.

        [25].     Id.

        [26].     See Ryan Reft, World War I: The Women’s Land Army, Libr. Cong. Blogs (Mar. 26, 2018), https://blogs.loc.gov/loc/2018/03/world-war-i-the-womens-land-army/ [https://perma.cc/7C9R-BP38].

        [27].     Id.; see also The Food Riot of 1917, Nat’l Women’s Hist. Museum (June 7, 2013), https://www.womenshistory.org/articles/food-riot-1917 [https://perma.cc/VM9R-VAVW].

        [28].     See Reft, supra note 26; The Food Riot of 1917, supra note 27.

        [29].     See Reft, supra note 26.

        [30].     See id.

        [31].     Id.

        [32].     Id.

        [33].     Ryan Reft, The Women’s Land Army ‘Farmerettes’ for Suffrage During World War I, PBS SoCal (Oct. 13, 2015), https://www.pbssocal.org/history-society/the-womens-land-army-farmettes-for-suffrage-during-world-war-i [https://perma.cc/FK9C-TCTC].

        [34].     Id.

        [35].     Joyce Connolly, “Farmerettes” Feed a Nation, Smithsonian Am. Women’s Hist. Museum, https://womenshistory.si.edu/herstory/public-service/object/farmerettes-feed-nation [https://perma.cc/9LAX-JYAJ].

        [36].     Id.

        [37].     Stephanie Ann Carpenter, “Regular Farm Girl”: The Women’s Land Army in World War II, 71 Agric. Hist. 162, 178 (1997).

        [38].     Id. at 184.

        [39].     Judy Barrett Litoff & David C. Smith, “To the Rescue of the Crops”: The Women’s Land Army During World War II, Nat’l Archives: Prologue Mag. (1993), https://www.archives.gov/publications/prologue/1993/winter/landarmy.html [https://perma.cc/LYZ8-6VH8]; see also Wayne D. Rasmussen, USDA, A History of the Emergency Farm Labor Supply Program 1943–47, at 66 (1951).

        [40].     Rasmussen, supra note 39, at 116.

        [41].     Id. at 116–23.

        [42].     Litoff & Smith, supra note 39.

        [43].     Id.

        [44].     Carpenter, supra note 37, at 181.

        [45].     Carolyn Dimitri, Anne Effland & Neilson Conklin, USDA, The 20th Century Transformation of U.S. Agriculture and Farm Policy 6 (2005).

        [46].     Id. at 2.

        [47].     Id.

        [48].     Judith Z. Kalbacher, USDA Econ. Rsch. Serv., A Profile of Female Farmers in America, at iii (Rural Dev. Rsch. Rep. 45, 1985).

        [49].     Id. at 17.

        [50].     Id. at 2.

        [51].     Id. at 5–6.

        [52].     Id. at 7–8.

        [53].     See Sarah, supra note 6.

        [54].     Nat’l Agric. Stat. Serv., USDA, 2022 Census of Agriculture Highlights: Female Producers 1 (2024), https://www.nass.usda.gov/Publications/Highlights/2024/Census22_HL_FemaleProducers.pdf [https://perma.cc/L2WP-QMYP].

        [55].     Nat’l Agric. Stat. Serv., USDA, 2017 Census of Agriculture Highlights: Female Producers 1 (2019), https://www.nass.usda.gov/Publications/Highlights/2019/2017Census_Female_Producers.pdf [https://perma.cc/NMU7-7XTJ].

        [56].     Nat’l Agric. Stat. Serv., supra note 7, at 1.

        [57].     Sarah, supra note 6.

        [58].     Nat’l Agric. Stat. Serv., supra note 55, at 1.

        [59].     Sarah, supra note 6.

        [60].     Nat’l Agric. Stat. Serv., supra note 7, at 2.

        [61].     Id.

        [62].     See Press Release, Congresswoman Teresa Leger Fernández, Leger Fernández, Kiggans, Pingree, and González-Colón Introduced Bipartisan Women in Agriculture Act (July 14, 2023), https://fernandez.house.gov/media/press-releases/leger-fernandez-kiggans-pingree-and-gonzalez-colon-introduced-bipartisan-women [https://perma.cc/T5TK-8BRN]; see also Dana Cronin, Lack of Female Friendly Farm Tools May Pose Safety Hazard, NPR (Nov. 2, 2020), https://www.npr.org/2020/11/02/930234834/lack-of-female-friendly-farm-tools-may-pose-safety-hazard [https://perma.cc/VX5K-EE4U] (describing numerous safety issues that using farm equipment designed for male bodies poses for women in agriculture).

        [63].     Emily Moon, Women Own Half the Farmland in America. They Don’t Earn Half the Profits, Pac. Standard (May 15, 2019), https://psmag.com/economics/women-own-half-the-farmland-in-america-they-dont-earn-half-the-profits [https://perma.cc/HA2M-P8KT].

        [64].     Nat’l Agric. Stat. Serv., supra note 7, at 2.

        [65].     Id.

        [66].     Id.

        [67].     Press Release, Leger Fernández, supra note 62.

        [68].     Id.

        [69].     Press Release, USDA, Claims Filing Period for Hispanic and Women Farmers and Ranchers Who Claim Past Discrimination at USDA to Open on September 24, 2012 (Sept. 24, 2012), https://www.usda.gov/media/press-releases/2012/09/24/claims-filing-period-hispanic-and-women-farmers-and-ranchers-who [https://perma.cc/3VPD-8BJX].

        [70].     Emily Miller & Tyneshia Griffin, Lending to Farmers of Color and Women: New Report Examines Trends and Barriers, Nat’l Sustainable Agric. Coal.: NSAC’s Blog (Aug. 27, 2019), https://sustainableagriculture.net/blog/gao-report-lending-sdfr/ [https://perma.cc/4RE3-PDJG].

        [71].     Id.

        [72].     Ryanne Pilgeram, Katherine Dentzman & Paul Lewin, Women, Race and Place in US Agriculture, 39 Agric. & Hum. Values 1341, 1345, 1348 (2022).

        [73].     See Nat’l Agric. Stat. Serv., supra note 7, at 2.

        [74].     Pilgeram, Dentzman & Lewin, supra note 72, at 1350.

        [75].     See, e.g., Exec. Order No. 14008, 86 Fed. Reg. 7619 (Jan. 27, 2021), repealed by Exec. Order 14154, 90 Fed. Reg. 8353 (Jan. 20, 2025) (calling for an overall reduction in carbon emissions and describing the Biden Administration’s climate policy agenda). Although the Trump Administration, unlike the Biden Administration, is overtly hostile to policies that aim to reduce greenhouse gas emissions and improve sustainability, these are worthwhile policy goals that future administrations should reconsider. Kalina Gibson, The Trump Administration’s Retreat from Global Climate Leadership, Ctr. for Am. Progress (Jan. 21, 2025). https://www.americanprogress.org/article/the-trump-administrations-retreat-from-global-climate-leadership/ [https://perma.cc/5AB8-A7Y6].

        [76].     Nat’l Agric. Stat. Serv., supra note 7, at 1–2; Becky L. Jacobs & Chelsea C. Jacobs, Sisters in Sustainability: Gender-Driven Agricultural Initiatives Promoting Socioeconomic, Environmental, and Cultural Sustainability, 2018 Eur. Conf. on Sustainability, Energy & Env’t – Off. Conf. Proc. 1, 2.

        [77].     See Nat’l Agric. Stat. Serv., supra note 7, at 2 (demonstrating that female-operated farms are more likely to be smaller); Miller & Griffin, supra note 70; Leo Horrigan, Robert S. Lawrence & Polly Walker, How Sustainable Agriculture Can Address the Environmental and Human Health Harms of Industrial Agriculture, 110 Env’t Health Persps. 445, 447 (2002).

        [78].     Beatrice Maule, Wendong Zhang & Qing Liu, How Gender Affects Successions and Transfers of Iowa Farms, Int’l Farm Transition Network, https://www.farmtransition.org/how-gender-affects-successions-and-transfers-of-iowa-farms/ [https://perma.cc/G6GF-G5KG].

        [79].     Moon, supra note 63.

        [80].     Hani Zainulbhai, Women, More Than Men, Say Climate Change Will Harm Them Personally, Pew Rsch. Ctr. (Dec. 2, 2015), https://www.pewresearch.org/short-reads/2015/12/02/women-more-than-men-say-climate [https://perma.cc/ZJ27-2XGS].

        [81].     Kari Norgaard & Richard York, Gender Equality and State Environmentalism, 19 Gender & Soc’y 506, 509 (2005) (citation omitted).

        [82].     See, e.g., Thomas Dietz, Linda Kalof & Paul C. Stern, Gender, Values, and Environmentalism, 83 Soc. Sci. Q. 353, 361 (2002).

        [83].     See Marc Bain, Studies Show People Think Caring About the Environment Is “Feminine,” Quartz (Sept. 2, 2016), https://qz.com/771309/studies-show-people-think-caring-about-the-environment-is-feminine [https://perma.cc/2HPM-ZAZL].

        [84].     Horrigan, Lawrence & Walker, supra note 77, at 445.

        [85].     Megan Fosha, Women Boost Sustainable Farming in U.S., ShareAmerica (Oct. 13, 2022), https://archive-share.america.gov/women-boost-sustainable-farming-us/index.html [https://perma.cc/VB57-YMLM].

        [86].     Jacobs & Jacobs, supra note 76, at 6.

        [87].     See Cathy Farnworth & Jessica Hutchings, Organic Agriculture and Womens’ Empowerment 1–2 (2009).

        [88].     Jacobs & Jacobs, supra note 76, at 6.

        [89].     Am. Farmland Tr., Women in U.S. Agriculture 2–3, https://farmland.org/wp-content/uploads/2019/04/US-Women-in-Ag-Fact-Sheet.pdf [https://perma.cc/DZ89-H6NJ].

        [90].     See Jacobs & Jacobs, supra note 76, at 4–6.

        [91].     Courtney Lindwall, Industrial Agricultural Pollution 101, NRDC (July 21, 2022), https://www.nrdc.org/stories/industrial-agricultural-pollution-101 [https://perma.cc/Z6Y3-Y6SB].

        [92].     Jacobs & Jacobs, supra note 76, at 5.

        [93].     Id.

        [94].     Sarah, supra note 6.

        [95].     See id.

        [96].     Id.

        [97].     Robin Bleiweis, Diana Boesch & Alexandra Cawthorne Gaines, Ctr. for Am. Progress, The Basic Facts About Women in Poverty 1 (2020), https://www.americanprogress.org/wp-content/uploads/sites/2/2020/08/Women-In-Poverty-UPDATE.pdf [https://perma.cc/98WQ-GG4N].

        [98].     Id. at 2.

        [99].     Id. at 2–3.

      [100].     Id. at 3–4.

      [101].     See id. at 6–7.

      [102].     See generally Sally Rifkin, Cultivating Community: Towards a Black Women-Centered Alternative Food Politic, 13 Wash. U. Undergraduate Rsch. Dig. 36, (2018) (describing Black women’s engagement in community organizing for food justice).

      [103].     See Emma Layman & Nicole Civita, Decolonizing Agriculture in the United States: Centering the Knowledges of Women and People of Color to Support Relational Farming Practices, 39 Agric. & Hum. Values 965, 970–71 (2022).

      [104].     See Sharon H. Chang, Farming for Change: Native Women’s Legacy of Sustainability, S. Seattle Emerald (Nov. 24, 2019), https://southseattleemerald.com/2019/11/24/farming-for-change-native-womens-legacy-of-sustainability/ [https://perma.cc/JF89-54ZK].

      [105].     Farm Serv. Agency, Minority and Women Farmers and Ranchers, USDA, https://www.fsa.usda.gov/programs-and-services/farm-loan-programs/minority-and-women-farmers-and-ranchers/index [https://perma.cc/TB44-K9M2].

      [106].     Id.

      [107].     Id.; see also Farmers.gov, Women Farmers, USDA, https://www.farmers.gov/your-business/women [https://perma.cc/EF77-UZCH].

      [108].     Farm Serv. Agency, supra note 105.

      [109].     Id.

      [110].     Farmers.gov, Inflation Reduction Act Investments in USDA Loan and Conservation Programs, USDA, https://www.farmers.gov/loans/inflation-reduction-investments [https://perma.cc/RZ2Q-SCEN]. The future of Section 22007 under the Trump Administration is uncertain. As of March 2025, the USDA has frozen the disbursement of many grant programs, including those targeted toward organic and sustainable farmers. However, no affirmative decision has been made regarding Section 22007 or similar programs targeting “socially disadvantaged applicants.” Marisa Peñaloza, Black Farmers Among Those Left in Limbo amid Federal Funding Freeze, NPR (Feb. 20, 2025), https://www.npr.org/2025/02/20/nx-s1-5258105/black-farmers-among-those-left-in-limbo-amid-federal-funding-freeze [https://perma.cc/3GHL-AJ9R]; see also Josh Marcus, How Trump Could ‘Dismantle’ Decades of Work to Fix Discrimination Against Black Farmers, Independent (Mar. 17, 2025), https://www.the-independent.com/news/world/americas/trump-usda-black-farmers-dei-b2714105.html [https://perma.cc/D2AQ-56H5].

      [111].     IRA Section 22007- USDA Assistance and Support for Underserved Farmers, Ranchers, and Foresters, Inflation Reduction Act Tracker, https://iratracker.org/programs/ira-section-22007-usda-assistance-and-support-for-underserved-farmers-ranchers-and-foresters/ [https://perma.cc/SBW3-6T5U].

      [112].     Aallyah Wright, USDA Promised Loan Relief, Then Repealed It. Black Farmers Are Fighting Back., Capital B (Mar. 18, 2025), https://capitalbnews.org/black-farmers-usda-debt-relief-loan-lawsuit/ [https://perma.cc/JHX9-5LMG].

      [113].     Farmers.gov, supra note 110.

      [114].     Farm Serv. Agency, supra note 105.

      [115].     Miller & Griffin, supra note 70.

      [116].     Press Release, Leger Fernández, supra note 62.

      [117].     Debt Relief for Black Farmers, U.S. Congresswoman Terri Sewell, https://sewell.house.gov/debt-relief-for-black-farmers [https://perma.cc/4F8J-8EZH].

      [118].     Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).

      [119].     Id. at 348 (Sotomayor, J., dissenting) (quoting the lower court’s decision).

      [120].     Id. at 206–07.

      [121].     Id. at 211.

      [122].     Id. at 214.

      [123].     See id. at 231–32.

      [124].     See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 511 (1989) (holding that a city’s affirmative action contracting program was unconstitutional); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 396 (1978) (arguing that educating Black doctors was necessary to increase provision of medical services to Black communities).

      [125].     See Bakke, 438 U.S. at 265; cf. United States v. Paradise, 480 U.S. 149, 185–86 (1987).

      [126].     480 U.S. at 185–86.

      [127].     Id. at 167 (emphasis added).

      [128].     476 U.S. 267, 274 (1986).

      [129].     Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 207 (2023).

      [130].     When Black Farmers Prevailed: Remembering the Historic Pigford Case, Rural Advancement Found. Int’l-USA (Aug. 13, 2015), https://www.rafiusa.org/blog/tbt-when-black-farmers-prevailed-remembering-the-historic-pigford-case/ [https://perma.cc/J3B8-FNK8]; Paradise, 480 U.S. at 185.

      [131].     When Black Farmers Prevailed: Remembering the Historic Pigford Case, supra note 130.

      [132].     Id.

      [133].     Alan Rappeport & Ana Swanson, Biden Administration Ramps Up Debt Relief Program to Help Black Farmers, N.Y. Times (Mar. 25, 2021), https://www.nytimes.com/2021/03/25/us/politics/biden-debt-relief-black-farmers.html [https://perma.cc/5NG5-U65S] (noting that USDA data indicate that in 1920, the United States had 925,708 Black farmers, making up 14 percent of farmers in the country, whereas by 2017, only 1.7 percent of the nation’s more than two million farms were run by Black producers).

      [134].     C.R. Action Team, USDA, Civil Rights at the United States Department of Agriculture 6 (1997) (“USDA’s painful history of individual and class action lawsuits, court orders, media exposés, numerous Congressional hearings, and reports depicts the Department as a stubborn bureaucracy that refuses to provide equal opportunity to all as the law requires.”).

      [135].     When Black Farmers Prevailed: Remembering the Historic Pigford Case, supra note 130.

      [136].     See Press Release, USDA, Claims Filing Period for Hispanic and Women Farmers and Ranchers Who Claim Past Discrimination at USDA to Open on September 24, 2012 (Sept. 24, 2012), https://www.usda.gov/media/press-releases/2012/09/24/claims-filing-period-hispanic-and-women-farmers-and-ranchers-who [https://perma.cc/3VPD-8BJX]; When Black Farmers Prevailed: Remembering the Historic Pigford Case, supra note 130.

      [137].     See When Black Farmers Prevailed: Remembering the Historic Pigford Case, supra note 130; Ximena Bustillo, In 2022, Black Farmers Were Persistently Left Behind from the USDA’s Loan System, NPR (Feb. 19, 2023), https://www.npr.org/2023/02/19/1156851675/in-2022-black-farmers-were-persistently-left-behind-from-the-usdas-loan-system [https://perma.cc/A6UH-CVDE].

      [138].     American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 1005, 135 Stat. 4, 12; see also Wynn v. Vilsack, 545 F. Supp. 3d 1271, 1275 (M.D. Fla. 2021).

      [139].     Wynn, 545 F. Supp. 3d at 1271.

      [140].     Id.

      [141].     See United States v. Paradise, 480 U.S. 149, 188 (1987) (Powell, J., concurring); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986).

      [142].     See Wynn, 545 F. Supp. 3d at 1277; Faust v. Vilsack, 519 F. Supp. 3d 470, 476 (E.D. Wis. 2021); Miller v. Vilsack, No. 4:21-cv-0595-O, 2021 WL 6129207, at *1 (N.D. Tex. Dec. 8, 2021), rev’d on other grounds, No. 21-11271, 2022 WL 851782 (5th Cir. Mar. 22, 2022).

      [143].     See Wynn, 545 F. Supp. 3d at 1277; Faust, 519 F. Supp. 3d at 476; Miller, 2021 WL 6129207, at *1.

      [144].     Wynn, 545 F. Supp. 3d at 1294.

      [145].     Id. at 1278.

      [146].     Id. at 1281; see also Faust, 519 F. Supp. 3d at 475; Miller, 2021 WL 6129207, at *1.

      [147].     Wynn, 545 F. Supp. 3d at 1278; see also United States v. Paradise, 480 U.S. 149, 174 (1987).

      [148].     Faust, 519 F. Supp. 3d at 476.

      [149].     See, e.g., LDF Issues Statement on Supreme Court’s Decision to Grant Cert in SFFA v. Harvard and SFFA v. UNC, NAACP Legal Def. Fund, (Jan. 24, 2022), https://www.naacpldf.org/press-release/ldf-issues-statement-on-supreme-courts-decision-to-grant-cert-in-sffa-v-harvard-and-sffa-v-unc/ [https://perma.cc/HW2G-ZDAP].

      [150].     See Daniel Cornelius & Steph Tai, Can We Save Our Foodways? The Inflation Reduction Act, Climate Change, and Food Justice, 133 Yale L.J.F. 1053, 1069 (2024).

      [151].     Press Release, Leger Fernández, supra note 62.

      [152].     See United States v. Virginia, 518 U.S. 515, 531–35 (1996).

      [153].     Id.

      [154].     Id. at 531.

      [155].     Id. at 567–68 (Scalia, J., dissenting); see generally, e.g., W. States Paving Co. v. Wash. State Dep’t of Transp., No. C00-5204 RBL, 2006 WL 1734163 (W.D. Wash. June 23, 2006) (applying intermediate scrutiny to a gender classification).

      [156].     Craig v. Boren, 429 U.S. 190, 208–09 (1976).

      [157].     Rostker v. Goldberg, 453 U.S. 57, 57–58 (1981).

      [158].     See, e.g., Vitolo v. Guzman, 999 F.3d 353, 364–65 (6th Cir. 2021).

      [159].     As is often required in the context of race. See discussion infra Part II.

      [160].     430 U.S. 313, 316–18 (1977).

      [161].     Id. at 317.

      [162].     999 F.3d 353 (6th Cir. 2021).

      [163].     Id. at 357.

      [164].     Id.

      [165].     Id. at 364–65; see also Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 730 (1982).

      [166].     Vitolo, 999 F.3d at 364–65; see also Hogan, 458 U.S. at 727–29.

      [167].     Vitolo, 999 F.3d at 365.

      [168].     Id.

      [169].     Id.

      [170].     Id.; see also Wynn v. Vilsack, 545 F. Supp. 3d 1271, 1278 (M.D. Fla. 2021).

      [171].     Califano v. Webster, 430 U.S. 313, 320 (1977); Frontiero v. Richardson, 411 U.S. 677, 684 (1973).

      [172].     See generally W. States Paving Co. v. Wash. State Dep’t of Transp., 407 F.3d 983, 994 (9th Cir. 2005); Massachusetts v. U.S. Dep’t of Health and Hum. Servs., 682 F.3d 1 (1st Cir. 2012) (applying “intensified scrutiny” to a gender classification).

      [173].     W. States, 407 F.3d at 994.

      [174].     See generally id.; Vitolo, 999 F.3d 353.

      [175].     W. States, 407 F.3d at 1002–03; Vitolo, 999 F.3d at 356.

      [176].     Naomi Schoenbaum, Opinion, The Supreme Court Inadvertently Instituted Affirmative Action for White Men, Politico (July 19, 2023), https://www.politico.com/news/magazine/2023/07/19/scotus-affirmative-action-admissions-white-men-00106595 [https://perma.cc/3KEQ-S2L5].

      [177].     See generally, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (holding that the right to abortion care is not protected under the Fourteenth Amendment); Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023) (invalidating affirmative action on the basis of race); see also Jonathan P. Feingold, SFFA v. Harvard: How Affirmative Action Myths Mask White Bonus, 107 Calif. L. Rev. 707 (2019) (highlighting the “White bonus” that white applicants receive compared to Asian applicants in college admissions when race-based affirmative action is in place); Jonathan Zimmerman, Editorial, Who’s Benefitting from Affirmative Action? White Men, Wash. Post (Aug. 12, 2017), https://www.washingtonpost.com/opinions/who-benefits-from-affirmative-action-white-men/2017/08/11/4b56907e-7eab-11e7-a669-b400c5c7e1cc_story.html [https://perma.cc/4N4E-M82C] (“[M]en enjoy affirmative action, vis-à-vis women. And most of the recipients of this assistance are whites, who also receive an advantage when competing head-to-head with Asians.”).

      [178].     Schoenbaum, supra note 176.

      [179].     Id.

      [180].     Id.

      [181].     Id.

      [182].     Id.

      [183].     Miller & Griffin, supra note 70.

      [184].     Bleiweis, Boesch & Cawthorne Gaines, supra note 97.

      [185].     See generally Vitolo v. Guzman, 999 F.3d 353 (6th Cir. 2021).

      [186].     Grace Panetta, Women Farmers Were Discriminated Against. Now They’re Owed Compensation, 19th (Aug. 11, 2023), https://19thnews-org.webpkgcache.com/doc/-/s/19thnews.org/2023/08/women-farmers-usda-discrimination-settlement-money-deadline/ [https://perma.cc/9TUV-62RX]; Love v. Vilsack, 304 F.R.D. 85, 91–92 (D.D.C. 2014).

      [187].     See generally Califano v. Webster, 430 U.S. 313 (1977); Vitolo, 999 F.3d 353.

      [188].     See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 220 (2023).

      [189].     Faust v. Vilsack, 519 F. Supp. 3d 470, 475 (E.D. Wis. 2021); see generally W. States Paving Co. v. Wash. State Dep’t of Transp., 407 F.3d 983 (9th Cir. 2005).

      [190].     See generally W. States, 407 F.3d 983.

      [191].     See generally 999 F.3d 353.

      [192].     Agric. Mktg. Serv., What Is a Specialty Crop?, USDA, https://www.ams.usda.gov/services/grants/scbgp/specialty-crop [https://perma.cc/K9JL-THQ7].

      [193].     Econ. Rsch. Serv., 2018 Farm Bill – Specialty Crops, USDA, https://www.ers.usda.gov/topics/farm-bill/2018-farm-bill/specialty-crops [https://perma.cc/CWP7-VUJK]; Diamond, supra note 18.

      [194].     Diamond, supra note 18; see also Sarah, supra note 6.

      [195].     Sarah, supra note 6.

      [196].     Lindwall, supra note 91.

      [197].     Specialty Crops, Iowa State Univ. Extension & Outreach, https://www.extension.iastate.edu/smallfarms/specialty-crops [https://perma.cc/J9Z9-FJQV].

      [198].     Sean C. Lucan, Andrew R. Maroko, Omar Sanon, Rafael Frias & Clyde B. Schechter, Urban Farmers’ Markets: Accessibility, Offerings, and Produce Variety, Quality, and Price Compared to Nearby Stores, 90 Appetite 23, 26 (2015).

      [199].     See Jim Erickson, Gardens in Detroit Provide Significant Benefits to Residents, U. Rec. (Apr. 4, 2022), https://record.umich.edu/articles/gardens-in-detroit-provide-significant-benefits-to-residents/ [https://perma.cc/NT37-MKXR].

      [200].     The Special Supplemental Nutrition Program for Women, Infants and Children (WIC Program), U.S. Dep’t Agric., https://www.fns.usda.gov/wic/factsheet [https://perma.cc/RE3A-J5GY].

      [201].     What Is a Farmers Market?, Farmers Market Coal., https://farmersmarketcoalition.org/education/qanda/ [https://perma.cc/QF8D-8SR6].

      [202].     CSA, Cmty. All. with Fam. Farmers, https://caff.org/csa/ [https://perma.cc/EC2Q-4T24].

      [203].     Id.

      [204].     See Lydia Oberholtzer, Carolyn Dimitri & Andy Pressman, Nat’l Ctr. For Appropriate Tech., Urban Agriculture in the United States: Baseline Findings of a Nationwide Survey (2016), https://attradev.ncat.org/wp-content/uploads/2022/06/urbanagriculture.pdf [https://perma.cc/4XMT-G4QW].

      [205].     See, e.g., Jack Healy, Farm Country Feeds America. But Just Try Buying Groceries There, N.Y. Times (Nov. 5, 2019), https://www.nytimes.com/2019/11/05/us/rural-farm-market.html [https://perma.cc/P4UJ-4NPH].

      [206].     See id.

      [207].     What Is Food Sovereignty?, Climate Just. All., https://climatejusticealliance.org/workgroup/food-sovereignty [https://perma.cc/G9BY-SHHR] (quoting Declaration of Nyéléni).

      [208].     See Lindwall, supra note 91.