Department of Agriculture Preferences for "Socially Disadvantaged" Groups

(Slip Opinion) Department of Agriculture Preferences for “Socially Disadvantaged” Groups The race- and sex-based preference incorporated into 16 U.S.C. § 590c’s fee-waiver provision violates the Constitution’s guarantee of equal protection. This conclusion is consistent with prior Executive Branch determinations with respect to other race - and sex-based preferences in programs administered by the Department of Agricul- ture. Several other statutory provisions relating to Department of Agriculture programs do not violate the Constitution’s guarantee of equal protection, either because they do not afford preferential treatment of any kind or because they are susceptible of race - and sex-neutral implementation. June 22, 2026 MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF AGRICULTURE Under “our colorblind Constitution,” Allen v. Milligan, 146 S. Ct. 1377, 1380 (2026) (per curiam), “[a]ll citizens are equal before the law,” and “discrimination by the General Government, or by the States, against any citizen because of his race” is anathema, Gibson v. Mississippi, 162 U.S. 565, 591 (1896). Likewise, a government violates “the equal protection principle when a law or official policy denies . . . full citizen- ship stature” based on sex. United States v. Virginia, 518 U.S. 515, 532 (1996) (“VMI”). The Department of Agriculture (“USDA”) administers various assis- tance, grant, loan, and outreach programs that violate these principles of American law. These statutory programs discriminate between bene- ficiaries based on race and sex by awarding special benefits to individu- als from “socially disadvantaged” groups “whose members have been subjected to racial, ethnic, or gender prejudice.” 7 U.S.C. § 2003(e)(1); see also id. § 2279(a)(5)–(6). And by regulation, USDA expressly des- ignates women and certain racial groups, such as “Asians,” “Blacks,” and “Hispanics”—but not whites—to be socially disadvantaged. E.g., 7 C.F.R. § 718.2. You have asked whether such USDA programs violate the Constitu- tion’s equal-protection guarantee and, if so, whether their unconstitu- tional aspects are severable. See Memorandum for T. Elliot Gaiser, As- sistant Attorney General, Office of Legal Counsel, from Tyler Clarkson, 1  50 Op. O.L.C. __ (June 22, 2026) General Counsel, Department of Agriculture, Re: Request to Review the Constitutionality of U.S. Department of Agriculture Programs that Con- fer Preferences Based on Race, Ethnicity, or Sex (Mar. 30, 2026) (“USDA Memo”). Because USDA and DOJ have already concluded that many of these programs are unconstitutional, we will not retread that same ground here. This opinion focuses on USDA programs and policies that the Executive Branch has not yet subjected to constitutional scru- tiny. With one significant exception, we conclude that each remaining program or policy may be administered constitutionally. Our analysis proceeds as follows. Part I provides background on the USDA programs we discuss in the rest of the opinion, including (1) the program established in 16 U.S.C. § 590c, and (2) five other programs, each established under title 7 or title 42 of the U.S. Code. Part II sets forth the legal frameworks for evaluating race- and sex-based classifica- tions and for determining severability. Part III explains why the race- and sex-based preference in 16 U.S.C. § 590c violates equal-protection principles and addresses the severability of that unconstitutional prefer- ence. Part IV explains why the remaining statutory provisions—involv- ing information-gathering and race- and sex-neutral benefits—pass con- stitutional muster. I. During fiscal year 2025, USDA awarded over $24 billion in aid to farmers, including $14 billion in direct payments and indemnities and $10 billion in loans. See USDA, FY 2027 Budget Summary at 22, 24–25, 27 (2026), https://perma.cc/8G76-54E7. Large swaths of USDA’s pro- grams—and billions of dollars in distributed funds—are directed using race- and sex-based preferences. A more detailed description of each program appears in an appendix to this opinion. The programs include: • Direct financial assistance. See, e.g., 7 U.S.C. §§ 1983b (indi- vidual development accounts for qualified expenditures), 7333 (noninsured crop disaster relief), 8111 (payments for bi- omass crop production), 8711 (payments based on farm acre- age), 8752 (same), 9014 (same), 9054 (dairy margin coverage payments), 9081 (supplemental agricultural disaster assis- tance); 16 U.S.C. §§ 2202a (water conservation cost sharing), 3839aa-2 (incentive payments for environment-friendly 2  USDA Preferences for “Socially Disadvantaged” Groups practices), 3844 (incentive payments for participation in con- servation programs); • Loans and loan guarantees. See, e.g., 7 U.S.C. §§ 1924 (con- servation loans and loan guarantees), 1935 (farm down-pay- ment loans), 1936 (loan guarantees for certain contract land sales), 1936c (relending loans to resolve farm ownership), 2008b (farm real estate loans and operating loans); • Grants, either for farmers conducting specified activities or for entities engaging in outreach, education, and training activi- ties for specified groups of farmers. See, e.g., id. §§ 1524 (ag- ricultural management assistance grants), 1627c (local agri- culture market grants), 1932(e) (rural cooperative development grants), 2279 (farming opportunities training and outreach grants), 3157 (food and agricultural sciences grants), 7625 (food-safety training, outreach, and technical- assistance grants); 42 U.S.C. § 1786(m) (farmers’ market nu- trition grants); • Contracts. See, e.g., 7 U.S.C. § 1985 (sale and lease of USDA’s real property); 16 U.S.C. §§ 3831c (contracts to im- prove soil, water, and wildlife resources), 3835 (contracts for soil conservation), 3871e (partnership agreements for conser- vation projects); • Legal rights. See, e.g., 7 U.S.C. § 2000(c)(4)(B) (right of first refusal allowing eligible USDA borrowers to reacquire home- stead property); 16 U.S.C. § 3839aa-2(d)(4)(B)(i) (right to re- ceive portion of incentive payment in advance); and • Representation in administrative bodies. See, e.g., 7 U.S.C. §§ 2279(g) (designating personnel to implement outreach pro- grams), 6712(f) (composition requirements for the Green- house Gas Technical Assistance Provider and Third-Party Verifier Program Advisory Council); 16 U.S.C. § 590h(b)(5) (composition requirements for committees assisting with the Environmental Quality Incentives Program). USDA and the Department of Justice (“DOJ”) have separately deter- mined that many of these programs unconstitutionally “discriminate 3  50 Op. O.L.C. __ (June 22, 2026) based on race or sex.” Letter for Mike Johnson, Speaker, House of Rep- resentatives, from D. John Sauer, Solicitor General, Department of Jus- tice, Re: Race-and Sex-Based Preferences in USDA Programs Under Ti- tles 7 and 16 of the United States Code at 1 (Feb. 9, 2026) (“530D Letter”); see also Removal of Unconstitutional Preferences Based on Race and Sex in Response to Court Ruling, 90 Fed. Reg. 30,555, 30,556– 57 (July 10, 2025). 1 We do not now further opine on the programs that have been previously addressed in the 530D Letter or in USDA’s rule- making, but we include them in our appendix for comprehensiveness and to demonstrate the consistency of our dispositions within the Executive Branch. Of the 36 programs identified in your request, only 6 have not been previously found unconstitutional by the Executive Branch for using race- and sex-based preferences. See USDA Memo att. A. A brief de- scription of those six—and their use of the term “socially disadvan- taged”—follows. 1. USDA administers several conservation programs, including the Environmental Quality Incentives Program and the Conservation Stewardship Program. One of the benefits available under these pro- grams is “technical assistance,” which includes “services provided di- rectly to farmers . . . such as conservation planning, technical consulta- tion, and assistance with design and implementation of conservation practices,” as well as “activities, processes, tools, and agency functions needed to support delivery of technical services, such as technical stand- ards, resource inventories, training, data, technology, monitoring, and effects analyses.” 16 U.S.C. § 590j(2)(B). Under section 590c(4), the Secretary of Agriculture may condition the receipt of conservation- 1 DOJ has determined that the use of race- or sex-based preferences for socially dis- advantaged farmers is unconstitutional with respect to the following statutes and their implementing regulations: 7 U.S.C. §§ 1524(a)(3), 1627c(d)(5)(C), 1627c(i)(3)(A)(ii)(II), 1924(d), 1924(e), 1932(e)(11)(B), 1935(a)(1), 1935(d), 1935(e)(2), 1936, 1936c(b), 1936c(d), 1983b(c)(3), 1985(c), 1985 note, 2000(c)(4)(B), 2003, 2008x, 2279, 2279a, 6712, 6934, 7333(k)(2), 7333(l)(3), 7625(c), 8111(c), 8711(d)(2), 8752(d)(2), 9014(d)(2), 9054(c)(4), 9081(a)(1), 9081(d)(4); 16 U.S.C. §§ 590h, 2202a(b), 3831c(b)(3)(E), 3839aa-2(d)(4), 3841(h), 3871e(d). See 530D Letter at 1–2 & n.1. USDA has rescinded regulations that had implemented such preferences under the authority of 7 U.S.C. § 2008b and 16 U.S.C. §§ 3835 and 3844—among other provisions covered by DOJ’s 530D letter—based on a similar conclusion of unconstitu- tionality. See 90 Fed. Reg. at 30,556–57. 4  USDA Preferences for “Socially Disadvantaged” Groups planning technical assistance on the payment of a reasonable user fee. But she may waive such fees for certain categories of farmers, including “socially disadvantaged farmers . . . (as defined in section 2003(e) of ti- tle 7).” Id. § 590c(4)(C)(iii). Section 2003(e), in turn, defines a “socially disadvantaged” farmer as any farmer belonging to a group “whose mem- bers have been subjected to racial, ethnic, or gender prejudice.” 7 U.S.C. § 2003(e). We understand that USDA does not currently charge a user fee for conservation-planning technical assistance, see 7 C.F.R. pt. 610, but that USDA seeks our opinion on whether it could administer the fee waiver consistently with the Constitution. 2. The Federal Crop Insurance Program authorizes the Secretary to in- sure, through the Federal Crop Insurance Corporation, producers of cer- tain agricultural commodities against losses caused by drought, flood, or other natural disaster. 7 U.S.C. § 1508(a)(1). The Corporation’s Board must regularly review insurance plans and policies to ensure that “un- derserved producers”—a term defined by the statute to include socially disadvantaged farmers or ranchers, among others—are participating in insurance plans at a rate at least 50 percent of the national average par- ticipation rate. Id. § 1508(a)(7)(A), (B). The Board must report the re- sults of this review to relevant congressional committees with recom- mendations on how “to increase participation . . . among underserved producers.” Id. § 1508(a)(7)(C). There is no definition of “socially dis- advantaged farmers or ranchers” given in this section or chapter, and the section does not reference any other statute defining the term. But under the relevant USDA regulations, a person’s status as socially disadvan- taged for purposes of this program hinges on race—though the regula- tions do not specify which racial groups qualify. See 7 C.F.R. § 400.701.2 3. Under 7 U.S.C. § 2204i’s Land Access Reporting Requirements, the Secretary must regularly collect and report data on “trends in farm- land ownership, tenure, transition, barriers to entry, profitability, and 2 USDA’s July 2025 rulemaking revised one regulation relating to the Federal Crop Insurance Program, eliminating the requirement that insurers include information on coverage for socially disadvantaged farmers in submissions under 7 U.S.C. § 1508(h). See 90 Fed. Reg. at 30,558 (revising 7 C.F.R. § 400.705). This revision did not affect or purport to decide the constitutionality of the statutory review and reporting requirements applicable to the Board under section 1508(a)(7), and for that reason we address the question here. 5  50 Op. O.L.C. __ (June 22, 2026) viability” for individuals seeking to become farmers or ranchers (“be- ginning farmers”) and socially disadvantaged farmers or ranchers, in- cluding by surveying these farmers or ranchers. Id. § 2204i(b). The sec- tion refers to a statutory definition of “socially disadvantaged” from elsewhere in title 7 that classifies based on race. Id. § 2204i(a)(1) (refer- encing 7 U.S.C. § 2279(a)). 4. The Outreach and Assistance for Socially Disadvantaged Farmers and Ranchers Program authorizes grants to encourage and assist socially disadvantaged individuals in owning and operating farms. See id. § 2279. DOJ has determined that making grants under this program is unconstitutional but has not opined on the associated data-collection and disclosure requirements found in section 2279-1. See 530D Letter at 1 n.1. Those requirements are intended to “ensure compilation and public disclosure of data to assess and hold the Department of Agriculture ac- countable for the nondiscriminatory participation of socially disadvan- taged farmers and ranchers in programs of the Department.” 7 U.S.C. § 2279-1(a). For every county and state in the United States, the Secre- tary must “annually compile program application and participation rate data regarding socially disadvantaged farmers or ranchers” for each USDA program and make the data publicly available. Id. § 2279-1(c)(1), (3)–(4). Section 2279-1 refers to a statutory definition of “socially dis- advantaged” that classifies based on both race and sex. Id. § 2279-1(b) (referencing 7 U.S.C. § 2003(e)). 5. The Agriculture and Food Research Initiative grants the Secretary authority to “make competitive grants for fundamental and applied re- search, extension, and education to address food and agricultural sci- ences.” Id. § 3157(b)(1). One of the program’s priority areas of research is “barriers and bridges to entry and farm viability” for socially disad- vantaged farmers and ranchers, among others. Id. § 3157(b)(2)(F)(viii). There is no definition of “socially disadvantaged farmers or ranchers” given in this section or chapter, and the section does not reference any other statute defining the term. Neither do applicable USDA regulations define the term. See 7 C.F.R. § 3400.2. 6. Under the Farmers’ Market Nutrition Program, the Secretary must award grants to the states for “the establishment or maintenance of pro- grams designed to provide” access to “fresh, nutritious, unprepared foods at farmers’ markets.” 42 U.S.C. § 1786(m)(1). The Secretary must 6  USDA Preferences for “Socially Disadvantaged” Groups authorize the states to use up to “2 percent of total program funds . . . to promote the development of farmers’ markets in socially or economi- cally disadvantaged areas, or remote rural areas.” Id. § 1786(m)(5)(F)(ii). Neither the statute nor its implementing regulations define “socially or economically disadvantaged areas.” See 7 C.F.R. § 248.2. II. We have recently written at length about the constitutionality of race- based classifications, as well as the severability of statutory provisions calling for unconstitutional classifications. See generally Constitution- ality of Race-Based Department of Education Programs, 49 Op. O.L.C. __ (Dec. 2, 2025) (“Race-Based Education Programs”) (applying Stu- dents for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (“SFFA”)). Our previous advice is directly rele- vant to the race-based element of 16 U.S.C. § 590c and, in many ways, controls our conclusion as to that provision. We begin by summarizing that advice. Next, we articulate the framework for analyzing the consti- tutionality of sex-based classifications. Last, we summarize our recent guidance on severability. A. “[T]he Constitution almost never permits the Federal Government or a State to discriminate on the basis of race.” Louisiana v. Callais, 146 S. Ct. 1131, 1152 (2026). 3 We have recently explained that “[a]ny allo- cation of benefits and burdens based on a person’s race is anathema” to the equal-protection guarantee of the U.S. Constitution. Race-Based Ed- ucation Programs at *2. We traced the history of Supreme Court juris- prudence on “benign” racial classifications, both in the context of “gov- ernment grantmaking” and “affirmative action in college admissions.” Id. at *3; see also id. at *3–5. In the government grantmaking context, the Court recognized over three decades ago that federal programs 3 The Supreme Court has recognized an equal-protection component in the Constitu- tion that binds the federal government. See Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954) (rooting the principle in the Due Process Clause of the Fifth Amendment); United States v. Vaello Madero, 142 S. Ct. 1539, 1544 (2022) (Thomas, J., concurring) (finding “[f]irmer ground . . . in the Fourteenth Amendment’s Citizenship Clause”). 7  50 Op. O.L.C. __ (June 22, 2026) distinguishing based on a beneficiary’s race are always subject to strict scrutiny, under which racial classifications “must serve a compelling governmental interest, and must be narrowly tailored to further that in- terest.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995). In 2023, the SFFA Court applied that logic to university admissions pro- grams and provided further guidance for deciding whether a government interest is “compelling” and whether a classification is “narrowly tai- lored” to achieving it. 143 S. Ct. at 2162 (citations omitted). We distilled this guidance—along with further insight from Supreme Court precedent and our own past advice—in our recent memorandum for the Depart- ment of Education. See Race-Based Education Programs at *5–8. Strict scrutiny runs as follows. Under the compelling-interest prong, “[t]he only interest relevant here is ‘remediating specific, identified in- stances of past discrimination that violated the Constitution or a stat- ute.’” Id. at *6 (quoting SFFA, 143 S. Ct. at 2162). Establishing that in- terest requires “particularized evidentiary findings” of unlawful discrimination “before [the government] embarks on an affirmative-ac- tion program.” Id. at *7 (citation omitted). Then, in determining whether a racial classification is narrowly tailored to achieving such a compelling interest, we consider five factors: (1) whether the measure “amount[s] to a per se unconstitutional quota”; (2) whether the government has at- tempted “workable race-neutral alternatives”; (3) whether the measure has a “definite duration”; (4) whether the measure uses “arbitrary or un- defined” racial categories; and (5) whether the government “has made appropriate steps to minimize the burden on other racial groups.” Id. at *7–8 (citations omitted). Furthermore, “race may never be used as a ‘negative,’” which suggests that “racial classifications are never nar- rowly tailored when the government uses race to allocate a zero-sum benefit.” Id. at *8 (quoting SFFA, 143 S. Ct. at 2168). B. Unlike race, the Constitution “does not make sex a ‘proscribed classi- fication,’” because the sexes are not always similarly situated; there are real biological differences between men and women. United States v. Skrmetti, 145 S. Ct. 1816, 1828 (2025) (citation omitted); see also id. at 1878–79 (Sotomayor, J., dissenting) (“No one disputes that . . . there are ‘biological differences between men and women’” and that “such phys- ical differences” are “one of the reasons why sex is not altogether a 8  USDA Preferences for “Socially Disadvantaged” Groups proscribed classification.” (citation omitted)); Nguyen v. INS, 533 U.S. 53, 63–64 (2001) (holding that government may “take[] into account a biological difference” between the sexes because such differences can render them “not similarly situated”). The Court has thus repeatedly af- firmed that the “‘[i]nherent differences’ between men and women” are “cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” VMI, 518 U.S. at 533. Due to these inherent differences, sex can “represent[] a legitimate, accurate proxy” to pursue permissible legislative ends. Craig v. Boren, 429 U.S. 190, 204 (1976); see also Weinberger v. Wiesenfeld, 420 U.S. 636, 653 (1975); Kahn v. Shevin, 416 U.S. 351, 356 n.10 (1974). Limit- ing the military draft to men, for example, is not an “invidious” classifi- cation, “but rather realistically reflects the fact that the sexes are not similarly situated” for “develop[ing] a pool of potential combat troops.” Rostker v. Goldberg, 453 U.S. 57, 79 (1981). Likewise, laws “separating sexes in some . . . circumstances”—such as in bathrooms, sleeping quar- ters, prisons, and athletics—may be grounded in safety considerations and “a long tradition” of recognizing real biological differences between men and women. Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 801 (11th Cir. 2022); see also, e.g., Bauer v. Lynch, 812 F.3d 340, 350 (4th Cir. 2016) (“Men and women simply are not physiologi- cally the same for the purposes of physical fitness programs.”); Eline v. Town of Ocean City, 7 F.4th 214, 221–22 (4th Cir. 2021) (differential standards for toplessness do not violate equal protection); Women Pris- oners of D.C. Dep’t of Corr. v. District of Columbia, 93 F.3d 910, 926 (D.C. Cir. 1996) (sex-separated prisons do not violate equal protection). But in some cases, sex “provides no sensible ground for differential treatment” by the government. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). “[S]ex-based lines too often reflect ste- reotypes or overbroad generalizations about the differences between men and women.” Skrmetti, 145 S. Ct. at 1828. To avoid reifying these stereotypes, the Supreme Court applies “heightened scrutiny” to statutes and regulations that classify based on sex. Id. Under the heightened- scrutiny standard, the “burden of justification is demanding and it rests entirely on” the government purveyor of a sex-based classification. VMI, 518 U.S. at 533. Specifically, the government “must show at least that the challenged classification serves important governmental objectives 9  50 Op. O.L.C. __ (June 22, 2026) and that the discriminatory means employed are substantially related to the achievement of those objectives.” Id. (cleaned up). “The justification must be genuine, not hypothesized or invented post hoc . . . .” Id. In short, the government’s reason for distinguishing based on sex must be “exceedingly persuasive.” Id. Under this standard, sex-based preferences in government programs will not easily satisfy equal protection’s requirements. “[T]he party de- fending the statute must present sufficient probative evidence in support of its stated rationale for enacting a [sex] preference.” H.B. Rowe Co. v. Tippett, 615 F.3d 233, 242 (4th Cir. 2010) (cleaned up). But “the evi- dentiary basis necessary to demonstrate [an] important governmental in- terest [is] something less than” the particularized evidentiary findings of discrimination required under strict scrutiny. Concrete Works of Colo., Inc. v. City & County of Denver, 321 F.3d 950, 959–60 (10th Cir. 2003); see also Contractors Ass’n of E. Pa., Inc. v. City of Philadelphia, 6 F.3d 990, 1010 (3d Cir. 1993). We have long advised that “mere findings of disparity or underrepresentation are generally not sufficient to establish the constitutionality of a gender-based preference program.” Constitu- tionality of Federal Government Efforts in Contracting with Women- Owned Businesses, 32 Op. O.L.C. 23, 25 (2008) (“Women-Owned Busi- nesses”). Rather, the government must identify “genuine and non-hypo- thetical evidence of discrimination in the economic sphere in which the program will operate.” Id. at 26. As for whether sex-based preferences are “substantially related to the achievement of [important] objectives,” VMI, 518 U.S. at 533 (citation omitted), courts have distilled three factors to consider. First, the scheme must have a “close means-end fit,” meaning that “the gender-based means . . . serve the posited end.” Sessions v. Morales-Santana, 582 U.S. 47, 67–68 (2017); see also Craig, 429 U.S. at 204 (holding that a law against selling alcohol to young men was not substantially related to traf- fic safety because it did not forbid them from drinking alcohol obtained through other means). A pointless sex-based classification does not pass muster. Second, a degree of tailoring—albeit not the narrow tailoring required by strict scrutiny—is needed. Overbreadth can be fatal. See Vi- tolo v. Guzman, 999 F.3d 353, 365 (6th Cir. 2021); accord Orr v. Orr, 440 U.S. 268, 282–83 (1979) (“A [sex]-based classification which . . . generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny.”). Third, the existence of sex- 10  USDA Preferences for “Socially Disadvantaged” Groups neutral alternatives for achieving the desired end may render a sex-based distinction impermissible. See Morales-Santana, 582 U.S. at 63 n.13 (noting that the Court “reject[s] measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn”); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151 (1980) (invalidating a law preferencing widows over widowers because the needs of each group “would be completely served either by paying ben- efits to all members of both classes or by paying benefits only to those members of either class who can demonstrate their need”). C. Our recent memorandum for the Department of Education also offered guidance on whether an unconstitutional provision may be severed from its broader statutory scheme. See Race-Based Education Programs at *13–16. We acknowledged that an unconstitutional provision is pre- sumptively severable from the rest of the statute to which it belongs while also explaining that the presumption “is overcome either where a statute is not ‘capable of functioning independently’ without the uncon- stitutional provisions or where the statute would not ‘function in a man- ner consistent with the intent of Congress.’” Id. at *14 (citations omit- ted). “[M]indful of the separation-of-powers considerations inherent” in severability questions, we advised severance only where it would not require the Executive Branch to “assume the legislative function” by re- writing a statute to make it workable. Id. at *15 (alteration accepted) (quoting Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 692 (2012) (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting)). III. We now apply these legal standards to USDA’s race- and sex- based preference for “socially disadvantaged farmers or ranchers” in providing conservation-planning technical assistance. See 16 U.S.C. § 590c(4)(C)(iii). Recall that under this provision, the Secretary may waive fees that would otherwise be charged for conservation-plan- ning technical assistance. Id. The waiver provision incorporates the def- inition of socially disadvantaged farmers from 7 U.S.C. § 2003(e), which expressly tethers social disadvantage to a farmer’s “identity” as an individual belonging to “a group whose members have been subjected 11  50 Op. O.L.C. __ (June 22, 2026) to racial, ethnic, or gender prejudice.” Because the statute makes waiver availability dependent on race or sex, strict and heightened scrutiny, re- spectively, apply. Before turning to that analysis, we confront two threshold arguments. First, some might argue that “socially disadvantaged”—as defined in 7 U.S.C. § 2003(e)(1)—does not classify based on race or sex but rather on membership in a group that has historically faced “prejudice” because of race or sex. Id. Perhaps that classification is formally neutral, albeit race- and sex-conscious; it might “permit individuals of any race [or sex] to be considered ‘socially disadvantaged,’” provided they demonstrate that their race or sex has experienced a history of prejudice. Rothe Dev., Inc. v. U.S. Dep’t of Def., 836 F.3d 57, 64 (D.C. Cir. 2016) (considering the Small Business Administration’s preference for “socially disadvan- taged” applicants to its 8(a) program); W. States Paving Co. v. Wash. State Dep’t of Transp., 407 F.3d 983, 988 (9th Cir. 2005) (In the Trans- portation Equity Act for the 21st Century, Pub. L. No. 105-178, 112 Stat. 107 (1998), “the term ‘socially and economically disadvantaged’ is race- and sex-neutral on its face.” (citation omitted)). After all, the mere fact that a race- or sex-neutral distinction may “disproportionate[ly]” favor farmers of certain races or sexes does not necessarily mean it classifies based on race or sex and triggers increased scrutiny. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 526 (1989) (Scalia, J., concurring in the judgment); see also Skrmetti, 145 S. Ct. at 1833 (applying Geduldig v. Aiello, 417 U.S. 484 (1974)). But that argument is wrong. Section 590c—along with other provi- sions that share its definition of social disadvantage—classifies based on race and sex because its preference hinges on membership in groups deemed disadvantaged. It links benefit eligibility to a farmer’s “mem- ber[ship] [in] a socially disadvantaged group,” which depends on shared “racial, ethnic, or gender . . . identity.” 7 U.S.C. § 2003(e). That classi- fication scheme does not exclusively focus on race- or sex-neutral crite- ria like “an individual applicant’s experience of discrimination.” Rothe, 836 F.3d at 64. Rather, it necessarily “group[s] together” all farmers be- longing to certain races or sexes. SFFA, 143 S. Ct. at 2167. To imple- ment the statute’s waiver provision, USDA must make determinations about whether groups have faced prejudice or bias, not individuals. Once that determination is made, any member of the group qualifies for pref- erential treatment—irrespective of whether the individual has personally 12  USDA Preferences for “Socially Disadvantaged” Groups experienced prejudice or bias based on his or her membership in that group. Contrast Rothe, 836 F.3d at 64 (“On its face, section 637(a)(5) envisions an individual-based approach that focuses on experience rather than on a group characteristic.”).4 Congress’s “message is clear—groups suffer discrimination and therefore persons who are members of those groups are socially disadvantaged.” Id. at 76 (Henderson, J., concurring in part and dissenting in part). When a statute uses a race- or sex-based criterion (membership in a racial group or sex) plus a race- and sex-neutral criterion (the group has suffered past prejudice), that combined standard remains a race- or sex-based classification. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam) (holding that sex, considered in conjunc- tion with a second characteristic, can delineate a protected group). Thus, social disadvantage for the USDA is “defined by . . . the farmer’s race” or, as the case may be, sex. Black Farmers & Agriculturalists Ass’n v. Rollins, 154 F.4th 473, 475 (6th Cir. 2025). Any “group classification” that divides individuals along racial lines to treat some racial groups preferentially is constitutionally suspect. Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (citation omitted). And when “the race, not the person, dictates” eligibility for favorable treatment by the government, strict scrutiny applies. Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Likewise, preferential treatment based purely on sex triggers heightened scrutiny. VMI, 518 U.S. at 532–33. As a result, the statutory definition itself guarantees that farmers be- longing to some racial and sex groups will be eligible for a fee waiver while others will not. After all, disadvantage is a relative concept. See Webster’s Third New International Dictionary 643 (1993 ed.) (defining “disadvantage” as “an unfavorable, inferior, or prejudicial condition”); see also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 589 (2004) (analyzing congressional findings about the “‘disadvantage of older persons’ . . . ‘relative to the younger ages’” in employment (cita- tions omitted)). Farmers belonging to at least one racial group—the one 4 As Rothe attests, the analysis would be different if the statute permitted a construc- tion under which anyone could apply for the benefit (irrespective of race or sex) and social disadvantage were keyed to the applicant’s individual experience of racial or sex- based prejudice. Such an “individual-based approach” could be race- and sex-neutral because “victims of discrimination do not comprise a racial or ethnic [or sex] group.” 836 F.3d at 64. 13  50 Op. O.L.C. __ (June 22, 2026) deemed to be most socially advantaged—will be categorically ineligible for the waiver available to socially disadvantaged farmers, purely be- cause of their race. So, too, with sex. Although USDA regulations do not currently implement section 590c’s waiver provision—because the Sec- retary has elected not to charge a fee for technical assistance at all—the regulations bear out the implication that not all races or sexes can be socially disadvantaged. They expressly exclude white and male farmers from the list of socially disadvantaged groups. See, e.g., 7 C.F.R. § 718.2. The regulations evince what the statute requires: that at least some farmers be excluded from benefits based on the race or sex to which those farmers belong. Because USDA cannot, under the statutory definition provided by Congress, classify all racial groups or both sexes as socially disadvantaged, section 590c is necessarily race- and sex- based and must therefore survive strict and heightened scrutiny, respec- tively. Congress cannot shield its racially and sexually discriminatory scheme from scrutiny merely by punting to USDA the designation of which race- or sex-based groups receive special favor. Second, “considerations of constitutional avoidance might counsel in favor of a narrowing construction” of the term socially disadvantaged. Feliciano v. Dep’t of Transp., 145 S. Ct. 1284, 1296 n.6 (2025). A plau- sible alternative interpretation that disregards race and sex might avoid the equal-protection problem. But the canon of constitutional avoidance applies only “when statutory language is susceptible of multiple inter- pretations”; it cannot be used to “rewrite” a statute. Jennings v. Rodri- guez, 583 U.S. 281, 286 (2018). “Constitutional avoidance is not a li- cense to rewrite Congress’s work to say whatever the Constitution needs it to say in a given situation.” Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2207 (2020). Here, the statutory definition of “socially disadvantaged” is clear. A farmer falls under its umbrella by belonging to a “group” that shares a “racial, ethnic, or gender . . . identity.” 7 U.S.C. § 2003(e)(1). Congress contemplated no other characteristic by which a farmer could demonstrate social disadvantage. Because the text is clear, we cannot disregard its classification to give the statute a saving construction. If we implausibly interpreted “socially disadvantaged” as necessarily including every race or both sexes, even more problems would arise. The resulting reading would be inconsistent with the relative nature of “dis- advantage” explained above. And it would make a hash of the statutory schemes by extending the fee waiver reserved for socially disadvantaged 14  USDA Preferences for “Socially Disadvantaged” Groups farmers to all farmers—an outcome Congress obviously did not contem- plate. If all farmers were eligible for the fee waiver under the “socially disadvantaged” label, then there would be no need to authorize a fee waiver for them; the Secretary could simply exercise his discretion under the statute not to impose a fee for technical assistance. This saving in- terpretation of “socially disadvantaged farmers” would thus be incon- sistent with “the statutory text and structure” of section 590c. See Seila Law, 140 S. Ct. at 2207. The constitutional issue here is unavoidable. We therefore evaluate whether the race- and sex-based preference in section 590c can survive strict and heightened scrutiny, respectively, and whether, if unconstitutional, this preference is severable from the rest of the fee provision. We begin with the race-based component, concluding that it is unconstitutional but severable—a conclusion that agrees with USDA’s and DOJ’s previous analysis. We then consider the sex-based component and draw the same conclusion. A. 1. We begin by asking whether the only relevant interest that is suffi- ciently compelling to justify racial preferences—“remediating specific, identified instances of past discrimination that violated the Constitution or a statute,” SFFA, 143 S. Ct. at 2162—is present in the context of the fee waiver under section 590c. We conclude that it is not. It is Congress’s burden, before enacting race-based classifications, to identify “a ‘strong basis in evidence’ to conclude that remedial action was necessary.” Wis. Legislature v. Wis. Elections Comm’n, 142 S. Ct. 1245, 1249–50 (2022) (emphasis and citation omitted); accord Race- Based Education Programs at *6–7. Congress did not do so with respect to any of the programs or policies under consideration. Generally, we look for “particularized evidentiary findings” in the relevant legislation to determine that an interest in remedying past discrimination is compel- ling. Id. at *7. In none of the statutes covering USDA’s race-based pro- grams has Congress included even a single enacted finding relating to racial discrimination in agriculture—much less a finding that such 15  50 Op. O.L.C. __ (June 22, 2026) discrimination “violated the Constitution or a statute.” SFFA, 143 S. Ct. at 2162.5 Outside of enacted legislative findings, courts have occasionally “probe[d] more deeply into the legislative history” to see whether there is evidence of specific episodes of discrimination. Adarand Construc- tors, Inc. v. Slater, 228 F.3d 1147, 1167 (1