In a groundbreaking decision, the Supreme Federal Tribunal of Brazil, Brazil’s highest court, unanimously ruled that the race quotas used in public universities are constitutional. The Tribunal issued its decision in April 2012 after two days of deliberation following a hotly contested debate that challenged the Brazilian ideal of “racial democracy.” With this ruling in place, Brazilian lawmakers have ushered in affirmative action laws aimed at combating discrimination and educating the historically marginalized Afro-Brazilian population. Proponents view this expansive move as the foundation for the possibility to broaden opportunities for minorities in Brazil.
The ruling arose from Ação do DEM vs. cotas da UNB e no Brasil (Action of Brazil’s Democratic Party v. Quotas of the UNB and in Brazil), the case brought by Democratas (Brazil’s Democratic Party (DEM)) against the Universidade de Brasilia (University of Brasilia (UNB)), which reserves twenty percent of its enrollment spots for Afro-Brazilian, mixed-race, and indigenous students. The DEM argued that the policy was unconstitutional under Article 5 of the Brazilian Constitution, which protects equality for all citizens regardless of race. The Tribunal rejected DEM’s claim, finding the quotas to be the best method to remedy the racial inequalities that were never confronted after the abolition of slavery in 1888. The Tribunal held that racial quotas are the best transitory option to close the inequality gap in the realm of higher education. This gap is a major issue, as a majority of Afro-Brazilians continue to live in favelas and earn a fraction of the salaries enjoyed by the predominately Caucasian upper class.
On August 29, 2012, President Dilma Rouseff signed the Lei de Cotas (Law of Social Quotas). This law gives all federal universities four years to ensure that half of their incoming class comes from public schools. The spots reserved for marginalized students will be in accordance to the percentage of the minority population in the state where each public university is located.
Proponents of the university policy hail the legal victory as one of the many steps needed to ensure that the marginalized populations, particularly Afro-Brazilians, gain access to adequate education and advanced job placement. Afro-Brazilians constitute around seventy percent of those that live below the poverty line and only 2.2% access higher education. Much of the Afro-Brazilian population remains in the lower echelons of the socio-economic sectors of the country and receive poor education in public primary schools.
Opponents of racial quotas view the policy as a racial remedy for a socio-economic issue. Critics believe that categorizing the population by race will create a fractionalization of Brazilians along racial lines and could result in officializing racial discrimination. Some see the quotas as reverse racism that directly violates the Brazilian Constitution by favoring Afro-Brazilian students in the highly competitive selection process for public universities, while others view the racial quotas as an imported solution from the United States that is incompatible with Brazilian race relations. These opponents maintain a staunch ideal of “racial democracy,” or the idea that Brazil’s racial classes were never clearly defined.
With the ruling of the Supreme Tribunal of Brazil and the subsequent Law of Social Quotas, Brazil has taken fundamental steps to adhere to its obligations under the 1960 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention against Discrimination in Education. Brazil’s policy is in accordance with Article 1, Sections (a) and (b) of the Convention, which call on States Parties to eliminate educational discrimination that deprives citizens’ access to higher education. By implementing a national policy that promotes more equality in educational opportunities, Brazil has pursued an effective method of reform that is recommended in Article 4 of the Convention.
In accordance with its obligations under Article 1, Section 4 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), Brazil has a responsibility to secure the advancement of a racial group that may require protection to ensure a fundamental human right. The CERD protects Brazil’s reforms because once the intended goals are achieved they will not favor Afro-Brazilians as critics of the policy suggest. These measures can also be incorporated in social, educational and economic fields so that all marginalized populations can enjoy equal access to a fundamental human right.
Race will not be the primary factor in determining access to higher education, but rather a factor taken into consideration, which complies with Article 13, Section 2(c) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Brazil’s policy enables universities to serve the most vulnerable groups without discrimination. Rather than maintaining a status quo that harmed a massive segment of its population, Brazil’s policy provides widespread access to the human right of education, which is required under the Covenant.
These efforts to expand higher education for marginalized Brazilians coincide with Brazil’s international obligations. The race quota policy does not violate, but rather legitimately protects human rights afforded to all citizens, and will be crucial in ensuring Brazil’s continued growth as a global power.