ADPF 186 (Arguição de Descumprimento de Preceito Fundamental n. 186)
Petition filed by the Democratas Political Party, challenging the constitutionality of University of Brasilia internal regulations, establishing a racially-based quota system. De facto equality. Reasonability. Proportionality. Racial equality in education.
The Brazilian Federal Supreme Court unanimously decided to uphold the constitutionality of racial quotas in University admission processes, in order to create a diverse academic environment, to overcome a history of racial discrimination in Brazil, and to promote the principle of de facto equality as applied to racial discrimination in education. In addition, the Court addressed issues of proportionality and reasonability as criteria to assess the constitutionality of policies aimed at achieving racial equality. The Court understood proportionality as proportionality between the means selected and the goals sought, and reasonability as reasonability of means and ends. The Court also clarified that there should be periodic assessments of results achieved through affirmative action programs and that such programs should be temporary. The Court made reference to the definition of affirmative action adopted on article 2, II, of the Convention on the Elimination of All Forms of Racial Discrimination. It also highlighted the constitutional principles of merit and equality (articles 1°, 5°, XLII, 206 and 208), which should be interpreted from the perspective of de facto inequality and racial exclusion in education. Finally, the Court stressed that affirmative action programs are explicitly accepted by the Constitution for persons with disabilities (article 37, VIII).
Keywords: ADPF 186 (Arguição de Descumprimento de Preceito Fundamental n. 186), Education, Rights
The Court decision has the immediate result of confirming the constitutionality of the affirmative action program adopted by the University of Brasilia, a public university located in the capital of Brazil. Moreover, as this was an objective/abstract process of constitutionality review, which assessed whether or not “quotas for blacks in public universities” were constitutional, the Supreme Court decision also had the broader result of confirming in principle the constitutionality of racially-based affirmative action programs adopted by other universities in Brazil.
Conectas Human Rights (Brazil)
In 2000, Afro-Brazilians were more than 50% of the Brazilian population but less than 20% of university students The Supreme Court decision might contribute to changing that picture. The decision breaks, moreover, with the eighty-years-old myth of racial democracy, that is, the false belief that Brazil’s inter-racial relationships and resistance to racialism led to racial equality, and it replaces it with a clearer principle of material or substantive equality and a stronger interpretation of the constitutional right to education. The Court also clarifies the principles through which institutional measures to achieve racial equality should be analyzed: the principles of reasonability and proportionality. Finally, the decision practically assures that more than fifty public Brazilian universities that have already adopted affirmative action programs keep those programs. As stressed by the Justice in the case, public universities are the “major educational institutions responsible for forming the Brazilian elite”. The impact of the decision might, therefore, extend beyond the field of education, fostering racial diversity in social positions of power.