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Affirmative Action: A Tale of Two Supreme Courts

Brazil is giving meaning to the notion that fighting discrimination is a priority, assuring that education is a universal human right.

As the fate of affirmative action policies in the nation’s universities hangs in the balance with the US Supreme Court, the Brazilian government, backed by its own highest court, has enacted the most sweeping higher education admissions legislation in the Western Hemisphere.

While the Democratic National Convention eschewed any mention of poverty, poor people, inequality, classism or racism for fear they might anger and enrage their opposition and the so-called “independent voters,” The New York Times has reported that the Brazilian government recently enacted one of the most far-reaching, significant and – by far the largest – affirmative action laws in the entire Western Hemisphere. This is truly astounding.

The Stanford Encyclopedia of Philosophy defines affirmative action as:

Positive steps taken to increase the representation of women and minorities in areas of employment, education and business from which they have been historically excluded. When those steps involve preferential selection – selection on the basis of race, gender or ethnicity – affirmative action generates intense controversy.

Unlike in the United States, where affirmative action has been the topic of hostile controversy and the subject of continuing legal attacks, The New York Times reports the majority of Brazilian politicians and institutions favor the use of affirmative action policies and quotas to address racism and inequality in their nation’s educational system. In fact, the Supreme Court in Brazil has a clear history of consistently ruling in favor of affirmative action.

Brazil has more citizens of African ancestry than any other nation in the world, save Nigeria. Fifty-one percent of Brazil’s 192 million people are black or of mixed-race and a 2004 study by the Federal University of Rio de Janeiro found that the income gap between whites and blacks in Brazil was wider than in apartheid-era South Africa.

Legal and Political Support

The new Brazilian law, known as the Law of Social Quotas, passed resoundingly through the legislature on August 29, 2012 and will now require prestigious public universities in the nation to reserve half of their admissions for the largely poor high school graduates of public schools, and increase the number of university students of African descent throughout the entire nation.

Unlike in the US, public universities in Brazil are heavily subsidized and cost little to attend. However, mirroring their North American counterpart, the predatory private colleges and universities in Brazil, much like the notorious sub-prime Kaplan University in the US, are much more expensive and, in general, less academically respected.

Speaking back in 2008, Edson Santos, Brazil’s Minister of Racial Equality, said that the fight against slavery:

… was one of Brazil’s most beautiful struggles ever, but it didn’t include measures to ensure the civil rights of the black population. Blacks left the slave quarters to live in the slums.

This might all be changing as Brazilian legal experts and policy makers are hoping the newly-passed affirmative action law will begin to help reverse the legacy of slavery and racism that has historically excluded the black population from universal, higher education opportunities.

The legal controversy started in 2005, when the Brazilian government created a federal program to provide scholarships to hundreds of thousands of black and mixed-race students for university studies at over 1000 Brazilian public universities. The law was called ProUni. The constitutionality of the law was challenged after its passage by the right-of-center party, The Brazilian Democrats. The Brazilian Supreme Court finally weighed in on the case on May 3, 2012, and voted 7 to 1 to uphold the 2005 federal program.

There is no doubt that the Brazilian ProUni affirmative action scholarship program for black, mixed race, indigenous and poor students has benefited them greatly. Since its passage in 2005, 919,000 Brazilians have been recipients of the ProUni scholarships. Without funds from the program these students would be unable to attend public post-secondary institutions in Brazil.

Felipe Nunes, a 22-year-old student who attends the Universidade Paulista in Sao Paulo, Brazil candidly told reporters at The Grio, a Brazilian online paper:

If I didn’t have the scholarship, I wouldn’t be here. It pays my entire tuition.

In the week leading up to the Brazilian May 2012 high court ruling upholding the 2005 federal scholarship program, the court, in a separate case, set the table for its subsequent ruling declaring it was constitutional in general for universities to use racial quotas in determining who gains admission to universities. (ibid).

All of these recent legal decisions came about as a result of the Brazilian Supreme Court’s verdict earlier in April of this year, which reaffirmed the country’s commitment to affirmative action by unanimously approving the continued use of racial quotas in the University of Brasilia in a 10-0 vote.

Even though the newly passed Law of Social Quotas is expected to face legal challenges in the future, the latest edict has broad support among Brazilian policy makers. Of Brazil’s 81 senators, for example:

only one voted against the law this month …

The Law of Social Quotas doubles down on previous affirmative action policies adopted in Brazil for it not only adopts affirmative action in theory, but it gives Brazil’s 59 federal universities just four years to ensure that half of the entering class comes from public schools.

The law now also obligates public universities to assign student access in accordance with the racial makeup of each of Brazil’s 26 states and the capital, Brasília.

Luiza Bairros, the minister in charge of Brazil’s Secretariat for Policies to Promote Racial Equality, stated that as a result of the new law officials expected the number of black students admitted to these universities to climb to a staggering 56,000 from just 8,700.

The Brazilian newspaper, Globo, calculated that the law would result in a whopping 128 percent increase in the number of places in Rio de Janeiro’s four public federal universities set aside for students of African or indigenous descent.

However, due to the geographical stratification of races in Brazil, even though states with large black or mixed-race populations – like Bahia in the northeast – could see an outpouring in black university student attendance as a result of the law, those states in southern Brazil which are largely white, probably will still see relatively few black students attending public universities.

Opposition to the Law

The debate over the new law is not unlike that which has plagued the US for decades as a result of its own legacy of slavery, Jim Crow and racism. Those in Brazil who support the new law of quotas argue that the use of scholarships, quotas and other policies directed at assuring that more blacks and mixed-race Brazilians enter into universities is the correct social policy to rectify the historical crimes of slavery, the centuries of harsh and brutish economic and social inequality and are essential to change a society in which whites are overwhelmingly in leadership roles in government and business.

Those opposed to affirmative action in Brazil disagree with the new law just as vehemently as those in the US disagree with affirmative action – and for many of the same reasons.

Frei David Santos, 60, a Franciscan friar in Sao Paulo who directs Educafro, an organization preparing black and low-income students for university entrance exams, adamantly argues that:

With these quotas, these rich Brazilians who took up their spots will not be abandoned. Their parents who had money saved will spend it on elite private universities.

He essentially put forth a thinly-veiled threat that the new law would force privileged white Brazilians to attend more elite universities, thus exacerbating class divisions. Similar arguments against affirmative action in the US abound.

Another opponent of the law, and the only lawmaker to vote against it, Senator Aloysio Nunes Ferreira, told The Associated Press that the new Brazilian law:

… straitjackets universities because it violates their management autonomy.

Jorge Werthein, who directs the Brazilian Center for Latin American Studies disagrees with opponents of the law, noting that:

Brazil owes a historical debt to a huge part of its own population. The democratization of higher education, which has always been a dream for the most neglected students in public schools, is one way of paying this debt.

Joaquim Barbosa, the only black judge on Brazil’s highest court, agreed with Werthein and pointed to US President Barack Obama as a successful example of affirmative action policies in the US that he said Brazil should emulate. He might have also thrown in Clarence Thomas, one of the most reactionary members of the US Supreme court, who can be counted on to overrule a current Texas University’s affirmative action program.

The US Post-Racial Society and the New Jim Crow

Democrats in the US like to speak of a “post racial” society when the actual reality is that the US is in the midst of a brutal and pernicious reawakening of Jim Crow ( with the suppression of minority voters exposing just one ugly feature of hyperbolic US racism, the caging-for-profit of black and brown people provide another attribute. And in a further telling statistic, in the United States, the median household net worth for whites is 22 times as high as it is for blacks.

In the United States, the Obama administration is struggling with similar issues that the Brazilian courts have when it comes to affirmative action and the use of race in admissions to universities. This month the Supreme Court heard arguments in Fisher v. University of Texas at Austin. In this case, a rejected white applicant to the University of Texas challenged the admissions practices of the college, which include race as a factor.

At the heart of the underlying lawsuit is whether the University of Texas at Austin violated the equal protection clause of the 14th Amendment by considering race as a factor when they decide which student applicants are accepted or rejected from admission. Critics of affirmative action in the case argue Texas’s “race-based” policy for student admission violates the constitutional requirement that any use of race as a factor in admissions must be “narrowly focused.”

The legal critics say the goal of achieving a critical bulk of minority students in every classroom would open the door to the perpetual and ever-expanding use of race in college admissions in violation of the 14th Amendment.

Reactionaries seeking to abolish all affirmative action, in this case in college and university admissions, are hoping the Supreme Court will overturn the seminal case of Grutter v. Bollinger. Here, in a 2003 case the Supreme Court ruled race could play a limited role in the admission policies of universities. If the court uses the Fisher case to overrule Grutter it could spell the end of affirmative action policies in admissions at US public universities.

As a result of the gravity of the issue, in August of this year the Obama administration implored the Supreme Court to continue to allow universities in the US to take race into account when assembling their student bodies. Obama argued that the government has a “vital interest” in drawing its leaders from a diverse pool of college graduates. This is the same argument made in Brazil.


While Brazil is acknowledging and attempting to pay historical debts to members of its population that have been the most vulnerable, the most exploited, disenfranchised and least able to avail themselves of educational opportunities due to the criminal legacies of slavery and racism, the United States is either busy supporting public policies that are forcing their poor and minority students into debt purgatory to obtain access to educational opportunities, or simply denying them an education due to the intentional lack of public funding for public education and the consequent lack of available, affordable classes for all students.

Here in the United States, with affirmative action in the rifle sights of one of the most extremist Supreme Courts in American history, the United States may soon show the world once again its penchant for historical retrenchment over historical progress when the Supreme Court decides the case of Fisher v. The University of Texas. That would be tragic, but hardly surprising.

Meanwhile we can rejoice in the good news that Brazil is giving meaning to the notion that fighting racism and discrimination is a nationwide and indeed a global priority designed to help wipe out centuries of historical injustice by assuring that education is a human right, universally available and affordable for all students, regardless of race, creed or color.

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