Brazil's Supreme Court Upholds the Use of Affirmative Action in Higher Education

London, 18 May 2012

In two separate recent judgments, Brazil's Supreme Court has ruled on the constitutionality of two higher education affirmative action programmes. The first case (Racial Quotas Case) concerned the use of racial quotas for black, mixed-race and indigenous students in university admissions. The second case (Pro Uni Case) concerned the provision of scholarships to disadvantaged students in private universities. Although Afro-Brazilians make up over 60% of students in primary and secondary education, they are under-represented in higher education, where they make up less than 40% of the student population.

The Racial Quotas Case - ADPF 186
On 26 April, the Federal Supreme Court of Brazil unanimously confirmed the constitutionality of the use of racial quotas as a determinant in the student admission process at University of Brasília (UnB). ADPF 186 had been filed by the Democratas Party (DEM), which argued that the quota system violated several fundamental principles of the Federal Constitution- notably the principles of human dignity and equality, the elimination of racism and provisions for universal access to education.

The Court determined that the racial quotas adopted by UnB were designed to create a plural and diverse academic environment and overcome historical social disadvantage and racial inequality, and that they were proportionate, reasonable and temporary. The case was unanimously decided by the Court with a vote of 10-0.

During the session, the Ministers (the title given to Supreme Court Judges in Brazil) stated that the quotas were compatible with the Constitution, and specifically with Article 3, on the establishment of a free, fair and united society and the eradication of social marginalisation and inequality. The Ministers also stated that the quotas satisfy the state's responsibility to ensure access to higher education according to one’s capability, and that the Constitution requires reparation of past losses imposed on Afro-Brazilian people. Ministers stated that affirmative action policies are an important duty and social responsibility of the State in order to realise the principle of equality. 

Judge-rapporteur, Minister Ricardo Lewandowski concluded that “the affirmative policy adopted by the University of Brasilia does not seem to be disproportionate or non-reasonable, and seems also to be compatible with the values and principles of the Constitution”.   

The ProUni Case - ADI 3330
On 3 May, the Federal Supreme Court confirmed the constitutionality of the University for All Program (ProUni), which provides scholarships for students from low-income families at private universities. ProUni reserves quotas of these scholarships for Afro-descendants, indigenous people and persons with disabilities. ADI 3330 had been filed by the National Confederation of Educational Institutions (Confenen), which challenged the constitutionality of Provisional Measure No. 213/04, which was converted into Law No. 11.096/2005, establishing ProUni. ADI 3314, which had been filed by the Democratas Party (DEM) and concerned the same issue, was joined to ADI 3330.

The petitioners claimed that Law No. 11.096/2005 breached Article 62 of the Constitution, and thus the separation of powers established in Article 2, by allowing the Chief Executive to authorise the use of special measures in the absence of a state of necessity. They also claimed that the law violated Articles 146, II and 195, para.7 by establishing requirements in order to access social assistance. Amongst their other arguments were that the law breached the principle of university autonomy under Article 207 of the Constitution, the principle of free enterprise under Article 107 and the principle of equality. 

During the session, Minister Joaquim Barbosa refuted all of the arguments presented by Confenen and DEM. He rejected the argument that ProUni breached the principle of equality, claiming that only those who have been approved in a regular selection process can compete for a vacancy through ProUni, competing for it with other students. He determined that ProUni is consistent with several constitutional provisions aimed at the reduction of social inequalities, and is an important tool of social integration. The Court rejected ADI 3330 by a majority vote of 7-1.
In an interview in the latest issue of the Equal Rights Review, Marcelo Paixão, Professor of Federal University of Rio de Janeiro, discussed the social inequalities faced by various groups in Brazil and the compound difficulties faced by Afro-Brazilians, explaining “why the current affirmative action policies for the admission of black students into universities, especially the public ones, are so important". Reflecting on engrained social attitudes towards race and on-going racial inequalities, he concluded that "from this perspective, affirmative action policies for Afro-descendants, apart from 
their practical result, have the merit of favouring a new pact within the Brazilian society. This pact must be based, among other parameters, on the importance of ethnic-racial diversity."

For the English summary of the Racial Quotas decision, click  here.

For the Portuguese summary of the Racial Quotas decision, click  here.

For the Portuguese summary of the ProUni decision, click here.

For the Equal Rights Review, Volume Eight, Interview on Equality in Higher Education with David Ruebain and Marcelo Paixão, click  here.