Thursday, April 26th, 2012
The en banc Federal Supreme Court (STF) has declared the constitutionality of the policy of racial quotas in student’s admission process at University of Brasília (UnB). By unanimity, the ministers held invalid the ADPF 186, filed in court by Democratas Party (DEM).
The ministers followed the vote of the judge-rapporteur, Minister Ricardo Lewandowski. In yesterday’s session (April 25th), in which the analysis of the case was initiated, the judge-rapporteur stated that the affirmative policies adopted by UNB set a plural and diversified academic environment, and aim at overcoming social distortions once historically consolidated. Besides, according to him, the means employed and the ends pursued by UNB are distinguished by proportionality, reasonableness and also, policies are transient, including a periodic review of its results.
“In the case of the University of Brasilia, the reservation of 20% of its vacant places for afro-Brazilian students and ‘a small portion of it’ for Indians from all Brazilian States, due for a period of 10 years, constitutes, in my opinion, an adequate and proportionate measure, to achieving the aforementioned objectives. 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”, said Minister Lewandowski.
In the legal action brought in 2009, the DEM party questions the administrative acts of the Teaching, Research and Extension of the University of Brasilia (CEPE/UnB), resulting in the reservation of places offered by the university. The party claimed the quota system adopted by UNB would harm several fundamental principles of the Federal Constitution, as the principle of human dignity, repudiation to racism and equality and others, as well as provisions that allow the universal access to education.
The ministers followed the vote of the judge-rapporteur, Minister Ricardo Lewandowski. The first to vote in the plenary session this Thursday (April 26th), the suite of the voting, Minister Luiz Fux argued that the Federal Constitution requires reparation of past losses imposed to Afro-Brazilian people, on account of Article 3, I, of the Constitution, which establishes a fair, free, solidary society.
In his opinion, the institution of racial quotas satisfies the constitutional mission determining the State the responsibility for the educational system, securing “access to the higher levels of the education, research and extension, according to one’s capability”.
Minister Rosa Weber argued that it is the State’s duty to “penetrate in the world of social relations and correct distortions so the formal equality regains its beneficial role”. In the justice’s opinion, throughout the years, through the system of racial quotas, the universities have been able to expand the proportion of Afro-Brazilian students in their ranks, enlarging the social representation in the university’s system, that becomes utterly more plural and democratic.
On her turn, Minister Carmen Lúcia Antunes Rocha highlighted the fact that the quota system at UnB is clearly compatible with the Constitution because both proportionality and social function of the university are observed. “Affirmative action policies are not the best option, yet they are a step towards. The best scenario would be if every person were equal and free”, she pointed, calling the attention to the fact the countervailing policies must be accompanied by other measures so the prejudice is not reinforced. She also pointed out the affirmative policies are part of the social responsibility of the State, in order to obey the equality principle.
In agreement with the judge-rapporteur, Minister Joaquim Barbosa claimed that the vote of Minister Lewandowski ended the debate. Despite, he pointed out that “one can not lose track of the fact that World History does not record, in Contemporary Era, a single example of a nation to rise from the condition of a peripherical nation to the condition of a political and economical power, respectable in the international arena, by maintaining, in the domestic, a politics of exclusion regarding a substantial amount of its population".
Following the voting, Minister Cezar Peluzo said it is an undoubted historical fact the educational and cultural deficit amid the Afro-Brazilian population, due to institutional obstacles in the access to the sources of formal education. He concluded that there is a “duty, not only an ethical one, but also a legal one, from the society and from the State, in the face of such inequality, in the light of the fundamental objectives of the Constitution and the Republic, on account of article 3 of the Constitution”. This provision calls for a caring society, the eradication of social marginalization and inequality, and promoting the welfare of all, without prejudice of color.
Minister Gilmar Mendes recognized the fact that the affirmative action policies are a means of setting the principle of equality. He highlighted in his vote that the reduced number of Afro-Brazilian students in the universities is the result of a historical process, due to a slavery-based model and to the low quality of public education, in addition to the “nearly-random” opportunities in student’s admission process. Therefore, the single racial criterion may lead, in his opinion, to an unwanted situation, such as allowing Afro-Brazilian in good socioeconomical condition to benefit from the quota system.
Also pronouncing for the invalidity of ADPF-186, Minister Marco Aurélio said the affirmative action policies must be used to correct inequalities, noting that the quota system must be extinguished as soon as those differences are eliminated. “Yet we are far from this”, he warned, “let us do what is at our reach, which is foreseen in the Constitution”.
Senior of the STF, Minister Celso de Mello sustained that the system adopted by UnB obeys the Federal Constitution and also the international treaties on human rights defense. “The challenge is not only a mere formal proclamation recognizing the commitment to respect the basic rights of the human being, but the concrete realization in terms of material achievement of the burden taken”.
Closing the voting session, the president of the court, Minister Ayres Britto, asserted that the Constitution has given legitimation to every public policy promoting historically and culturally marginalized social sections. “Those are affirmative policies entitling every human being the right to an equal and respectful treatment. This is the way we build up a nation”, he concluded.
Minister Dias Toffoli recused himself from the case and did not take part in the voting.
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