Not as easy as black and white: the implications of the University of Rio de Janeiro's quota-based admissions policy on affirmative action law in Brazil.

• Author: Rochetti, Ricardo

Brazil's socio-economic structure has long been characterized by a wide disparity in educational, employment, and wealth-accumulation opportunities available to blacks and whites. In recent years, Brazil's government, at both the federal and state levels, has begun experimenting with affirmative action as a means of rectifying these inequalities. In one such program, the state government of Rio de Janeiro implemented admissions quotas that favored blacks and graduates of public high schools who applied to the state's largest public university. The results of the quota caused great controversy, culminating in a constitutional challenge that has reached Brazil's Supreme Federal Tribunal. The Court now finds itself grappling with the meaning of terms such as "equal before the law" and "university autonomy." The racially mixed identity of Brazilian society has complicated the problem, making it nearly impossible to determine who is "black" for affirmative action purposes. The Author relies on affirmative action jurisprudence in the United States to predict how the Court will rule. The Author concludes that an affirmative action program based on class, rather than race, would allow the government to begin bridging the gap between the haves and the have-nots while avoiding Brazil's seemingly irreconcilable racial classification issues.

TABLE OF CONTENTS I. INTRODUCTION II. UERJ'S QUOTA SYSTEM HAS BEEN INEFFECTIVE AND UNPOPULAR A. The program has been ineffective because it has been improperly applied and was premised on a number of false assumptions B. The program has been ineffective because of difficulties in determining who is "black" III. THE DETERMINATION OF THE VALIDITY OF UERJ'S QUOTA-BASED AFFIRMATIVE ACTION WILL DEPEND ON THE SUPREME FEDERAL TRIBUNAL'S ANALYSIS OF VARIOUS CONSTITUTIONAL ISSUES A. The STF will struggle to find clear answers in attempting to determine whether Uerj's quota system complies with principles such as "equality before the law" and "university autonomy" B. The STF must ensure that its decision is consistent with the text of certain foreign treaties to which Brazil is a party IV. AFFIRMATIVE ACTION IN THE UNITED STATES: A MODEL FOR DEVELOPING NATIONS A. The history and roots of affirmative action in the United States B. Bakke: The U.S.'s landmark decision regarding the role of affirmative action in university admissions C. The University of Michigan cases: Affirmative action still permitted, but to what extent? D. But who benefits? Racial classification in the United States V. THE SOLUTION: A CLASS-BASED AFFIRMATIVE ACTION PROGRAM, IMPLEMENTED AND ENFORCED BY THE SCHOOL ITSELF A. Because of differing attitudes on racism and racial classification, the U.S.'s model for university admissions may not address Brazil's needs B. A class-based affirmative action system would be consistent with the Brazilian government's objectives and the nation's notions of racial classification VI. CONCLUSION I. INTRODUCTION

"In a country like Brazil, everyone's blood is mixed together." (1) With those words, nineteen-year old Gabriella Fracescutti captured the way most Brazilian citizens view race distinctions in their country. (2) This sentiment made it all the more difficult for Fracescutti to understand why she was denied admission into the medical school at the University of Rio de Janeiro (Uerj) even though she scored a significantly better mark on the vestibular (the national college entrance exam) than half of the students admitted ahead of her. (3) The fact of the matter is that Uerj denied Fracescutti admission because "she is neither black nor poor." (4)

The denial of Fracescutti's application was a result of Uerj's incorporation of "affirmative action" into its admissions policy, an act that has become increasingly common since Luiz Inacio Lula da Silva assumed the nation's presidency in 2003. (5) A racial-equality law proposing the establishment of "20 percent quotas for 'Afro-Brazilians' in government jobs and public universities, enterprises with more than 20 employees and among actors in television programmes ... [and pursuant to which] 30 percent of political parties' candidates would have to be black" may follow. (6)

Given how most Brazilians view the nation's racial history, the recent trend toward the implementation of quotas has raised eyebrows. Nigeria is the only country that has a larger black population than Brazil's sixty-seven million citizens of African descent. (7) With sixty-five million mulattos, Brazil is also the most racially mixed nation in the world. (8) Because of this racial mixing, some Brazilians have deemed their country to be a "racial democracy." (9) But in reality, "Brazilian racism is like a gun at the back of the head rather than one pointed between the eyes." (10) Open discrimination is rare, but the results speak for themselves:

The unemployment rate for Brazilians considered either black or mixed race is twice that of whites, according to the Brazilian Institute of Geography and Statistics (IBGE) .... White Brazilians generally earn 57 percent more than black Brazilians working in the same field, and a white Brazilian without a high school diploma earns more, on average, than a black Brazilian with a college degree. Blacks in Brazil die younger, are more likely both to be arrested and to be convicted of crimes, and are half as likely as whites to have running water or a working toilet in their homes, according to IBGE. And of the 1.4 million students admitted to universities in Brazil each year, only 3 percent identify themselves as black or mixed race; only 18 percent come from the public schools, where most black Brazilians study. (11) Given those glaring inequalities, proponents of affirmative action have felt comfortable advocating racial preferences not only for college admissions, but also for many other aspects of the Brazilian infrastructure. (12) This Note specifically addresses the propriety of affirmative action pertaining to admissions to institutions of higher education. The focus will be on Uerj's quota system because, of all of Brazil's neophyte quota systems, it has received the most publicity and attracted the most scrutiny.

Part II of this Note will analyze Uerj's program and highlight the reasons for its ineffectiveness and the arguments that both proponents and opponents of the program have advanced. Part III will introduce the issues that the Supreme Federal Tribunal, Brazil's highest court, will encounter in deciding the challenge that the National Confederation of Teaching Establishments has brought against the constitutionality of Uerj's program. (13) Part IV will first discuss the U.S. experience with race definition and racial preferences in higher education before establishing the U.S. framework as a model that will facilitate Brazil's current efforts. In Part V, the Author will conclude that, because of the glaring differences between the countries' objectives and racial experiences, Brazil will not have the same success with race-based affirmative action as the United States. Instead, the Author will propose a model that is more in tune with Brazil's social infrastructure.

2. UERJ'S QUOTA SYSTEM HAS BEEN INEFFECTIVE AND UNPOPULAR

   It is important to note at the outset that Uerj's affirmative action program is not the first instance in which a Brazilian legislature, state or federal, has acted in a racially conscious manner. Brazil's Congress in the past has enacted several laws that, while not specifically referring to "quotas" or "affirmative action," recognize the legitimacy of providing special treatment to "vulnerable groups." (14) Such legislative measures included (1) quotas of up to twenty percent for physically disabled individuals in both the public and private sector, (2) a requirement that enterprises maintain a workforce in which two-thirds of their members are Brazilian citizens, and (3) the adoption of policies destined to correct the distortions responsible for the inequality of rights between males and females. (15)

   No other program, however, has been as heavily criticized regarding its fairness and reasonableness as the Uerj program. (16) For example, about 300 white students who obtained the required scores in the vestibular, but did not gain admission to Uerj, filed lawsuits in state court against the school. (17) On August 14, 2003, as a response to the legal backlash, Rio de Janeiro's government responded by implementing a "scaled back" version of its affirmative action program for the 2004-2005 school year. (18)

   Under the [new version of the] policy, 20 percent of the seats in the incoming freshman class are reserved for black students, another 20 percent for those from disadvantaged public schools, and 5 percent will be shared by those with physical disabilities and students of Indian descent. All students admitted through quotas also must come from low-income families. (19) The new version, however, has not escaped the scrutiny that accompanied the original program. While the more recent version is facially a more "reasonable" quota, it is a quota nonetheless. (20) The ineffectiveness of several aspects of the program in its first year of operation has harmed the state's chance of garnering support for its efforts. Given the reasons for the program's flawed results, it is doubtful that the "scaled back" version will correct any of its shortcomings.

   1. The program has been ineffective because it has been improperly applied and was premised on a number of false assumptions

      The original version of the program has proved to be, at best, a "clumsy solution to a complex problem." (21) Under that system, Uerj reserves forty percent of its admission slots for blacks and pardos (22) and fifty percent for graduates of Brazil's "notoriously overcrowded [and] under-financed" public high schools. (23) The state expected that, because of overlap between the two criteria, roughly half of Uerj's newly...