Unanimous decision by the Brazilian Supreme Court (STF) considers quotas constitutional.

Fernando Porfírio _247 - The Supreme Federal Court ruled the racial and social quota system in public universities constitutional. The decision was taken this Thursday (26), by unanimous decision, when an action proposed by DEM was judged that questioned the reservation of places in educational institutions based on race criteria.

The last to vote was the president of the Supreme Federal Court, Minister Ayres Britto. Earlier in the evening, Minister Cezar Peluso, the sixth to vote, had already guaranteed the legality of the quota system in public universities.

“I cannot help but agree with the rapporteur that the idea [racial quota] is appropriate, necessary, and has sufficient weight to justify the restrictions it imposes on certain rights of other ethnicities. But it is an experiment that the Brazilian State is conducting and that can be controlled and improved,” said Peluso.

Next, Gilmar Mendes also expressed his opinion in favor of constitutionality, although he made reservations regarding the methods currently applied for the selection of quota holders. 

Ministers Ricardo Lewandowski, the rapporteur for the appeal, Luiz Fux, Rosa Weber, Cármen Lúcia, Joaquim Barbosa, Gilmar Mendes, Marco Aurélio, and Celso de Mello also voted in favor.

Justice Antonio Dias Toffoli recused himself from voting because, when he was Attorney General of the Union, he supported the quota system. Therefore, of the 11 justices, only ten are participating in the judgment.

For the Democrats (DEM) party, which filed the lawsuit challenging racial quotas for admission to the University of Brasília (UnB), this type of affirmative action policy violates several fundamental principles guaranteed in the Constitution.

Minister Gilmar Mendes stated that the model created by the University of Brasília (UnB) suffers from the flaw of using only racial criteria, which could lead to distortions and perversions. Gilmar Mendes defended the need to revise the model and expressed reservations about the vote of rapporteur Ricardo Lewandowski.

According to him, the quota system at UnB is "still constitutional," but if maintained, it could violate the Constitution. He sided with the other ministers and voted in favor of racial quotas.

According to Cezar Peluso, affirmative action policies need to be implemented with the future in mind. "These public policies are focused on the future. They don't compensate for [previous actions]. They are acting on the reality of an injustice," he stated.

Joaquim Barbosa, the only Black justice on the Court, voted briefly, following the rapporteur's position. "My views on the matter [in favor of quotas] are more than well-known. I published a book on the subject eleven years ago," he said.

Rosa Weber followed Lewandowski's vote "in its entirety" and used Brazilian social disparity to justify her opinion. "The fact is that racial disparity is blatant in Brazilian society. Poverty has a color in Brazil: black, mixed-race, yellow," she said. "The quota system aims to give black people, in this case at UnB, access to Brazilian universities. Thus, the reasons lean towards maintaining the system."

The rapporteur, Minister Ricardo Lewandowski, stated that practice proves that, given identical resumes, those of white people are preferred, and that in high-end stores, Black people are not even considered for positions as salespeople. “It’s not enough to not discriminate. It’s necessary to make it possible. The stance must be, above all, affirmative. This needs to be the position adopted by our legislators. State neutrality has proven to be a great failure in recent years,” said the minister. 

According to the minister, quota policies that seek to reverse the historical pattern of inequality in our country within the university system cannot be examined solely from the perspective of their compatibility with isolated principles, "but in light of the framework upon which the Brazilian State is based."

Three lawsuits are being judged by the Supreme Court. One of them, filed by the DEM party, questions the quota system at the University of Brasília (UnB); another refers to an appeal questioning the policy adopted by the Federal University of Rio Grande do Sul. The third challenges the system of reserved scholarships for Black people, Indigenous people, people with disabilities, and students from the public school system implemented by the federal government's University for All Program (ProUni).