The Effect of Legal Tradition on Affirmative Action in the U.S. and Brazil

Copyright © 2004-2005 Garret Wilson

for Professor Dana Zartner Falstrom

0801-867-01 Comparative Law, University of San Francisco School of Law

Version 20050225

Brazil has a long history of racial diversity. Its indigenous population first encountered Europeans when Portuguese explorers arrived in 1500. The newcomers soon made Brazil an integral part of the burgeoning slave trade, reaching to Africa to increase the workforce. Before Brazil ended slavery in 1888, the population was already colorful: 37% white, 44% brown, and 19% black.1 Today those with African origins make up almost 60% of Brazil's population.2

Discrimination nevertheless excludes blacks from benefits in Brazilian society.3 Access to resources and other rights of citizenship are especially linked to race: one-third of Brazil's population lives in poverty, and most of those are not white.4 Historically Brazil's racial civil rights awareness has been muted, stemming in part from the popular myth of Brazil as a racial democracy in which discrimination runs along lines of social status rather than racial origin. It was not until 2001, on the heels of the UN World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, that black groups convinced the State of Rio de Janeiro to adopt a system of quotas to ensure racial diversity in public universities. Rio's revised affirmative action policy of 2003 now reserves 20% of seats for underprivileged blacks, allowing the candidates themselves to determine whether their racial category qualifies for assistance.5

The United States, on the other hand, practically pioneered affirmative action. The black civil rights movement was in large part born in North America, and its first tasks after the abolition of slavery was desegregation followed by affirmative racial integration in society in general and education in particular. The United States Supreme Court has overseen this process from the beginning, in some cases issuing decrees against those dragging their feet on implementing desegregation laws, and in other instances delineating the extent to which those laws are constitutional.

The American story has stoked the aspirations of oppressed groups in many countries, providing an impetus for social change. As Brazil makes hesitant steps towards implementing a program of social justice, can it draw on the legal experiences of the United States to guide its efforts? The answer is maybe… and maybe not. The very differences which have written more chapters of the American version of affirmative action in some cases rob the results of meaning when transplanted into a foreign soil that has a different historical and social setting. Moreover, the unique common law development of American constitutional jurisprudence may find itself unable to provide meaningful answers to the questions raised within Brazil's civil law-based constitutional framework.

History, Race, and the Law in Two States

Eight years after Columbus first arrived in the New World, the Portuguese discovered Brazil. In order to aid the sugar trade, the colonizers enslaved the native population and brought in more slaves from Africa. Over the next three hundred years, the slave trade brought 3.6 million Africans to Brazil.6 By some estimates, more than a third of all Africans shipped to the New World as slaves went to Brazil.7

The colonies of what would become the United States declared their independence from Great Britain in 1776. Brazil's colonizers ruled remotely from Portugal until the transmigration of 1808. In front of Napoleon Bonaparte's advancing army, King João VI Alcântara de Bragança e Bourbon fled to Brazil and set up court in Rio de Janeiro. King João returned to Portugal in 1821 and the next year Brazil proclaimed its independence—João's son Prince Regent Pedro I, who had stayed behind, became emperor and established Brazil's first constitution.8

The United States in 1865 ended a Civil War and outlawed slavery through the passage of the Thirteenth Amendment to its constitution.9 Brazil in 1888 became the last Western country to do the same when Princess Regent Isabel, the daughter of Pedro II, signed the Golden Law abolishing slavery.10 Pedro II ruled Brazil until 1889, when he left Brazil on the heels of a civilian-military coup which took over and established Brazil's first republic and its second constitution.11

U.S. Wars and Conflicts

By this time those in the United States South who had lost the Civil War had already started enacting legislation to keep blacks and whites apart. Tennessee enacted laws against racial intermarriage in 1870, and every other Southern state soon followed suit. Tennessee was also the first to pass Jim Crow laws which put in place a legal regime of segregation, and these laws soon made their way across the United States. Blacks and whites were required to attend separate schools, hotels, restaurants, and even train cars.12

The Supreme Court put the weight of the Constitution behind Jim Crow in 1896 in Plessy v. Ferguson with its doctrine of separate but equal.13 Petitioner Plessy, who was 7/8 white and 1/8 black, was jailed because he tried to sit in a train coach designated for whites only. The Court ruled against Plessy, reasoning that the Fourteenth Amendment's Equal Protection Clause established political equality of races but did not abolish distinctions based upon color or require social commingling of races. The court went on to legitimize segregated schools and laws preventing racial intermarriage. Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, the Court said, and the attempt to do so can only result in accentuating the difficulties of the present situation.14

The lone dissenting voice in Plessy was Justice Harlan. He countered that it was obvious to everyone involved that the Louisiana law was passed, not to keep whites from black cars, but to keep blacks from white cars. If the government prevents a black person and a white person from occupying the same public conveyance on a public highway, it is, he claimed, infringing the personal liberty of each.15 Our constitution is color-blind, and neither knows nor tolerates classes among citizens.16

Jim Crow and Plessy persisted far into the next century. By the time the United States was preparing for the World War II in 1941, U.S. President Franklin D. Roosevelt was calling for national unity by putting aside divisions of party or section or race or nationality or religion. One observer didn't miss the irony of a racially divided America considering entering a fight against German anti-Semitism: it sounds pretty foolish to be against park benches marked Jude in Berlin, but to be for park benches marked Colored in Tallahassee.17

The next year President Roosevelt succeeded in persuading Brazil to join the war by promising major military and technology investments.18 Roosevelt was ultimately unable to gain the same unity in the United States regarding legalized racial discrimination. The Plessy decision remained the supreme law of the land until in 1954 the decision of Brown v. Board of Education redeemed Harlan.19 In that decision the Supreme Court decided that segregation of children in public schools solely on the basis of race … deprive[s] the children of the minority group of equal educational opportunities ….20

Brazilian Meltingpot

Brazil by contrast had not seen legal segregation since it outlawed slavery.21 Miscegenation was accepted and even promoted: mixed marriages were almost six percent of all marriages in the federal district of Rio de Janeiro even before slavery was abolished.22 This is not to say racism did not exist. Indeed one of the first arguments in Brazil for promoting racial intermixing was based upon the idea of African inferiority, and that through genetic manipulation Brazil's population could improve through whitening, removing the supposedly inferior African traits.23

By the time such neo-Lamarckian eugenics views began to go out of favor, Gilberto Freyre in 1933 published Casa Grande e Senzala (Plantation House and Slave Quarters, or The Masters and the Slaves) which recast miscegenation as a positive national ideology. Rather than viewing any particular racial element as either superior or needing to be eliminated, Freyre welcomed the resulting intermixture itself. Freyre's book popularized a conception of Brazil as unique among Western societies for its intermixture of European, African, and Indian ethnicities and cultures. This racial mixture, he claimed, had created a new Brazilian people who were a unity of opposites. Because of this Brazil was free of the racism found in other parts of the world. This conception of equality and integration in Brazilian society, later referred to as a racial democracy, became a part of Brazil's national ideology and permeated popular thinking in Brazil until the early 1990s.24

Brazil was going through other changes when Freyre published his influential work. In 1930 Getúlio Vargas lost the presidential election and then gained power anyway through a military coup.25 As soon as World War II ended, the military overthrew Vargas and held elections under yet another constitution in 1946.26 Four years later Vargas came to power again—this time through democratic elections—and governed until he committed suicide in 1954, hours before a military coup would have thrown him out a second time.27

In 1964 a coup ousted the president and established military rule which would last over two decades. The military dictatorship was determined to keep tight control over Brazilian society and prevent unrest; it thus created a network of information and training for surveillance and torture.28 The military was happy to perpetuate the myth of Brazil's racially equal and therefore peaceful society, especially in light of the civil rights protests, activism, and race-related violence occurring in the United States at the time. Although Brazilian academics began to question Brazilian society's status as a racial democracy, some of those very academics were exiled by the military government.29

The idea of a racial democracy continued to be popularly accepted until the return of political democracy in the 1980s.30 As ideas began to be expressed more freely, Brazilian society came to admit the presence of social exclusion and discrimination based upon race. Moving from a military dictatorship to a democracy has recently led to more open discussion on race; the beginning of affirmative action to provide a better balance in social access for the disadvantaged; and the rise of black activist movements in Brazil.

Racial Classifications in Brazil

The amount of racism in Brazil, as in any other society, depends on racial classifications. As the very idea of race is a social construct,31 the racial category in which one falls depends on the social setting, and Brazil's society manifests complex classification schemes. While society in the United States readily divides most citizens into two groups of white or black, the classification of the average Brazilian depends on the context of the classification and whether the person is self-classifying or classifying someone else.

Brazilians classify society in terms of côr (color) more often than in terms of race, although the former includes other features such as hair type and nose shape.32 One context of classification is the official one of the government: the decennial population census by the Brazilian Institute of Geography and Statistics (IBGE). Beside amarelo (yellow for Asian) and indígena (indigenous for Native Brazilians), the IBGE since 1950 has used the categories branco (white), pardo (gray-brown), and preto (black) when counting citizens.33

The pardo category in Brazil serves as an ambiguous census classification for the various mixtures between two ends of the color spectrum. The United States census, in contrast, dropped its separate mulatto category as Jim Crow became more prevalent, and opted to classify those with even 1/8, 1/16, or even 1/32 African ancestry as black.34 The protagonist in Plessy v. Ferguson, it will be remembered, was not allowed on a whites-only train car even though he was 7/8 white—a status which would have been classified as pardo or even branco in Brazil.

When Brazilians talk among themselves, however, they use different terminology. Some are unambiguously referred to as branco, but many Brazilians prefer to use the term moreno (brown), moreno claro (light brown), or claro (light) for various intermediate shades. Others use preto in referring to the darkest Brazilians, but some use the term negro (black), although the latter term in some situations is considered offensive. While the extreme ends of the color spectrum are nearly always identified as branco or preto, those terms that lie in the middle have arbitrary overlapping patterns of application.

Furthermore, Brazil's new black movement is stressing its preference to regroup all these classifications into a sharp dichotomy between branco and negro. Beyond these classification contexts, studies have found that a particular person's classification varies depending upon whether the person is self-identifying or being identified by an interviewer.35 Perpetrators of race-related aggression, for example, have been shown more likely to cast their victims as darker terms such as negrinho (little negro); when appearing as defendant in court, these same aggressors emphasize their own black roots to play down charges of prejudice.36

World-Wide Attention on Racism

Significant political action addressing racial issues in Brazil has taken place only recently after the military regime gave way to democracy in the 1980s. In 1984 the state of São Paulo created the Council for the Participation and Development of the Black Community.37 Black groups were successful in making racism a serious crime in the constitution of 1988.38 Black activist groups grew and began to create organizations to use the law to combat racism and to prosecute violations of the anti-racism clauses of the constitution.39 By 1995, most Brazilians had rejected the racial democracy myth and recognized the existence of discrimination.40

Brazil's Ministry of Justice discussed the possibility of affirmative action-like policies at the Multiculturalism and Racism conference of 1996.41 Two years later, the United Nations proclaimed 2001 as the International Year of Mobilization against Racism, Racial Discrimination, Xenophobia and Related Intolerance,42 and worldwide attention was drawn to racial problems when the UN World Conference of the same name took place in Durban, South Africa in the first week of September 2001.43 Brazil's participation included providing the Rapporteur-General of the World Conference.

The official Brazilian representative to the conference made an official statement that the consensus developed in Durban allows the recognition of people of African descent and of indigenous peoples as victims of discrimination and historical misdeeds, and Brazil considers that the outcome of our negotiations regarding the issues of the past provides us with a framework for the acknowledgement of the wrongs and the expression of adequate forms of remorse that call for national affirmative and positive policies of implementation, as well as for the enhancement of international cooperation in the field.44

Affirmative Action in Brazil

The developments in Durban provided the momentum for a flurry of legislative attempts to address discrimination in Brazil.45 In November 2001 the State of Rio de Janeiro put in place a 40% quota for negro and pardo students entering the two State Universities, UERJ and UENF.46 This law was replaced two years later by Rio's current affirmative action legislation.

Law No. 4151 was enacted on 4 September 2003, putting in place a system of quotas for entrance into public universities of the State of Rio de Janeiro and of other provinces.47 With a view of reducing social and economic ethnic inequality, the law set quotas for students in three categories:

Before receiving the benefits of this affirmative action, a student in any of the categories must first be socio-economically deprived as defined by the university. In this regard, the law attempts not just to provide diversity, but to assist those minorities who are socio-economically disadvantaged. The focus is not only on race, but on those with a deficiency and those coming from the public school system.

The quota of negro students in the new law is reduced significantly, from 40% to 20%, and pardo students are not mentioned at all. As has been noted, racial categories in Brazil are notoriously hard to define, even though negro in general applies to Brazilians with the darkest skin tones. Law No. 4151 side-steps the entire issue by allowing students to self-declare themselves as negro or a member of an ethnic minority for application of the law.

The United States Constitution and Affirmative Action

The United States Constitution was conceived in an environment hostile to racial equality. Although the United States outlawed slavery long before Brazil, its laws continued overtly to discriminate against African Americans long after the Civil War. The United States Constitution had not only tolerated slavery, it had upheld it:48 Congress was initially prohibited from banning slave imports,49 and fugitive slaves were to be returned to their owners.50 It took the passage of the Fourteenth Amendment in 1868 to codify a prohibition against discrimination under the law, but this amendment with its Equal Protection Clause was rarely used to strike down racial discrimination for the following 50 years.51

Equal Protection jurisprudence has evolved as one would expect in a common law jurisdiction: piece by piece under stare decisis. As the Fourteenth Amendment is directed at individual states, there is no explicit textual provision in the Constitution that the federal government must likewise apply its policies in an equal manner. The Supreme Court held in Bolling v. Sharpe that the Due Process Clause of the Fifth Amendment requires identical equal protection at the federal level,52 and from this decision the Court has since addressed equal protection identically at both levels. The text of the Fourteenth Amendment likewise gave no hint as to how equal protection must be put into practice, leaving it to the Supreme Court to define a structure for recognizing when equal protection has been violated and determining whether the violation is warranted.

This has evolved into an elaborate but piecemeal framework. In general, the Supreme Court will categorize a particular violation of equal protection into one of three levels of scrutiny: strict scrutiny, intermediate scrutiny, or simply a rational basis test. Under the latter, most lenient scrutiny, the Court merely looks to see if any conceivable legislative purpose is rationally related to a legitimate government purpose. Intermediate scrutiny requires the government discrimination be tailored to fit some legitimate government purpose. If strict scrutiny is applied to an action claiming violation of equal protection, the Court only allows the government discrimination if the action is necessary and is the only means possible to achieve the legitimate objective.53 Through the magic of the common law, these rules are solid constitutional law in the United States, even though none of them are found explicitly in the United States Constitution.

Because of the scarred history of race relations in the United States, from unequal political status to unequal legal application, the Supreme Court early on determined that cases involving unequal government treatment based upon race would be subjected to the highest form of examination: strict scrutiny. In an age in which Jim Crow laws segregated blacks in virtually all areas of society, it would have been an understatement to say that the strictest of scrutiny should be applied to racial discrimination. Through the common law tradition of the United States, however, once this precedence is set it applies to all race-based selectivity, from school segregation half a century ago to the affirmative action policies of today.

The first case addressing affirmative action in education to come before the Supreme Court was Regents of the University of California v. Bakke in 1978.54 The University of California at Davis Medical School had set aside 16 seats in its admission size of 100 to be filled by disadvantaged minorities who had been severely underrepresented or not represented at all. Justice Powell, one of the five justices declaring the school policy unconstitutional, applied the strict scrutiny test and came to the conclusion that a program guaranteeing a percentage of students based upon race is facially invalid.55 He found that attaining a diverse student body in order to improve the educational atmosphere of speculation, experiment and creation to be a constitutionally permissible goal, however—as long as race is used as only one among many factors of diversity when evaluating an application.56

Any doubts of whether Powell's view represented that of the Court were put to rest a quarter of a decade later in the 1993 case of Grutter v. Bollinger.57 The University of Michigan's law school considered race a plus among several factors when determining student admission. Writing for the Court, Justice O'Conner reiterated that all government racial classifications must be reviewed with strict scrutiny, but that a diverse student body is a compelling government interest. The law school's policy of giving a plus for racial category was allowed, but creating non-competing groups or quotas would be unconstitutional.

Transplanting Legal Conclusions

There are several reasons why transplanting to Brazil the constitutional conclusions and the resulting race-related legal regime of the United States would be less than straightforward. One is historical. The United States and Brazil have a divergent record with regard to race relations. In the United States miscegenation was criminalized for much of its history, and only recently have racial attitudes displayed discrimination in a normatively negative light. Brazil is just now returning from the other end of this spectrum. Not only has miscegenation been tolerated in Brazil, it has been promoted. Far from openly encouraging discrimination, Brazilian society has only in the last few years begun to admit that it even exists.

Intertwined with distinct history are different social approaches to race. People in the United States tend to draw a sharp color line, as W.E.B. Du Bois would say58—most are classified as either black or white, with any mixture viewed as falling in the black category. Brazil not only has several categories for racial mixtures, including pardo and moreno, the semantics for its categories are moreover flexible and overlapping, following different social rules depending on the circumstances and whether being self-directed or applied to others.

The corpus of race-related laws in each country has upheld and shaped these distinctions. Discrimination was more than a social fact during most of the history of the United States—it was a legally mandated regime. Racially diverse marriages were prohibited by law, and the United States census promoted strict racial separation by removing mixed categories such as mulatto. Brazil never had legally mandated segregation after slavery. In Brazil's recent history, a dictatorial military regime promoted ideas of an integrated society and perhaps even suppressed any public evidence that would have indicated otherwise.

The United States has slowly moved towards integration over the past few decades. Brazil has begun to recognize the racism within society and to make steps towards addressing it. Black activism in Brazil has grown in the past decade, and the black movement has been attempting to encourage black pride by advocating a sharper division between branco and negro. With two once-divergent societies now seemingly set for convergence, it is tempting to assume that the longer American history of race-related lawmaking can guide Brazil as it attempts to address discrimination through legislation.

Beneath history, culture, and general laws, however, there lies a more fundamental difference that must be taken into account when transferring legal knowledge: the distinct legal traditions of the two countries. The common law tradition as found in the United States creates legal conclusions built upon the legal conclusions of earlier cases, in essence incorporating social and legal history into its constantly growing legal framework. Brazil follows a civil law tradition which sees precedence as relevant but non-binding, allowing judges to make decisions based upon the independent interpretation most relevant to each situation. It could be said that, unlike the civil law tradition, the common law has a memory of its past decisions, both good and bad, built into its ever-growing structure. Whether it is expedient for Brazil to arrive at the same conclusions as the United States regarding affirmative action, any expectation of transplantation without Brazil constructing its own rigorous legal underpinning would be as unwise as making a decision totally based upon a stranger's memories.

Constitutions of Different Eras

Underlying the legal apparatuses of both Brazil and the United States are constitutions, but these constitutions were created at distant times for different purposes. The Constitution of the United States was framed in 1787 by colonists who had broken away from a colonial power and who were trying to create a federal system immune from the abuses in power they had experienced under the British monarchy. The rights given to citizens in its amendments were couched in terms of protection from government. The core of the Bill of Rights, for example, begins with, Congress shall make no law… and continues with prohibitions against federal interference with expression, inappropriate searches, forced confessions, and improper trials.59 The United States Constitution provides negative individual rights by creating limitations on the extent to which the government may interfere in the affairs of its citizens.

Brazil has written, adopted, and abandoned several constitutions. Its current constitution was framed in 1988, 100 years after abolishing slavery and 200 years after the framing of the Constitution of the United States. The Brazilian document was long and detailed from its inception—over 200 articles (30 times the number of that of the United States)—touching on everything from vacations60 to the environment61 to the oft-noted constitutionally-mandated status of a particular school in the city of Rio de Janeiro.62

The rights enumerated in Brazil's constitution are detailed and aspiring. Besides the right to life and liberty, the document ensures the right to equality, proclaiming the equal rights of men and women.63 The rights granted go beyond individual rights: Articles 6 and 7 lay out social rights such as education, health, and employment protected against arbitrary dismissal. At a higher level, the constitution aspires to eradicate poverty and to reduce social and regional inequalities.64 Equality under Brazil's constitution of 1988 is not just a negative protection against interference from the government; equality it is a positive constitutional mandate for the government to actively bring into effect.65

Use of Precedence

One of the most touted distinctions between the common law and civil law traditions is the different weight given to past judicial decisions. Under a civil law system such as Brazil's, the judge's role is to determine the decision mandated by written legislation. Although other sources—notably past cases and writings by experts—play a role in the decision-making process, the judge is not expected to create new law.66 Legislating is reserved for the legislature.

A common law system, by contrast, builds its entire corpus of law on the notion of stare decisis, under which past judicial decisions are controlling. The outcomes of past cases will dictate, as a matter of legality, the correct decision in a present case. Law students in common law countries learn the art of distinguishing past cases on their facts as one means to get around this limitation.

Constitutional Equal Protection jurisprudence in the United States especially exemplifies the common/civil tradition divide. The respective textual constitutional bases for equal protection vary little between the United States and Brazil. The Fourteenth Amendment of the United States Constitution declares, No state shall … deny to any person within its jurisdiction the equal protection of the laws.67 Brazil's Constitution includes the assurance that, all are equal before the law, without distinction of any kind …68 coupled with an objective to promote the well-being of all, without prejudice as to origin, race, sex, color, age and any other forms of discrimination.69

In the United States, however, the Supreme Court's interpretation of equal protection must be followed in all subsequent cases until modified or overruled by a later Supreme Court decision. For this reason the separate but equal doctrine derived from the Constitution by the Court in Plessy v. Ferguson remained constitutionally steadfast law for over 50 years until its reversal in Brown v. Board of Education. Speaking to the strength of stare decisis, Equal Protection jurisprudence after Brown continued to cast the debate in terms molded by the original Plessy decision: either the Constitution allows discriminatory laws aimed at persecuting minorities, as claimed the majority; or the Constitution is color-blind in the words of the dissent. The United States' common law context, it might be argued, has forced the issue of affirmative action to remain under the constraints of its seminal case, even after that case has been overturned.

As the history of racial discrimination in the United States makes evident, the evolution of a framework of scrutiny for race-related cases was built with an eye first to abolish the system of Jim Crow persecution that had taken hold across the country. No wonder, then, that the Supreme Court ruled that any government action that makes a distinction based on race requires the highest level of scrutiny.70 By the time affirmative action appeared, this same system of scrutiny, through the power of stare decisis, resulted in a ruling that quotas are categorically illegal under a color-blind Constitution, even if meant to assist those against whom discrimination had originally been directed. Justice Powell in Bakke went further, saying that individual efforts to make up for general past persecution is similarly proscribed.71

This entire judge-constructed framework contrasts with the Brazilian equal protection landscape. Granted, there was historically no regime of racially discriminating laws to abolish, and therefore less impetus for constructing strict barriers against race-conscious legislation. Brazil's recently-born constitution has likewise not grown old enough to have constructed such an elaborate framework as Equal Protection in the United States. Beyond these historical factors, however, it remains that Brazil's constitutional judges will not be constructing any rigid set of hard-and-fast rules outlining equal protection. Following civil law tradition, any constitutionally-mandated framework for discerning solutions to equal protection dilemmas must be created by the legislature. Brazil's approach to the constitutionality of its affirmative action, including Rio's recent attempt at public university quotas, will be made on a case-by-case evaluation of the constitutionality of racially-conscious policies.

Any system of race-based education quotas in the United States, on the other hand, will immediately be struck down as unconstitutional through stare decisis. This would apply to Rio's affirmative action law, were it introduced in the United States. Such a categorical prohibition is intertwined both with the United States' history of race relations and with its common law system of sticking to precedence, and would thus be invalid for applying in Brazil. Indeed, before Rio modified its education affirmative action policy in late 2003, one of Brazil's top constitutional scholars criticized the first incarnation of the law and questioned its constitutionality—not because race-based quotas could not hope to gain legitimacy under the Brazilian constitution, but because the prescribed quota (40%) was deemed unreasonable.72

Precedence under Equal Protection has also encouraged an affirmative action focus in the United States that skirts one of the original motivations for affirmative action: providing momentum for reversing decades of blatant discrimination by Jim Crow laws. Again in large part because of Powell's opinion in Bakke (although he did not claim to speak for a majority), race-based preferences to reverse general society-wide disadvantages have been seen as constitutionally prohibited. Higher education institutions such as the University of Michigan have been forced to feign ambivalence towards societal discrimination in their policies, and instead frame their arguments for affirmative action in more amorphous terms of diversity, and attempt to prove that various combinations of races will make the university environment more conducive to the learning process.

In this regard, without the need to sidestep an ingrained scrutiny of any race-based action, Brazil's law is perhaps better tailored to correcting social injustice. Rio de Janeiro's quota system looks not only at color but also at societal disadvantage: a student self-declaring as negro will also have to be considered socio-economically deprived according to the university's standards before receiving the benefits of affirmative action. Racial preference as now restricted in the United States must focus solely on the amount of diversity contributed, not whether admittance will help correct a societal deprivation of opportunity. The University of Michigan, for example, admitted that its diversity-based points system would assist an applicant based upon race whether she had grown up in the inner city or [in a rich neighborhood].73

Sharing Experiences

Scholars in Brazil have been looking through American sources such as Powell's opinion in Bakke; Bowen and Bok's study of affirmative action results presented in The Shape of the River;74 and Dworkin's examination of the fairness of affirmative action in Sovereign Virtue.75 Because the United States has a long history of examining race relations, the American experience has much to contribute to the discussion of discrimination. In creating legal scenarios that will assist racial integration, improve national tranquility, and effect social justice, however, Brazil should make sure that it takes into account the setting of the judge-made race rules in the United States.

What Brazil eventually decides is the legal, reasonable, and fair approach to banishing discrimination may or may not resemble the equal protection conclusions of the United States. One thing is sure, however: the historical setting, the social environment, and above all the legal traditions on which each country must mold its policies are radically different. Brazil's borrowing from United States Equal Protection jurisprudence should be done if it contributes to equality and justice. Those looking to find a ready-made transplantable legal framework for effecting solutions to racial problems, however, will likely be disappointed. When importing ideas on affirmative action from the United States, Brazil must take care to recognize legal conclusions that are sound and legal reasoning that reflects contemporary ideals of equality and social justice, and to distinguish those from elements that instead reflect unwanted vestiges of a very different past forever captured and encapsulated through the peculiar evolutionary effects of stare decisis.


1 Edward E. Telles, Race in Another America: The Significance of Skin Color in Brazil, 29 (Princeton University Press 2004).

2 Id. at 14.

3 Id. at 42.

4 Id. at 5.

5 Lei N° 4151, de 04 de Setembro de 2003, Estado do Rio de Janeiro, Brasil.

6 Telles, Race in Another America at 24.

7 Robert M. Levine, The History of Brazil, 66 (Palgrave Macmillan 2003).

8 Id. at 55-60.

9 Telles, Race in Another America at 25.

10 Levine, The History of Brazil at 68.

11 Id. at 73, 77.

12 John Hope Franklin & Alfred A. Moss, Jr., From Slavery to Freedom: A History of African Americans, 290 (8th ed., Alfred A. Knopf 2001).

13 Plessy v. Ferguson, 163 U.S. 537 (1896).

14 Id. at 551.

15 Id. at 557.

16 Id. at 559.

17 Terry H. Anderson, The Pursuit of Fairness: A History of Affirmative Action, 21 (Oxford University Press 2004).

18 Levine, The History of Brazil at 109.

19 Brown v. Board of Education of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954).

20 Id. at 691.

21 Telles, Race in Another America at 2.

22 Id. at 25.

23 Id. at 29.

24 Id. at 33.

25 Levine, The History of Brazil at 98.

26 Id. at 110.

27 Id. at 111, 98.

28 Id. at 126, 130.

29 Telles, Race in Another America at 42.

30 Id. at 41-44.

31 Id. at 21.

32 Id. at 79.

33 Id. at 81.

34 Id. at 80.

35 Id. at 82-88.

36 Seth Racusen, Making the Impossible Determination: Flexible Identity and Targeted Opportunity in Contemporary Brazil, 36 Conn. L. Rev. 787, 803-808 (2004).

37 Telles, Race in Another America at 49.

38 Id. at 50.

39 Id. at 52.

40 Id. at 53.

41 Id. at 56.

42 United Nations, World Conference against Racism: Basic Information <> (accessed December 16, 2004).

43 United Nations, Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (A/CONF.189/12) (United Nations 2001).

44 Id. at 132.

45 Racusen, Making the Impossible Determination at 811.

46 Lei N° 3708, de 09 de Novembro de 2001, Estado do Rio de Janeiro, Brasil.

47 Lei N° 4151, de 04 de Setembro de 2003, Estado do Rio de Janeiro, Brasil.

48 Erwin Chemerinsky, Constitutional Law: Principles and Policies, 664 (2d ed., Aspen Publishers 2002).

49 U.S. Const. (1787) art. I, § 9.

50 Id. art. IV, § 2.

51 Chemerinsky, Constitutional Law at 642.

52 Bolling v. Sharpe, 47 U.S. 497 (1955).

53 Chemerinsky, Constitutional Law at 645.

54 Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

55 Id. at 307.

56 Id. at 312.

57 Grutter v. Bollinger, 539 U.S. 306 (2003).

58 W.E.B. Du Bois, The Souls of Black Folk, 15 (Modern Library ed., Random House 1996).

59 U.S. Const. (1787) amends. I-X.

60 Brazil Const. (1988) art. 7(XVII).

61 Id. art. 225.

62 Id. art. 242 § 2.

63 Id. art. 5.

64 Id. art. 3.

65 Samantha S. Moura Ribeiro, Ações Afirmativas: Consenso da Comunidade Internacional, monograph presented in the Pontifícia Universidade Católica do Rio de Janeiro for attainment of the title of bachelor in law. Rio de Janeiro. Brasil. 2004.1.

66 Mary Ann Glendon, Michael Wallace Gordon & Christopher Osakwe, Comparative Legal Traditions: Text, Material and Cases, 207 (2d ed., West 1994).

67 U.S. Const. (1787) amend. XIV § 1.

68 Brazil Const. (1988) art. 5.

69 Id. art. 3(IV).

70 Chemerinsky, Constitutional Law: Principles and Policies at 668.

71 Bakke, 438 U.S. 265 at 309.

72 Luís Roberto Barroso, Racismo e Papel da Universidade, O Globo (Rio de Janeiro) (February 28, 2003).

73 Greg Stohr, A Black and White Case: How Affirmative Action Survived its Greatest Legal Challenge, 195 (Bloomberg Press 2004).

74 William G. Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton University Press 1998).

75 Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (paperback ed., Harvard University Press 2002).