## Facts

- Brazil’s history of slavery and post-abolition inequality left large gaps in wealth and educational opportunity, with people of color disproportionately represented among poorer communities.
- Brazil’s leading universities were largely public and tuition-free, but admission depended on competitive entrance examinations that tended to favor applicants who attended higher-quality private secondary schools.
- Beginning around 2000, Brazil expanded affirmative-action measures in higher education to address underrepresentation and unequal access, including race-conscious and socio-economic criteria.
- One major challenge targeted the University of Brasília (UnB) affirmative-action plan, which reserved 20% of its seats for applicants identified as people of color for a 10-year period (and included measures addressing Indigenous applicants).
- The challenge was brought through an abstract constitutional review mechanism (ADPF), seeking a ruling with general effect rather than relief limited to individual parties.
- Challengers argued that race-based quotas conflicted with constitutional guarantees of equality and the constitutional prohibition on racial discrimination, and that admissions should be based solely on uniform academic criteria.
- Related challenges in 2012 concerned other higher-education affirmative-action policies, including the federal “University for All” (ProUni) program, which provided full scholarships and included racially based quota criteria, and other public university quota systems combining race and prior public-school attendance.
- The cases were litigated against a backdrop of low representation of Black and Indigenous students in selective public universities and debates over whether the Constitution permits race-conscious state action to remedy long-standing exclusion.

## Issues

1. Whether affirmative-action policies in higher education that use race (alone or alongside socio-economic criteria) violate constitutional equality and the constitutional prohibition on racial discrimination.
2. Whether the Constitution allows the State and public universities to treat applicants differently for a limited time to reduce historical patterns of exclusion in higher education.
3. Whether race-conscious quotas and related scholarship criteria can be justified as reasonable means of achieving constitutionally recognized goals in education, without turning into permanent racial preferences.

## Decision

- In ADPF 186, the Brazilian Supreme Court rejected the constitutional challenge and upheld the University of Brasília’s admissions quota reserving 20% of seats for people of color for a 10-year period.
- In subsequent 2012 cases, the Court likewise upheld other higher-education affirmative-action measures, including federal scholarship and admissions programs using racially based criteria.
- The Court recognized that affirmative action in higher education may use ethnic-racial classifications as part of admissions and scholarship eligibility when designed to address demonstrated exclusion and unequal opportunity.
- The Court treated limits in duration and mechanisms for review as significant in sustaining constitutionality, warning against measures that become detached from remedial justification.

## Legal Principles

- Constitutional equality is not limited to identical treatment; it can require differential measures aimed at achieving real equality of opportunity where conditions are unequal in practice.
- A constitutional ban on racial discrimination does not prohibit every government use of racial categories; a race-conscious measure can be lawful when justified as a remedial, limited response to entrenched exclusion.
- “Merit” in competitive admissions may be assessed in light of unequal preparation and access to quality schooling; a single uniform metric can replicate existing inequalities when opportunities are uneven.
- Affirmative-action programs must satisfy reasonableness and proportionality: they must pursue legitimate constitutional ends, be tailored to those ends, and be bounded in time and scope.
- In higher education, admissions and scholarship design may account for constitutionally valued goals such as equal access to education and an academically plural community, so long as constitutional limits are respected.
- Temporary, reviewable programs are more likely to be upheld than open-ended programs because continued use must remain justified by continuing conditions of exclusion.

## Conclusion

Across ADPF 186 and related 2012 decisions, Brazil’s Supreme Court held that race-conscious (and related socio-economic) affirmative-action measures in higher education—including admissions quotas and scholarship criteria—can be constitutional means of pursuing material equality and equal educational opportunity, particularly when they are reasonable, proportionate, time-limited, and tied to correcting demonstrated patterns of exclusion.


Brazilian Supreme Court Decisions Upholding the Constitutionality of Affirmative Action in Higher Education, S.T.F., APDF 186 (April 12, 2012) and Subsequent 2012 Cases (2012)