Brazil and the Law of Social Quotas: An Analysis of Whether Brazil's Recent Affirmative Action Law Would Survive Review under U.S. Constitutional Standards

Article excerpt

I. INTRODUCTION

On August 29, 2012, Brazil President, Dilma Rousseff, signed a new law that most Americans would consider unconstitutional and antiquated. This new law is called the Law of Social Quotas, and it requires public universities in Brazil to reserve half of their enrollment spots for public school students, in hopes of increasing the number of black children attending universities.' President Rousseff signed this law as an attempt to reverse years of racial and economic inequality in Brazil.2

This is the most current action in a string of affirmative action plans Brazil has seen in recent years. In April 2012, the Supreme Court in Brazil made a unanimous decision to uphold the racial quotas enacted by the University of Brasilia when the university required its admissions office to hold twenty percent of the enrollment spots for black and mixed-race students.1 Other countries, including the United States, face similar problems and are forced to look at making decisions regarding affirmative action plans.

United States courts repeatedly addressed affirmative action issues, sometimes upholding these affirmative action plans, but striking down any affirmative action policy that is too focused on quantitative measures.4 This article will address whether the current law approved by Brazil's president would be constitutionally upheld under strict scrutiny in American courts, and whether it will yield successful results for a more equal representation of race in Brazil's federal universities. In doing so, I will first describe the current law enacted in Brazil. Next, I will summarize the current position of the United States Supreme Court in regard to affirmative action in American universities. Finally, I will conduct a constitutional analysis on Brazil's new legislation to determine if it would be deemed constitutional in the United States. I will conclude with a brief criticism of affirmative action plans.

II. DESCRIPTION OF BRAZIL'S AFFIRMATIVE ACTION LAW FOR UNIVERSITIES

First, it is important to have a general understanding of the recently enacted Brazilian law. The Law of Social Quotas mandates that Brazil universities reserve fifty percent of their admission spots for applicants from public schools.5 From these reserved spots, a university will give priority to minorities in accordance with the racial numbers of the region where that university is located.6 In the 2010 census, a slight majority of Brazilian people called themselves black or mixed-race.7 This was a shift from past census data that showed a white majority. * This shift in racial dynamics will potentially result in a dramatic increase in black or minority university students in those Brazilian states that have a large black or minority population.9

The Law of Social Quotas gives public universities10 four years to become compliant with these new requirements." However, in 2013, at least twenty-five percent of admission spots must be reserved for public school students.12 The law requires half of the spots which will eventually be reserved for public school students to go to applicants who come from families whose income is the equivalent of 450 U.S. dollars a month or less.13 These requirements are an attempted response to years of minority oppression and racial disparity in the higher education system.14

III. UNITED STATES APPROACH TO AFFIRMATIVE ACTION PLANS AND UNIVERSITIES - A STRICT SCRUTINY APPROACH

The Supreme Court of the United States has addressed affirmative action plans in universities several times over the past few decades. Originally, in Regents of University of California v. Bakke, the Supreme Court held that a special admissions program for a disadvantaged or minority group of people was illegal, but that race could be a factor in admissions.15 In Bakke, a male applicant brought suit against a university who denied his admission to their medical school.16 He challenged the legality of the special admissions program the university implemented, which reserved sixteen of the 100 available positions for disadvantaged applicants. …