The Supreme Court of Brazil recently passed two highly important decisions on the matter of “special measures” or “affirmative action” policies with regard to access to higher education for underprivileged members of Brazilian society.

The first case looked at racial quotas in student admissions for black, mixed-race and Indigenous students at the University of Brasilia and the second case investigated scholarship quotas for private higher education in favour of Afro-descendants, indigenous and persons with disabilities by the University for All Programme, referred to as “ProUni”.                

In both cases, the Supreme Court determined that the measures were not only legitimate and constitutional but, moreover, fulfil the State’s responsibility to realise equality for its citizens. The Court looked at the rationale behind theses policies, namely to create a plural and diverse academic environment and overcome historical social disadvantage and racial inequality (for the first case), and thereafter determined that these policies also complied with international provisions regarding special measures, stating that the provisions are proportionate, temporary and reasonable.

These decisions can serve as an example and a lesson for special measures targeting vulnerable groups in Australia, specifically its Indigenous population. They demonstrate that special measures, if formulated in accordance with international human rights provisions, can be a legitimate – and in some circumstances necessary – solution for States plagued with social inequality.

The Brazilian precedents can be of great use in the Australian context where the only meaningful judicial discussion on special measures to date was the obiter dictum of Justice Brennan in Gerhardy v Brown. Special measures have been used in various contexts in Australia, recently in the Emergency Response by the Commonwealth Government into the Northern Territory, and therefore require adequate legal boundaries.

For more information, please see:

• Case summary prepared by the Equal Rights Trust

• English Summary of the Racial Quotas Decision
• Portuguese Summary of the Racial Quotas Decision
• Portuguese Summary of the ProUni Decision