Loud silences on the ADPF 186 case: did the Federal Supreme Court really examine the constitutional validity of racial quotas?

Abstract

The Supreme Federal Court (STF) ruling in ADPF n. 186 held constitutional the University of Brasilia racial quota program. In this paper, I argue that the STF only discussed affirmative action policies in general terms, without debating, in the 233 pages of the decision, the real constitutional issues that should have been debated concerning the racial quota policy. In order to achieve this purpose, the paper is organized in three parts. The objective of the first section is to present the foundations of the decision in its own terms, in order to show omissions in the ruling. The next sections of the paper offer a critical viewpoint concerning the decision. In the second section I sustain that, from the standpoint of the very internal logic of the ruling, the premises adopted by the Court couldn’t authorize it to conclude that that the racial quota policy adopted by the University of Brasilia was constitutional. In the third section, I bring questions that the STF should have brought into consideration in the ruling, adopting the American judicial experience concerning affirmative actions as a contrast, due to it’s being a legal tradition which brought to the Supreme Court many cases concerning the constitutional validity of affirmative action policies based on racial elements.