1“Racism does not exist in Brazil”. “Brazil is a racial democracy”. Based on both of these assertions, many national authors have a perspective that ends up denying the existence of a racist culture in our country. One of our main challenges is overcoming the notion that, differing from other races, ours has escaped from the harms of discrimination, prejudice, and racism.

2Brazil considers itself and is considered to be one of the few “racist democracies” on the planet, which motivated UNESCO, in 1950, to promote a study about the harmonious relations among the races in Brazil. The conclusion revealed that we have a multiracial country, where discrimination was tenuous, and did not escape from stratification in so far as having strong social inequality among the various racial groups. [1] This dissimulative racism we live with can be expressed in the questions formulated by the anthropologist Lilia Schwarcz in her book “Wonder of the Races” (O espetáculo das raças”): (1) Are you prejudiced ? 99% of the people answered “no”. (2) Do you know anyone that is prejudiced ? 98% answered “yes”! The first step in recognizing racial matters as relevant issues on a national level is to understand it as the responsibility of all those who fight for the edification of a just, equal, and fraternal society. For one to achieve this, it is necessary to break the historical silence of the scholars, political parties, intellectual university students, and those who operate the law about racial matters. The 1988 Federal Constitution renewed several provisions in distinct areas. In criminalizing racism (art. 5, inciso XLII) it also recognized its existence and, consequently, the existence of racial inequalities. The objective of this paper is to concisely discuss the matters that involve this issue.

a) Negroes [2] and mulattos in Brazil

3No country in the world is totally free from prejudice, discrimination or racism. As Tulio Kahn observes : “the theory of the crossing of races and the belief in the Brazilian racial democracy contributes in fact to the existence of amicable relations among the various racial, ethnic, and religious groups—while explicit racism is socially reproved in the country. However, for a long time such ideology hindered the public recognition of a racial problem in Brazil, which in fact exists, even if it is secretly expressed”. [3] Such observations explain why 99% of the people in Brazil deny being prejudiced and at the same time—always— knowing someone who is.

4It should be mentioned, on the other hand, that racism is not an official policy of the State, as with apartheid in South Africa, where there was the recognition between the races of the superiority of the white one. In this hypothesis there is a nationalized discrimination that is, therefore, legal. Neither is it a semi-official doctrine in which unfavorable treatment is given to a person based on his/her group or racial characteristics. Brazilian racism is a racism that everyone denies but—at the same time— everyone affirms. Some statistical data can explain these paradoxes.

5In the PNAD (National Research of Housing Samples) done in 1999, which contains the most recent and reliable data, 54% of more than 160 million Brazilians declared themselves white, 5.4% declared themselves negro (official terminology of the Brazilian Institute of Geography and Statistic – IBGE) and 39.9% called themselves mulatto, meaning dark skin. [4] From this population illiteracy rates are : 8.3% white, 21% negro, and 19.6% mulatto. That is, blacks are 2.5 times more illiterate than white.

6Whites earn, on average, 5.25 times the minimum salary. [5] Blacks earn 2.43 times the salary with mulattos 2.54 times the minimum salary at the end of every working month. Therefore, the average income of a white person is more than double the average income of a black person. Almost 14.6% of blacks are household servants. Only 6.1% of whites work in this function (there are two and a half times more blacks than whites working in this less qualified activity). Among mulattos the percentage is 8.4%.

7The main Brazilian university, in terms of research, number of students and quality of education is the University of São Paulo. The way of selecting the students is done through a rigorous college entrance exam in which competition is extremely difficult. At the university 79.5% of the students are white versus 1% of blacks. Only 6% of the students are mulattos while 12.9% are Orientals. The population of blacks and mulattos in the State of São Paulo amounts to 33.1% while the yellow population does not exceed 1.8%. Thus, blacks and mulattos are under-represented in the University of São Paulo by almost 5 times. [6]

8The above data express the correlation between the social economic relations and racial aspects. Some interesting data about the justice system and its relation with the races may be gathered. The rate of imprisonment per racial group in São Paulo is 76.8 for every 100 thousand white inhabitants and 140 for every 100 thousand mulattos, increasing to 421 for every 100 thousand Negroes. This means that a black person has 5.4 more chances to be in prison than a white one. While whites are under-represented in the prisons of São Paulo, blacks are overrepresented. Similar phenomenons occur in multiracial countries that have seriously recognizable racial problems. In the USA, for example, these rates are 3.785 per 100 thousand Negroes, 1.773 for Hispanics and 407 for whites. [7]

9According to the Department of Penitentiary Matters of São Paulo, in a research done in one of its prisons, in 1997, whites, Negroes and mulattos had differing sentences according to the crimes they committed. With homicides, the average sentence for whites was 20.1 years. For mulattos this charge resulted in 25 years and for Negroes 35.7. Besides, whites had fewer convictions than Negroes. (1.4 convictions against 1.8). This means that besides being convicted more often, their sentences are proportionally longer.

10All of these data allow us to come to a simple conclusion : whites have better living standards, more access to education, better jobs and salaries, attend public universities more (free of charge), participate less than Negroes in the justice system because they are less prosecuted, imprisoned, and convicted. If it is true that after the abolition of the slaves we had not erected a new system of racial segregation, with prohibition of marriages between whites and Negroes or legal prohibition of Negroes from attending all white schools it is also true that this brief list of data shows us that, in regard to racial matters, we are, at least, an unjust country.

b) Brief history of racial relations in Brazil

11The existence of racism follows man. Human feeling has always tried to show its superiority over the other animals as well as differentiating from other men considered inferior. In India, in the Code of Manu, the foreigner and the social outcast did not have legal equivalence. In Hindu cast is “baru”, a word that means color, which shows, possibly, some racist feelings. On the other hand, the Talmud, of the Hebrews, overflows its wisdom about the virtue of humanity. Man should not feel proud or exalted about other things, for if he/she was created by God in the sixth day of the process of creation, the mosquito was created before him/her. The Bible teaches us that Moses, the one who set the Hebrews free, had against him murmurs of reprehension and disapproval from Aaron and Miriam, because he married the Ethiopian woman. (Numbers 12.1). Divine compensation would restore justice, even in an ironic way, for “Miriam became leprous, white as snow” (Nm 12.10).

12However, as most of the human phenomenon happen, starting from the real rational illuminist rage, it’s man, autopromoted to the center of human relations, who wants to rationalize everything, using a method which leads him to science, so that he can explain the human phenomenon he has lived with for centuries and only intuition was able to make it happen in earlier times. As a doctrine, racism appears in the world through Gobineau, in 1856, with the work “About the inequality of the human races”, in which the white race is exalted and predicts the decadence of civilization because of the crossing of races. [8] Such studies had repercussions in Brazil producing a racist culture—here not hidden—where Negroes and whites are declared different because of their racial condition. An important penal law scholar and criminologist, an author who influenced a large number of followers in Brazil, Raimundo Nina Rodrigues, used to affirm that “the scientific criteria of the inferiority of the Negro race has nothing in common with the revolting exploration which was made of it by the slave interest of North Americans. For science this inferiority is not more than a phenomenon of perfect natural order, a product in the unequal march of human phylogenetic development in its various divisions and sections”. Further on, he concluded : “the studies of the inferior races has given science well observed examples of this organic, cerebral incapacity”. [9]

13Whether one agrees or disagrees with François Jacob, Nobel prize for Biology, when he affirms that the concept of race is, for our species, not operational (which means that the white or Negro “race” does not exist), we still have to live with racism when, we reaffirm, there are no scientific ways that may show the existence of different races in the human species. The words racism, prejudice, and discrimination, even though they deal with convergent to concepts, do not have the same meaning. “With the term racism we understand it is not a description of the diversity of the races or of the ethnical human groups, accomplished by physical anthropology or biology, but a reference of individual behavior to the race which he/she belongs to and, mainly, the political use of some apparent scientific results, to make us believe in the superiority of one race over the others”. [10] Racism is the pretence of white superiority over Negroes that causes an idea according to those who occupy a better position in the social status would be permitted to practice acts that reduced or dominated those supposed to be inferior.

14Prejudice is the concept or opinion that one has before having appropriate knowledge. Therefore, prejudice is always a negative attitude, unfavorable with groups based on stereotypical beliefs. “In the case of Brazilian racial matters, it is important to establish the difference between prejudice, which is the internalization of racist beliefs, and discrimination, which is its manifestation”. [11] To discriminate, in semantic terms, is to treat in a special way, usually with loss for one of the parts. Sociologically speaking, such unfavorable treatment to a certain category of people “is referred to as a process or way of social control that is used to maintain the social distance between two or more categories or groups, through a set of practices more or less institutionalized. These practices result in the arbitrary attribution of inferiority traces, based on reasons that have little to do with the actual behavior of the people who are the object of discrimination”. [12] Therefore, it may be said that prejudice is a feeling and even an attitude in relation to a group resulting from the internalization of the racist beliefs.

15Brazil, while a colony of Portugal, always had slavery. Labor involving land used slaves with some exceptions. In the beginning of the 19^th century, even though slavery was adopted by Portugal which at that time was the Brazilian Metropolis, the existence of slave labor did not interest the English, who were interested in creating a consumer market in South America. At this time the traffic of slaves was led by Portugal and prompted the English Crown to pressure the Portuguese to end the traffic of Negroes. From March 25,1807, the traffic was considered illegal by English subjects and, starting on March 1,1808, a crime against humanity. The main target of these measures was Portugal (and its colonies) where slave labor existed. In 1810 the English forced the Portuguese to sign a “Treaty of Cooperation and Friendship”, signed by Count Linhares and Lord Strangford, in which this matter was mentioned. As the slave traffic continued, new English pressure culminated in the approval of the first Brazilian law against slave traffic, on November 7,1831. [13] This Law, known as the Diogo Feijó Law, ratified the extinction of the slave traffic and affirmed, in its first article, that “all the slaves, who come into Brazilian territories or ports, from abroad, are free”. However, in spite of the prohibitive norms, which foresaw criminal punishment to the offenders, there was no success in the normative arrangement. It is known that, at least, until 1855 a great amount of slaves continued coming from Africa. The objective of this law was to give an international explanation, especially to England, but not to be enforced. This is known as the law “just for show”.

16On September 4,1850, a second Brazilian law against the traffic was approved. It became known as Eusébio de Queirós Law. Once again resulting from English pressure, and in face of “Bill Aberdeen”, a unilateral law of the British Crown which authorized any nation to repress slave traffic as a crime that offends the rights of the people, equivalent to piracy, the government approved a law giving the power to apprehend any Brazilian or foreign vessels with slaves. (art. 1). As the repression of the traffic of Negroes was only slight, a third law was approved, on June 5,1854, still giving more power against slave importers from Africa. The last known disembarkation of slaves, in Brazil, occurred on October 13,1855.

17In the first half of the 19^th century the traffic of slaves became extinct but slavery continued. Negroes born here were still slaves. On September 28,1871, the so called “Law of the Free Womb” was approved. This law declared the “free condition of the slave woman’s offsprings born since the day of this Law…” (article 1). However, it presupposed indemnities to the slave lords, which were forgiven, if the minors worked for free until the age of 21. Therefore, this law postponed the end of slavery until the second generation for those born on Brazilian soil.

18On September 28,1885, the Sexagema Law was approved. Through this Law, all the slaves, 60 years old and over, were free (art. 3, paragraph 10). This seemingly humanist measure ended up leaving all the slaves abandoned, aged by work, who had no capacity to find a paying job at such an old age. Only on May 13,1888, “the Brazilian slavery is declared extinct, from the date of this Law” (art. 1), “revoking the contrary arrangements” (art. 2). In this law, consisting of only two articles, the Brazilian monarchy put an end to the legal discrimination of the Negroes enslaved in Brazil. The abolition occurred due to the economic interest to end labor that was hard working but did not constitute itself to a real consumer market. It was also the result of a doctrine anchored in some concepts : “1) there is no ownership of a man. Every man is a person, that is, a being capable of acquiring and having rights; 2) international law does not recognize the right of owning slaves to any state or person; 3) foreign slaves become free with complete rights from the moment they step on the soil of a free State, and the State that receives them is obligated to make sure their freedom is respected; 4) the slave trade and the market of slaves are not tolerated anywhere. The civilized States have the right and the duty to hasten the destruction of these abuses wherever they are found.” [14] It is not necessary to mention the difficulties in being one of the last countries in the world to officially abolish slavery by means of a solid doctrine recommending its end. But the determining criteria were economic without a shadow of a doubt. With much objectivity, Raymundo Faoro also observes that “at the extreme south, like in São Paulo, servile labor and free labor together show, in the marshes, where the number of slaves was higher, its antieconomic character, improper for retraction in times of crises, with a fixed capital and immobilized disturbing the rationality of the company”. [15]

19During the Philippine Ordinations, inherited from Portugal, there were many provisions that foresaw different measures against Jews, gypsies, and moros. The punishment of Negroes was different. There was not any provision, evidently, reproving racial bias. In the Title XCIV, Book V of the Ordinations, for example, it presupposed that the moros and Jews should, being free or captive, walk with an identifying sign to be recognized by everyone. If they did not do so, they would pay heavy fines and, if it happened again, they could become enslaved. [16] At the time of the Empire the recognition of slavery created some delicate circumstances concerning the enforcement of the penal and procedural law. There was a combination of public mechanisms, determined by the ordination, with private mechanisms, resulting from the relation of property over thing (we cannot forget that the slave worker was judicially considered a thing). “The judicial processes occurred only between individuals of the same social position. In general, conflicts involving individuals of different social categories were not taken to court and justice served to regulate the competition of individuals of the same social category”. [17] If a free man was not supported by the so-called “natural right”, the existence of a judicial relation founded in this principle was nonsense. For this reason, legally, slavery was an exception. Magistrates had to abide by the different points of views of these decisions. They had real political responsibility for their decisions since they could put at risk the tranquility of the slave quarters on the plantations producing revolts or rebellions among the slaves. [18]

20With independence declared in 1822 but already being under the patronage of the Code of the Empire of 1830, penal legislators created a whole section dedicated to slaves who broke the penal law. Article 60 of the Code mentioned above, for example, presupposed different sentences “if the defendant is a slave, and [incurs a sentence] that is not capital or galley, will be whipped, and, after suffering from them, will be given back to his/her owner, will be [bound] to bring him/her with an iron through time and manner designated by the judge”.

21After the abolition of slavery (1888) and the Declaration of the Republic happens (1889), the first Republican Penal Code (1890) was created, removing any discriminatory measures because of racial condition. However, discrimination continued. Article 402 of the Code punished, with prison sentences of 2 to 6 months, those who did “exercises of agility in the streets or public squares and corporal skills known as capoeiragem…” At that time the practice of capoeira was typical of Negroes originating from the quilombos [19] who used such art to defend themselves against the attacks of whites on their strongholds.

22After establishing the constitutional equality between whites and Negroes, with the recognition of the Negro citizenship, no discrimination is found in subsequent laws to the first Republican Constitution, declared on February 24,1891. However, only since July 3,1951, with the advent of the Afonso Arinos Law (Law 1390/51), the existence of a latent racism is recognized as still persisting, though in a dissimulative manner. More than 60 years have passed since abolition of the main laws which established different conditions between whites and Negroes. Article 1 of the Afonso Arinos Law said : “It constitutes penal contravention, punished in terms of this Law, the refusal by means of a commercial establishment or any nature of teaching, hospitality, service, attending or receiving a client, buyer or student, by prejudice of race or color”. As Jorge da Silva says, “The main merit of the law was to describe the manner in which discrimination occurred (as a matter of fact, neither the term discrimination nor segregation appear in the text), invalidating the theory of “racial democracy”. If however, the law contributed to the reduction of the explicit manifestations of discrimination, it also contributed to the sophistication of the racist and discriminatory attitudes…” [20]

c) The legal discipline of the crime of Racism

23The Constitution of 1988, the result of the re-democratization of the country after a long dictatorial period, was preceded by a broad public discussion with the participation of different social groups. Different from previous constitutions, and given its condition as the leading Constitution, it broadened individual guarantees, acknowledged social problems and pointed to solutions. Since its introduction the Constitution has defended a fraternal society, pluralistic and without prejudice, founded in social harmony. (our emphasis)

24It was created to respect the dignity of the human being” (art. 1, III). One of its fundamental objectives “to promote the well being of all, with no origin, race, sex, color, age and any other kind of discrimination”. (art. 3, IV) We, therefore, had an abrupt legal change. The State recognized that it is not enough to declare that all are equal before the law. On the contrary, the inequalities are recognized and the Nation is willing to promote the well being of all, with effective and objective measures so that racial differences may be eliminated. “Social well being must be sought after, eliminating the prejudice of race, sex, age, origin and other kinds of discrimination”, affirms Pinto Ferreira. And in the sequence of his exposition, writing about the existing differences between whites and Negroes, he concludes, “There is the under qualification of work and job and consequently of income, according to color, race, sex, and age. The ideological program of the Constitution is to eliminate such discrimination”. [21] Besides, one of the principles that governs international relations becomes the “repudiation of terrorism and racism” (our emphasis), in terms of art. 4, VIII of the 88 Charter.

25It may still be observed, in international relations, that the rights and guarantees expressed in the Constitution of 88 do not exclude what emerges from the regime and from the principles adopted by it, or from the international treaties in which the Federal Republic of Brazil is included. (art. 5, paragraph 2 of the Magna Charter). Thus, the International Convention on the elimination of all kinds of Racial Discrimination, adopted by the Resolution 2.106-A of the General Assembly of the United Nations on 12/21/1965, ratified by Brazil on 03/27/1968, became part of our judicial ordination. With the adoption of the conventions and treaties as part of our positive law, and in view of the provision in art. 2 of the Convention mentioned above, Brazil condemns “racial discrimination and commits itself to adopt, by all appropriate means and with no accusations, a policy [destined] to eliminate racial discriminations in all of its forms and to encourage the promotion of agreement among all the races”. [22] Such postures lead to the adoption of criminative measures against discriminatory or racist acts”. [23]

26If such provisions were not sufficient, the Federal Constitution of 88, in the chapter of Individual and Collective Rights and Duties, adduced that “the practice of racism constitutes a crime with no bail and no time lapse, subject to a sentence of reclusion, in terms of the law”. Such assertion, without a doubt, orientated the punitive intervention of the legislator who approved law 7.716 of January 5,1989. Law 7.716/89 mentions nothing about “no time lapse and no payment of bail” for the crime of racism. Both of these figures are constitutional impositions. Such aspects of the Greater Law are aspects unanimously criticized by the Brazilian doctrine.

27The prescription (time lapse) is the loss of interest in the persecution and punishment of the author of the crime, because, as time goes by, the reasons that justify his/her punishment disappear. After some time the punishment is unnecessary, its legal reason disappears and the sentence becomes unjustified. “Public indignation and the feeling of insecurity which the crime produced, weakens through the years, in the same way that the revolt and demand of justice of the offender lessens.” [24] Time, unable to lapse, is a real insult to the modern conception of justice and incompatible with the principle of respect of the dignity of the human beings inserted in the Federal Constitution. Moreover, it offends the principles of proportionality and of the humanization of sentences. Célia Maria Ramos Tejo emphasizes, that besides being unjust, it is illogical. The most rigorous penal laws do not adopt the no lapse of time, law 8.072/90, which created the so-called horrid crimes and listed, on its text, the most serious penal infractions like armed robbery with death, extortion with kidnapping, homicide, rape, and violent sexual attempt etc. [25] Thus, much more serious crimes than racism (like homicide, drug traffic, torture, terrorism) and with higher sentences are allowed the lapse of time while racism is not. “Time not being permitted to lapse for this crime is a new fact in the Brazilian penal legislation; a dangerous, and slippery exception and an evident mistake”.  [26]

28Our doctrine agrees with the criticism on the impossibility of granting bail to the author of the crime of racism. “Bail is a real guarantee of the fulfilment of the procedural obligations of the defendant. It is a way of obtaining temporary freedom, a subjective right of the accused that, meeting certain requirements, maintains his/her freedom until the definite court judgment”. [27] In the Brazilian ordination the accused may respond to a process of liberty (the so called temporary liberty) with the payment of bail or even without it. To prohibit the concession of bail is to deny a subjective public right that many defendants have. But it is not denying the concession of temporary liberty without bail which is guaranteed to all defendants, meeting certain legal requirements. It would be better to subordinate Law 7.716/89, that created the crime of racism, with the general rules contained in the article 323 and 324 of the Penal Process Code.

29The real truth is that the excesses which were constitutionally expected (no time lapse and no bail) take away the internal legislative coherence, harmony, and proportionality of the juridical ordination. They subtract the intrinsic logic, especially when we think of the serious prison problem in all the states of the Brazilian federation.

30In article 1 of law 7.716/89, it affirms that “the crimes resulting from discrimination of race, color, ethnic, religion or national procedence shall be punished”. Color or race prejudice is due with the discrimination of those who show distinct somatic characters. Ethnic refers to that which is relative to a certain group of people. Religious prejudice has to due with the issues freedom of belief and faith. Prejudice based on national precedence targets those who discriminate based on where he/she lives. A typical example is the discrimination in relation to the Northeast Brazilian, many times called “paraíba” or “baiano”. [28] It is necessary to observe that the law does not mention the discrimination based on the social or economic condition of the victim.

31Several articles prohibit differences in sentencing, the conducts of hindering, obstructing, refusing, denying access of people because of racial, ethnic, religious, and other conditions. Thus, one who denies or obstructs work in a private company shall be sentenced from 2 to 5 years. If it is a public company, there shall be equal penal reproval (according to articles 3 and 4 of the Law). To refuse or forbid access to a commercial establishment, public buildings, sports establishments, clubs, restaurants, and bars, for one of the reasons foreseen in article 1, shall result in a sentence of 1 to 3 years of reclusion, or of 3 to 5 years, according to the case. To forbid access to public or residential buildings, elevators or stairs of access to the same buildings shall result in a sentence of 1 to 3 years of reclusion (art. 11). In Brazilian residential buildings it is common having more than one elevator. When this happens, one becomes a “social elevator” while the other is a “service elevator”. This one is used for loading and unloading, transporting residents with animals, etc. The former one serves all the residents and guests in normal conditions of use. It shall be a crime, thus, if someone in view of his/her race or color condition is forbidden to use the social elevator, and only permitted him to use the service elevator. However, the discrimination that a white maid suffers, who is forbidden to use the social elevator because of her “subaltern” social condition of exercising an occupation “less qualified”, is not reachable by the law ! Article 20 of the Law foresees sentences, that vary from 1 to 5 years, for those that practise, induce or incite racial discrimination as well as for those that manufacture, commercialize, distribute or carry symbols, emblems, ornaments, stickers or advertisements that use a swastika cross, for the purpose of promoting Nazism.

32More recently, with the advent of Law 9.459/97, a paragraph was added to art. 140 of the Penal Code, that defines the crime of slander, foreseeing different sentences that “consist in the use of elements regarding to race, color, ethnic, religion or origin”. The sentence for a simple slander is 1 to 3 years of reclusion. Such inconsistencies in sentences also cause perplexity in the doctrine. [29]

33Despite our ordination having innumerable penal provisions foreseeing sentences for the crimes of racism, few cases, subject to the Judiciary Power, had condemnatory decisions. In one of the most complete books about the theme, published 5 years after the law, Jorge da Silva was only able to identify four cases of racism judged in Brazil. [30] According to Edison Maluf, in an article written in 1996, seven years after the advent of the law, there were only seven cases of racism judged by the Brazilian Justice. [31] The real truth is that, in a country that presents such serious social and racial disparities, mentioned in prior topics in this paper, the social control through this penal law was not effective, deserving a more in depth study about such measures, through public politics, that could be adopted in this context described above and that could minimize these brutal disparities. Our laws, thought of and conceived for punishing racism, in truth, failed, and did not even come out of the paper, becoming “dead words”, and motivated the subtle observation by Hédio Silva Jr. that there was “victory in the legal text and defeat on day by day life”. [32]

d) Conclusive Notes

34Our experience has already shown that social control of racism is not done through the Penal Law. It would be better if public politics could, along the generations, gradually and progressively decrease the racial differences in Brazil. Today many politicians discuss the adoption of affirmative action policies used to great extent in the 60s in the United States. “The term affirmative action refers to voluntary and obligatory policies and procedures designed with the objective of opposing discrimination in the workplace and also rectifying the effects of discriminatory practices exercised by employers in the past. Likewise, in the case of anti-discriminatory laws, the objective of affirmative action is to make the equality of opportunities a reality, through “leveling of the area”. Contrary to antidiscriminatory laws workers can turn to after suffering discrimination, the objective of affirmative action policies is to prevent the occurrence of the discrimination. Affirmative action can prevent discrimination in the workplace––intentional or habitual— for practices that are a protection against discrimination.” [33] This definition specifically refers to regulatory policies in the extent of the workplace. Affirmative action policies also were implemented in higher education and governmental contracts in the United States. In many of the cases, quotas were established proportionately to the number of people in the group in relation to the members of a community, and guaranteed access, for instance, to public and private universities. This legate bore what some authors call the colorblind society. [34] Such policies date back to the 60s and produced the first concrete results in 1965, when President Lyndon Johnson signed an executive order 11.746. Later, in the 70s, these postures were reinforced with the decision of the Supreme Court in the case Bakke x Leaders of the University of California, that race was an acceptable criterion for college admissions.  [35]

35“We all suspect—and with reason— of the racial distinctions. They have been used to deny the right of equality, more than to respect it, and we all have the consciousness of the unjust situation that is being created. But if we are not able to understand the nature of this injustice, if we do not make the necessary distinctions to comprehend, we run the risk of committing other injustices. It is possible, in fact, that the programs of positive discrimination do not create an equal society, for they may not produce the effects that were attributed to them by their defending counsels. But we should not distort the debate judging that these programs are unjust even when they work and produce results.” [36] In Brazil there is still discussion of working (or not) with affirmative action policies. It is too early to know if such public policies will be implemented among us—and with what effect— but adoption will not happen without resistance from the more conservative groups of society. For us, the important thing is not to have a new victory in the legal text and defeat on day by day life.