Affirmative Action: Perspectives from the United States, India and Brazil (2003)

Introduction is a critical time for affirmative action policies. While we are aware of the pending US Supreme Court decision in the cases of Gratz v. Bollinger and Grutter v. Bollinger involving the University of Michigan, few realize that the governments of India and are confronted with similar legal issues. Although the application of affirmative action policies differs in the three countries, the challenges and opposition encountered by each country are remarkably similar. Each government conceived their policies originally as a vehicle to rectify the historical injustices encountered as a result of racial or caste status. Now those same countries are experiencing Supreme Court challenges to their legality. For this reason, a comparison of the experiences in the three countries is very enlightening. The University of Michigan argues that it has a responsibility and obligation to determine the factors that add value to the educational experience, and a racially diverse student body is one such factor. Furthermore, the university maintains that affirmative measures must be taken to achieve racial diversity. While the Michigan case centers on affirmative action policies in higher educational institutions, the decision will likely affect the implementation of affirmative action in education, employment and government contracting. The Brazilian government is currently grappling with similar issues. To correct its legacy of slavery and racial inequality the new government, which assumed power on January 1, 2003, has begun implementing goals for Afro-Brazilians in government jobs, contracting and university admissions. The Justice Minister, Marcio Thomas Bastos recently stated, This country has an enormous debt because of the iniquity that was slavery in Brazil (Rohter 2003). Just as in the United States, the Brazilian Supreme Court has been asked to rule on the constitutionality of racial quotas in university admissions. India's affirmative action policies have been referred to by many scholars as compensatory discrimination. While the country's constitutional provisions against castes and in favor of reservations for the outcasts of society have not been fully implemented, these policies have recently come under legal assault. Further, their implementation has caused conflicts between the caste hierarchy and the outcasts or untouchables that occupy positions below the caste system. Like Blacks during the era of Jim Crow segregation in the South, the untouchables (known as Dalits) live in highly oppressive and demeaning conditions. India's affirmative action policies are intended to be inclusive and compensate Dalits and indigenous peoples (known as Scheduled Tribes) for centuries of past injustices and repression and offset the disabilities currently suffered by those in the underprivileged classes. and India differ from the United States in that the imperative for affirmative action is grounded in the principle of restitution for the centuries of slavery, benign racial neglect and caste oppression. In the United States, affirmative action policies were originally implemented to rectify the country's legacy of racial oppression. Goals were enacted in higher education, employment and government contracting. However, over the years the opponents of affirmative action have been successful at characterizing goals as quotas and waging legal guerilla warfare on goal-based programs through the court system. Having successfully characterized goals as quotas, they next attacked the constitutionality of quotas and persuaded the U.S. Courts to ban such practices. Bit by bit, they were successful at getting fundamental remedies ruled unconstitutional. The courts have now virtually banned the application of goals in education and employment and in most government contracting programs. However, preference programs based on race are still permitted. Now opponents have persuaded the Courts to apply the legal principle of strict scrutiny to test the constitutionality of all racial preferences. …