Court declares one must “look like an African descendant in the eyes of the average man” to qualify for affirmative action, rejecting another case of a white student “passing” for black

Court declares one must “look like an African descendant in the eyes of the average man” to qualify for affirmative action, rejecting another case of a white student “passing” for black

By Marques Travae

In a recent decision that will have huge repercussions on persons who attempt to obtain access to certain jobs and vacancies in universities, a panel upheld a policy that defined that for anyone wishing to qualify through affirmative action, it is not enough that said person be of African descent, but rather must look like an African descendant in the eyes of the average man. This was an argument I made several months ago. A little background here.

Due to the lack of diversity on Brazil’s college and university campuses, the nation began to experiment with affirmative action policies nearly 20 years ago. The discussion on the policies generated debates on race in the public sphere that had never happened to such a degree in Brazil. Sure, the topic of race in Brazil had been studied in academia for decades, but never had the general public had such public debates on the topic. Since the first half of the 20^th century, the belief system in Brazil had been that Brazil was a “racial democracy” in which any person, regardless of their racial appearance had an equal opportunity to attain a middle class lifestyle. In fact, because of widespread miscegenation, it was even difficult to determine what race the average Brazilian was anyway.

This last idea was became one of the principal arguments among those who rejected the implementation of affirmative action policies. Along with the idea that quotas would destroy the quality of education in Brazil’s universities, people argued that, as people in Brazil are so mixed, and the policy was to benefit non-whites, how would it be possible to determine who was black or white? As Brazil’s racial classification was different from that in the United States where “one drop” of African ancestry could define one as black and where racial segregation and a relatively low proportion of interracial unions made the line between black and white quite simple, Brazil had been a mixing pot for centuries. In Brazil, there were millions of people who carried DNA of Africans, Europeans and Native Brazilians and this mixture showed in the faces of the Brazilian people.

We add this to the fact that the manner in which Brazilian society stigmatized blackness, it was also very common within the population for persons whose physical appearances denoted African ancestry to deny that they are black. In general, most people believed it better to be branco, or white, or at least a racial category that defined one as not black. Such a stigma would lead Brazilians to use 136 different terms when asked about their color in an open response 1976 census, far more than the five terms that would become official color categories. Those terms are branco (white), preto (black), pardo (brown/mixed), amarelo (yellow/Asian) and indígena (Indian/Native Brazilian).

For decades, leaders of Brazil’s black social movements, known as the Movimento Negro, had argued that because pretos and pardos have a near identical socioeconomic profile and both were at an equal disadvantage vis-à-vis the white population, it was defined that pretos and pardos together made up Brazil’s black population. Somewhere along the line, it also became fashionable to refer to persons of African descent as afrodescendentes. Which was another reason that controversy would soon arise as to who should qualify for affirmative action policies.

For several years now, there have been countless cases across the country in which persons who don’t possess physical attributes that denote African ancestry have been defining themselves as pardos or afrodescendentes in order to qualify for jobs and university vacancies. Many of people have lost their places in these institutions after groups and panels discover and point out that their self-declaration of race doesn’t match what they actually look like. In other words, persons who for all intents and purposes were white were defining themselves as pardos or afrodescendentes in order to take advantage of affirmative action policies.

Because it can be sometimes difficult to define who is white and who is non-white, panels were implemented that were to judge whether a person was preto or pardo or not and thus deciding whether one could qualify for quotas or not. In one controversial case that made headlines and was used by many as proof that it would be impossible to define who was black, brown or white, twins were judged differently by a panel. One brother was defined as a pardo and thus qualified for quotas while his brother was rejected because judges didn’t believe his physical features defined him as pardo and as such thought he would not suffer discrimination in his life because of how he looked.

The debate over who was “black enough” has raged on ever since as have the cases of racial fraud. Earlier this year, at one university, black activists held protests over a dean’s decision that any person who could prove African ancestry should be able to qualify for quotas. Activists argued that such a ruling could destroy the system that meant to benefit those whose path to a college education, pretos and pardos, has been far more difficult than those defined as brancos. As one study estimated that nearly 90% of all Brazilians have at least 10% African ancestry, there are literally tens of millions of Brazilians who are of some degree of African descent even if they don’t look like it.

Which brings us to today’s case.

In a recent decision, the Regional Federal Court of the 4th Region (TRF4) considered it legal to exclude a candidate from the competition for a position as mechanical technician of the Itaipu Binacional energy company, located in Foz do Iguaçu, Paraná, on Brazil’s border with Paraguay. The judgment of the 4th Panel was passed down on October 24 and was unanimous.

In this case, like many others, a 26-year candidate declared himself an African-descendant, but, after evaluation by a committee, was rejected from the competition for failing to present an afrodescendante phenotype (appearance). After his disapproval, the candidate went on to file a writ of mandamus in the Federal Court of Foz do Iguaçu against the director of Itaipu.

To prove his case, the candidate presented his father’s birth certificate, his brother’s military service status certificate and his registration in the Sistema Único de Saúde (SUS or Unified Health System), in which he identified himself as a pardo.

The judgment was well received and Itaipu Binacional appealed to the court. According to the information in the file, the commission, made up of six judges, observed, in addition to the defendant’s skin color, his other facial features, taking into consideration the shape of his eyes, nose and mouth and coming to a unanimous decision that the candidate did not have the physical attributes of a preto (black) or pardo (brown/mixed).

For federal judge Luiz Alberto d’Azevedo Aurvalle, the legal criterion on which the Statute of Racial Equality was based is that of phenotype (appearance) and is not based on ancestry:

“The law is clear when affirming that the black population is formed by the group of people who declare themselves pretas or pardas. What validates the use of the legal privilege is the afrodescendante appearance and not an alleged afrodescendante ancestry,” the judge said in further explaining his vote.

“Self-declaration is not the absolute criterion of being black or brown. The purpose of the racial quota system is to compensate for racially discriminatory candidates in the odious form of racial prejudice. However, in order to avail itself of the legal benefit, it is not enough to be afrodescendente: one has to appear to be afrodescendente in the eyes of the average man. Self-declaration, by itself, represents an open door to fraud, to the detriment of those whom the law aims to benefit,” said Aurvalle.

The magistrate also considered impractical to use scientific methods of identifying African ancestry through a complete study of the genome of each candidate.

“Considering that the racial quotas aim at repairing and compensating for the social discrimination that may be suffered by afrodescendentes, in order for the candidate to be worthy, it is essential that they have a brown or black phenotype. If he doesn’t have it, he is not discriminated against and, consequently, does not live up to the privilege of entering the career,” concluded the judge.

The reasoning for the judgment formed the basis on my argument back in March. In Brazil has never defined one as black based on ancestry, why start now? If anyone with African ancestry can be defined as black, nearly the entire Brazilian population would qualify for quotas, which would undermine the whole point of having affirmative action in the first place.

But even with a victory in this decision, the ruling still opens up whole other can of worms for the Movimento Negro. You see, the movement has always argued that all pardos, most being of some degree of African ancestry, are part of the black population, they include millions of pardos who display very few, if any features that denote African ancestry. Millions of these pardos fall under the category of clearly not black, but still not quite white, those who would be considered Latinas in the United States. And the Movimento Negro knows this.

Frei Davi is one of the movement’s most well-known activists, heading up the Educafro NGO which has been responsible for helping thousands of black and poor students by preparing them for the vestibular (college entrance exam) as well as facilitating scholarships for a number of years. In a 2016 interview, Frei David Santos acknowledged the complexity of the pardo issue.

For Santos, the category of pretos isn’t a problem in defining who should qualify for quotas based on their appearance. The problem comes in when we take pardos into consideration, because pardos have such a wide range of phenotypes. For Santos, the pardo category further breaks down into another three categories, which are pardo-preto, pardo-pardo and pardo-branco. A pardo-preto is a person who has whatever degree of racial mixture but their features that denote African ancestry are quite obvious. Someone like actress Taís Araújo would be a good example of a pardo-preto. Keep in mind that a pardo-preto can have darker or lighter skin than Araújo, but the facial features in combination with the hair texture leave little doubt as to the subject’s racial identity.

Then the pardo-pardo would be a person that, physically, sits directly on the fence. Possessing lighter skin than a typical pardo-preto, some people may see them as black, others will see them as white, as is the case with the Teixeira twins, and still others will see them as strictly pardos. These are the twins I made reference to earlier in which one brother was defined as black while his twin brother was defined as white.

A pardo-branco would be the person who has very few features that denote African ancestry. For some, this person is clearly not black, but also not quite white. For others, the traces of African or Indian admixture are negligible and thus said person could be defined as white. Someone who looks like the wife of President-Elect Jair Bolsonaro, Michelle, would be a good example of a pardo-branco.

The pardo category can cause numerous problems when the issue is setting aside benefits for people who will face discrimination due to their racial appearance. Santos explained it this way:

“The whole problem is in the pardo-branco, because he has few phenotypic traits of black people and uses genotype [genetic/ancestry] to usurp a benefit that does not belong to him.”

Santos further explained his point:

“When the police do a pat down on people who are in the street or get on a bus, they go directly to those who they think are black: preto or preto-pardo. They never approach a pardo-pardo or a  pardo-branco. Of the several times I have gone through a pat down, I have never seen a pardo-branco demand the right to be frisked. Now they want to claim a benefit?”, he criticized.

In other words, the same people who don’t complain when police don’t search them because they may not see them as black now want to demand the quota benefits of those pretos and preto-pardos who DO get frisked by police.

But here lies the problem. Afro-Brazilian activists have long claimed that the combination of pretos and pardos make up the total of the black population. Today, this total comes to about 115 million of Brazil’s 205 million people. But breaking the numbers down further, we see that pardos make up a much larger group between pretos and pardos. According to last year’s estimates, there are about 97 million pardos while there are about 18 million pretos. In other words, pardos make up about 84% of Brazil’s black population. Pardos make up 84% of the “largest black population outside of Nigeria”, a phrase that Afro-Brazilian leaders have promoted for the past few decades.

The issue is the following. You cannot claim that ALL pardos are part of the black population but then turn around and say that some pardos aren’t black enough to qualify for the benefits of the affirmative action program. In other words, on the one hand, the Movimento Negro uses the pardo population to inflate the number of blacks in Brazil, but then exclude some of these same pardos when it comes to defining who is black enough to qualify for quotas. You can’t have it both ways. If you know that some many pardos aren’t quite black enough for quotas, they also cannot be black enough to be counted as part of black population.

What this comes down to is the following.

Are there more preto-pardos, or more pardo-pardos and pardo-brancos? In reality, it’s impossible to say because the census doesn’t allow such specificities, thus ALL pardos are lumped together whether they look more or less black, could be defined as black or white depending one’s opinion, or they are almost white in appearance.

The fact is that, we know that there are millions of Brazilians who fall under the category of pardo-pardo or pardo-branco and it is quite probable that these two groups significantly outnumber the preto-pardo group. And if that is the case, the time may have come to acknowledge that there aren’t really 115 million black people in Brazil. How much less than 115 million is hard to say, but by acknowledging the complexity of the pardo category, the Movimento Negro puts itself in a catch-22 situation;

A situation that would not exist if Brazil truly had the “largest black population outside of Nigeria.”