Global Affirmative Action Praxis Project (GAAPP)

By Lincoln

April 3, 2010

Many of us in GAAPP have an instinctive aversion to state involvement in romantic relationships between consenting adults.  But we also know from the feminist movement that “the personal is political”.  Meetings with former Sao Paolo City Councilwoman Claudete Alves and others have given me reason to consider ways that the state could discourage racism in people’s selection of romantic partners. 

Claudete’s research has shown that Black Brazilian women (especially those who are middle class) are much less likely to marry than any other demographic.  This is troubling for these women, and also for the long term demographic effects (essentially continuing the whitening project that began with incentives for European migration). 

One of the possible explanations is that black women are the ones giving the cold shoulder to suitors.  Claudete’s research, however, shows that this is not what’s going on.  Rather, both white men and black men are choosing to marry fairer skinned (mulatta or white) women.  She was careful to note that this holds true only for marriage; men regularly court black women for “flings”. 

We know that the Brazilian state (but we could substitute the U.S. and other countries) has had a role in creating this configuration.  Brazil pursued a whitening policy through preferring European immigrants, and encouraging those immigrants to procreate with the existing population.  This policy, among others, perpetuated white supremacy, which is now being exhibited in men’s mating choices. 

The question is, can the state play a role in undoing this intimate form of racism? 

One possibility would be to regulate personal ads so that they must be “color blind.”  This wouldn’t stop people from having racial preferences about who they date, but it would mean that those who use personal ads to search for mates would have to meet the prospective partners in person before finding out what their race is.  This in turn might help debunk stereotypes and cause people to reconsider their prejudices.  This would be controversial of course, and it sounds a bit too much like limiting speech, but discussing drastic and controversial proposals might help us conceive of more palatable ones.    

Another (intersectional) possibility is that public education could do more to disrupt the expectation that men do the courting.  If women, including black women, could seek out mates without the social stigma, then women’s preferences would be more evenly reflected in marriage patterns.  (Current marriage patterns reflect men’s preference, since men usually take the lead on courting and proposing marriage.  Of course, women have “veto power”, but the structure still enshrines mens’ preferences).  My proposal to encourage female-led courtships assumes that some men who would not currently seek out a black woman would be open to marrying one if she initiated the romance, which I think is undoubtedly true.  Men who subconsciously prefer lighter-skinned women would have to reconsider their prejudices if a black female partner initiated the relationship.  

A third possibility would be to use public education to end the expectation that men be the primary wage-earners, and women be the primary caretakers of children.  Middle class black women are hurt by the current configuration when it comes to the marriage market, because there are more middle class black women than middle class black men in Brazil (even though, on average, black men earn more).  If we assume that black men are the most likely to marry black women, this means that there is a smaller number of black men who meet the implicit social norm that the man be the primary wage-earner.  Of course, this proposal is easier said than done.  It might ultimately be more realistic to use an intersectional theory to create a special university admissions category for black men, in order to increase the number of middle class black men in Brazil. 

Interestingly, men would also benefit from a configuration that decreases the expectation that they be the primary wage earner, and/or increases space for women (including black women) to initiate romantic relationships without facing stigma. 

By Lincoln Ellis (April 2, 2010)

On Wednesday we met with Claudete Alves, former City Councilwoman for the PT (Worker’s Party) and author of this book: http://www.scortecci.com.br/lermais_materias.php?cd_materias=4669.  She has argued persuasively that the Brazilian Government should pay reparations to decedents of slaves (not to Afro-Brazilians, which she says is a misleading term that could include White South Africans who migrated to Brazil, of which there actually are some).  Her theory is based on the same legal argument that resulted in reparations to victims of torture and Brazil’s 40 plus year military government (see http://www.alertnet.org/thenews/newsdesk/N16153239.htm).  A National Commission has been set up by the government to study the matter. 

The reparations proposal raises several legal issues.  First, is Brazil really the right defendant?  Maybe Portugal is the better defendant?  Coffee and sugarcane were the main cash crops during slavery in Brazil, and most of those profits went to Portugal.  Certainly the Brazilian economy as a whole expanded under slavery, but it seems that Portugal benefited more than Brazil. 

The other interesting issue is whether reparations, if paid, would foreclose other race conscious remedies under some sort of res judicada/ claim preclusion theory.  I don’t know if this concept exists in Brazilian Law, but if so, it might be worth thinking carefully about how such a lawsuit was brought. 

This also raises the issue of whether reparations theories could be used in conjunction with affirmative action proposals (either to bolster the affirmative action claims or to advocate for the continued need for affirmative action after reparations are paid, as a rebuttal to the claim preclusion concern above).  Reparations tend to be a stronger rationale for affirmative action than promoting diversity or creating equal representation.  Diversity as a rationale is suboptimal on the grounds that it construes Affirmative Action as a benefit (that can be taken away at the majority’s will), rather than a right.  Equal representation is vulnerable on the grounds that groups may not have the same preferences.  For example, White Brazilians may not choose to enroll in (admittedly imaginary) hip-hop schools at the same rate as Black Brazilians, so requiring equal representation might not make sense. 

Some Black Brazilian activists have opposed reparations on the grounds that no dollar value can approximate the harm done by slavery.  This is true, but it seems like civil law approximates harm all of the time, and we live with those approximations.  And since the authors of slavery are mostly dead and cannot be criminally prosecuted, civil courts (either in Brazil or Portugal), seem like the most appropriate legal venue.  I say that the authors of Brazilian slavery are mostly dead, because forced labor persists in parts of Brazil, so any judgement against the Brazilian State could affect civil claims against Employers who continue to engage in slavery-like practices (see http://www.alertnet.org/thenews/newsdesk/N16153239.htm).  

On Wednesday, we visited the first and only Afro-Brazilian university in the country, Faculdade Zumbi Dos Palmates. Our visited is recounted on the school’s website here. We first met with administrators and then had a chance to meet with a large group of law students at the university.

The university admins seemed quite in tuned to the longevity of the university. They are very focused on achieving independence from the Ministry of Education in the next few years.  In addition, they are committed to the success of the students. They provide supplementary classes for those students who feel they need to pay additional attention to a given subject.  In addition, the university is studying ways to ensure that once their students graduate, they will actually become employed.

Our meeting with the students was great because we saw that for many of them the question of affirmative action and better educational and occupational outcomes are at the forefront of their concerns.  The very first question was how we think affirmative action has functioned in our own institutions.  They were curious about some of the arguments put forth by opponents of affirmative actions. And towards the end of the conversation, we focused more on the question of mobilization.  One gentlemen reflected on the energy of the Civil Rights Moment in the United States in the 1960s and asked how we could recreate that energy here in Brazil. We talked about the nature of blackness in Brazil and the fact that it seems to be negotiable and that indeed many people opted to negotiate.  We noted that the law requiring that schools teach about Afro-Brazilian history was a step. Palmares is a step.  A change in the depictions of blacks in the media would be a step. More politicians that see racial injustice as an issue would be a step.  But ultimately, there must be a push from the people.

While in Salvador, we met with the group, Olodum (http://olodum.uol.com.br/). They are probably most famous in the United States for their performance in the Michael Jackson video, “They Don’t Really Care About Us.”  Olodum is a cultural organization that draws from African traditions, culture, and history in seeking justice.  Traditions like Samba and Kandomble to create an environment where Afro-descendents can identify as black and engage as a political and social energy. 

(Ayanna London, João Jorge, Kimberlé Crenshaw, Lincoln Ellis, Dania Lopez, and Jamelia Morgan at Olodum)

One of the problems is that knowledge about African traditions is not very well known or encouraged.  I think Olodum is right on point in recognizing the empowering nature of this knowledge.  Suppressing that knowledge and miseducation has been a too for oppression for too long. Embracing and drawing from this rich heritage is key.

(Kimberlé Crenshaw, Oscar Vilhena Vieira, Julia Mello Neiva)

One of the premier human rights organizations in Brazil, Conectas, is buzzing with the energy that shapes lasting reform. On Tuesday, we met with one of the founding directors, Oscar, and today we met with the second founding director, Julia along with five other members. Their two main umbrella programs are Global South and Justice Program. More on the programs can be found at http://www.conectas.org/index.php?idioma=en.

One of the areas of their work that was particularly interesting to me is their work to remedy human rights violation in the Espíritu Santo prison system. Conectas has been working with Justiça Global and the Espírito Santo State Human Rights Council to produce reports on these rampant violations. Particularly striking is the several Espírito Santo have been killed and dismembered over the last three years. In addition, groups of pre-trial detainees were kept in metal containers where the temperature could reach 122 degrees Fahrenheit (55 degrees Celsius). A side-event on this issue was held in Geneva on March 15^th. It serves to put these issues in the international spotlight.  Hopefully, the Brazilian federal government will respond to international pressures to instill better conditions and accountability mechanisms in Espíritu Santo’s prison system. However, Conectas is not resting or relying on the international community for change.  They continue to develop litigation strategies and exert pressure on internal Brazilian government.  Recently, the Superior High Court of Justice ruled that the men being held in metal containers were to be released.

It’s quite inspiring to meet with groups like Connectas, whose reach is extends to international arenas but also knows the worth of internal strategizing. They are also quite committed to pursing and building south-south dialog in all its endeavors. I reflected on my research on the impact of the Olympics and Brazil’s emergence on the world stage as a significant part of the population still lingers in poverty.  It is a moment when international agencies and groups will be quite attuned to happenings in Brazil.  It a moment when we can make these injustices very visible. Nevertheless, ensuring that poor people are not exploited and forgotten during the Rio Olympics, accountability policies have to also stem from mobilization within.  This is one means of ensuring sustainable reform.

Read more about the Espíritu Santo cases here.

By Lincoln Ellis

April 2 2010

Most people outside of Brazil don’t realize that Sao Paulo is home to the largest concentration of diasporic Japanese outside of Japan.  In researching areas of the law that affect Asian-Brazilians, I found out that one of the most important legal developments comes from Japan, not Brazil.  Japan has opened up temporary migration visas for Japanese-Brazilians, in order to fill labor shortages in certain lower-wage industries.  Most Japanese-Brazilians do not speak Japanese, so they are not necessarily more qualified than others who would seek to employment opportunities in Japan.  Nevertheless, they have benefited from a race-conscious Japanese Law that prefers the Japanese Diaspora over other workers. 

This in turn has raised interesting questions about the role of Brazilian law.  According to Dr. Mosato Ninomiya, President of CIATE (Information Center for Workers Abroad, www.ciate.org.br), the Brazilian Congress is considering a law to require that labor brokers (emprenteiras) be licensed in order to combat fraud in this area.  Another issue that one worker who had returned from Japan brought up was the need to protect returnees from employment discrimination.  Brazilian employers tend to think that people who have worked abroad for higher wages are likely to leave their Brazilian employer whenever another opportunity abroad opens up.  Another law that Asian-Brazilians have supported is the Amnesty Law passed in 2009, which legalized over 45,000 undocumented immigrants in the Country.  There had not been an amnesty law since 1989.  

As these examples show, laws that target certain racial groups more than others are common, but there is still a stigma around laws that explicitly name certain racial groups (even when those laws are benign).  Overcoming this barrier is one of the areas that we will continue to blog about over the next few days.  

What does being of the majority in a country mean? There is a symbolic significance with being part of the majority. At times it can mean power, yet for black Brazilians this is not the case. In our various meetings, organizations make sure to note that black Brazilians are the majority and yet they do not have access to the power being in the majority can imply. Most of the times when I have asked activists why they think this is, most respond that racism is to blame, and particularly a racism that has been so pervasive that it has affected the self-image of black Brazilians. There are identity issues even including constantly negotiating identity. The majority respond that the best way to overcome this issue is through education and that is why the affirmative action measures in place are so important to the black movement in Brazil. 

Yet, even within this group there are differences. Not only are blacks at the bottom of the social ladder in Brazil but black women are below black men. They have even less access to power. When it comes to jobs they are worse off, discriminated against in higher rates. When it comes adequate healthcare they are in a worse off, getting a lower standard of care than white brazilian women during doctor visits. (Visit the Geledes website for a detailed research study report: http://www.geledes.org.br/saude/saude.html). Even when it comes to personal relationships they are worse off, often seen only as sexual objects but not “marriage material”. There are some organizations and women in the movement that seek to draw attention to this specific issue and are framing their fight against racism from the perspective of the struggles of a black woman in Brazil. We had the opportunity to meet with the Geledes Group and the community leader Claudete Alves. 

(Meeting with Geledes in Sao Paulo)

Claudete Alves (http://www.claudetealves.com/index.php?id_pagina=55&f=) is an ex-council woman from Sao Paulo and currently a professor and community activist organizer, who is one of the few black women in the Brazilian political scene. Mrs. Alves had a lot of insight as to some of the obstacles facing the black movement in Brazil. Particularly because she has experienced them in her political career. One obstacle Mrs. Alves mentioned is a lack of solidarity between men and women in the movement, “the black man in Brazil has sold out, consciously or unconsciously” she told us. Currently she is trying to conduct research to try and find out how racism places black women at the bottom of the dating market in Brazil. She finds this to be especially true young middle class women who she notes you can find always alone in theatres and restaurants. Mrs. Alves sees this as the remnants of a whitening project that categorizes black women as un-desireable. She believes this can only change with the help and support of the black Brazilian man. Ultimately Mrs. Alves thinks blacks in Brazil have to be united to face discrimination and overcome it.

( Meeting with Claudete Alves at her office in Sao Paulo)

We met with the CEO and other members of a São Paulo group focused on law and racial relations today, CEERT, http://www.ceert.org.br/.  They deploy legal initiatives in a variety of areas, including, labor and employment, unreasonable use of police force, and education. This group is incredibly active in pursuing real strategies for change in Brazil. Their discussion about some recent research they performed on hiring practices in the banking industry across Brazil was quite breathtaking. They conducted a census consisting of 400,000 bank employees. They looked to see how the stated qualifications of bank positions tracked the hiring practices.  Their study revealed that Brazilian banks across states consistently hired white men and women who had not met the stated educational level requirement.  Conversely, they consistently did not hire black men and women with the requisite education level.  So, for example, in one state, 35% of the black men studied had the requisite education level required, but the banks only hired about 19% of these qualified applicants.  The striking study resulted in the denouncement of these practices by the Public Ministry of Law and banks were required to create Action Plans to remedy this discrimination.

Presence of White Men (Bars represent required education level and line graph represents educational level actually hired. X axis presents information by state)

Presence of Black Men

Presence of White Women

Presence of Black Women

Throughout our time here, we have asked whether and how people identify who is black since the country has such a long history of concerted miscegenation and racial democracy is still a strong philosophy among Brazilians. The response over and over again has been a laugh and, “Just ask the police. They know.” Well, apparently the banks know too.  It’s quite romantic to imagine that Brazilians don’t see race.  However, the more I learn about institutionalized practices and the more stares I receive when ambling the upscale neighborhood of Jardins, the more the toxicity of the romance becomes revealed. In the United States, blackness is marked and self-identified in the United States in more definite terms. The question of who is black is not so negotiable as it is here in Brazil.  Nevertheless, in both places, whiteness occupies a space of dominance and blackness occupies a space of disempowerment.  In addition, notions of white supremacy have permeated not only the minds of whites, but blacks alike in both countries. In Brazil, because blackness is negotiable (through self-declaration or changing one’s hair or gaining economic status) for those who might be called prado, we see the effects of an incentive structure which privileges whiteness. It makes sense that many Afro-descendants choose to identify as white if blackness is perceived as inferior, unattractive, uneducated, poor, and all things negative. Just like in the United States, racial hierarchy is arranged with whiteness on top and blackness on the bottom.  The racial allegiances made in Brazil serve to highlight that people very much recognize and perform against this hierarchical structure.

By Lincoln Ellis - April 1, 2010

During our trip to Brazil, we have met with two groups (one in Salvador: www.stevebiko.org.br and one in Sao Paulo: www.educafro.org.br) that provide free prep-courses for Black students who are planning to take the “vestibular”, the college entrance exam.  Each college or university has its own entrance exam, but the exams are fairly similar.  Wealthy families usually send their children to extensive (and expensive) test preparation courses that have given these applicants a huge advantage on the test (not to mention the advantages that come from attending private schools with more resources and smaller class sizes).  The Brazilian groups we met with teach free, year-long courses (usually meeting twice a week) that emphasize not only the academic subjects that will be tested, but also Black history and consciousness.  The Educafro in Sao Paulo estimated that 10,000 black students have been admitted to Universities, usually with scholarships, as a result of 20 years of Educafro’s prep-courses. 

We’ve been telling the Brazilian groups we’re meeting with that we came to Brazil in part to learn how to improve our own country.  In other words, there are a lot of things that Brazilian organizations can teach us about how to structure legal and civil society efforts for racial equality.  These prep courses are a perfect example. 

Efforts in the U.S. to increase university admissions for Black, Latino and First Nations students have only sporadically attempted to provide courses to improve SAT scores.  There might be a couple of reasons for this.  There is a myth that the SAT tests innate intelligence so scores cannot be improved with coaching, so people may believe that prep-courses would not help increase the SAT scores of underrepresented minorities.  This myth has been disproved.  Alternatively, it is possible that U.S. activists have chosen to prioritize debunking the myth that SAT scores correlate with merit, through research on stereotype threats and the like.  This explanation would be consistent consistent with the effort to increase the importance of other indicators of academic performance, such as grades, essays and letters of recommendation. (The Brazilian students we talked with thought that deemphasizing test scores in the university admissions process was a great idea, since Brazilian universities rely exclusively on these scores to make admissions decisions). 

Even if U.S. civil rights groups decide that providing SAT prep courses for underrepresented minorities is not the best use of their resources, there is another lesson that we can learn from the Brazilian groups: that long term planning and strategy pay off.  The Brazilian organizations ask students who take the test-prep course to make a year-long commitment, and the organizations themselves have made a decades-long commitment to continue this work.  U.S. groups could benefit from this type of long-term outlook.  

By Lincoln Ellis 3/31/10

As more Afro-Brazilians benefit from affirmative action programs and graduate from universities, activists are concerned that skilled black applicants will be turned away by employers who favor white employees.  Employment discrimination has been shown to exist at the macro level, but it is difficult to prove in any individual case.  We met with a group in Sao Paulo: www.ceert.org.br that explained how white men are over represented in banking (they occupy a higher percentage of jobs in banking than their percentage of the population with the requisite education levels), and black men and black women are severely under-represented by the same measure. 

Proving discrimination against individual applicants for jobs and promotions is difficult, however.  This issue will be developed in future posts, but for now, it is worth noting that the plaintiff must prove specific intent.  This is more difficult than the Title VII burden shifting regime, in which a plaintiff can use underrepresentation of minority employees to shift the burden to an employer to show no discrimination.  

Another problem is that their is not a well-developed plaintiffs’ bar to bring these cases.  This seems to have to do with the difficulty of prevailing in these cases, low damages, and low contingency fees.  

Finally, one of our contacts mentioned that discovery laws are more restrictive in Brazil than in the U.S., so a plaintiff who suspects discrimination would have a more difficult time gaining access to the employer’s records.  

Of course, employment discrimination in the U.S. persists in spite of anti-discrimination laws.  One audit study from MIT showed that applicants with White sounding names were twice as likely as applicants with Black sounding names to be invited for interviews, when the resumes submitted were identical. 

After exchanging our research presentations with an auditorium of activist groups and participants, our group grabbed some snacks with university students involved with an exchange program for Washington, DC internships. I spent most of my time speaking with a young Afro-Brazilian woman, a student of the program whose focus is on Hospitality and Tourism.

She spoke about the difficulty of getting into universities in Brazil.  She noted that many Afro-Brazilians attend public high schools which are ill equipped to prepare them for university entrance exams and attendance at the prestigious public universities. Moreover, scholarship awards are scarce so they are incredibly competitive. Nevertheless, she is several semesters into her studies and looks forward to working with young black women in hospitality and tourism upon graduation.  Her interest in this field stems largely from her recognition that black women are often not chosen for reception and other service positions because they are said to not have the right look.  Indeed, it is common for employers to express a preference for fairer women with straight hair.  She added that improved education for black women would mean better handling of English, which is quite marketable in the tourism industry.  As it stands, she commented, many black women may be recruited to wear the traditional white dress of Salvador, but there is often a white spokeswoman accompanying them to translate for English-speaking tourists.  It’s a scene she recently observed in the Salvador airport, and she noted that it made her feel quite upset that the black women were used as caricatures and had no agency in their performance because they could not speak English. My companion also lamented the behavior of a black women recently appointed to plan a governor’s celebration.  The appointee wore clothing that revealed her mid- section.  My companion found this quite disconcerting.  She felt this was an incredible opportunity for a black woman to show Brazil that they could be taken seriously in this arena, but the planner had instead lived up to certain stereotypes.

We then got into a discussion about the tension between making inroads in hospitality and conforming to the established standards of beauty or language or dress.  She acknowledged that this was indeed a problem and one she’d need to think about as someone who wished to work with young women seeking to gain entry into this industry. What should this strategy look like?  In recognizing the history of discrimination in hospitality and administration, I think it’s extremely important to name the way discrimination has occurred.  If it has to do with hair texture and that is named, the intervention can be one which does not reify that prejudice.  Perhaps English should not dominate the airport welcomes.  In breaking employment ceilings, I think it’s important to be conscious of methods which mark and reject a race and gender stereotype or discriminatory preference as illegitimate.