AÇÕES AFIRMATIVAS NA ESFERA DA ORGANIZAÇÃO POLÍTICO-ADMINISTRATIVA BRASILEIRA: ENFRENTAMENTO DE ASSIMETRIAS SOCIAIS À LUZ DA IGUALDADE CONSTITUCIONAL

Abstract

Affirmative action is a constitutional policy accepted within Brazilian law. However, within the national political-administrative organization, an initial reading of Article 19, item III, of the 1988 Federal Constitution (CRFB/88) may raise doubts about the constitutionality of affirmative action initiatives established by federative entities. Understanding affirmative action as a form of positive discrimination, and based on various rulings by the Federal Supreme Court (STF) - especially the one delivered in ADPF 186 - an interpretative hypothesis is proposed: when the provision is interpreted as a prohibition of negative discrimination, excluding affirmative policies from its scope, no constitutional barrier remains for federative entities to implement such measures. To assess this hypothesis, several legal decisions and instruments are examined, including ADC 19, RE 614873, ADI 4868, the Inter-American Convention Against Racism, Racial Discrimination and Related Forms of Intolerance, the International Convention on the Rights of Persons with Disabilities, the Statute of Racial Equality, numerous constitutional provisions, and other elements of the Brazilian legal system. Lessons from international affirmative action programs and a broad range of legal scholarship - especially those addressing the concepts of (substantive) equality, human dignity, and principles of Human Rights and Constitutional Law - are also considered. Therefore, the research question is whether the establishment of an affirmative action policy by a federal entity would be constitutional. Ultimately, a systematic interpretation of Article 19, III, in conjunction with the broader constitutional framework, is shown to be a robust hermeneutical technique for the application of this provision.