STF admits structural racism, but denies institutional racism, and decision is contested by the black movement

Although this recognition is considered an important step, the Black Coalition for Rights, which organized the action, welcomed the result with reservations and criticized what it considers a historical contradiction of the Court: admitting structural racism as the foundation of Brazilian society, but denying the recognition of institutional racism and the so-called “unconstitutional state of affairs.”

In a statement, the Coalition, which brings together more than 292 organizations, collectives and entities of the black movement, said that the denial perpetuates the omission of the state and reflects a conservative legal culture, far from productions in the field of law and race relations. For the movement, by refusing to formally recognize the responsibility of institutions, the STF is exempting itself from holding the State responsible for systematic violations against the black population.

– The decision is an incomplete and conservative response. It reveals the resistance of institutions to evaluate themselves in light of the realities faced by black lives and territories in Brazil. The STF recognizes the sociological phenomenon of racism, but fails to admit that structures and institutions feed each other and manage the racial violence of the Brazilian State – said lawyer Maíra Vida, general coordinator of the Afro Institutional and Legal Articulation Cabinet (AGANJU) and Coalition activist.

Rapporteur of the action, Minister Luiz Fux voted, in November, to recognize structural racism. On the last day of the trial, however, he adjusted his understanding by considering that there is a set of measures already adopted or underway to remedy historical omissions, which would exclude the qualification of an unconstitutional situation.

Ministers Cristiano Zanin, André Mendonça, Nunes Marques, Alexandre de Moraes, Dias Toffoli and Gilmar Mendes accompanied Fux, who also recognized the existence of serious violations and defended the adoption of strong measures.

Ministers Flávio Dino, Edson Fachin and Minister Cármen Lúcia disagreed on this point and understood that there was a systemic omission of the State in the fight against violations of the rights of the black population, recognizing the unconstitutional state of affairs resulting from structural and institutional racism.

Among the measures imposed by the STF are the revision or development of a new plan to combat structural racism and the reassessment of procedures for access, through quotas, to education and employment opportunities, taking into account race and color.

The Court also ordered judicial bodies, public prosecutors, public defenders and the police to create specific protocols for action and assistance to the black population, with emphasis on institutional reception and the fight against racial disparities.

Despite these measures, the Black Coalition for Rights considers that the decision is insufficient and risks fueling a “triumphalist” discourse on the part of the judiciary.

Among the main points of criticism, the movement emphasizes that it is impossible to combat structural racism without recognizing its institutional dimension; that the refusal to declare the situation unconstitutional masks the bankruptcy of the state apparatus; and that, without rigorous monitoring, clear regulations and adequate budgetary allocation, measures can become a “dead letter”.

For the Coalition, by opting for “composition” solutions, the Court avoids directly holding the State responsible for violations that the movement describes as crimes against humanity against the black population.