Law Programs, Ethno–Racial Relations Education, and Confronting Racism in the Brazilian Judiciary

Abstract

This article focuses on the lack of full compliance with teaching ethno–racial relations education in Brazilian university undergraduate programs, particularly law programs. Teaching this topic was specified by the Conselho Nacional de Educação (CNE, National Education Council) in Resolution CNE/CP no. 01/2004. Although teaching ethno–racial relations education has not been a panacea for judicial sentencing based on racial criteria, we propose the working hypothesis that teaching it is a tool that can help catalyze a reduction in racist sentences by courts, for example, a defendant not fitting the stereotypical criminal pattern by being white or being assumed to belong to some criminal group for being black (preto) or brown (pardo). Through surveys at sixty-nine federal universities and documentary research into law program curricula, it was discovered that Resolution CNE/CP no. 01/2004 is not being fully or appropriately implemented at these institutions, a fact that may be enabling the continuance of race-based penal sentencing, which is illegal and extremely harmful to the black/brown Brazilian population. To prevent or minimize this problem, full compliance with Resolution CNE/CP no. 01/2004 is suggested.

1. Introduction

Nearly twenty years have passed since the drafting of Opinion CNE1/CP 003/2004 by Professor Petronilha Beatriz Gonçalves e Silva, the then National Education Advisor (CNE 2004a). This opinion led to Resolution CNE/CP no. 01 on 17 June 2004, which instituted the National Curricular Directives for Ethno–Racial Relations Education and the teaching of Afro-Brazilian and African history and culture (CNE 2004b), instructions specified by Law no. 10.639 of 5 January 2003,2 which was modified by Law no. 11.645 of 10 March 2008.3 In reality, Resolution CNE/CP no. 01/2004 regulated these laws, specifying that these subjects should only be taught at the primary (elementary and middle school) and secondary (high school) levels. However, based on Opinion CNE/CP no. 003/2004, the cited resolution also specified that Educação das Relações Étnico–Raciais (ERER, Ethnic–Racial Relations Education) should be taught in higher education, obliging Brazilian universities to teach subjects that encompass the “spirit” of Laws no. 10.639/2003 and no. 11.645/2008.

Resolution CNE/CP no. 01/2004, by requiring that Ethno–Racial Relations Education also be taught in higher education from a non-Eurocentric perspective, was responding to one of the black/brown social movement’s proposals submitted to constituent legislators, who were drafting the then future Brazilian Federal Constitution of 1988. Through the Convenção Nacional do Negro pela Constituinte (National Black[/Brown] Convention for the Constituent Assembly) held in Brasília, DF, on 26–27 August 1986, representatives of various Brazilian black/brown movement organizations presented “to the leaders of the country and, in special deference, all members of the ‘National Constituent Assembly-87’,” among others, the following demand: “including the teaching of the History of Africa and the History of Black/Brown People in Brazil in the scholastic curricula of elementary, middle, high schools, and higher education grades is required” (Santos 2014, pp. 108–9).

It should be noted that the intent of these rules is the avoidance/prevention of a Eurocentric worldview. This means that researchers, teachers, professors, and managers at all levels of education, as well as students, cannot be oriented toward, learn, apprehend, produce, or teach/reproduce knowledge that is exclusively Eurocentric (or Afrocentric or Asiocentric, among other viewpoints or singular ways of thinking about the world) any more than they can produce, reproduce, or disseminate racial prejudice or discrimination and, hence, racism in or via preschool, elementary, high school, higher, or post-college education. Therefore, the spirit of the abovementioned rules is to provide teaching and knowledge production that is reflective, critical, emancipatory, and liberating and that does not subjugate ethno–racial groups, particularly those that have been and still are stigmatized and racially discriminated against in Brazilian society: black (pretos),4 brown (pardos), and indigenous peoples.

The spirit of this is broad, diverse, and democratic university and school curricula in view of Brazil’s cultural, racial, and social, among other, diversities. The aim, therefore, is pluriversality, which, according to Nogueira (2012, p. 64), “is the recognition that all [democratic and antiracist] perspectives should be valid; noting that privileging one point of view is a mistake”. Thus, it also seeks a (re)education of ethno–racial relations in Brazil, which involves their (re)teaching at all levels of education to avoid teaching that is exclusively Euro- (or white-) or ethnocentric, prejudicial, discriminatory, or racist, or that otherwise stigmatizes (or maligns) all historically discriminated groups just mentioned above at any level of education. Its aspiration is, consequently, to employ formal education and/or institutions and other social actors that teach as agents and/or instruments to combat racism in Brazil.

Therefore, it was not without reason that the National Curricular Directives for Ethno–Racial Relations Education and the teaching of Afro-Brazilian and African history and culture opinion, based on the principle of the equality of all human beings, mentions, among other things, item XLII of article 5, item VIII of article 4, item IV of article 3, and item III of article 1 of the 1988 Federal Constitution, which establish, respectively, (a) that “the practice of racism constitutes a non-bailable and imprescriptible crime;” (b) the “repudiation of terrorism and racism;” (c) that it is one of the fundamental objectives of the Federal Republic of Brazil “to promote the good of everyone, without prejudice toward origin, race, sex, color, age, or any other forms of discrimination;” and (d) that the Federal Republic of Brazil is based, among other things, on “the dignity of the human person”.

The nearly twenty years since Opinion CNE/CP no. 003/2004 and Resolution CNE/CP no. 01/2004 notwithstanding, to all indications, full compliance with these rules is not happening in federal university law programs, as the survey on the subject that we carried out at Brazil’s 69 federal universities regarding these programs indicates. The results of this survey will be seen below. Not respecting and/or complying with Resolution CNE/CP no. 01/2004 permits us to advance the hypothesis that judges will continue to hand down sentences that demonstrate a complete lack of knowledge concerning ethno–racial relations in Brazil and the operationalization and dynamism of racism in Brazil. For example, a sentence was given in which it was stated that the defendant “does not fit the standard stereotype of an outlaw; he has light skin, eyes, and hair and is not easily confused.” Thus, it is not for no reason that “the more the country’s prison population grows, the more the number of incarcerated blacks[/browns] grows” (Brasil 2015, p. 33). For example, “in 2005, 58.4% of the total prison population was black[/brown], [but,] in 2022, this percentage was 68.2%, the highest in the available historical data. In other words, the penitentiary system increasingly evinces Brazilian racism. Penal selectivity has color” (Brandão and Lagreca 2023, p. 314). As such, in a vicious cycle, the more the number of incarcerated blacks/browns grows, the greater the tendency toward the idea that a “group is criminal because of its race” (an idea also expressed in another judicial sentence) because, in the end, the majority of people incarcerated in Brazil are black/brown or do not “have light skin, eyes, and hair”.

Hence, in this article, we seek to present the working hypothesis that full compliance with Resolution CNE/CP no. 01/2004 could minimize and perhaps even help to punish the racist practices of the judiciary’s members and institutions. Thus, we have at least three propositions in this article, which are to show (a) the urgent need to fully and efficiently implement the teaching of ethno–racial relations education (ERER)5 in law programs; (b) the importance of teaching ERER in law programs for preventing the racist attitudes or practices of legal operators; and (c) the need for legal education itself for juridical institutions and, hence, legal operators to recognize and incorporate into their actions and/or decisions, obey/comply with, and demand full compliance with a legal rule: Resolution CNE/CP no. 01/2004.

As can be seen, in this article, we do not aim to analyze judicial rulings to verify the practices of judges regarding rulings based on racial criteria (which would require another research project) but to show that without teaching the above, these rulings may be continuously repeated, despite being unconstitutional.

2. The Judiciary: Recently “Confronting” and Living Daily with Racism

As is well known, Brazilian society is classist, racist, sexist, and homophobic (Almeida and Zanello 2022; Almeida 2018; Amparo 2020a, 2020b; Bertúlio 2019; Brandão and Lagreca 2023; Gonzalez 2020; Moreira 2019, 2017; Vaz 2021, 2020), in addition to being marked by other oppressions against specific social groups. The Brazilian judiciary is not immune to any of the evils that plague black (pretos), brown (pardos), or indigenous people; women; or LGBT+ people, among other social groups. That is, the judiciary is also beset by the evils of Brazilian society, including its racism (Bertúlio 2019; Vaz 2020; Souza 2020). For example, denouncing racism in the judiciary, jurist and professor Thiago Amparo (2020b) states that “judicial racism is not misconduct, it is a political endeavor as old as the judiciary itself”. Similarly, according to another jurist and professor, Adilson Moreira,

The racism that makes school a hostile environment for children also motivates the discriminatory behavior of the police toward [black and brown people] which in turn influences how [they] are treated by the justice system. As a collective practice, it informs the functioning of public and private institutions, affecting various aspects of black and brown people’s lives in this country.

(Moreira 2017, p. 409)

The Conselho Nacional de Justiça (CNJ, National Justice Council) stated that structural racism “manifests itself institutionally in the justice system as well” (CNJ 2020, p. 6). Thus, it is not without reason that the CNJ instituted, via Ordinance no. 108 of 8 July 2020, a “working group aimed at preparing studies and recommending solutions with the goal of formulating judicial policies about racial equality within the judiciary” (CNJ 2020, p. 7). One of the group’s first events was to hold a public meeting on 12 August 2020 that sought, among other objectives, to solicit suggestions about and subsidies (proposals) for racial equality in Brazil, particularly in the judiciary environment. Various judicial authorities, intellectuals, and representatives of professional associations from the Ordem dos Advogados do Brasil (OAB, Brazilian Bar Association);6 social movements, such as the Movimento Negro Unificado (MNU, Unified Black/Brown Movement); NGOs; and antiracist activists, among other interested parties, attended the meeting. Everyone sought in some way to contribute to the (re)construction of a judiciary untainted by institutional racism and/or by practices and/or actions by its members that involve racial discrimination, particularly in their decisions/sentences or rulings (CNJ 2020).

Thinking about, formulating, and executing judiciary policies regarding racial equality in the judiciary environment is a long-standing necessity in Brazil as studies at the end of the last century, such as that by sociologist Sérgio Adorno (1995), showed that the black/brown Brazilian population received stricter penal treatment than the white population for committing equal or similar crimes.

Ironically and as a warning about the size of the task (or “revolution”) being proposed—or, if one wishes, as an indication of the incalculable, arduous, painful, and revolutionary work the CNJ will have to do if one really wishes to think, formulate, and implement, without prevarication, judicial policies addressing racial equality in the judiciary environment—on the same day as the abovementioned public meeting, 12 August 2020, the national media (print, television, social networks, etc.) broadcast the news that Judge Inês Marchalek Zarpelon of the Criminal Court of the Metropolitan Region of Curitiba in the state of Paraná had condemned a black/brown man to 14 years and 2 months in prison for being part of a criminal organization and committing theft. However, when handing down the sentence, the judge, who is white, also stated that the defendant was “certainly part of a criminal group by virtue of his race” (Zarpelon in Carvalho 2020b, our emphasis). It is not hard to see that the judge’s decision was based on racial criteria, something the CNJ necessarily intends to eliminate, avoid, and, perhaps, punish, when it proposes to formulate “judicial policies about racial equality in the judiciary.”

Outraged by the race-based judgment, the Paraná Section of the Brazilian Bar Association published a statement repudiating the sentence handed down by Judge Zarpelon (Carta Capital 2020). According to the statement,

The Brazilian Bar Association, Paraná Section, together with its Criminal Advocacy and Racial Equality committees, must come out publicly to vehemently repudiate the basis put forth in a sentence by Judge Inês Marchalek Zarpelon, of the 1st Criminal Court of Curitiba, in writing considerations about the color of a citizen as something negative, in her analysis of his social conduct. In the decision, it is stated that the aforementioned person would “certainly [be] a member of a criminal group by virtue of his race”. The statement is unacceptable and goes against the constitutional principle of equality and non-discrimination. Color and race do not define character and can never be used as the basis of a sentence, especially in the length of the sentence.

(OAB—Paraná Section in Carta Capital 2020, p. Sociedade, our emphasis)

The national OAB was not unmoved by the news and also expressed its indignation with the case through its president at the time, Felipe Santa Cruz, who stated,

What happened in this case is inadmissible, inconceivable. Racism is a non-bailable crime, and the judiciary code of ethics is clear in its article 9, in prohibiting a judge from any sort of unjustified discrimination […]. The OAB represent this thusly to the CNJ because the judge’s conduct needs to be investigated.

(Santa Cruz in OAB Nacional 2020, p. Notícias)

Similarly, the Public Defender of the State of Paraná declared, via a public statement, its repudiation of what Judge Zarpelon stated in her sentence. According to the office, “The Public Defender’s Office of the State of Paraná, through its Citizenship and Human Rights and Criminal Policy and Penal Execution Centers, expresses its astonishment with and objection to the content of the sentence handed down by Judge Inês Marchalek Zarpelon.”7

After the repercussions of the case at the national level, with criticism of the sentence from the OAB and some of its state branches, Judge Zarpelon declared in a statement that at “no moment was there an intent to discriminate against any person on account of their color” (Zarpelon in Carvalho and Berthone 2020). This is one of the standard declarations or responses released by the majority of people who commit “racial slip ups” so that they cannot be legally punished, because they know that various judges generally absolve defendants accused of racism who allege they never intended to offend or racially discriminate against the victim (Moreira 2019). But we ask: many people kill others without intending to, for example, by running them over or in a car accident. Are these no longer crimes? Do people who commit these (accidental) crimes receive no sanction?

Judges’ sentences, such as those from Judge Zarpelon and ones like her, that take the defendant’s race/color into consideration, are certainly not isolated decisions and/or facts in Brazil, for, according to Carvalho (2020a), “between 2010 and August 2020, the Nation Justice Council (CNJ) received nine complaints of judges’ racist stances in their decisions.” As an example, in February 2019—thus, before Judge Zarpelon’s case—the national media had divulged that Judge Lissandra Reis Ceccon of the Fifth Criminal Court of the city of Campinas in the state of São Paulo stated in one of her sentences in July 2016 that a white defendant accused of robbery, “does not fit the standard stereotype of an outlaw; he has light skin, eyes, and hair and is not easily confused” (Ceccon in Frank 2019, our emphasis). If we considered only the decisions of these two judges, we could state that black/brown bodies are coded and/or perceived as dangerous per se, as opposed to white bodies, which are coded and/or perceived as unsuspicious,8 as Judge Ceccon demonstrated (in Frank 2019) in her sentence. Here, we remind ourselves that when we talk about race, we necessarily talk about bodies (of all colors). Thus, it should also be recalled that learning about what black/brown and white bodies mean or even the construction and representation of black/brown bodies as dangerous and of white bodies as inoffensive neither begins nor ends with the (racist) socialization we receive through our families, schools, or means of social communication, among other socializing agents. Often, this construction is strengthened and reinvigorated through Eurocentric, not to say racist, schooling and/or instruction. This being plausible, one can infer that negative stereotypes of blacks/browns are also (re)affirmed in and/or taught during the education of legal operators, that is, in their undergraduate or even graduate courses.

With a touch of irony, we could even hypothesize that some judges have completed their required internship (for a law degree) at the São Paulo Police School because, as reported by philosopher Marilena Chauí, there was an “inscription engraved until recently at the entrance to the São Paulo Police School [that] read: ‘A black[/brown] standing still is a suspect; running, he’s guilty’” (Chauí 2008, p. 72). Thus, at this school, racial stereotypes against blacks/browns have been taught and/or ratified as well as learned, perceived, inculcated, and solidified, and it was not without prior teaching and learning9 that the commander of the Second Police Company of Campinas, São Paulo, captain Ubirantan Beneducci, on 22 December 2012, ordered police to “approach people on foot and in vehicles warily, particularly black or brown individuals (sic) with an apparent age between 18 and 25 [...]” (in Schiavoni 2013, our emphasis).

Returning from this brief digression, it should be noted that Judges Lissandra Reis Ceccon and Inês Machalek Zarpelon were prosecuted for rendering sentences (partly) based on racial criteria that, in some way, underpinned the notion that black/brown bodies are dangerous per se. However, neither of them received any sort of punishment from the Judiciary for including racial criteria when sentencing the defendants.10 The suit against Judge Ceccon was archived (Carvalho 2020a, p. 2), despite the judge having violated the ethics established in the Code of Judiciary Ethics, as Professor Thiago Amparo states. For this jurist,

The ethical violation is quite clear, under the judiciary rules, when a person’s race is associated with committing a crime. When one says that a person does not have the profile of an outlaw, associating that profile with the person’s race, there is a crime, because there is no Brazilian legislation that describes this, so, it is not an interpretation of the law.

(Amparo in Carvalho 2020a)

As for the case against Judge Inês Marchalek Zarpelon’s sentence, at the time, the National Justice Inspector, Minister Humberto Martins of the Superior Tribunal de Justiça (STJ, Superior Court of Justice), considering the official statement of the OAB’s Paraná Section and the public statement of the Public Defender of the State of Paraná, filed an ex officio Request for Measures so the General Inspectorate of Justice of the State of Paraná could investigate the facts published in the press concerning the sentence.11 After verifying the facts, the judge was cleared by the Tribunal de Justiça do Estado do Paraná (TJPR, Court of Justice of the State of Paraná), although the case must still be analyzed by the CNJ to ratify or rectify the TJPR’s decision. The TJPR judges ruled unanimously that there was no racially discriminatory or racist intent on the part of the judge, as well as “ascertaining that the controversy the sentence generated was due only to a misinterpretation of the text.” (Conjur 2020).12

So, one can see that even with pressure from and/or representation by prestigious public institutions, such as the State of Paraná Public Defender’s Office, and private institutions recognized and respected by jurists, such as the Brazilian Bar Association (OAB), there have not been any sanctions against judges who, to all indications, violated the ethical principles established in the Judiciary Code of Ethics (Amparo 2020a; Santa Cruz in OAB Nacional 2020) when these judges handed down sentences (absolving or condemning defendants) based on racial criteria.

We have no way to explain in this article (nor is this our purpose here) how explicit cases of noncompliance with the Judiciary Code of Ethics (OAB—Seção do Paraná in Carta Capital 2020; Amparo 2020a; Santa Cruz in OAB Nacional 2020) are not punished with at least a warning, whether by the CNJ or by the judges’ own courts. But, we raise the hypothesis that the response to the problem and, especially, the problem’s minimization necessarily relate to the teaching (or lack thereof) of ERER in college law programs, that is, by the lack of effective, efficient, and efficacious compliance with Resolution CNE/CP no. 01/2004, since this education can begin to provide knowledge of and reflections on racist practices that we unknowingly operationalize. Likewise, it can make us deeply question whether or not—and/or present the argument that—our actions, inactions, gestures, expressions, and so on were never intended to discriminate against any person based on their color. Nevertheless, this education is being implemented neither widely nor adequately in law programs in Brazil, as will be seen in the next section.

3. The Teaching of Education in Ethno–Racial Relations in Federal Universities Undergraduate Law Programs

As mentioned in this article’s introduction, we conducted a survey of Resolution CNE/CP no. 01/2004 compliance, or, if one prefers, of the teaching of ERER in law programs in the sixty-nine Brazilian federal universities.13 Through the Lei de Acesso à Informação (LAI, similar to the Freedom of Information Act in the United States)14 (Brasil 2011), we requested information about the programs’ implementation of this teaching. Among other questions, we asked, for example, (a) whether the law program’s Projeto Pedagógico do Curso (PPC, Pedagogical Program Plan) included ERER teaching, as established in CNE Resolutions Nos. 01/2004 and 05/2018 and (b) if the PPC did include this teaching, in what form was it included? That is, is there any specific course or subject specifically for teaching ERER? If so, are these courses mandatory or optional?

Of today’s sixty-nine (100%) existing federal universities in Brazil, five (7.20%), namely, the Federal University of Mato Grosso do Sul (UFMS), Federal University of Mato Grosso (UFMT), Federal University of Piauí (UFPI), Fluminense Federal University (UFF), and Federal University of Pelotas (UFPel), did not respond to our request, even though it was backed by the Freedom of Information Act (LAI). In other words, for some reason, these five refused to participate in our study. We also tried sending our request, via LAI, to the Federal University for Latin American Integration (UNILA), but, for unknown reasons that we could not identify or understand, our request was not processed/forwarded to the university.15 Hence, we obtained responses from sixty-three federal universities (91.30%). Of these, forty-one (65%) stated that they had/offered a law program. The remainder, 35%, stated that they did not.

We should note that we make no distinction between day or evening classes, and we focus our analysis on law programs given at institutions’ main campuses, as many universities have more than one campus. Twenty-three law programs (56.10%) of the forty-one (100%) universities (that offer a college-level law program) stated in their PPCs that they include teaching ERER (

Table 1. Federal university law programs that included ERER in their PPC.

University		Has ERER-Specific Class		ERER Class Name	Type of ERER-Specific Class		Class Creation Year	Hired Professors to Teach ERER
		Y	N		Ob	Op		Y	N
UnB		X		Law and Race Relations		X	2018	X
UFGD		X		Interculturality and Ethno–Racial Relations		X	2009		X
UFG		X		Indigenous Laws; The Environment and Interculturality		X	NIA		X
UFBA		X		Law and Race Relations		X	NIA		X
UFESBA		X		Law and Ethnic–Racial Relations		X	2018		X
UFOB		X		Studies of Ethno–Race Relations		X	2018	NIA
UFPB			X		NA				X
UFCG			X		NA				X
UFAL			X		NA				X
UFPE		X		Race Relations		X	2011		X
UFMA		X		Indigenous Law; The History of Indigenous and Afro-Brazilian Culture		X	2015		X
UFRR			X		NA				X
UFAC			X		NA				X
UFOPA			X		NA				X
UFPA		X		Indigenous and Afro-Brazilian Law	X		2017		X
UNIFESSPA		X		Indigenous and Afro-Brazilian Law	X		2011		X
UFT		X		The Law of Indigenous Peoples and Traditional Populations		X	2020		X
UFLA			X		NA				X
UFV			X		NA				X
UFRJ			X		NA				X
UFRRJ			X		NA				X
UNIPAMPA			X		NA				X
FURG		X		Society, Education, and Ethno–Racial Relations		X	2017		X
Total	23	12	11	---	2	10	---	1	21

Source: Direct research/data aggregated by the researcher. Legend: Y = Yes; N = No; NA = Not applicable; NIA = No information available; Ob. = Obligatory class; Op. = Optional class.

) and eighteen (43.90%) stated the opposite (

Table 2. Federal university law programs that did not include ERER in their PPC.

University	Has ERER-Specific Class		ERER Class Name	Type of ERER-Specific Class		Class Creation Year	Other Classes That Cover ERER		Names of Other Classes That Cover ERER Teaching	Type of Other Classes That Cover ERER
	Y	N		Ob	Op		Y	N		Ob	Op
UFJ *	X		Ethno–Racial Minorities Law		X	2011		X
UFC		X					X		History and Study of Law; General and Legal Sociology; General and Legal Anthropology; Philosophy of Human Rights	X. 3First	X Last
UFS		X					NIA
UFRN		X					NIA
UFERSA		X					NIA
UNIR		X					NIA
UNIFAP		X						X
UFAM		X					X		Human Rights	X
UFJF		X					X		Law Institutions; Theory of Fundamental Rights; Sociology of Law; The Strategic Litigation of Fundamental Rights	X. 3First	X. Last
UFMG *	X		Transversal Education in Ethno–Racial Relations, History of African and Afro-Brazilian Culture		X	2016		X
UFOP		X					NIA
UFU		X					NIA
UNIRIO *	X		Afro-Brazilian Cultures in the Classroom; Law, Gender, and Ethno–Racial Relations		X	2009 and 2017		X
UFES		X					NIA
UFPR		X					X		Law and Society; Criminology; Migrations, Refuge, and Human Rights	X. 2First	X. Last
UFSM		X					X		Ethnic and Racial Studies I		X
UFRGS		X					X		Law and Culture		X
UFSC		X					NIA
Total	3	15	---	0	3	--	6	4	---	---	---

Source: Direct research/data aggregated by the researcher. Legend: * Federal universities whose law programs have ERER-specific classes, although they have no ERER included in the PPC; Y = Yes; N = No; NIA = No information available; Ob. = Obligatory class; Op. = Optional class; X.1st = First class; X.2nd = Second class; X.2First = First two classes; X.3First = First three classes; X.4First = First four classes; X.2Last = Last two classes; X.4Last = Last four classes; X.Last = Last class.

). Of those twenty-three programs, twelve16 stated having created and/or included one or more classes in their curricula specifically covering the teaching of ERER (Table 1). Here, we should highlight a curiosity: of those eighteen law programs that stated in their PPCs that they did not include ERER teaching (Table 2), three17 stated they had one or more ERER-specific classes. So, fifteen law programs (or 36.60% of the forty-one total law programs at federal universities) stated having created and/or included one or more classes in their curricula specifically covering the teaching of ERER. However, in only two of these fifteen law programs (those at UNIFESSPA and UFPA) were these mandatory (Table 1). In the other thirteen universities’ law programs, the classes were optional. The UFPA law program’s class was created in 2017; those at UNIFESSPA, UFJ, and UFPE were created in 2011; UFGD’s was created in 2009; UFMA’s was created in 2015; UFMG’s was created in 2016; FURG’s was created 2017; UNIRIO’s were created in 2009 and 2017; those from UnB, UFESBA, and UFOB were created in 2018; and UFT’s was created in 2020. The law programs at UFG and UFBA did not disclose the dates that they were created and/or included in their optional classes that, in theory, cover ERER teaching (Table 1 and Table 2). Beyond this, the data in Table 1 and Table 2 show us that only two (4.90%) federal university law programs that offer this program, those at UFGD and UNIRIO, had created and/or included in their curricula classes that cover ERER teaching in the same decade that Resolution CNE/CP no. 01/2004 was passed, but they are optional classes. In the law programs of the other thirteen universities, the classes were created and/or included in the following decade, the 2010s.

The creation dates of these classes are important because they show how slow the implementation of ERER teaching has been in the twenty-three law programs of the universities whose PPCs stated that they covered this. In other words, the data from our research reveal how delayed the inclusion of this teaching in their curricula has been, which, in turn, demonstrates a certain resistance in the law programs to implementing CNE Resolutions nos. 01/2004 and 05/2018. Furthermore, it should be noted that only one law program, UnB’s, stated having actually hired a professor to teach ERER, though the class was not mandatory. UFPA and UNIFESSPA differed in how they created required classes for covering the teaching, but did not hire professors for it (Table 1).

For reasons of length, this brief description of Table 1 and Table 2’s data is not intended to explore them broadly, deeply, or minutely. However, this brief exposition shows that ERER teaching has not been implemented adequately or consistently in federal university law programs across the country. That is, the small amount of data we present here indicates that there are difficulties in institutionalizing the rules of Resolution CNE/CP no. 01/2004 and/or that it is not being fully implemented by Brazilian federal university law programs. It should be stressed that public universities are, in general, the best higher education institutions in Brazil. According to the Webometrics Ranking of World Universities, of the twenty-five best Brazilian universities, twenty are federal (public), four are state (also public), and one is private. This last one was ranked 16th.18 This being the case, and the fact that a significant number of the federal universities are not properly implementing Resolutions CNE/CP no. 01/2004 and CNE/CES no. 5/2018, as can be seen in Table 1 and Table 2, makes it plausible that the same thing is true for Brazilian private universities, university centers, and colleges.

Hence, it is reasonable to state that, one way or another, law programs are not teaching Brazilian race relations from a non-Eurocentric (or non-white-centric) perspective to their students, many of whom will become not only lawyers, but judges, state and federal prosecutors, public prosecutors and defenders, police commissioners, university professors, and other professionals. As a consequence, one can admit the supposition that law practitioners thus far have not learned academically (adequately, consistently, rigorously, ethically, and so on) in their university law courses that they should not judge defendants or victims according to their color/race; that the fight against racism exists in Brazilian legislation; and, moreover, that it is possible to learn and operationalize the fight against racism through teaching ERER. Hence, it is not for no reason that Judge Fábio Esteves, one of the creators and organizers of the Encontro Nacional de Juízas e Juízes Negros (Enajun, National Meeting of Black/Brown—negros—Judges), states and at the same time proposes that “there is a need to change the education of our judges. There are those who say that racism does not exist. We must demand that judges, even those who do not believe it, have knowledge of racial issues in Brazil” (Esteves in Nunes 2020, our emphasis).

It should be stressed that believing racism does not exist may impact all branches of the law, not only criminal law. For example, the implementation of the quota system for public school students at federal universities, with subquotas for black (pretos), brown (pardos), indigenous, and low-income students, according to Law no. 12.711/2012 (Brasil 2012), could involve the operationalization of administrative, criminal, constitutional, and other branches of law.

A study undertaken by Santos (2021b) showed that after the implementation of the quota system in federal universities (as specified by Law no. 12.771/2012), from precisely 2012 to 2020, “there was a total of 3958 reports of fraud in subquotas intended for black (pretos), brown (pardos), and indigenous students” (Santos 2021b, p. 392). In response to the complaints and in searching for solutions, many universities created hetero-identification commissions to verify the ethno–racial self-declaration of students, aiming to curb and/or deter fraud from being committed by white students. However, when fraud is proven and, consequently, they are dismissed from or are not enrolled in the universities for not being considered legal subjects of Law no. 12.711/2012, some white students appeal to the Ministério Público Federal (MPF, the Federal Prosecutor’s Office) or the Judiciary. This latter institution rules legally on what has been decided administratively by the university (Santos 2021b). But how can disputes about affirmative action policies for black/brown students be decided fairly without any “knowledge of the racial issues in Brazil”? How can one rule on them impartially when one is educated by a racist worldview and coming from the mistaken assumption that “racism doesn’t exist” in Brazil, as many judges believe (Esteves in Nunes 2020)?

We do not think that ERER teaching in law programs can solve all the problems raised by the issues above; it is not a panacea. However, it is certain that without this education, the problems will continue and will not be alleviated in the least.

The recent revision of the National Curricular Guidelines for college law programs, as can be seen in Resolution CNE/CES no. 5 of 17 December 2018, should be highlighted. Among other changes and innovations, Section 2, item XII, article 2 of this resolution establishes that

The PPC should also provide for the transversal treatment of content demanded by specific national guidelines, such as in educational policies for the environment, human rights, senior citizens, gender policies, ethno–racial relations, and Afro-Brazilian, African, and indigenous cultures, among others.

(CNE 2018, p. 2)

Even with the revision of the National Curricular Guidelines for college law programs at the end of 2018, and which also specified (or ratified) instruction in ERER as well as Afro-Brazilian, African, and indigenous history and culture, to all indications, there have been problems or difficulties in implementing it in these programs.19 Nonetheless, despite all the criticisms of this process that we have presented, the process of implementing ERER teaching in law may be ahead of other traditional humanities programs. For example, social science programs (anthropology, political science, and sociology) have yet to make this change, and their National Curricular Guidelines came in Resolution CNE/CES no. 17 on 13 March 2002, that is, well before Resolution CNE/CP no. 01/2004. This consideration is important because it shows that the difficulties we are observing in ERER teaching implementation in law programs may be something common to all Brazilian higher education programs, not just law programs.

However, our focus here is on law programs. And since, for reasons of space, we have no way to describe and/or analyze all the programs at the forty-one abovementioned universities in this article (Table 1 and Table 2), we will focus on the program of the Universidade Federal do Paraná (UFPR, Federal University of Paraná) because the case of Judge Inês Marchalek Zarpelon from the First Criminal Court of the District of the Metropolitan Region of Curitiba (PR) took place in the State of Paraná, and this is where the OAB’s Paraná Section and the Public Defender’s Office of the State of Paraná reacted to this case.

4. The Teaching of Ethno–Racial Relations in the Law Program of UFPR Is Necessary for Confronting Racism beyond Taking Punitive Action

The UFPR law program was founded in 1912, the same year the university was created. Thus, it is a traditional program at UFPR, which is one of the oldest federal universities in Brazil. But, contrary to Resolution CNE/CES no. 5 of 17 December 2018, which institutes National Curricular Guidelines for college law programs, the UFPR program’s PPC did not include ERER teaching. Consequently, as of September 2021, this program had not created any course specific to this teaching, nor had it hired professors for such a class (Table 1). However, UFPR’s law program states that it includes the teaching required by Resolution CNE/CP no. 01/2004 through transversal treatment of the content by means of two required courses, “Criminology” and “Law and Society,” and one optional course, “Migrations, Refuge, and Human Rights” (Table 1). We did not find this last course in the program curriculum.20 In fact, the course was not present in UFPR Resolution no. 60/2009-CEPE, which established a full (new) curriculum for the university’s law program (UFPR 2009). As for the two required courses, they did exist in the mentioned curriculum. But upon checking the syllabi of these courses,21 we did not find any item or topic, much less bibliographic reference, that covered ERER teaching according to the spirit of Opinion CNE/CP no. 03/2004 and Resolution CNE/CP no. 01/2004. Hence, contrary to what is stated in UFPR’s law program, the abovementioned teaching was not covered in this program at the university, in view of the official information provided by UFPR.

Thus, we see that the UFPR law program’s formal statement that it covers ERER teaching is more protocol than real and concrete since it does not correspond to reality, the facts, or what is actually taught (until September 2021) in this university’s law program.

In the face of these aspects concerning ERER teaching in UFPR’s law program, if a recent UFPR graduate who, after passing the service exam to become a judge, entered the judiciary and, in exercising his or her office, handed down a sentence the same as or similar to that of Judges Inês Marchalek Zarpelon or Lissandra Reis Ceccon, would it be sufficient, effective, and efficient for the OAB’s Paraná Section to solicit the punishment of this one new judge educated at UFPR? Would this judge be punished? We address the former question below. As for the second, considering the history of not punishing judges for crimes of racism in carrying out their work, as shown in Carvalho (2020a), we suggest that acquittal or dismissal of the case against such a judge for a supposed lack of evidence would be likely.

Among other factors, this tendency is due to the fact that not punishing judges who practice racism is affected by the over-representation of white judges in the judiciary. Even if we think that white people are not synonymous with racist people and black/brown citizens are not synonymous with antiracist citizens, we cannot disregard that when there is an abysmal inequality between the numbers of whites and non-whites (that is, black (pretos), brown (pardos), indigenous, and yellow people) at an institution, that is, when there is an over-representation of whites in positions of power (and prestige, decision-making, control, command, etc.) and an under-representation of other racial groups at this institution, that blatant inequality can make a significant difference in the punishment of racist practices, as well as in the “formulation of judicial policies of racial equality in the Judiciary.” As Judge Karen Luise Vilanova Batista de Souza, self-declared and socially recognized as black/brown (negra), teaches us, “if you only have white men in the judiciary, you are going to have the perspective, worldview, and experience of the white man” (Souza 2020). As a consequence, one cannot forget that 83.80% of the members (the judges) of the judiciary are white, 1.7% are black (pretos), 12.8% are brown (pardos),22 1.50% are yellow, and 0.2% are indigenous (CNJ 2023, p. 31).23 Moreover, neither can we forget the likely existence of structured and structuring networks of (white) racial protection in the country’s courts (as there is in universities, among other public and private institutions)24 that is activated to protect and/or exonerate white peers who commit “racial slip ups,” especially those who state that they had no “intent to discriminate against any person on account of their color”.

Should this hypothesis be plausible, strategies are necessary for formulating and implementing judicial policies on racial equality in the judiciary that go beyond punitive action, i.e., strategies that repress racial crimes, such as what was intended by the Paraná State Public Defender and the national OAB and its Paraná Section against the “unacceptable statement” that “goes against the constitutional principle of equality and non-discrimination” of Judge Zarpelon, as the OAB/PR stated. In other words, we cannot think of and/or understand racism as something only of or in the individual who committed the “racial slip up”. Furthermore, we should recall that racism is dynamic; it renews and restructures itself according to societal changes and historical circumstances (Munanga 1996, p. 17), its dynamism being one of the characteristics that enable it to be structural. This does not mean we are questioning the action or position of the OAB, Paraná Section that any judge practicing racism be punished. We reiterate that no racial discrimination, if proven, should go unpunished and/or fail to incur sanctions, according to the law. Therefore, punitive actions against racism do indeed need to be applied in proven cases, not in the least for being pedagogical.

Therefore, if “the concrete is concrete because it is the concentration of many determinations, hence unity of the diverse” (Marx 1973, p. 34),25 we think we should seek to discover what the possible definitions and/or factors that enable, unfortunately, the handing down of judicial sentences based on racial criteria are. That is, starting from the two cases cited above, as well as the seven other cases noted by Carvalho (2020a), we feel we should broaden our view and considerations and not limit ourselves only to punitive action against some judge who handed down some ruling that could be characterized as racist. Put another way, we think we should not focus only on the defendants or violators of antiracist legislation because they are perhaps only expressing and/or practicing what they have been taught or have not been allowed to learn in order to intellectually deconstruct racism, even in their college courses. Especially if racism is dynamic, as Munanga (1996) teaches us, the ways we react and fight it must be multiple, requiring not only one but several judiciary (or other agencies and institutions) rulings and policies, including in academia (specifically in law programs), to combat it.

If sentences are based on racial criteria, even without “the intent to discriminate against any person on account of their color”, law students need to be taught (during college, at least) and understand and apprehend the way in which racial discrimination and harm are operationalized in Brazil, and this should be achieved especially through specific, required courses on Brazilian race relations on law programs, possibly in addition to a transversal treatment of the subject in several optional courses.26 Thus, university law students, future law practitioners (judges, state and federal prosecutors, public defenders, police officers, and so on) will be able to begin to understand the complexity of Brazilian race relations, and, consequently, they will understand as well the complexity of the operationalization of racism and its dynamism in Brazilian society, in addition to other lessons. In this way, they will be able to autonomously reach the conclusion that not having the intention (or awareness, or desire) to racially discriminate against a person does not mean we have not discriminated through our actions, especially in a multiracial but racist society such as Brazil’s, in which we do not see the racism in our actions, but do see it in those of others (Turra and Venturi 1995).

There are tools for this sort of instruction, i.e., ERER teaching, which is mandatory for all undergraduate programs at public and private universities, as stated by the National Education Council (CNE) in Resolution CNE/CP no. 01/2004. However, this requirement is not being implemented effectively, despite the rules for it, as in the resolution just cited and in Resolution CNE/CES no. 05/2018,27 as we saw with UFPR.

To conclude this section, we are saying here that the national and Paraná OABs (and any other branch of the OAB in Brazil), in addition to other institutions,28 could (directly) demand and make universities comply (in all undergraduate programs) with Resolution CNE/CP no. 01/2004 and, in the case of law programs, beyond this resolution, demand and force compliance with Resolution CNE/CE no. 05/2018 as well. Complementing the direct demands cited above, the OAB, for example, could include questions about the operationalization and addressing of racism and Brazilian race relations in the bar exam, and the CNJ, CNMPF, and other institutions could do the same in their service exams to enter the judiciary or become public defenders and public prosecutors, among other administrators of justice.

5. Final Considerations

In this article, we propose the working hypothesis that there are tools, such as the teaching of Ethno–Racial Relations Education (ERER), to deconstruct Eurocentric (and/or white-centric) teaching that predominates in undergraduate law programs at Brazilian federal universities. We also recommend that the Eurocentric point of view, as the only path, has impeded pluriversality and/or the worldview that all democratic and antiracist perspectives can and should be mobilized in the processes of higher education teaching and learning. In law programs in particular, pluriversality, including ERER teaching, is fundamental to judges not handing down sentences based on racial criteria and/or containing expressions, statements, etc., that enable their inference, for example, that a defendant is not a stereotypical outlaw because they are white or that a defendant is surely the member of a criminal group because of their (black/brown) race.

Furthermore, we hypothesized that a Eurocentric point of view still predominates as the only path in law program teaching and learning because nearly twenty years have passed since the publication of Resolution CNE/CP no. 01/2004,29 and we still have not seen its proper implementation, as the results of this study demonstrate.

Based on these results, it is plausible to state that the federal universities’ and/or their law programs’ responses indicated, among other findings and/or possibilities for description and analysis, that (a) few law programs at these universities have sought to properly comply with Resolution CNE/CP no. 01/2004; (b) the implementation of ERER teaching in federal university law programs has been very slow; (c) even in law programs that have tried to implement the teaching, it has been precarious and/or protocol-based; and, consequently, (d) it is plausible to infer that federal university law programs are resisting the full implementation of the rules cited above, as one can suppose based on our study’s data.

This being the case, considering the aspects above about the process of implementing Resolution CNE/CP no. 01/2004 in federal university law programs, we suggest the hypothesis that unless there is an immediate change regarding implementing ERER teaching in higher education programs, that is, if there is no demand and/or ruling by the judiciary and its institutions, as well as no effective and proper compliance with Resolution CNE/CP no. 01/2004 by universities, particularly in law courses, we will continue having judges who think, and worse, rule based on a defendant’s race/color.

Evidently, proper compliance with such a resolution does not necessarily guarantee that ERER teaching (even if taught properly and according to the spirit of Law no. 11.645/2008 and/or Opinion CNE/CP no. 003/2004) will be a panacea for race-based sentencing, much less avoid the racial practices of some judges and/or any other legal operators or mistaken decisions concerning implementing the quota system for blacks/browns. Nevertheless, in some way, teaching the history and culture of the Brazilian population—including the black (pretos), brown (pardos), and indigenous peoples–by studying the history of black (pretos), brown (pardos), and indigenous Brazilian peoples’ fight for a fair, egalitarian country, thus showing the significant and essential part that these ethno–racial groups played in the formation and building of our country (as with the participation of Asian and European immigrants, among others), and recognizing and valuing their contributions in social, economic, and political areas relevant to Brazil’s history, could provoke a significant and positive reaction against actions that lead to racial discrimination and, consequently, feed the racism of the judiciary and/or some of its members.

We think that ERER teaching in undergraduate law programs and/or the effective (and proper and efficient) implementation of Resolution CNE/CP no. 01/2004 can begin to provide knowledge of and reflection on racist practices that we unknowingly operationalize as well as make us question whether our actions, inactions, gestures, expressions, and so on at no moment have “the intent to discriminate against any person on account of their color”. In this way, maybe we might be able to avoid future sentences like those cited in this article and even significantly contribute to the “elaboration of studies and recommendation of solutions with the aim of formulating judicial policies on racial equality within the Judiciary”, as the CNJ wishes.

As Paulo Freire (2001, p. 130) would say, “It’s difficult to change something. Difficult but possible”. Hence, it is possible to implement Ethno–Racial Relations Education (ERER) teaching in undergraduate law programs even with their resistance, particularly because it is backed up by legislation and rules. It is up to the judiciary and/or the Brazilian legal system, as well as the Ministry of Education, to make universities comply with these rules properly and without subterfuge.