In February 2020, Brazil witnessed two judicial decisions that indicate backlash efforts against race informed affirmative action policy. In one case, the Superior Court of Justice, the highest appellate court in Brazil for non-constitutional questions of federal law, decided that Sergio Camargo, nominated on 27 November 2019 as president of the Fundação Cultural Palmares (Palmares Cultural Foundation) should be restored to his position. He had been removed from the presidency by a judicial decision on 4 December 2019, in a civil case that pleaded that his attitude, behaviour and speech was incompatible with the presidency of the Foundation.

The Palmares Foundation is a public institution dedicated to an egalitarian and inclusive cultural policy, through the promotion and preservation of black Brazilian art, culture, and history as national heritage. Sergio Camargo has stated, for example, that he yearned for a day when a black person would be considered guilty of racism against a white person. His statements align with the ideology of the support base of the current government in Brazil, but are in contradiction with the most basic knowledge production on antiracism and human rights promotion, in the world.

In January 2020, the effect of those suggestions became evident, in the first case of alleged reverse racism in Brazil. A court decided a complaint of racism against a young black and indigenous student in Goiania City, for offending the white community through his statements on interracial marriage, made during an argument on social media. The case demonstrates the backlash and alienation faced by black activists in Brazil who argue in favour of race informed rights, and the dynamics that race plays in the judiciary.

Previously, it was common for white supremacists in Brazil to institute proceedings for slander against black people, as a response to complaints of racism. This strategy reduced the effectiveness of antiracist cases, as it would deter victims of racism from filing complaints, because they would not only face the institutional racism of Brazil’s judicial system that is reticent to condemning people for racism, but also could be treated as accused/defendants rather than as victims of racism. Nowadays, it is more common for white supremacists to institute reverse racism proceedings.

The concept of reverse racism in law is not new. It is widely present across the world as a backlash strategy. On 26 October 2012, the Paris Court decided a peculiar case of European anti-white racism, brought by the anti-racism organization “Licra” against a man of Arabic descent. More recently, this debate was rekindled when a French black rapper of African origins was taken to trial, accused of racism towards white people.

This legal backlash takes a formal view of non-discrimination, disconnecting the white supremacist power dynamics that are a reality in society, from ideas of racism and race discrimination. It thereby views any race conscious strategies as discrimination on the grounds of race. It understands affirmative action as a “positive discrimination” towards non-white people and, conversely, “negative discrimination” towards white people. It uses the language of victimhood, argues that every racial group shares the same conditions in social interactions and, therefore, white people can be victims of racism. It follows a transnational pattern, just as racism followed a transnational pattern through colonialism.

This backlash strategy reached Brazil only recently, less than a decade ago. Unfortunately, the debate on structural racism, race critical approach to legal theory and other vital debates have not reached the legal academy or wider legal space in Brazil, to enable consistent counterarguments against the false premises of white supremacist backlash. The decision pronounced in the reverse racism case in Goiania City supported itself in sociology, anthropology, philosophy and other disciplines, to preserve race conscious rights. However, we cannot be certain about how long race conscious affirmative action rights will resist the strong legal backlash of white supremacists, especially when deprived of race conscious knowledge in the law.

The interest convergence principle presented by Professor Derick Bell could explain this current situation. He argues that “whites will not support civil rights policies that may threaten white social status”. The reception of race informed policies in Brazil ignored the previous experience of blackness in others countries,  because that wasn’t convenient for those who implemented these policies in Brazil. As a result, race conscious policies for the promotion of the rights of black people in Brazil, remain vulnerable. The hope is that we will overcome these limitations with the help of lessons learnt from experiences of the diaspora, so that the attack on race conscious affirmative action politics in Brazil is unsuccessful.