Tekst autorstwa Lindy Portas (w j. angielskim) nt. działań wyrównawczych wprowadzonych przez Uniwersytet w Uppsali. Działania polegające na wprowadzeniu sztywnych 10% kwot dla studentów mających rodziców - cudzoziemców zostały uznane przez sądy szwedzkie za dyskryminujące i niezgodne z prawem.  

Discrimination of Swedes in Sweden – allocation of quotas based on ethnicity during admission procedure to Uppsala University considered discrimination1

In order to increase the ethnical and social diversity among law students, the Law faculty at Uppsala University implemented a new selection criterion in its admission procedure in 2003: ten percent of the places were earmarked for students with “both foreign-born parents”. The implementation of the new method referred to the Swedish Higher Education Ordinance2 which allowed universities to use local selection rules and procedures (based on “certain prior knowledge” or “other objective circumstances”) in order to broaden the recruitment of students. All applicants who were admitted based on the new selection criteria had however worse qualifications than those applicants of Swedish origin that were denied to enroll, among them Josefine Midander and Cecilia Lönn. They sued Uppsala University claiming to be victims of unfair treatment based on their ethnic background; a factor they themselves could not influence (i.e. where their parents were born). The lower courts ruled in their favor, as did the Supreme Court. It ruled that Uppsala University could not refer to the exception from the prohibition on discrimination in The Equal Treatment of Students at Universities Act3  to support the allocation of quotas based on ethnicity. Uppsala University was therefore found guilty of illegal, ethnic discrimination and the plaintiffs were awarded 75 000 SEK each in compensation
The concepts of equal treatment under the law and non-discrimination are today recognized as human rights; a fact that appeared to be crucial in the Supreme Court’s judgement and was also its starting-point. Any intervening exception from such important fundamental principles therefore has to be explicitly and clearly stated in law. The use of exceptions must be applied restrictively.

In order to foster equal rights for University students and applicants, The Equal Treatment of Students at Universities Act (which is based on the Directive 2000/43/EC4) states a prohibition against ethnic discrimination. It however says that exceptions are allowed in situations when the treatment is justified in deference to a specific interest that is evidently more important than the interest of preventing discrimination at universities. In the current case, it was unquestionable that the plaintiffs would have been admitted to the law faculty absent the new selection criterion. The unfair treatment was consequently connected to their ethnic origin. The question considered was thus if the increase of ethnic diversity among students (through the use of affirmative action by reserving places) was an “interest” that weighed heavier than the interest of protecting equal rights of students. Social interests, such as for example the promotion of equality between men and women, were mentioned during the creation-process of the law. The discussions had then, however, focused on situations where the applicants had equal and comparable qualifications.
Neither the two plaintiffs nor the Supreme Court did challenge the policy of affirmative action, as long as it is used between applicants who are equally qualified. This criterion was however not fulfilled in the current case since the two women had better grades than the ones being favored due to their foreign background. The plaintiffs had thus been subjects to direct discrimination. The discrimination had, in the Court’s opinion, given rise to a severe consequence; denying someone to enroll and participate in education. The seriousness of this sort of discrimination was shown by applying an absolute liability-principle; the University’s unawareness of the action’s penal character (the University thought the selection procedure was in accordance with the law) did in fact not hinder the Court to charge it for discrimination. This position is also strengthened by the relatively high damages that the plaintiffs received.5 The complicated legislation and the lack of previous case-law on this law were however considered to be mitigating circumstances.

The narrow scope of the exception from prohibition on discrimination is also confirmed by the restrictiveness used in the Council Directive 2000/43/EC. This use of the directive’s exception from the prohibition on discrimination (article 5) was at the time (when the Uppsala-case took place) lacking case- law about how it should be applied. Instead the Supreme Court had a look at the case-law from the corresponding exception from prohibition on discrimination in Council Directive 76/207/EEC6 (article 2.4). European Court of Justice (ECJ) stated in case C-450/937 that a national regulation that unexceptionally and unconditionally guarantees women priority in placements and promotions (within work) is not compatible with article 2.4 in a case where the applicants have equal qualifications. The scope of the exception from the prohibition of discrimination must, due to ECJ’s restrictive interpretation in case-law, therefore be seen as relatively narrow. Through its judgement in the Uppsala-case, the Supreme Court wanted to make a clear statement of what is not comprised in the concept of positive action; affirmative action is not permitted.

During the court proceedings it appeared that the portion of first- year students with foreign background attending the legal education actually corresponded with the portion of immigrants in the Swedish population. There was thus no urgent need of using such an intervening method as affirmative action. The new selection rule would, as I see it, also give rise to remarkable effects from a diversity-perspective; for example would applicants from Swedish ethnic minority groups (for example Romani or Saami8 people) not be included in this category. Further would applicants with for example two Norwegian parents be chosen instead of an applicant with one Swedish parent and one Kenyan. The aim of increasing the ethnic and social diversity would thus not necessarily increase through this manner.

Worth noting in this case was that the insult of the students (and potential psychological affects) that the affirmative action resulted in was not taken into account. Remarkably, the court considered only the action itself. Generally, in order to calculate a proper amount of damages the victim’s subjective experience should also have been considered.
Whether the application of affirmative action should be justified or not is an ethical issue that has been highly controversial due to the conflicts that arises. The primary goal of implementing affirmative action is to obtain equality. At the same time it can be claimed that, as has been illustrated, it gives rise to “converted” discrimination for those groups not being subjects for the special treatment (which consequently also causes inequality). The outcome of the Uppsala-case, which was the first time the Swedish Supreme Court had been asked about affirmative action based on ethnic origin, had a huge impact on the future development of its use. Not only did it set a precedent for universities but also for other sectors such as the employment market and the society as a whole. As a consequence of the conviction of Uppsala University (affirmative action based on ethnic origin) and the succeeding cases raised against the Universities of Örebro and Karlstad (in using affirmative action to nursing- and health education based on gender) it has been made clear that affirmative action never can be justified if the candidates have different merits. Affirmative action procedures do no longer exist in the application process to Swedish universities.

It is still of course of great importance that universities work to achieve higher ethnical diversity. The use of affirmative action do however result in the creation of injustice and also tends to strengthen the division of “us and them” between people in society. The use of equal treatment may in fact particularly important individuals with immigrant origin; it strengthens theirs self-esteem and the sense of belonging in a community. Affirmative action might therefore do more harm than well in those cases. Other methods, such as interviews, specific tests and taking into account an applicant’s working life experience would be more proper, non-discriminatory methods. These are neither insulting nor violating other individuals’ rights in the process of trying to achieve higher diversity. It is, in my opinion, not possible to decrease the discrimination of one ethnic group by discriminating another one.

Further are there huge difficulties in dividing people into groups based on an “ethnic origin”-criteria. In general we are all agreeing on who is male respectively female. When speaking about immigration though, many different factors (such as religion, skin color, ethnical origin and nationality) are automatically connected with each other. In most cases they might not be able to separate. Other issues to consider are also the definition of an “immigrant”. Who is according to law considered to be an immigrant? What factors has to be taken into account when ethnical diversity has to be established? For how long is someone an immigrant until he or she becomes a holder of a more “sophisticated” label (for example “Swedish citizen with foreign ancestry”).

1) Case: NJA 2006 s. 683
2) 7 kap. 10 § and 16 c § Högskoleförordningen (1993:100)
3) 7 § and 13 § Lagen (2001:1286) om likabehandling av studenter i högskolan
4) Council Directive 2000/43/EC of 29 June 2000, Implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
5)  75 000 SEK is normally the amount victims of ”normal-degree” -rape receives.
6)  Council Directive 76/207/EEC of  9th ofFebruary 1976 on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions.
7) Kalanke v Freie Hansestadt Bremen, Case C-450/93 [1995] IRLR 660
8) A Swedish ethnic minority with both parents born in Sweden.