In the United States, the term “affirmative action” was coined in 1961 when President John F. Kennedy signed an executive order stipulating that positive steps should be taken in government hiring to ensure that job applicants would be judged without discrimination based on race, creed, colour or place of origin.

Today, both in the United States and in many other countries, positive discrimination is built into certain laws, policies and administrative practices in an attempt to end and remedy the effects of specific forms of discrimination. These initiatives afford special consideration to historically excluded groups and racial minorities in the fields of education and employment. The goal of positive discrimination is to remedy the effects of past racial discrimination in order to eradicate them in the present. Through these measures, it is intended that public institutions (for the most part) such as universities, hospitals and other public services will be more representative of the populations they serve.

The debate over positive discrimination to benefit Europe’s Romani community has not made its mark in philosophical terms, nor has its suitability been the subject of ongoing debate. However, it would be beneficial to place some questions on the table for discussion, for example: To what extent do systemic discrimination and prejudice persist? In regards to positive discrimination programmes, to what extent have they or could they now be an effective way to provide the Romani community with academic and employment opportunities?

In a hypothetical scenario of positive discrimination designed to help Spanish Roma at universities, a quota system would be used, as opposed to a system of specific grants. This system would be focused on giving Roma preferential admission to public universities by setting a percentage of Romani students who would be admitted in comparison with the total number of students competing for places.

The Romani community has been categorised as one which has been discriminated against throughout history. And since they do not participate in public policy questions, the suitability of such initiatives has never been the subject of discussion: What will it take for universities to – instead of being the epicentre for the transmission of a vision of a single, “true” culture – become spaces of intersection and dialogue between different ways of being, thinking and reacting?

Education and culture are inherent to each other’s existence, because in a contemporary society there can be no education without an interaction between cultural practices and ways of being, thinking and reacting. This relationship exists as a structural element, according to Jamaican sociologist Stuart Hall’s view of the “centrality of culture” (1997).

We cannot ignore the fact that ethnic and cultural minorities are products of the hegemony of some forms of culture over others. Therefore, education and cultural recognition must be viewed not as independent concepts but as intertwined elements.

However, under the Spanish state’s current system, this would not be possible. To wit, Article 14 of the Spanish Constitution reads: “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance”.

Under this premise, Spain’s Romani community cannot be recognised as an ethnic minority, given that Article 14 says that Spaniards are equal before the law (Roma born in Spain are, obviously, Spanish) and that racial discrimination cannot exist (although whether it does is debatable). The Spanish state does not currently have a national framework for the protection of the country’s minorities, in contrast to fellow European Union member states such as the Czech Republic, Hungary, Romania and Sweden, where protection models have been adopted.

But if we take measures implemented by the Court of Justice of the European Union (CJEU) regarding equality between men and women as examples, some interesting facts emerge from which we can make some interesting comparisons.

In this regard, it is evident that measures involving positive discrimination are in line with the principle of equal opportunity adhered to by European institutions to ensure actual equality but not a particular tangible result. Thus, although the achievement of real equality may require the adoption of discriminatory measures, the ultimate aim of these measures is to combat discrimination. Therefore, the principle of equal opportunity on which positive discrimination actions are based is not only compatible with but also complementary to the general principle of non-discrimination.

Under this scenario, could a similar framework containing measures to favour the admission of members of the Romani community to university be possible, given that Spain does not offer any institutional recognition of minorities?

Such measures could run into social barriers that exacerbate the both the discrimination gap and negative perceptions about the Romani community. By way of example, one can examine cases in the United States, one of them being that of Marco DeFunis. This young man was rejected by the University of Washington’s School of Law (in the state of Washington), in spite of the fact that his marks were higher than those of other candidates who were black, Filipino, Hispanic and Native American, but who benefited from anti-discrimination measures which established racial/ethnic quotas. A similar situation later occurred in the Bakke case. The Medical School of the University of California at Davis had 100 places, of which 16 were reserved for minorities. Allan Bakke, a white candidate, was ranked 84 and not admitted. Had he been a member of a minority group, he would have been admitted based on his qualifications.

One could argue that, in view of Spain’s current social and economic situation, such positive discrimination measures could have a negative impact on society and that it would be preferable, instead of taking ethnic criteria into account, to consider economic criteria and establish quotas and ratios that would benefit low-income students.

However, research has shown that experiences of diversity can positively affect the civic and social growth of university students and promote their healthy participation in an increasingly globalised world. But even if higher education institutions took only family income into account, without considering ethnic factors as the main criterion for diversity, many structural challenges would remain. Today it can be clearly demonstrated that the number of Romani high school students from low-income families who were admitted is well below that of non-Romani students in similar conditions.

We can deduce that positive discrimination policies are intended to reduce distances between unequal groups by designating certain groups as the beneficiaries of the measures (Urteaga, 2009). These are preferential measures that differ in form, although they intervene in similar areas, and are controversial insofar as they beg the question of whether they are a means of social assistance or favouritism.

It is obvious that the case of Spain differs greatly from other countries such as Slovakia and Macedonia – where measures have been implemented to favour the inclusion of Romani students in higher education – because, as we have already said, Roma are not recognised as an ethnic minority in Spain. However, openly debating this issue would undoubtedly invite the possibility of finding out whether the establishment of such quotas would increase the percentage of Romani students in Spanish universities.

There is no doubt that we could insist on a debate in which some of the most common objections to positive discrimination initiatives are analysed while also stating the reasons given by those who advocate them and the criteria that would have to be met in their implementation in order to meet the demands of the social and cultural reality of Spain’s Romani community.

Therefore, and based both on the approaches that could be adapted to existing measures and principles which are locally-based and adapted to the country’s social reality, the roadmap should be very specific and include measures designed to ensure equality and equal treatment amongst all citizens, Romani and non-Romani alike.

Perhaps institutional leaders, members of the academic community and politicians should address these issues and problems in an effort to arrive at a paradigm which champions true diversity through this open debate. Going on with the same measures taken up to now (integration programmes, strategies and other meaningless documents) is nothing more than throwing money at the problem or playing the same scratched record over and over again. We could stop trodding the same paths and work towards bringing the cycle of failure, exclusion and deprivation to an end. What is clear is that sticking to the current model would mirror the classic definition of insanity: repeating the same actions over and over again and expecting a different result.