Positive discrimination against women who proposes Minister Manuel Castells on his preliminary draft of organic law of the University System (LOSU) does not convince rectors and generates many doubts among jurists.
Both one and others consider that the draft, which yesterday passed through the first reading of the Council of Ministers, shows “indications of unconstitutionality”.
The professors of Constitutional Law and the rectors consulted believe that the text, in its current wording, “will cause problems” because it allows the campuses that, “to favor women’s access”, when there are two candidates in “equality of conditions of suitability
»Have” preference “to be hired” people of less represented sex “in the faculty or category in question.
Sources of the rectors are against the term “equality of suitability conditions” because they consider it “very ambiguous”.
It implies, in fact, choosing not the best prepared candidate but the most suitable for the position, allowing all kinds of interpretations.
They suggest, as opposed, the use of the word “merit”.
“The principles of equality, merit and capacity are the only ones that can be constitutionally applied in public service,” these sources point out.
“The concept of two candidates on an equal footing in the contests is impossible, there is always a better and a better candidate.
They pose a laboratory hypothesis, “says Roberto Blanco, professor of constitutional law of the University of Santiago.
In his opinion, the norm is “clearly unconstitutional” and supposes a “violation of the principle of equal opportunities” because, “if two people compete, sex can not be taken into account.”
“Sex is not a criterion,” he emphasizes him.
Fernando Rey, Professor of Constitutional Law of the University of Valladolid, recalls: “An absolute rule of preference for women against men was declared contrary to European law by the EU Court of Justice in the Kalanke judgment.
In 1998, Marshall judgment nuanced that a rule of preference could be established, but as long as it was not absolute and allowing to ponder the male competitor, for example, because it is the only source of home income. ”
The former Counselor of Castilla y León insists that “an automatic rule is contrary to European law and, therefore, to Spanish law.”
“If the norm is thus established is incomplete, because it should be clarified, in addition, what is understood by less representation.”
Both Teresa Freixes (Professor of Constitution of the Autonomous University of Barcelona) as Manuel Pulido (Professor of Constitution of the University of Navarra) aim that, in order to apply a positive action on less represented sex, it should be determined what is considered to be infrared.
For this, it should be done “fair aspartial assessment” or a “statistical analysis” on access to employment and on professional promotion.
«It is always a delicate matter, but it could be covered in Article 9.2 of the Constitution, which admits positive discrimination, it poses by its part Xavier Arbós, Professor of Constitutional of the University of Barcelona,” but it must be justified exposing that the objective of that
Discrimination is constitutional and that differentiated treatment is an ideal measure to eliminate obstacles to real equality among people in the teaching body concerned, “he adds.
On the other hand, he says that “written refers to sex, and, to the extent that he is understood that this refers to a different condition of gender, there may be discussions that have been seen in other cases.”
«It is true that somehow you have to finish with the gender gap that is de facto given in college.
The problem is that giving with solutions without analyzing the causes creates unjust grievances.
Positive discrimination should be established to correct inequalities once the source has been identified, that is, at the origin and not at the end of the process, which is hiring, “reflects Silvia Valmaña, Professor of Criminal Law of the University of Castilla-
La Mancha.
María Jesús Moro, spokesman for universities of the Parliamentary Group of the PP and professor of Civil Law at the University of Salamanca, observes “more problems than benefits in this measure” and asks “what will be done in the areas where there are almost no men,”
As in the Magisterium career.
