The Justiciability of the Right to Education in the post – 2015 Development Agenda Education...

The Justiciability of the Right to Education in the post – 2015

Development Agenda

Education Litigation in Brazil 25 – 05 – 2015

Salomão Ximenes – [email protected]

UFABC / Ação Educativa

Lecture points

1 – Brief overview of the right to education in Brazil

2 – Remedies and Enforcement in Brazil

3 – Education litigation in Brazil: major legal cases, challenges and innovation efforts

A constitutional right with successive enlargements since 1988

Duty os State (Article 208):

I – mandatory basic education, free of charge, for every individual from the age of 4 (four) through the age of 17 (seventeen), including the assurance of its free offer to all those who did not have access to it at the proper age;

II – progressive universalization of the free high-school education; (CA No. 14, 1996; CA No. 53, 2006; CA No. 59, 2009)

IV – infant education to children of up to 5 (five) years of age in day-care centers and pre-schools;

Par. 1. The access to compulsory and free education is a subjective public right.

Par. 2. The competent authority shall be liable for the failure of the Government in providing compulsory education, or providing it irregularly.


Article 212. The Union shall apply, annually, never less than eighteen percent, and the states, the Federal District, and the municipalities, at least twenty-five percent of the tax revenues, including those resulting from transfers, in the maintenance and development of education. (CA No. 53, 2006; CA No. 59, 2009)

Paragraph 4. The supplementary food and health assistance programmes provided by article 208, VII, shall be financed with funds derived from social contributions and other budgetary funds.


Article 214. The law shall establish a ten-year national education plan, with a view to organizing the national education system with the cooperation of states and municipalities, as well as to defining implementation directives, objectives, targets, and strategies so as to ensure maintenance and development of teaching, at its various levels, grades, and modalities, by means of integrated federal, state, and municipal government actions leading to: VI – stipulation of an amount of public funds to be invested in education as a proportion of the gross domestic product. (CA No. 59, 2009)

Participation of public and private sectors in basic education in Brazil, and total number of enrollments

(Source: Censo Escolar – MEC/Inep)

2007 2009 2011 2013

Public enrollments (%)

46.643.406(87,9%)

45.270.710 (86%)

43.053.942(84,4%)

41.432.416(82,8%)

Private enrollments (%)

6.385.522(12,4%)

7.309.742(13,9%)

7.918.677(15,5%)

8.610.032(17,2%)

Total enrollments

53.028.928 52.580.452 50.972.619 50.042.448

Overview of attendance rates in 2013 Compulsory education (Amendment nº 59):

•In the age group of 4-6 years old, 78.2% were enrolled;

•In the range 6-14 years old (primary school) the attendance was of 98.2%;

•Between 15 and 17 years old, the enrollment rate was 84.2%. However, the net attendance rate was of only 54% because the rest of the population in this age group was still in primary school.

Non compulsory education:

•Only 21.2% of children between 0 and 3 were enrolled in nursery schools.

Enrollments in public and private sectors of especial and inclusive education

TotalPublic sector

Private sector Total

Public sector


Public sector


Public sector

Private sector

270.74257.216(21,1%)

213.526(78,8%)

199.25738.862(19,5%)

160.395(80,4%)

156.38529.400(18,7%)

126.985(81,2%)

163.96828.089(17,1%)

135.879(82,8%)

77.72867.142(86,3%)

10.586(13,6%)

53.43050.269 (94%)

3.161(5,9%)

37.49733.684(89,8%)

3.813(10,1%)

30.45326.538(87,1%)

3.915(12,8%)

306.136285.923(93,3%)

20.213(6,6%)

387.031365.796(94,5%)

21.235(5,4%)

558.423525.812(94,1%)

32.611(5,8%)

648.921609.839(93,9%)

39.082(6%)

% Enrollments in public sector 37,32 28,89 21,72 21,21

% Enrollments in public sector 62,68 71,11 78,28 78,79

2013

Special schools (non-inclusive education)

Special classes (non-inclusive education)

Regular inclusive education

Total of enrollments 654.606 639.718 752.305 843.342

Special and inclusive education2007 2009 2011

Higher Education 1980-2013: increasing public and private sectors

National Education Plan – NEP (2014 – 2024)

• A Federal Law n. 13,005 / 2014;• Establishes 20 goals to be carried out in 10

years;• For example: a) Attendance of 50% of children between 0 and 3 years

old in nursery schools until 2024;b) Attendance of all children between 4 and 6 years old in

preschools until 2016;c) Increase of the medium salary of teachers in accordance

to the earnings of others professions with the same ground of education until 2020.

Education funding and national quality standards in NEP

One of the main points advocated by civil society was the progressive enlargement of the amount invested in education, to ensure a minimum level of investment per student per year in order to guarantee the provision of basic education with minimum quality parameters.

Two new mechanisms were included in the NEP under Goal 20:

1 - The country should reach an investment equivalent to 10% of GDP in education by 2024

Education funding and national quality standards in NEP

2 - The Goal 20 of NPE also provides a strategy to implement the initial Student Cost-Quality (CAQi) and subsequently the Cost-Student Quality (CAQ).

CAQi 2010 vs. Fundeb 2010 (Fundamental I)

Rigth to Education Jurisprudence – SPCA – Themes Evolution – 1991-2008 (SILVEIRA, 2012)

Main remedies in administrative level

Aministrative Remedies

Author Main Object

Right to petition Individuals andJuridical Person

Individual and Collective Fundamental Rights

Access to information Individuals Individual and Collective Information

Petition to the Public Prosecutor (Ministério Público)

Individuals andJuridical Person

Individual and Collective Fundamental Rights

Civil Public Inquiry Public Prosecutor Collective Rights, Public Policies, Administrative Misconducts

Conduct Adjustment Commitment

Public Prosecutor Collective Rights, Public Policies

Main remedies for justiciability and enforcement

Judicial Remedies Author Main Object

Writ of Mandamus (individual or collective)

Individuals,Public Prosecutor

Individual and Collective Fundamental Rights(clearly established right)

Civil Public Lawsuit Public Prosecutor, Public Defenders, Civil Associations (NGOs)

Collective Fundamental Rights, Public Policies

Civil Lawsuit (for damage repair)

Individuals Right to compensation

Main remedies for justiciability and enforcement on the Supreme Court (STF)

Note!Since the Constitutional Ammendment n. 45/2004, the

Extraordinary appeal has general effects on all similar cases.


Extraordinary appeal (on the Supreme Court)

The authors and objects of each previous judicial remedy

Main remedies for justiciability and enforcement on the Supreme Court (STF)


Direct Unconstitutional Action and Declaratory Action of Constitucionality

General Attorney of the Republic, President, Senate, Chamber of Deputies, Governors of the States, Federal Council of Bar Association, Political Parties, Trade Unions, Confederations or National Class Entities

Declare the unconstitutionality (or constitutionality) of a law or federal norms, with respect to the current Constitution

Allegation of Disobedience of Fundamental Precept

Act of the public power, when it is not possible to file a Direct Unconstitutional Action or a Declaratory Action of Constitucionality

Instruments of social participation

Amicus Curiae (Constitutional Actions and Extraordinary appeals)

Public Hearing (Supreme Court and Courts of Appeal)

Major legal cases in right to education

On Supreme Court:

1 - Constitutionality of Racial Quotas in Public Universities (ADPF nº 186 e RE nº 597.285)

2 - Constitutionality of the National Minimum Salary of Basic Education Teachers Law (ADI 4167)

3 - Judicial appeals regarding enforceability of the Right to Childhood Education - non-compulsory education (AgR RExt n. 410.715-5 – SP)


On the common justice:

1 – Civil Public Lawsuits for the collective protection of the right to access nursery and preschool;

2 - Civil Public Lawsuits and Conduct Adjustment Commitments on the State's duty to adapt the schools for students with disabilities and guarantee their access;


On the common justice:

3 – Civil Public Lawsuits and Administrative Misconduct Lawsuits about the non-application of mandatory education budgets;

4 - Civil Public Inquiries on the low performance of students on standardized tests.

Strategic litigation promoted by Ação Educativa and partner organizations in common justice

1 - Civil Public Lawsuit against charging fees in public schools in São Paulo – ACP 0023931-31.2011.8.26.0007;

2 – Advocacy and Civil Public Lawsuits on the State's duty to offer education in prisons – ACP 0015931 64.2012.8.26.0053/SP;

3 – Advocacy and Civil Public Lawsuits for public policies on the right to access and to improve quality at nursery and preschool;

Strategic litigation promoted by Ação Educativa and partner organizations at the Supreme Court

1 – Petition to the General Attorney of the Republic against the religious teaching in public schools and actuation as Amicus Curiae in this case (ADI 4439);

2 – Advocacy and actuation asAmicus Curiae in defense of the National Minimum Salary of Basic Education Teachers Law (ADI 4167);

Strategic litigation promoted by Ação Educativa and partner organizations at the Supreme Court

3 – Advising, advocacy and actuation asAmicus Curiae in defense of the minimum level of investment per student per year to guarantee the provision of fundamental education with minimum quality parameters (ADPF 71).

Note!With the new NEP, it was legally established a period of two years for definition and implementation of the initial Student Cost-Quality (CAQi)

In pursuit of a new judicial parameter on education in Brazil: the nursery and preschool case in São Paulo

Overview: (i)Currently there is a judicial parameter set up

by the Supreme Court: Extraordinary appeal n. 410715-5/SP;

(ii)It protects claims of individuals and of determined groups of children;

(iii)It became a parameter and strengthened the justiciability of all social rights in Brazil;

In pursuit of a new judicial parameter on education in Brazil: the nursery and preschool case in São Paulo

Negative effects in the medium-term: (i) Rapidly increase of judicial demands without necessarily

impact the definition and establishiment of State policies;(ii) Queue-jump Effect (¨fura fila¨) and risk of overcrowding; Note- On the other hand, attempts related to implement sentences

of Collective Civil Lawsuits with diffuse effects produced little practical effects;

- Difficulties to guarantee the enforcement of decisions against the State and authorities.

Deficit of places in early childhood education in São Paulo

Public policy on early childhood education in São Paulo: Expansion Model

The paradigmatic decision of the São Paulo Court of Appeal

1 – The original lawsuits were proposed between the years of 2008 and 2010;

2 - In 2012, before starting the dialogue with the Court of Appeals judges, a Working Group was created with representatives of Civil Society Organizations, Public Defender, Lawyers and Public Prosector.

3 – In 2013, the court decided to organize a Public Hearing;

4 - The court decision has created the Inter-institutional Monitoring Committee, established in 2014 and composed by 14 entities

The paradigmatic decision of the São Paulo Court of Appeal (ACP n. 0150735-64.2008.8.26.0002)

"To force the Municipality of São Paulo to create, between the

years of 2014 and 2016, at least 150.000 new vacancies in

nurseries and preschools for children aged 0-5 years old,

providing 50% of the vacancies in the first 18 months, of which

105.000 in full-time day care for children aged 0–3 years old, in

order to eliminate the waiting list and guarantee the quality of

education offered according to the basic rules issued by the

National Board of Education."

The paradigmatic decision of the São Paulo Court of Appeal (ACP n. 0150735-64.2008.8.26.0002)

“To force the Municipality of São Paulo to include in the next

public budget the extension of the school system.

(...)

To force the Municipality of São Paulo to present to the Court, in

no later than 60 days, a plan to increase enrollment and to

construct early childhood education units ensuring quality”

Avanços decorrentes do monitoramento da implementação

Processos de desapropriação junto ao TJSP – determinação de processamento prioritário de terrenos Criação de indicador de tempo de espera (por idade e distrito), possibilidade de composição em relação às demandas judiciais individuais propostas pela Defensoria Publicidade das ações de expansão e qualificação

Monitoramento popular regionalizado

Questões Relação entre demandas individuais e tutelas coletivas

abrangentes em políticas públicas: aspectos políticos e processuais

Condições institucionais para que o Judiciário assuma o papel de monitoramento técnico e de mediação entre litigantes e poder público

Relação entre procedimentos de monitoramento e execução judicial típica

Possibilidade de replicar o modelo de tutela. Recurso Extraordinário com Repercussão Geral no STF, sobre autoaplicabilidade do inciso IV do art. 208 da CF88.

Responsabilidade por descumprimento.

Contextos do litígio estratégico

- Esgotamento dos canais de diálogo e pressão junto aos outros poderes

- Vícios da política pública já implementada- Bloqueios políticos ao reconhecimento do direito de

minorias- Bloqueios políticos quanto a reformas institucionais- Possibilidade de dar visibilidade a um problema sem

projeção no debate público (papel simbólico do JUD)- Reconhecimento da legitimidade do Judiciário para

intervir em políticas públicas

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