A Garantia do direito à educação de crianças e adolescentes pela via judicial: análise das decisões judiciais do Supremo Tribunal Federal (2003-2012)

Abstract

The present Brazilian legal order, especially since the promulgation of the Federal Constitution of 1988, establishes a long list of educational rights for children and adolescents and guarantees to the right to education the status of a fundamental social right. In this context, the Judiciary began to take a more active role with education, judging disputes and seeking the regulatory requirements, implementation and effectiveness of this right. In this sense, the present work aims to investigate and analyze the content of judicial decisions related to the right to education of children and adolescents under the Federal Supreme Court (STF) in the period 2003-2012, by the arguments developed by judges of the Supreme Court. Through the documentary research, it was found 35 judgments on the subject of educational rights of children and adolescents, which, given the large number of tasks of the Federal Supreme Court , involved different issues relating to: access to early childhood education, the maintenance of a elementary school class to Young and Adults, the state's responsibility in the broad guarantee of the right to education, the financing of education; the temporary hiring professionals of public education, the choice of leaders of schools through direct elections; the power of state regulation in relation to private schools, the constitutionality of the Half - entry, the omission of the President in relation to the eradication of illiteracy in the country and the implementation of basic education for all, the constitutionality of the minimum salary for teaching professionals in the public basic education, the conflict between the legislative and executive in establishing standards for education and the conflict between the Union and the States in legislative drafting in the educational theme. Through this analysis it was observed that the Supreme Court has adopted a favorable position towards the realization of the right to education . That's because , unanimously , the Court settled that education - including the child education- is a fundamental social right directly liable by judicial process . In other words , the Supreme Court held that the right to education is a public subjective right . Notwithstanding the importance of jurisprudential position taken by the Supreme Court, it was observed on the analysis the lack of dialogue with the educational knowledge.