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Judicialization of public policies: the shortage of vacancies in the children's state schools in the State of São Paulo

Grant number: 13/23065-0
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): March 01, 2014
Effective date (End): February 28, 2015
Field of knowledge:Applied Social Sciences - Law - Public Law
Principal Investigator:Diogo Rosenthal Coutinho
Grantee:Tatiane Kimie Siqui
Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The scope of this research project is the process of judicialization of public policies in the field of education. It particularly aims at approaching the issue of the shortage of vacancies in the children's state schools in the State of São Paulo. For this purpose, the research will be divided into two main axis. The starting point is to observe and understand the current performance of the Tribunal de Justiça do Estado de São Paulo (TJSP - State Supreme Court) regarding the shortage of vacancies in nursery and pre-primary schools through the reading of sentences. The aim of this jurisprudential analysis is to map the motivations and the reasoning of magistrates, which drove them into deciding in a particular way, and to identify which has been the predominant decision of the Court between the years of 1996 and 2013. As from this point, the second part of the project regards the study of the criticism and limitations accredited to the judicialization of public policies under the perspective of the issue of the shortage of vacancies in nursery and pre-primary schools. Firstly, we have the lack of knowledge on the part of magistrates for the handling of an intelligent allocation of resources considered meager. Secondly, the lack of guarantee on the part of the Judiciary when judging cases involving the right to education. As it is, the fulfillment of judicial decisions has been causing some children to be put on top positions in the waiting lists of the Counties as opposed to others who were already in the list but did not resort to the Judiciary. Lastly, a limiting factor to the judicial sentences is "timing", once these demand a long time to be executed in face of the need of new vacancies being created in the children's state schools. Even with the Judiaciary's intervention, there is still a long wait as well as other difficulties concerning the actual access to these vacancies. This fact limits and encumbers the enforceability, as well as the judicial control over the fulfillment of those sentences.