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| Author(s): |
Adriana Aparecida Dragone Silveira
Total Authors: 1
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| Document type: | Doctoral Thesis |
| Press: | São Paulo. |
| Institution: | Universidade de São Paulo (USP). Faculdade de Educação (FE/SBD) |
| Defense date: | 2010-12-13 |
| Examining board members: |
Romualdo Luiz Portela de Oliveira;
Carlos Roberto Jamil Cury;
Clarice Seixas Duarte;
Rosangela Gavioli Prieto;
Nina Beatriz Stocco Ranieri
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| Advisor: | Romualdo Luiz Portela de Oliveira |
| Abstract | |
In the Federal Constitution of 1988 (CF/88) the right to education is declared as a fundamental right, social character, configuring a everyone right and duty of the State. However, there is a long way to be crawled so that everyone, without distinction, has access to education, and that this is quality. Recourse to the Judiciary can be one of the possibilities to make permanent. This thesis examines how the magistrates have esteemed and judged demands involving the rights of children and adolescents to education, in the context of the São Paulo Justice Court (TJ-SP), the judiciary instance appeal, in the period after the implantation of the Children and Adolescents Statute. The target is identify in which litigations consolidated a favorable jurisprudence to judicial enforceability and find potential barriers as to the interpretation of the right to education, trying to understand if judicial intervention enables extension of effective educational rights and consequently, the strengthening of the democracy. In the theoretical references attempted discuss the effectiveness and interpretation of standards related to the right to education, as a social law, in the Democratic State context adopted by CF/88, the process of Judiciary expansion to the protection of social rights and institutional characteristics of the Brazilian Judiciary, and judicial and the São Paulo Justice Court (TJ-SP). According the objectives, achieved the research with 483 decisions given by the TJ-SP, during the period 1991 to 2008. These documents, on the basis of the main demands and questions discussed in the processes, were organized and analyzed in wide categories: access to basic education; permanence; State responsibility; State regulatory power; policies and administrative decisions; management of public resources and parents obligations. From the general analysis of the decisions, denotes that the main obstacles to judicial enforceability of the right to education are related, primarily, to questions about the public budget, to the administrator discretionary limits and the Judiciary decisive area, and the attendance to the diffuse and collective demands involving the formulation and implementation of public policies. Noted that there is a tendency majority among of the TJ-SP members to accept more easily demands that required, individually or to a defined number of interested parties, the access to education, consolidating a favorable jurisprudence over the years, mainly with respect to early childhood education and special education. However, the magistrates were more resistant to accept requests related to policy or technical issues, whereas the argument of the separation of powers. Finally, the Judiciary constitutes an important instrument for consolidating to democracy, enabled identifiable claim the right to education, however it, becomes crucial to changing the conception of its members, regarding the interference of this institution in control of the action of public administration, when this not comply with the rights declared. (AU) | |