Judicialização da educação

um estudo sobre o padrão decisório do STF, TJRS e TJRO

Abstract

The right to education is guaranteed by the Federal Constitution of 1988 and eleva­ted to the status of fundamental guarantee of responsibility inherent to the family and the State, being it necessary to provide conditions for the law to be effectively enforced. However, due to growing social demands in the face of the inertia pre­sent in the Brazilian political scene, the executive branch has become increasingly limited in order to meet the real needs of this guarantee, making the Judiciary their performance in this context. Therefore, it is assumed that it is of relevant importan­ce to understand the standard by which courts make decisions regarding the right to education. The present study aims to analyze the pattern of decision-making behavior of the TJRO, the TJRS and the STF in judging the demands related to the judicialization of education, pondering whether this pattern of behavior is progres­sive or conservative and also if there was a judicial role in the decisions between the year 2011 and 2017. It was also sought to know if the decisions influenced the behavior of the legislature, whose typical purpose is to innovate the legal system by developing and promulgating laws that move the executive power in the creation and execution of programs and public policies focused on the right to education. It should be noted that, for the purposes of this study, the decision based on legal material law, that is, on the national legislation without any legal innovation, was considered as a conservative standard. On the other hand, it was considered as a progressive standard the decision based on the Federal Constitution or its prin­ciples, or even international laws, with a greater degree of judicial protagonism. Finally, it was identified in which perspective the Judiciary has acted as mediator of public policies that involve the educational right, becoming more active before the inertia of the legislative power and the executive power.