Right to Education: Constitutional Aspects

RIGHT TO EDUCATION Constitucional Aspects coordination Nina Beatriz Stocco Ranieri editor Sabine Righetti Projeto_DireitoEducaçãoinglês.indd 5 26/4/2010 14:28:52 RIGHT TO EDUCATION Projeto_DireitoEducaçãoinglês.indd 3 26/4/2010 14:28:51 UNIVERSIDADE DE SÃO PAULO Reitora Suely Vilela Vice-reitor Franco Maria Lajolo EDITORA DA UNIVERSIDADE DE SÃO PAULO Diretor-p residente Plinio Martins Filho COMISSÃO Editorial Presidente José Mindlin Vice-presidente Carlos Alberto Barbosa Dantas Adolpho José Melfi Benjamin Abdala Júnior Maria Arminda do Nascimento Arruda Nelio Marco Vincenzo Bizzo Ricardo Toledo Silva Diretora Editorial Silvana Biral Editoras-assistentes Marilena Vizentin Carla Fernanda Fontana Projeto_DireitoEducaçãoinglês.indd 4 26/4/2010 14:28:52 Copyright © 2010 by autores Ficha catalográfica elaborada pelo Departamento Técnico do Sistema Integrado de Bibliotecas da USP Ranieri, Nina. Right to Education: Constitucional Aspects / coordination Nina Beatriz Stocco Ranieri; editor Sabine Righetti. – São Paulo: Editora da Universidade de São Paulo, 2009. 288 p.; 16 x 23 cm Inclui bibliografia. Apêndice: Os autores. ISBN 978-85-314-1251-6 1. Direito à educação (Brasil). 2. Educação. I. Righetti, Sabine. II. Título. CDD- 379.81 Direitos em reservados à Edusp – Editora da Universidade de São Paulo Av. Prof. Luciano Gualberto, Travessa J, 374 6o andar – Ed. da Antiga Reitoria – Cidade Universitária 05508-010 – São Paulo – SP – Brasil Divisão Comercial: Tel. (11) 3091-4008 / 3091-4150 SAC (11) 3091-2911 – Fax (11) 3091-4151 www.edusp.com.br – e-mail: [email protected] Printed in Brazil 2010 Foi feito o depósito legal Projeto_DireitoEducaçãoinglês.indd 6 26/4/2010 14:28:52 Table of Contents 9 Introduction Nina Beatriz Stocco Ranieri I. OS ASPECTOS CONSTITUCIONAIS DO DIREITO À EDUCAÇÃO 19 Education. Fundamental Right Monica Herman S. Caggiano 37 States and the right to education in the 1988 Constitution: Comments on Federal Supreme Court Jurisprudence Nina Beatriz Stocco Ranieri 57 Judicial Power and the Right to Education Eduardo Pannunzio 83 Religious Education in Brazil’s Public Schools: From the Righ to Freedom of Belief and Worship to the Right to Positive State Provision Salomão Barros Ximenes II. OS SISTEMAS DE ENSINO E O MINISTÉRIO PÚBLICO 105 Higher Education Institutions and State Authorities: Autonomy and Control Eduardo Martines Júnior 7 Projeto_DireitoEducaçãoinglês.indd 7 26/4/2010 14:28:52 TABLE OF CONTENTS 115 The Role of the Public Attorney and Protection of the Right to Basic Education Adriana A. Dragone Silveira III. O DIREITO À QUALIDADE NA EDUCAÇÃO 135 The Right to Quality Education from the Neoconstitutionalist Perspective Erik Saddi Arnesen 157 Quality Standards in Education Marcelo Gasque Furtado IV. REFLEXÕES SOBRE O ENSINO PRIVADO 175 The Legal Nature of Private Educational Services: Controversial Aspects Luiz Gustavo Bambini de Assis 193 The Expansion of Higher Education in Brazil: The Private Option Fernanda Montenegro de Menezes 209 Education Provided by Private Enterprise and its Legal Limits Luiz Tropardi Filho V. EDUCAÇÃO E INCLUSÃO 229 Indigenous Education and the Role of the State Sabine Righetti 245 About the Authors 8 Projeto_DireitoEducaçãoinglês.indd 8 26/4/2010 14:28:53 Introduction Nina Beatriz Stocco Ranieri Brazil’s first Unesco Right to Education Chair was established in the Law School of Universidade de São Paulo in 2006, with the mission of examining and researching the right to education from the point of view of the Brazilian legal system and international law. The right to education is defined as an inseparable part of the mission of Unesco, the United Nations Organization’s institution for education, science and culture. The right expresses its founders belief in, and advocacy of, the need to create equal and genuine educational opportunity for all. The Chair also has the aim of materializing the ideal of equal educational opportunity, as noted by the World Education Forum in Dakar in 2000. The right to education, of course, plays a key role in the ambit of human rights, being crucial to the development and exercise of other rights. By enabling access to other rights, it therefore proves to be a fundamental instrument through which economically and socially margi- nalized adults and children may emancipate themselves from poverty and obtain the resources required to act as full members of society. Unesco started its Chair Program in 1991 with the aim of strengthe- ning higher education in developing countries and using the appropriate means of enhancing cooperation between universities. Agreements have 9 Projeto_DireitoEducaçãoinglês.indd 9 26/4/2010 14:28:53 INTRODUCTION been signed to set up chairs in more than twenty countries, and they cover a wide range of academic disciplines – from the natural sciences to environmental and ecological issues, population, science and technolo- gy, the social sciences and humanities, the sciences of education, culture and communication, as well as peace, democracy and human rights. In my capacity as professor of the Department of Public Law at the Law School, Universidade de São Paulo (USP), I was able to make the ini- tial arrangements to set up this Chair, for which I became coordinator, with the support of the head of the Law School, Professor João Grandino Rodas. As one of the Chair’s first steps in late 2006, an international se- minar held on the initiative of the state government examined the perspectives for public higher education and the challenges involved in the state of São Paulo, with the participation of Dr. Kishore Singh as Unesco head of Basic Education and Right to Education. At that time, USP’s Law School was affiliated with Unesco’s University Education Twinning and Networking Scheme (Unitwin). The program aims to foster education through exchanging and sha- ring of knowledge in a spirit of solidarity. Therefore the program sees North-South and South-South cooperation as a strategy for advancing its member institutions, most of whom are universities and research institutes working in partnership with a number of leading non-go- vernmental organizations, foundations and public – and private-sector institutions. Unitwin enables those involved in higher education to join forces with Unesco in setting the goals for a global agenda. On starting its activities in 2008, the Chair offered a course on As- pects of the Constitutional Right to Education – I, in the ambit of the schools master’s in Human Rights, with fifteen students regularly enrol- led and five audit students. The present book – The Right to Education I – beautifully produ- ced by Edusp (USP’s publishing unit) is the fruit of research conducted by these students. This broad field of study covers the problematic of fundamental rights and the right to education in particular, as well as the consequen- ces of Brazil’s federative structure for education and the distribution of competences between authorities at federal, states and municipal levels 10 Projeto_DireitoEducaçãoinglês.indd 10 26/4/2010 14:28:53 RIGHT TO EDUCATION: CONSTITUCIONAL ASPECTS under the 1988 Constitution. It further raises current issues pertaining to indigenous education, religious education and affirmative action; and tracks recent jurisprudence of Brazil’s Federal Supreme Court and the role of public prosecutors, in an attempt to find indicators for assessing the implementation and efficacy of the right to education. All the arti- cles raise theoretical and practical aspects of the right to education while seeking to disseminate its substantive content. The book consists of five parts. The first is introductory, focusing theoretical rather than practical analysis, while the others examine more specific aspects. Part I deals with constitutional aspects of the right to education in four chapters exploring opportunities for promotion and protection of the right, namely: “Education. Fundamental Right “; “States and the Right to Education in the 1988 Constitution: Comments on the Federal Supreme Court Jurisprudence”; “The Judicial Power and the Right to Education”; “Religious Education in Brazilian Public Schools: from the Right to Freedom of Belief and Worship to the Right to Positive State Provision”. Monica S. Herman Caggiano, in “Education. Fundamental Right” notes that the historical trajectory of Human Rights doctrine shows that Man – or any rate the most conscious of men – has or have shown a clear concern for education. This is proclaimed in the Declaration of 1789, with the idea of the urgent need to assure access to education and the means toward the intellectual and political emancipation of human beings as members of the social community. By posing the historical affirmation of the right to education, this chapter raises the question of the judiciary’s role in fostering and pro- tecting the right, which is viewed from different perspectives in two chapters. One of them is my own article on “States and the Right to Education in the 1988 Constitution: Comments on Federal Supreme Court Jurisprudence”, which points to the progress made to date in se- curing the right to education based on the court’s jurisprudence after the 1988 Federal Constitution. There has been a very substantial incre- ase in numbers of individual and collective actions brought before the court, not only compared to previous Brazilian Constitutions but also 11 Projeto_DireitoEducaçãoinglês.indd 11 26/4/2010 14:28:53 INTRODUCTION in relation to actions claiming other social rights. Brazil’s society, public prosecutors

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