A efetivação do sistema educacional inclusivo pela via judicial: análise de decisões do Supremo Tribunal Federal e do Tribunal de Justiça do Estado do Maranhão quanto ao direito à educação para pessoas com deficiência

Abstract

The brazilian Legislative Branch produces, in a continuous flow, a series of norms directed to the improvement of the educational systems, in order to make possible the social inclusion of the person with disability, highlighting recently the Statute of the Person with Disabilities. There is, therefore, a significant number of constitutional and infra-constitutional provisions aimed at guaranteeing access, permanence, participation and learning of students with disabilities, through the obligation to offer services and accessibility resources that can eliminate barriers that prevent full inclusion. It happens that, without proper implementation of the legislative intentions, through actions of the Public Administration and the private initiative, the right to education, full and inclusive, will be nothing more than a distant dream for the disabled person. This dissertation, therefore, starts from the assumption that the judicial branch has reserved a relevant role in the implementation of this educational policy, because the Federal Constitution grants all citizens the prerogative to file lawsuits when there is an injury or threat to their rights. In this sense, it was analyzed how the Judiciary, especially through the Federal Supreme Court and the Court of Justice of the State of Maranhão, has acted when faced with lawsuits, filed by individuals or legal entities (public or private), prone to the questioning of the assecuratory norms of the inclusive educational system. Therefore, a bibliographical and documentary research has been developed, which, in terms of the intended objectives, is exploratory and descriptive in nature. As for the approach, a qualitative and quantitative research was carried out. The results indicate that the Judiciary has institutional behavior consistent with the principles and guidelines found in the Federal Constitution, the Statute of the Person with Disabilities and other similar legislative documents, since the decisions found, in a large majority, reinforced the norms registered there. On the other hand, it was noticed that some lawsuits, attempted in the interests of people with disabilities, took time to reach definitive judgment, which could perpetuate the violation of such rights and guarantees, in potential student harm. In addition, the sample analyzed reveals a scenario marked by intense judicial demand, and it should be noted that the State itself appears as a litigant or recurrent in most of the cases surveyed, to the detriment of private initiative, given the misconception that recognition and the realization of the rights must, necessarily, pass through the sieve of the Judiciary.