A judicialização do direito à educação infantil no estado do Rio Grande do Sul (2008-2018)

Abstract

This thesis deals with the judicialization of the right to Early Childhood Education in the state of Rio Grande do Sul from 2008 to 2018. The objective was to identify, from the judicial decisions issued by the State Court, what are the determining factors of the judicialization and its role in the realization of the fundamental social right to early childhood education. The methodological indications and the path taken have as their starting point a bibliographic research with the analysis of documentary content supported on theoretical bases. In six chapters, it deals with the transformations in the State and the judicialization, the right to education in the Constitutional State and the influence of the International Declarations, the Early Childhood Education, the recognition as its fundamental social right and its legal protection. The conclusion, based on the study of the theoretical framework and the analysis of the research, was that are determining factors of the judicialization of the rights to early childhood education: a) social foundation - based on social diagnosis - the contemporary individual elects and assigns new values and forms to conceive the destinies of his life, so he acts and reacts; b) state - changes in the state - the transformations of the state made it possible for the political forces arising from social organization to define society's priorities in terms of rights; the constitution was the legal force in which fundamental and social rights were included; c) Constitutional protection - as a major law of a sovereign state is the constitution that defines the fundamental and social rights of individuals, endowing them with their own and special subjective legal protection, it establishes the Division of Powers, giving the judiciary the power to make comply with the laws; d) pedagogical - change in the conception of childhood - the treatment dedicated to the child changes from a welfare conception to one of subject deserving special attention, the child is seen as protagonist of the social environment, a person with rights and guarantees, deserving attention State, society and family as an absolute priority. Early childhood education comes to be understood as the first and decisive stage of basic education, aiming at the integral development of the child. For this reason, institutions focused on childcare change, day care centers and preschools move from assistance to educational establishments. One of the fundamentals of judicialization is the impact on educational policies - the judicialization of rights related to early childhood education happens because the state's public policies do not account for the demand for access and effectiveness. When it comes to social law, it can only be realized through state actions, public policies. If universal access is not guaranteed, the reaction of individuals is to seek, through judicialization, the guarantee of the realization of a right conceived as a prerequisite for citizenship and for the other rights indispensable for human dignity. Another foundation is the autonomy of the judiciary - from independence as a power and constitutional authorization, the judiciary began to interfere in the actions of the state, using as a foundation the legal force of fundamental rights contained in the CF, LDB and ECA, to determine the implementation of the right to early childhood education. A third ground of judicialization is the conceptual definition of judicialization - a conceptualization of judicialization has been constructed. This text concludes by presenting the importance of the role of judicialization in the realization of the fundamental social right to early childhood education. In this sense, the finding that 88.20% of the demands for rights were upheld by the judiciary confirms the importance of judicialization to meet the state omission and demand effective actions regarding access to early childhood education in Rio Grande do Sul.