O direito (das pessoas com deficiência) à educação e o (des)emprego da perspectiva desenvolvimentista no Supremo Tribunal Federal: uma investigação orientada pelas regras alexyanas de justificação racional das decisões jurídicas

Abstract

The study is dedicated to the investigation of intertwining of the right (of disabled people) to education with the constitutionally established developmentist pretension in justification of the decisions of the Supreme Court who faced multiple issues involved in the implementation of the fundamental right of the historically excluded minority confronting the founding premises of decisum with the alexy´s rules of rational justification of legal decisions. The research uses the deductive method of approach, it was performed at the descriptive level and used the technical, bibliographic and documentary procedures. In the study, the (process of) development is multi-dimensional, which allows its relationship with the entirety of the open catalog of fundamental rights in an instrumental/substantial. It defines the right to education as a fundamental right, highlighting its genesis in the recognition of positive freedoms context, its human, political and economic dimensions and its progressive universalization, made possible in the public policy process which combines and enhances state efforts, economic initiatives and activities of the third sector. Having as background the enunciation of the understanding models and treatment of disabilities and people with disabilities throughout the history of human societies, it describes specifically the consequences of a history of exclusion experienced by this social segment in educational subsystem, effects whose overcoming has been gradually affirmed in normative level. The study cases examined in the context of Supreme Court revealed that some of the decisions are based on the assumptions that intertwine the right (of people with disabilities) to education with the development, connection that was constituted with the exclusive recourse to a systematic interpretation of the constitutional text, in it included the New York Convention. The submission of the foundation of jurisdiction measures to the scrutiny of justification rules formulated by the theory of legal speech, inspiring and largely positivated with the New Civil Procedure Code, seems to point that the noncompliance with rules relating to the use of precedents, the canons of interpretation and statements dogmatic in some cases may result in decisum rationality deficit, and not satisfaction of the decision correction pretension, major problem when dealing of equating "hard cases" that impose the realization of choices that, in turn, achieves strong social impact and economic effects of amounts whose social acceptance is subject to the majority support in favor of a positive judgment about the consistency and legitimacy of the solution adopted by the judiciary in face of an open, complex and plural society in permanent dissension in the public arena.