Processos estruturais e o direito à educação inclusiva de crianças com deficiências intelectuais: o valor do plano de atuação estrutural à luz do Tema 698 do STF

Abstract

The historical trajectory of children with intellectual disabilities entering the educational system has been shaped by persistent stigma and systemic exclusion. In response, the 1988 Brazilian Federal Constitution enshrined the right to inclusive education as a fundamental social right, thereby imposing a binding duty upon the State to implement affirmative measures toward its realization. National policies such as the National Education Plan (PNE) and the National Policy on Special Education from the Perspective of Inclusive Education (PNEEPEI) were formulated as instruments to fulfill this constitutional mandate. Despite the normative clarity and consistency affirming these children's right to an inclusive, equitable, and quality education, empirical evidence reveals a stark disconnect between legal promise and institutional practice. This disconnect - manifested in the failure not only to ensure access but also sustained participation in mainstream schools - reflects features characteristic of structural litigation: complex, polycentric, evolving problems inadequately addressed through conventional bipolar civil procedure. This study argues that the judicial adoption of structural remedial frameworks, as articulated by the Brazilian Supreme Court in Precedent 698, offers a compelling and viable avenue for restructuring public education policies and overcoming entrenched institutional inertia. The research investigates whether the inclusion crisis qualifies as structural litigation, maps the systemic shortcomings in Brazil’s educational landscape regarding intellectually disabled children, and evaluates the judiciary’s potential to effect lasting reform through court-supervised implementation plans. Methodologically, the work employs a qualitative, deductive approach based on documentary, bibliographic, and jurisprudential analysis. The findings support the conclusion that structural injunctions - when grounded in the parameters set forth by the Supreme Court - constitute not only an appropriate mechanism but arguably the most effective means to achieve enduring, transformative compliance with the constitutional right to inclusive education in Brazil.