This article analyzes the potential of the Judiciary to promote social rights based on a recent decision of the São Paulo Court of Justice (TJSP) on education, in which it is determined the expansion of the number of vacancies in order to meet a significant part of the demand, according to the plan presented by the Executive, with a specific monitoring regime.
Since 2005, the Judiciary has consolidated a decision-making model in which it tends to recognize, in individual demands, the right of children from 0 to 5 years old to enroll in kindergarten or pre-school. As a result of the repeated unavailability of vacancies, decisions have, as a consequence, most of the time, a simple change in the order of waiting, rendering ineffective the judicial provision for the purpose of modifying the general framework of violation of this right.
With regards to actions that attempt to articulate this right from a truly collective perspective, the response has been mostly negative. In 2007, civil society organizations initiated lawsuits aimed at changing this decision-making pattern and, through strategic litigation, boost both the justice system’s performance and public educational policies. Initially, there was strong judicial resistance to the lawsuits, a situation that was altered in 2013 due to conjunctural changes that led to the holding of an unprecedented public hearing at the Court of Justice of São Paulo, in the terms of the Federal Court of Justice. In this strategy, the execution and monitoring, which will require flexibility of the judicial system to the demands of the collective process, are as important as the decision.