A proibição da educação domiciliar no Brasil e o consequente prejuízo à liberdade de ensino

Abstract

This study aims to analyze how the prohibition of homeschooling violates the parents’ right of having freedom to decide about the form of education to be provided to their children. Through the analysis of the legislative and constitutional history in the Brazilian context about the subject, it was possible to notice that homeschooling was not always considered exceptional and was constantly permitted by the legal system, as well as it represented a form of teaching constantly used by the wealthiest families. It was found that there is an international tendency to permit the practice, by analyzing the international law and how the other countries deal with the situation. In another moment, brazilian cases of families that chose homeschooling were presented, demonstrating the legal insecurity caused by the lack of specific provisions in Constitution about the practice, emphasizing the judgment of the Supreme Court about the extraordinary appeal n° 888815, which determined the constitutionality of the activity, establishing the need of its regulation, demonstrating the inclination to permit the activity also at the national level. Finally, the topography of the conflict was analyzed considering the rights involved in the situation, taking into account the aspects of the right to education of minors, the freedom of parents' to choose the best way to teach their children, as well as the role of the State as guarantor of the minor's social rights. It was possible to conclude, therefore, that utilitarian homeschooling, in which parents do homeschooling with the state supervision, is configured with the best way of guaranteeing all rights present in the context.