School Funding in the Courts: a comparative analysis of Brazil and the USA litigations

• In Event: Economics of Education

Proposal

Adequate public funding is essential to guarantee the right to quality education. In recent decades, the Courts have been used both in Brazil and, more strongly, in the USA to ensure the right to education. The level of judicial involvement in the policy-making process depends on specific legal and political cultures. This phenomenon is also related to the level of effectiveness of the application of rights and the existence of institutions that support such litigations.
However, the debate to demand social rights by Courts finds resistance, especially when the Courts’ intervention is involved in public policies and financing. Critical remarks argue against the legitimacy of Court intervention in educational matters, since it violates the constitutional separation of powers and popular sovereignty; and the ability of these institutions to deal effectively with social problems.
On the other hand, it is essential to consider that the use of the Courts in a democratic society is one of the ways to seek the realization of rights, especially in view of the insufficiency or absence of action by the executive and the legislature. Many of the disputes also serve to clarify the law in judicial review.
The research aimed to analyze, from a comparative perspective, how the demands involving school funding to ensure quality education or adequate conditions have been analyzed by the Courts both in the USA and Brazil. Had the lawsuits focused on compliance with the funding rules established by the law, as well as the implementation of minimum standards for adequate funding?
For the development of this research, a survey was carried out over the decisions of five Federal Regional Courts and ten state courts in Brazil, from 2010 to 2020, because of two important law marks: the expansion of the compulsory age group, and a Constitutional Amendment, imposing limits on public spending, which affected compliance with the National Educational Plan. 1,021 Federal Regional Courts and 393 States Courts rulings in Brazil were analyzed. In the USA Courts, this research sought to continue Rebell’s research (2017) and used the data source website shcoolfunding.info to collect the 55 lawsuits in the period from 2017 to 2020.
As a result, in the USA, adequate funding has noteworthily been questioned in the Courts since the late 1960s, using different approaches and legal strategies. But it can be observed that the Courts are even less likely to declare new rights to adequate education. The post-recession climate remains visible in ruling on education, given that, in periods of crisis, there is a greater probability of more restrictive budget policies. In Brazil, considering the legal system and the education funding rules in federal laws, the Courts focus on the legal mechanisms for funding; both the federal and state courts are more required to clarify the rules, and exert control in case of misuse of resources. There are a few cases questioning the adequacy of funding to offer quality conditions.

Author

• Adriana Dragone Silveira, Federal University of Paraná (UFPR)