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National law and policies on fee or for free – Brazil

It matters if the state provides education for free or charges fees. Every state in the world has signed up to at least one international treaty obliging it to making primary education free and compulsory, and secondary education progressively so. But education cannot be compulsory if it is not also free and this contradiction is too often ignored. Furthermore, what does free actually mean in a world with numerous overt and hidden costs, to learners, parents, local communities? In a 2006 survey by Katarina Tomasevski education was found not to be genuinely free in the vast majority of countries in the world. The quote below on your country (if information was available) is from this very important survey.

 

The national laws and policies are the applications of the constitution, yet may actually be more advanced than this, as they are generally redrawn or updated more frequently than constitutions are. Laws are made by the government, the parliamentarians, and the bureaucrats, often in consultation with civil society. However, this also leaves them open to vulnerability and retrogression as they can become instruments of short-term politics and priorities. Laws and policies are open to change and influence through the routes of the democratic process and civil society campaigns. And where possible their violations should be challenged, either through the courts or through judicial review.

 

The state is the central actor in any claim to the right to education: it is the prime duty-bearer and the prime implementer; it is the guarantor; and it is the state´s signature vis-à-vis the international norms and standards which binds it to respect, protect and fulfil the right to education. The state must therefore be judged or challenged on its central text on the right to education, whether this be the constitution, the laws or the policies.

It was no coincidence that Brazil, alongside Argentina, announced in January 2006 that it paid its debts to the IMF so as to re-gain freedom for a future “built on strong investment in education”. The (previous) government noted in 2001 that it “needed to overcome a number of major barriers comprising adjustment programmes and a series of international financial crises before it could implement wide-ranging social policies”. 

Education is defined as a collective good as well as an individual public right in Brazil. This associates individual entitlements with corresponding public responsibilities. The principal bearers of this responsibility are the local authorities and the federal states. The 1988 Constitution specified obligatory allocations of 18% for the federal budget, and 25% for state and municipal budgets: 

With Brazil’s 1988 Constitution, the percentage of government funding to be assigned to [education] increased to 18 per cent at the federal level and 25 per cent at the state and municipal level. More recently, the Teaching Development and Enhancement Maintenance Fund (FUNDEF) was introduced, with the immediate objective of ensuring a minimum expenditure per student and a special minimum wage for teachers. The Fund reaffirmed the need for the states, federal district and municipal districts to comply with the provisions of Brazil’s 1988 Constitution, which stipulates that 25 per cent of the tax revenues and other transferred income should be allocated to the maintenance and development of the education system and that states must allocate 60 per cent of this funding to basic education as from 1998, ensuring that 15 per cent of tax revenues are also allocated to this area.

 This new legal provision stated that the responsibility for providing the necessary funding falls within the competence of the states, the federal district and the municipal districts. However, owing to their widely varying social and economic levels, which results in low annual outlays per student, particularly in north-east and north Brazil, the Federal Government, under Decree 14/96, assumes responsibility for supplementing the amounts allocated to FUNDEF whenever the allocation per student falls below a nationally defined minimum level.

 This scheme, which was in 2004 extended to all basic education, necessitates monitoring so as to determine whether funds are earmarked for education as they should be, and whether the earmarked funds are deployed as they should be. Because financial responsibilities for education are allocated to different tiers of government, from central to local, monitoring reveals a variety of best and worst practices in this huge and diverse country. Transparency Brazil has shown that in 63% of municipalities there were cases of embezzlement and in 60% the funds earmarked for education were used for other purposes. The contribution of the civil society has also proved crucial in exposing and opposing budgetary allocations inconsistent with constitutional mandates. The law gives standing to a broad range of actors, from individual citizens to trade unions, to vindicate the right to education. This entitlement encompasses primary education for all, while free secondary education is to be realized progressively. 

In an illustrative case, initiated by the federal ministry (Ministerio Público) against municipal authorities of Novo Cruzeiro, the court has ordered the municipal authorities to ensure free transportation to children within 30 days or pay fines. The children had not been able to go to school three years. The federal ministry, after many attempts to enforce the children’s right to education, resorted to court so as to ensure that obligations mandated by the Constitution were implemented. The case revolved around repairing roads and organizing transport for school children but the issue was much broader: 

Without education, the fundamental objectives of the Republic, namely the construction of a free, fair and understanding society, the guarantee of national development, the eradication of poverty and marginalization, and the reduction of social inequalities, will not be achieved. 

The definition of free education is indeed broad, as described in the introduction to this section. Governmental policy includes the elimination of charges as well as supplementary entitlements. These span teaching and learning materials, school transport, school-based food or health services where these are indispensable to enable children to complete the schooling they are entitled to. Bolsa escola has been extended to some 10 million children to enable the children to regularly attend school. Its elimination of opportunity costs enabled 97% of children aged 7 to 14 to enrol in school, a higher percentage that 93% in the United States of America […]