É inconstitucional negar matrícula para o primeiro ano do ensino fundamental às crianças em função da idade, ou com base no mês de seu nascimento, em toda a rede de ensino estadual pública (e também privada) no Estado de São Paulo. É o que decidiu o Tribunal de Justiça do Estado de São Paulo (“TJSP”).
Pelas regras atualmente vigentes constantes na Resolução n. 55, de 16 de agosto de 2011 da Secretaria de Educação do Estado de São Paulo (“SEESP”), a criança só teria a matrícula garantida para o primeiro ano do ensino fundamental ao completar a idade exigida, ou seja, 06 (seis) anos até dia 30 de junho. Se a criança aniversariar a partir de 01 de julho, seriam obrigadas a permanecer no ensino infantil e sua entrada no ensino fundamental seria postergada para o ano seguinte.
O TJSP entendeu que a Constituição Federal de 1988 (“CF/88”) garante a todos o acesso ao ensino fundamental e a imposição, pelo Poder Público, do chamado “corte erário”, é uma violação ao princípio da isonomia. Ademais, a recusa ou o indeferimento da matrícula de crianças nessas situações viola o direito líquido e certo assegurado pela CF/88 e também pelo Estatuto da Criança e do Adolescente.
O direito à educação equivale à continuidade do ensino, na qual “se a oferta da educação infantil, segundo a Constituição, dar-se-á apenas até o 5 anos, aos educandos com 5 anos e 1 dia o constituinte garantiu o ingresso na primeira série do ensino fundamental de 9 anos; salvo se esta estiver inapta para fazê-lo, o que demanda comprovação técnica”. É importante ter em mente que uma Resolução da SEESP é inferior ao disposto na CF/88 e, portanto, está fadada a ser expulsa do ordenamento jurídico.
Ainda que as decisões até agora proferidas não atinjam as escolas da rede de ensino municipal, não se pode negar que precedentes foram abertos para que os pais dos alunos entrem com a adequada ação judicial (mandado de segurança) contra a Prefeitura de São Paulo para que sejam declaradas inconstitucionais as regras que estabelecem a data-limite ou o corte etário, podendo, assim, matricular seus filhos no ensino fundamental.
Por: Vladmir Silveira
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