A tutela jurídica da liberdade acadêmica no Brasil : a liberdade de ensinar e seus limites

Abstract

The purpose of this thesis is to address the following issue: what limits and restrictions on freedom of teaching are legitimate in the Brazilian context? There is a set of assumptions invisiblized in the composition of this issue, and about it fits some notes. First of all, it is understood that there is a necessary overlap between freedom of teaching and democracy, which makes that first one worthy of juridical constitutional protection. For this reason, it is taken as the theoretical framework of this study, called "for the common good" school, thesis developed in The North American constitutional law, according to which freedom of teaching has the ability to instrumentalize the preparation of citizens to participate competently and responsibly in public debate. For more than that - and already under the Brazilian right - it is understood that the freedom of teaching is an autonomous right and materially fundamental, finding apparatus, especially, in Article 206, item II of the Federal Constitution of 1988. For this reason, it is submitted to the legal system of fundamental rights mentioned in the paragraphs of Article 5 of the Constitutional text and developed in the field of the dogmatic of the fundamental rights. To the formulated thesis problem, it raises the hypothesis - to the end confirmed - that the teacher’s freedom of teaching may suffer limitations and restrictions relating to the content being taught and the methodology being used whenever it is deemed necessary for the preservation of the characterizing core of the institutional pedagogical project - not being the case, affectations to freedom of teaching will be considered unconstitutional. To achieve the overall objective of this thesis, which is analysing that limits and restrictions on freedom of teaching are legitimate in Brazil, the text is divided into three chapters, each corresponding to one of the specific objectives of the research. The first chapter is dedicated to the development and characterization of the theoretical framework of the study. It is drawn the conclusion that the freedom of teaching composes one of the dimensions of the denominated academic freedom, and that it corresponds to the right of the teacher to make decisions regarding the management of the classroom, always with a view in order to prepare citizens with democratic competence. In the second chapter, it is taken care of evaluating the legal treatment given to the freedom of teaching in Brazil. Among the main consequences of this step is the fact that freedom of teaching corresponds to a complex law, which refers to a set of positive and negative duties within public and private education institutions. The discussion of the limits and restrictions on freedom of teaching is matter contained in the third chapter. On that occasion, the research hypothesis raised is supported and developed in conclusive terms. With regards to methodological bias issues, it was emphasized on the use of the juridical dogmatic theoretical source and deductive reasoning. In the procedural field, the thesis is worth, especially, from direct literature or cross-cutting themes, as well as legislative data and national case law.