Educação inclusiva na ação direta de inconstitucionalidade 5.357: uma análise à luz da teoria das capacidades de Martha Nussbaum

Abstract

In democratic societies, the recognition of certain rights for vulnerable groups has been treated as a matter of justice. In Brazil, the 1988 Constitution and especially the Brazilian Law for the Inclusion of Persons with Disabilities ensure that students with disabilities must be given the same educational opportunities offered to other students, whenever possible, in regular classes. This notion of social inclusion, that the community must adapt to people with disabilities, generated a reaction from sectors of Brazilian society that appealed to the Federal Supreme Court, questioning aspects of the law. This dissertation investigated the process of Direct Action of Unconstitutionality 5,357 of the Federal District, which deals with the obligation of private educational establishments to offer inclusive education, seeking to identify whether the actors involved in the dispute made instrumental use of the Theory of Capabilities along the lines of Martha Nussbaum. To deal with this issue, a literature review and documentary research were carried out, both of a descriptive-exploratory nature, and a Critical Discourse Analysis (CDA) of the process in question was carried out. It was concluded that there are elements of the Theory of Capabilities in the ADI process, brought through the meta-legal arguments exposed by the protagonists of the process, although the Federal Supreme Court does not mention them directly, mainly as a result of the incorporation into the legal system as a constitutional norm of the Convention on Rights of Persons with Disabilities through decree 6.949/2009.