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Uma Avaliação Da Lei #13.41517 A Partir Da Legística e Das Metas Do PNE ENGLISH
Uma Avaliação Da Lei #13.41517 A Partir Da Legística e Das Metas Do PNE ENGLISH
Introduction
Traditional legal science has focused more on the interpreta-
tion and application of law; in turn, the production of norms and the
impacts they generate on society play a secondary role in legal stud-
ies (Mader, 1991). This issue has been dominated by Political Science
(Oliveira, 2009), and there is a considerable shortage of legal literature
on the control of the legislative process by the Executive Branch, as well
as on its impacts on Brazilian democracy (Soares, 2007), and more spe-
cifically, on the quality of basic education legislation 2.
Likewise, the diagnoses about the quality of basic education are
produced predominantly as a result of researches focused on Educa-
tion and Pedagogy (Oliveira, 2009). Thus, the approach proposed in
this article, which seeks to assess the quality of this legislation based
on Legisprudence and Legistics, combined with knowledge related to
Constitutional Law, Political Science and Educational, may contribute
to a better understanding of this scenario and to the improvement of
public policies on the subject.
In this context, this article aims to analyze the legislative proce-
dure and the content of the reform of the curricular structure of upper
secondary education and of the policy to foster the implementation of
full-time schools, both established by Law 13,415/17, which modified
the National Education Law (LDB).
First, the substance of the change implemented by Law No.
13.415/17 will be analyzed taking as a starting point the fulfillment of
the basic educational goals set by the National Education Plan (PNE)
2014-2024, which will be an indicator of the reform’s quality. Next, the
rationality parameters of the law and the principles of Legisprudence,
as well as the methods of the Material Legistics and the technique of
Formal Legistics, will be used as indicators of the conformity of the re-
form’s procedure with the good legislative practices.
When comparing the previous wording of the LDB with the origi-
nal wording of MP 746/16 and with the final wording of Law 13,415/17,
it is possible to note the main changes implemented, which will be dis-
cussed below, as well as the evaluation of potential impacts, taking as
a parameter the basic educational goals established by PNE 2014/2024.
Foreign Language
The teaching of the English language, from the sixth year of el-
ementary school, became compulsory, preventing the school commu-
nity from choosing which foreign language would be offered (Brasil,
2017, article 26, § 5). The teaching of other languages may, however, be
part of the curriculum on an optional basis, preferably Spanish (Brasil,
2017, art. 35-A, § 4).
This change is contrary to the spirit of curricular flexibility of Law
13,415/17 and of LDB, since the school community will no longer be able
to choose the foreign language to be taught, according to the interests
of the students and the ability of schools. This requirement may also
lum (Janine, 2017). This indicates that, in practice, there may be a relax-
ation in the provision of this humanistic content, potentially harming
the students’ physical and intellectual development and the building of
their reflexive and critical capacity.
The PNE does not establish specific curricular requirements (ex-
cept for content on Afro-Brazilian and indigenous history and cultures
in strategy 7.25), but it provides for teaching based on the ethical and
moral values of society and that promotes human rights, diversity and
sustainability (Brasil, 2014, article 2, V, VII and X).
integrated learning pathway (Brasil, 2017, article 36, § 3) and for second-
ary education seniors to take an additional pathway, if there are places
(Brasil, 2017, article 36, § 5).
The first point that deserves to be highlighted is that the choice
of any learning pathway by the student depends on whether schools
are capable of offering them (Castilho, 2017, p.9). This can be especially
problematic given the reality of Brazilian public schools lacking finan-
cial resources, structure and teaching staff, especially in smaller mu-
nicipalities. For the proposed change to generate the expected effect,
there must be investment, support and articulation between federative
entities, in order to enable the offer of these pathways in schools, for
example with the provision of school transport, which was not foreseen
in the law.
Also, as long as there is no appreciation of the teaching profession,
it is not possible to think of quality teaching; organizing secondary edu-
cation in teaching pathways will not ensure a quality education if there
are no professionals with adequate training and remuneration (Duarte
and Melo, 2013). However, the law does nothing to address these obsta-
cles to the teaching career.
It should also be noted that the supposed curriculum loosening is
not as flexible as it seems: it is not possible for students to mix different
teaching pathways; they should opt for and remain attached to a spe-
cific pathway, having no choice of combining contents of the 5 existing
pathways (Brasil, 2016b, 147).
Despite the contingencies that need to be addressed, the world’s
secondary education trend today is deepening the study of the various
areas of knowledge (Brasil, 2016c, p.200). The previous Brazilian cur-
ricular model of 13 compulsory disciplines that did not converse among
themselves was unattractive to students and contributed to raising
school dropout rates.
In this sense, PNE (Brasil, 2014) establishes a common national
curricular base for basic education, as well as a diversification and loos-
ening of the curriculum (strategies 2.1, 2.2, 3.1, 3.2, 3.3, 7.1), in order to
promote interdisciplinary pedagogical practices that relate theory to
practice. Thus, the curricular loosening introduced by Law 13,415 (Bra-
sil, 2017) is positive and goes in the direction pointed out by the PNE, in
consonance especially with strategy 3.1 (Martins, 2017, p.61).
Nevertheless, the problem will persist if education organized in
learning pathways continues to take place in a unidisciplinary and
non-dialogical way; this model does not guarantee that teaching will
be transdisciplinary or linked to practice. Curriculums are often still
aimed at preparing the student for the National Secondary Education
Examination (Enem) or at ensuring performance improvement in edu-
cational evaluation systems, such as the Basic Education Development
Index (Ideb). The law does not address this scenario; on the contrary, it
aims to increase student performance rates, with emphasis on the Por-
tuguese language and mathematics, in which student performance has
been poor.
6 Educação & Realidade, Porto Alegre, v. 44, n. 3, e84925, 2019.
Maciel
Distance Education
Law 13,415 (Brasil, 2017) allows educational systems to sign agree-
ments with distance education institutions of known expertise (Brasil,
2017, article 36, § 11).
Distance education (EaD) is provided for in PNE (Brasil, 2014) in
items related to vocational training (strategies 10.3 and 11.3), higher
education (strategy 12.20) and master’s and doctoral degrees (strategy
14.4). The goal is to expand the offer and facilitate access to such pro-
grams, ensuring quality standards, which has been the main challenge.
On the other hand, Law 13,415 (Brasil, 2017) allows EaD in upper sec-
ondary education, using a very vague expression to ensure the quality
of the education offered by the partner institution, that is, it must have
a renowned recognition (“notório reconhecimento”). It also establishes in
the items of § 11 of art. 36 a series of means of attesting this renowned
recognition, which include experience, provision of courses, studies
conducted; however, they do not ensure a sufficiently precise and spe-
cific parameter for this evaluation.
It is also important that the provision of education in this modal-
ity does not become a subterfuge for the government to refrain from
guaranteeing the right to education or a tool to improve statistics with-
out ensuring quality. More than raising the number of places and en-
rollments in basic education, “[...] the equalization of educational op-
portunities and a minimum standard of quality of education are the
purposes set in the Constitution to establish the duty of collaboration
between the entities of the Federation, in the light of art. 211, §§ 1 and
4” (Pinto, 2016, p.12). Therefore, the universalization of education provi-
sion must go hand in hand with the improvement of its quality.
Finally, it should be pointed out that EaD is not adequate for all
educational situations, since not all satisfactory teaching and learning
is possible outside the context of the classroom (Paiva, 2017), especially
in basic education.
Decree 9,057 (Brasil, 2017c) introduced new regulations for art. 80
of the LDB, which provides for distance education programs. Regard-
ing Law 13,415/2017, the decree establishes in art. 8, item II, the com-
petence of education systems to authorize the provision of courses and
the participation of distance education institutions in upper secondary
education.
Implementation
The education systems should establish a schedule for imple-
menting the changes introduced by Law 13,415 (Brasil, 2017) in the first
school year following the date of official publication of the BNCC and
start implementation from the second school year subsequent to its
approval (article 12). The approval of the BNCC of preschool and basic
education took place on December 20, 2017, and its publication in the
Official Gazette (DOU) the following day. In turn, the BNCC of upper
secondary education was only approved on December 14, 2018. There-
fore, during the 2019 academic year, schools should establish the imple-
mentation schedule to be executed in 2020.
There are strong reasons to worry about the difficulties and im-
possibility of implementing the measures introduced by the law in Bra-
zilian schools, especially regarding the offer of learning pathways. The
scenario of Brazilian upper secondary education is not uniform; there
Financing
To comply with the first measure of Law 13,415/17 (curricular
loosening), no new source of funds to finance the proposal was created.
This means that public education systems will need to conform to le-
gal requirements, such as organizing learning pathways and expanding
the course load, without necessarily receiving new funds. This is worry-
ing because of the new expenses that will arise for implementing these
adaptations, for example, the adjustment of the pedagogical project, the
training of teachers, the production of adapted didactic material, the
adjustment of the infrastructure to the extended school day.
Specifically, the financing of technical and vocational training,
established in item V of art. 36 of the LDB by the new Law, will come
from the Fundeb (Brasil, 2007, article 10, XVIII). This means that this
new expense may impair preschool education if municipalities receive
less resources for this purpose (Oliveira, 2009). The National Union of
Municipal Education Administrators of Minas Gerais (Undime) showed
exactly this concern in public hearings over the division of the already
precarious resources of education, especially for municipalities (Bra-
sil, 2016c, p.12). It is also important to note that the term of validity of
Fundeb will end in 2020 and therefore this funding issue should have
been addressed separately from Fundeb or deferred to the discussion
on the new fund to be implemented after 2020.
Other Considerations
In addition to the changes mentioned above, the main criticism
of the upper secondary education reform is the fact that it was enacted
as a provisional measure. The most diverse social actors related to edu-
cation questioned, in particular, this legislative approach, since it al-
lows for little public participation (Brasil, 2016c, p.232). Although it has
been possible to change some aspects of its content through a bill of
conversion, it is a proposal that had already been fully formulated by
the Executive and whose pace of legislative processing prevents further
discussion.
This decision-making process is hardly in line with the PNE goal
19, which provides for the democratic management of education, with
effective public consultation with the school community. Particularly
noteworthy is the strategy 19.6 that determines the incentive to partici-
pation and consultation of education professionals, students and their
families in the formulation of pedagogical projects and school curricu-
lums.
The lack of participation and consultation of those affected about
this policy, especially students, teachers and administrators of educa-
tion, and their exclusion from its elaboration process will also impact
the implementation and effectiveness of the changes introduced.
and its effects. These criteria are then used to decide whether to revise,
maintain or revoke the law.
There was no attempt to foresee the impacts of the upper sec-
ondary education reform either before or after the publication of Law
13,415/17. True enough, in Brazil there is still no culture of legislative
evaluation or regulatory planning. Although Decree No. 4,176 (Brasil,
2002) establishes in its Annex I an instrument for impact assessment,
this practice was little internalized and has not been fulfilled in the
elaboration of normative acts (Soares, 2012). By doing so, laws come into
force without mapping their potential and actual effects, resulting in a
chaotic and unpredictable regulatory landscape.
Finally, some considerations based on Formal Legistics regarding
Law 13,415/17 are in order. In Brazil, the Formal Legistics were imple-
mented through the Complementary Law (LC) No. 95/98 (Brasil, 1998a)
and Decree No. 4,176/2002 (in force at the time MP 746.16 was enacted),
recently revoked and replaced by Decree No. 9,191/2017 (Brasil, 2017d)8.
Contrary to art. 11, I, c of LC 95/98, Law 13,415/17 uses the indirect
order of discourse in various provisions of its provisions, particularly
when shifting complements to the middle of the sentence, between the
subject and the verb. This occurred, for example, in the new wording of
§§ 5 and 7 of art. 26 and of §§ 5 and 7 of art. 36 of the LDB (Brasil, 2017).
However, this recommendation of the LC is aimed at ensuring textual
clarity; it should be considered that not every case of indirect order use
compromises this goal.
Some passages of Law 13,415/17 adopt vague and indeterminate
expressions, impairing the accuracy and clarity of the legal text. One ex-
ample is the use of the expression notório saber (renowned knowledge)
in the item IV included in the art. 61 of the LDB, as well as studies and
practices regarding the teaching of physical education, art, sociology
and philosophy (Brasil, 2017, article 35-A, § 2). Another example is the
use of the expression renowned recognition (notório reconhecimento) to
refer to institutions providing distance education (Brasil, 2017, article
36, § 11). Also lacking precision, and possibly affecting the effectiveness
of the legal provision, is the expression de forma progressiva (progres-
sively) in relation to the extension of the course load to 1,400 hours (Bra-
sil, 2017, article 24, I, § 1), without setting a deadline to reach that final
goal.
The final wording of the said law also uses long and obscure sen-
tences, making it difficult to understand its normative provisions, such
as in art. 35-A, § 4, art. 36, §§ 7 and 8, art. 61, IV and art. 62, caput of LDB
(Brasil, 1996); and art. 14, § 4 of Law 13,415 (Brasil, 2017). Conversely, LC
95/98 provides for the use of short and concise sentences (Brasil, 1998,
art. 11, I, b).
Law 13,415/17 also errs in unnecessarily repeating provisions
already present in other legislation, such as the LDB. LDB’s art. 26, for
example, already mentions the National Curricular Base and the diver-
sification and flexibility of the curriculum, the latter in its art. 28, item I.
Therefore, Law 13,415/17 was not the first Brazilian statute to establish
a flexible organization of curriculums in a common and a diversified
part. The legal basis for implementing these curricular changes already
existed, the main problem was not the absence of a legal norm authoriz-
ing them, but the lack of effectiveness of these devices, which were not
practiced in schools.
The inclusion of § 2 in art. 24 of the LDB is also unnecessary from
the normative point of view. Items VI and VII of art. 4 of the LDB al-
ready established that it is imperative to offer night education for young
people and adults, adapted to suit the condition and needs of these stu-
dents. The proviso included by Law 13,415/17 was due to the extension
of the school day, which may not apply in full to these teaching modali-
ties. However, a simple reference to art. 4 would be enough, avoiding the
repetition of legal provisions.
Finally, it should be emphasized that it was unnecessary to es-
tablish the full-time education policy through a primary normative act
(provisional measure); an Executive decree would be sufficient for its
implementation. True, according to good legislative technique, it would
have been more appropriate to establish it by decree in a more compre-
hensive and detailed way, so that the (secondary) act would be enough
for its implementation. It is in this regard that LC 95/98 establishes that,
as a rule, the same subject should not be regulated by more than one law
(Brasil, 1998, art. 7, IV). Likewise, the implementation of policies is more
transparent and the access to legislation easier when they are regulated
by a single norm.
However, as it was done, the policy still depended on a new le-
gal act to determine budget availability (art. 14, § 2) and the criteria for
monitoring the financial support by the MEC (Brasil, 2017, art. 16). When
MP No. 746 (Brasil, 2016a) was in force, this act was the Ordinance No.
1,145; with the enactment of Law 13,415 17, it was revoked and replaced
by Ordinance No. 727 (Brasil, 2017a).
Best legislative practices would also dictate that the policy be es-
tablished in a secondary act dissociated from the modifications made
in the ordinary legislation by the MP. This is because Law 13,415/17 was
drafted with two aims in mind: the creation of a policy and the cur-
riculum loosening, which goes against art. 7, I of LC 95/98 (Brasil, 1998),
according to which each law should have only one purpose. Although
the two goals indeed have a certain thematic affinity, they are not in-
trinsically associated; for the sake of transparency and clarity, it would
be better to enact two independent norms.
In view of all of the above, the analysis detected flaws in the draft-
ing of Law 13,415/17, ranging from the legislative initiative to its impact
on education. True, the lack of observance of good legislative practices
is the rule in the Brazilian legal system. For this reason, the techniques
and strategies mentioned above can contribute to the adoption of a pol-
icy aimed at improving the quality of normative production, thus en-
suring the enforcement of fundamental rights, among which the right
to education.
Educação & Realidade, Porto Alegre, v. 44, n. 3, e84925, 2019. 21
An Evaluation of Law No. 13,415/17 Based on Legistics and the PNE Goals
Conclusion
It is well known that the Brazilian educational model has been
showing signs of exhaustion for decades. The country is far from having
reached an acceptable standard of public basic education, despite con-
stitutional commands on the matter. This means that there is a complex
and current social problem demanding government action. Legislative
intervention is necessary for the proper implementation of the educa-
tional objectives of the Federal Constitution.
However, this does not mean that the educational project estab-
lished by Law 13,415/17 is the best alternative. The need for regulatory
change does mean not assessing the quality of the proposed change;
moreover, it can generate more damages than the maintenance of the
legislative status quo. It is necessary to present rational arguments jus-
tifying the legislative choice made, showing that it is better than other
options and even than the existing legislation. The analysis of the ex-
planatory statement and of the documents annexed to the proposal at
the time of its legislative processing has shown that none of these issues
was expressly weighed.
The assessment of the merit of Law 13,415/17 concluded that the
quality of the reform was low, taking into account the basic educational
goals of the PNE and the lessons of Legistics and Legisprudence.
The upper secondary education reform does little to implement
effectively that goals, as in the case of goals 3, 6, 10 and 11, insofar as it
does not address the true causes of the crisis of secondary education.
The changes established do not address the lack of physical and human
resources of schools. In addition, the reform disregards goal 15, on the
qualification and valorization of the teaching career, in relativizing the
concept of education professional.
It also presents problems related to linguistic, systematic-norma-
tive, social, instrumental and axiological rationalities. It distances itself
from the dictates of the Legisprudence and does not observe the steps
of the circuit of legislative practice proposed by Delley. This is because
the problem that demanded legislative intervention was defined in an
incomplete, indeterminate and vague manner. As a result, the lack of
compatibility between the normative solutions and the stated objec-
tives was inevitable. It also has deficiencies pointed out by Formal Le-
gistics, by disregarding the recommendations of good legislative tech-
nique.
Thus, a scenario of absence of an effective policy of legislative-
regulatory planning in basic education is perpetuated.
Notes
1 This essay is one of the products of the author’s master’s research entitled The
role of the federal executive in the law-making process on basic education reform.
The dissertation received an Honorable Mention by the Academy Award 2018,
from the International Center for Advanced Law Studies (CAED-Jus).
2 This shortage of specific legal literature in the area can be attested by conduct-
ing a bibliographic research in the main Brazilian databases.
3 This is what the Brazilian Education Opportunities Index (IOEB) shows, a
unique index ranking Brazilian municipalities, states and the Federal District
by basic education quality. The comparison of the discrepancies between the
performances of education systems in the various regions of the country shows
that there is not only one educational reality (Public Leadership Center, 2018).
4 On June 13, 2017, Ordinance No. 727/2017 of the MEC was published, providing
the parameters and criteria of the policy of promotion of full-time education.
In art. 28, it is established that the resources for its implementation will come
from the FNDE according to the Annual Budgetary Law - LOA (Brazil, Ministry
of Education, 2017a). Resolution No. 16 of December 7, 2017 provided further
details on funding procedures for the policy. According to art. 6, the amount
is R$ 2,000 per enrollment per year (Brazil, 2017b).
5 According to information published in the press by the MEC, investments in
the promotion policy will reach R$ 1.5 billion by 2020. On January 17, 2018,
the government announced the disbursement of R$ 406 million to expand the
number of schools served (from 516 to 967 schools). According to the MEC, in
the course of 2018 resources will exceed R$ 700 million (Brasil, 2018).
6 The term derives from the words legislation and jurisprudence (which means
Theory or Philosophy of Law). It is, therefore, a Theory of Legislation, thus
designated by authors like Wintgens (2012) and Luzius Mader (1991).
7 The option was to highlight the factors that intensify the problem. The inverse
interpretation of these factors makes it possible to conclude in what dimensions
there should be legislative intervention capable of mitigating them.
8 The option was to analyze only the fulfillment of the dictates of LC 95/98 by Law
No. 13,415/2017, with the final wording approved by the National Congress. The
reasons for this are that the provisions of Decree No. 4,176/2002 largely repeats
the content of the LC; it only applies to Executive acts (such as MP 746/16); and
it no longer makes sense to analyze the previous and revoked wording of this
MP.
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