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In the Country of Hope, MEC Passes the Roll Compressor with Unconstitutional, Illegal, Inconsistent, and Contradictory Norms: Legal Concepts

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Paul Vadas – Educational Consultant, Master Degree in political science from California State University Northridge, lecturer, professor, has worked for over 25 years as executive in Brazilian and U.S. higher education institutions.

This is the first chapter of five that I wrote on the theme “Hope.”

This first, in a conceptual way, shows my frustration with Brazilian education which, I believe, reflects a passive, negative attitude of “hope”, characterized by executives who live “hoping” for actions of the Ministry of Education and Culture (MEC) and do not have the initiative, to challenge unconstitutional, illegal, inconsistent and often contradictory norms of the Brazilian higher education regulatory body, introducing legal uncertainty, impinging on the creative and innovative capacity of the sector, and negatively affecting visionary leaders’ use of the tools provided by the 1996 National Education and Guidelines Law (LDB/1996).

The second, derived from the first, deals with the legal creation of a modern educational concept, exemplifying how LDB/1996 provided the capacity of HEIs to create and innovate, with ample freedom, new, relevant, pertinent, and modern educational models. Unfortunately, however, educational leaders’ ignorance of the opportunities provided by LDB/1996 demonstrates how lack of initiative can hinder the capacity of HEIs to take advantage of their rights and freedoms in formulating modern educational programs in their pedagogical conceptions.

The third analyzes MEC’s ​​unconstitutionalities, illegalities, inconsistencies and normative contradictions, which, because they are not challenged by the private sector, reduces the creative and innovative capacity of the sector and contributes to inhibit its modernization; their ability to meet modern and quality demands for up-to-date, pertinent and relevant education; and keeps Brazil among the worst placed in the world ranking of HEIs.

The fourth concludes with the hope that private sector education leaders will take the reins of their legal rights and build an efficient modern educational system that addresses the country’s educational needs.

The fifth, different from the first four, describes how a 7-year-old girl did not wait for anyone to solve a problem she detected. On her own initiative, she studied the problem for two years, raised seven thousand dollars, and at age nine, with these financial investments, parental support and self-taught wisdom, she became a millionaire, reflecting her curiosity, attitude, opportunity, confidence and determination, skills that Brazilian schools do not address.

But let’s go to the first chapter. The second, third, fourth, and fifth chapters will be published in due course.

The Constitution of the Federative Republic of Brazil of 1988 (FC/88) in its Chapter III, Section I, Education, establishes in Art. 209 that “education is free to private initiative, subject to the following conditions:
I – compliance with the general norms of national education;
II – authorization and evaluation of quality by the Public Authorities.

Therefore, in establishing freedom of education to the private sector, FC/88 framed this freedom on two conditions: 1. Compliance with the general norms of national education; and 2. Authorization and quality evaluation by the Public Authorities.

Using the conceptual definitions suggested by Vicente Martins in his article published on 02/29/2002, “What is Educational Legislation”, we can say that, in Brazilian educational legislation, the first condition of Art. 209 refers to the regulatory power of the State, characterized by the legislative laws of the Legislature (general norms), while the second condition refers to the regulatory power, characterized by the regulation by the Executive Branch of specific articles of the law (specific norms). Therefore, I understand that the general norms of national education refer to the LDB/1996 and other educational laws eventually enshrined by the National Congress. Therefore MEC, not being part of the legislative power, has no powers to create laws, only to execute them in direct function of the FC/88 (major law) and the laws promulgated by the Legislative Power (general norms). On the other hand, the implementation of educational laws (general norms) depends on specific norms, norms that can not extrapolate or contradict either the FC/88 or the LDB/1996. It is up to the MEC, informed by the intention of the legislator (“spirit of the law”), to bring the regulations into line with constitutional and legal limitations.

In other words, it can be said that it is for MEC, in light of the general norms expressed in FC/88 and LDB/1996, “to institute norms on the execution of the law, taking the necessary measures for the functioning of the educational services .. (being) that the political-juridical structure of education contained in the Federal Constitution and Federal Law regulates the political-legal structure of education while decrees, resolutions, opinions, and instructions, in short, prescribe the functionalities of educational services “(Martins).

It is very clear, therefore, that in relation to education, as part of the Executive Branch, MEC does not legislate. The Legislative Branch legislates (general norms) and, informed and guided by FC/88 andLDB/1996, et sequitur, it is the responsibility of MEC to execute the legislation by means of regulations (specific norms) that are determined under the strict observance of the constitutional determinations and of the general standards defined by LDB/1996. But this is not what happens in real, educational, Brazilian life. Because of a subservient culture, in the “Country of Hope” (where everyone hopes the other will do), private institutions, without their own initiative, as well as the institutions that represent them, live by waiting, accepting, even when complaining, and adapting to the unconstitutional, illegal, inconsistent, and contradictory regulations promulgated by MEC, regulations that hinder creativity and innovation in one of the most important sectors for the country’s development: the education sector.

In the following chapters, I illustrate how the passivity of HEIs, their leaders, and the private sector entities that represent them, contributed to MEC’s (bureaucratized and lacking an educational vision) destruction of a legally-conceived higher education modality, whose essence is flexibility and educational modernization: the community college model defined by the LDB/1996 as “sequential programs”.