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In the Country of Hope What the Law Builds The Ministry of Education Destroys

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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.

In the last chapter I explained the difference between what is law (general norms emanating from the Legislative that regulate the objectives, demands, and opportunities provided by the Federal Constitution: the Law of laws) and what are regulations (specific norms emanating from the Executive Branch which regulate the general norms spelled out in the Law). Legally, in what has been agreed as the “hierarchy of laws,” it has been established that the greater law is the Federal Constitution (FC) and that the general norms spelled out in the laws promulgated by the National Congress can not hurt the attempts and determinations of the FC.

It has also been established that the specific norms defined by the various ministries and agencies of the Executive Power (Ordinances, Resolutions, Council Opinions, etc.) can not harm either the FC or the laws passed by the Legislative Branch.

That said, we will see, exemplified by the sequential courses, how, in the case of education, the Ministry of Education has infringed on both the Federal Constitution of 1988 (FC/88) and the 1996 National Education Guidelines Act (LDB/96).

This second chapter on the subject at hand is, I confess, an outburst by one who was there at the beginning and saw the opportunities provided for educational modernization by LDB/99 gradually erode due to the sheer ignorance of the leaders of the HEIs and the administrators of the Ministry of Education (MEC). Here I refer to the sequential programs, specifically the Sequential Programs for the Completion of Studies, a concept that still can and should provide Brazilian HEIs with the flexible educational tools they need to be relevant, competitive, pertinent, and up-to-date with 21st century education.

In this sense, and only to use an example of poorly regulated legislation, among dozens of others that exists in Brazilian education, which proves how the lack of legislative understanding by the leaders of private HEIs and MEC has been negatively affecting the capacity of innovation of the Brazilian educational sector, we will analyze how the Sequential Programs, designed by Darcy Ribeiro, initially regulated by Resolution 01 of 1999 (Resolution 1/99), could and should have been an important tool for the individualization of education, as well as for the provision of flexible, relevant, updated and competitive educational programs.

The Sequential Programs, instituted by LDB/99, were created based on the American Community Colleges model, characterized by institutions of higher education whose only condition of access is for the student to have reached 18 years of age. The main importance and differential of the model is the flexibility of offering practical educational programs. The model, when well understood and worked, also allows for the creation of customized and/or personalized educational programs.

Community colleges typically offer two types of programs: open-ended programs, open to those interested in specific courses, and composite programs that enable the student to obtain certification for a set of disciplines that belong to a field of knowledge, and/or obtain a diploma (AA or AS degrees) as a result of having completed a defined set of courses that, in two years, allows the completion of a specific higher education program.

Senator Darcy Ribeiro, a visionary of the education sector, realized how much this model could add to Brazilian higher education, and managed to get the concept, which he called “Sequential Programs”, included in the National Education Guidelines Act of 1996 (LDB/96).

It was incumbent upon the rapporteur of the resolution that regulated the law (Resolution 1/99), Counselor Jacques Velloso, to define the concept that had not previously existed in Brazilian educational legislation. Capturing, so to speak, the “spirit of law” proposed by Darcy Ribeiro, the Resolution was in strict accordance with Article 44, paragraph 1. of LDB/96, and followed the National Council of Education’s (CNE) guidelines, as determined in Council’s Opinion No. CES 968/98.

Adhering to the spirit of the law and, following the law itself, Opinion CES 968/98, refers to Sequential Programs in this way:
“The principle of flexibility is reflected in both the letter and spirit of the Law … The same spirit should prevail in the letter of the regulations … The new figure of the Sequential Programs is an     element of this spirit. The absence of design for the new figure invites for innovations that meet the demands for post-secondary education … The new figure is characterized initially by being a modality apart from other higher education programs… As a specific modality, it distinguishes itself from undergraduate programs and should not be confused with them. Sequential Programs are not undergraduate programs. The former are         contemplated in subsection I of Article 44, (the latter) in subsection II dealing with undergraduate courses”.

It is clear in the legislation that sequential programs have nothing to do with undergraduate programs. According to LDB/96, Article 44, Section I, Sequential Programs are “of different levels, open to candidates who meet the requirements established by educational institutions …” ; On the other hand, according to LDB/96, Art. 44, Section II, undergraduate programs, are “open to candidates who have completed high school or equivalent and have been classified in a selection process”. In the first case, the HEIs are free to determine their criteria for access while, in the second case, the HEIs have to implement a selection process for access to its undergraduate programs.

Finally, based on the model of the American community colleges, and the intentions explained by Senator Darcy Ribeiro, Resolution 1/99 defined two types of sequential programs: 1. Sequential Program of Specific Formation, of two years duration that, like the two-year community college programs, grants a higher education degree, but not an undergraduate, bachelor’s degree; and 2. Sequential Program of Completion of Studies, which grants the student a certificate in function of individually formulated programs, of different duration.

Resolution 1/99 erred, however, by linking the sequential programs to the “institution that has one or more recognized undergraduate courses” (caput of Article 4).

IT IS NOT WHAT THE LAW SAYS: The law is very clear. One of four modes of higher education, as we have seen above, sequential programs are included in item I of Article 44 of the LDB/96, with their own conditions, while those of undergraduate, four year programs, are inserted in section II of the same article, with different conditions than those of sequential programs.

This error of understanding of the law contributed to, eventually, doom the program. The intent of the law was to follow the example of the American community college model and keep  the design of sequential programs independent of any of the other three modes of higher education programs: undergraduate, graduate, and extension programs. This unwarranted linkage of the Sequential Programs to undergraduate programs clearly demonstrates the lack of understanding by MEC administrators and by the private educational leaders who did not contest Opinion 1/99. The error  of the understanding of the law, resulted in several other misconceptions (as in Technical Note No. 733/2015) and opinions (such as Opinion 1/2017), which, by making the same mistake, initially limited the scope and flexibility of this higher education modality, and in the end, as we shall see in the next chapter of this paper, destroyed it.

Even with this fundamental and primary error, a number of individual HEIs had, since the year 2000, implemented sequential programs, some with unexpected success in creating flexible, credit-based models that have made it possible for the first time the access to higher education of non- traditional students, and the development of in-company programs.

Unfortunately, the ‘pluralism of ideas and pedagogical conceptions’ enshrined in FC/88 and LDB/96 did not last for long – Resolution 1/2017, as we will see in the next chapter, effectively eliminated any attempt to further innovate in Brazilian higher education, at least as long as the administrators of the private sector remain silent and accept the arbitrary, unconstitutional and illegal determinations of the Ministry of Education, hoping that, maybe some day, the Ministry of Education will follow the Constitution and the Law.