In 2020, the minimum age for entry into elementary school of 6 years old generated great discussion in the plenary of the Supreme Federal Court (STF).
Specifically, the topic revolved around the discussion of the constitutionality of setting the age of 6 as the minimum age for entry into elementary school, established primarily by article 32, caput, of the Law of Guidelines and Bases of National Education (LDB).
Furthermore, the provision for an age cutoff, 6 (six) years old by March 31st, issued by the National Education Council (CNE) through Resolution CEB No. 6/2010, also divided opinions on the subject.
Ultimately, setting a minimum age for entry into primary education is a matter of paramount importance, as the discussion arises within one of the main social rights guaranteed by the Federal Constitution: education.
In this article, therefore, the reader will quickly and easily discover what was behind this discussion and what the current position adopted by the STF (Supreme Federal Court) is.
The origin of the discussion about the minimum age for entry into elementary school.
Firstly, the discussion about the minimum age for entry into elementary school stemmed from the flexibility, provided by state laws, of the age criterion of 6 years established by the LDB (Brazilian Law of Education).
In other words, these state laws were allowing children under 6 years old to enroll in elementary school, contradicting an express provision of the LDB (Brazilian Law of Education).
Therefore, the result of this discussion reached the Supreme Federal Court (STF) through Declaratory Action of Constitutionality 17 (ADC 17), filed by the government of the state of Mato Grosso do Sul, and Argument of Non-Compliance with Fundamental Precept 292 (ADPF 292), filed by the Attorney General of the Republic.
Both questioning the requirements of the National Education Guidelines and Framework Law and the National Education Council through Resolution CEB No. 6/2010.
According to lawyer Alessandra Gotti at the time, in an interview with Educação :
“This ruling is very important. First, because it establishes that technical issues should be addressed by specialized bodies and not by the Judiciary, especially when there is no blatant illegality or unconstitutionality, and also because it guarantees the rights of children and prevents them from skipping steps that could harm their future development.”
What is the "age cutoff" used by the National Education Council in the discussion of the minimum age for entry into elementary school?
In summary, the age cutoff, with regard to setting the minimum age for entry into elementary school, is a measure established by CNE Resolution CEB No. 6/2010 , which defined the requirement for entrants to be 6 (six) years old by March 31st.
In other words, the CNE (National Education Council) complemented the LDB (Law of Directives and Bases of National Education) provision, adding the understanding that, in addition to being 6 (six) years old, this criterion should be met by March 31st of the year the student enrolls.
In conclusion, the National Education Council (CNE) established the age cutoff in order to avoid disorganization in the Brazilian education system, as well as to respect the child's development, seeking not to skip or anticipate stages in education.
What does the Federal Constitution say about this issue?
The Federal Constitution is clear and provides in its article 208 that the State's duty regarding education will be fulfilled by guaranteeing:
“I – compulsory and free basic education from 4 (four) to 17 (seventeen) years of age, ensuring its free provision even for all those who did not have access to it at the appropriate age (…)
IV – early childhood education, in daycare and preschool , for children up to 5 (five) years of age”
Note that the Constitution adheres to a categorical view of education, establishing that early childhood education, daycare, and preschool are suitable categories for receiving children up to 5 (five) years of age.
In effect, it is possible to conclude that only the age of 6 (six) years old would imply entry into another category: elementary education. Otherwise, the appropriate category would be that of article 208, IV : daycare and preschool.
What position has the Supreme Federal Court adopted?
The Brazilian Supreme Court (STF) upheld the validity of the rule that sets the minimum age for entering elementary school at 6 years old.
According to the Supreme Court:
"The requirement of 6 (six) years of age for entry into elementary school is constitutional, and it is up to the Ministry of Education to define when the student must meet the age criterion."
It is important to highlight that, with this declaration, the enrollments of students that have already been approved, even those outside the requirements of the LDB (Brazilian Education Law) and the CNE (National Education Council), would not be affected, since they were approved before the declaration of constitutionality.
Check out the article here on " What are the systems of constitutional review and what are they for? "
Final considerations regarding the minimum age for entry into elementary school.
In short, setting a minimum age for entry into primary education is an undeniably relevant topic, since the discussion arises from one of the main guarantees of the Constitution.
Thus, the Supreme Court's decision to set the minimum age for entry into elementary school at 6 years old, and the outcome reached by the Supreme Court, undoubtedly influenced the organization of the entire Brazilian education system.
Did you enjoy the content? Subscribe to the IDP Online newsletter to stay informed about the main discussions in the legal world!