A efetividade da legislação para a responsabilização de gestores das instituições de ensino superior ante o descumprimento dos preceitos de acessibilidade.

Abstract

This work has as its remote cause the access and permanence in higher education institutions by people with disabilities. Thus, its main objective is to analyze whether the Legislation instrumentalizes the Public Power to monitor and supervise higher education institutions in the fulfillment of accessibility policies. The analysis of the diplomas that deal with accessibility in the university environment, aims to assess their effectiveness for the accountability of their managers, when they are silent with the policies of inclusion of students who are people with disabilities. At first glance, it would be recommended that this work be a case study, since it could reveal the success or failure of a set of measures adopted by this or that Higher Education Institution in the field of accessibility. However, what is sought here is to analyze the effectiveness of legal instruments to guarantee the right to an inclusive education at all levels of education, and throughout the national territory. And this has a practical effect in the legal field. Article 103 of the Brazilian Inclusion Law introduced item IX to article 11 of Law No. 8,429/92, so that non-compliance with accessibility rules became a hypothesis of administrative improbity. Therefore, if an attitudinal barrier is set, a civil inquiry could be instituted and even judicially sued the manager through a public civil action. The first issue analyzed in this text is the concept of accessibility and its foundations, with special attention to the principle of protecting the dignity of the human person; then the historical treatment of those people in time; the right to education and inclusive education; the relationship between universities and people with disabilities; and, finally, to analyze the structure of the legal framework applicable to public managers in general and, in particular, to managers of higher education institutions, arriving at the legislation applicable to higher education, forming a conclusion in its respect in relation to the objective of this work. After completing those steps, we have seen progress with the enactment of Law No. 13,146/2005 (Brazilian Inclusion Law) and a major setback with its partial repeal by Law No. 14,230/2021, which profoundly altered Law No. administrative improprieties). In this new scenario, it remained for us to analyze Law nº 9.394/1995 (Lei de Diretrizes e Bases da Educação), in terms of its ability to hold faulty managers accountable. In a constructivist perspective, the methodology used uses a qualitative approach, bibliographic and documental research. We found that its provisions on special education are secondary norms, according to Kelsen's definition, or imperfect norms, in the words of Maria Helena Dinis. Thus, we conclude this work by offering society two products: a representation to the Attorney General's Office to present an Allegation of Noncompliance with a Fundamental Precept (ADPF) or to question before the Federal Supreme Court itself the unconventionality of Law nº 14.230/2021, in topic related to the revocation of the LIA, as Brazil is a signatory to the International Convention on the Rights of Persons with Disabilities, according to which its Signatories will adopt measures, including legislative measures, to improve the system of protection of these people.