Idade Mínima da Educação Infantil (Com Exemplo)

Por
Vinícius Silva
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239
1095

Art. 208. O dever do Estado com a educação será efetivado mediante a garantia de:

IV – Educação infantil, em creche e pré-escola, às crianças até 5 (cinco) anos de idade.

§ 2º Os Municípios atuarão prioritariamente no ensino fundamental e na educação infantil.  

QUESTÃO CERTA:  André e Joana realizaram a pré-matrícula do filho Pedro, de três anos de idade, em creche da secretaria de educação municipal. Após meses de espera, Joana, não tendo recebido resposta a respeito da vaga na creche, procurou auxílio da Defensoria Pública, a qual oficiou a creche, solicitando que a instituição efetuasse a matrícula da criança. Em resposta, o diretor da creche informou não haver vaga disponível; que a pré-matrícula havia sido feita junto à secretaria de educação; que o secretário o havia delegado competente para efetivar as matrículas; e, por fim, que Pedro não poderia ser matriculado — mesmo que houvesse vaga — porquanto deveria ter quatro anos completos até o dia 31 de março do ano em que ocorrer a matrícula para o ingresso na pré-escola, conforme norma do Ministério da Educação. A Defensoria Pública impetrou mandado de segurança contra a autoridade delegante, visando impugnar o ato não concessivo da matrícula de Pedro. Com referência a essa situação hipotética, julgue o item que se segue, tendo em vista o entendimento do STF e considerando que a competência do secretário não é exclusiva. A exigência de idade mínima de quatro anos para ingresso na educação infantil bem como a fixação da data limite de 31 de março para que a idade esteja completa são constitucionais.

“São constitucionais a exigência de idade mínima de quatro e seis anos para ingresso, respectivamente, na educação infantil e no ensino fundamental, bem como a fixação da data limite de 31 de março para que referidas idades estejam completas. Com base nesse entendimento, o Plenário, em julgamento conjunto e por maioria, julgou procedente ação declaratória de constitucionalidade e improcedente arguição de descumprimento de preceito fundamental, que discutiam a validade de exigências previstas na Lei de Diretrizes e Bases da Educação Nacional (…) e em resoluções do Conselho Nacional de Educação (…) Quanto à ADC, o Colegiado concluiu que os artigos 24, II, 31 e 32, “caput” , da Lei 9.394/1996 -que estabelece as diretrizes e bases da educação nacional não conflitam com os dispositivos constitucionais que regulam o tema. Fixou a seguinte tese: é constitucional a exigência de seis anos de idade para o ingresso no ensino fundamental, cabendo ao Ministério da Educação a definição do momento em que o aluno deverá preencher o critério etário. No que se refere à ADPF, o Tribunal também reputou constitucionais os artigos 2º e 3º da Resolução 1/2010 e os artigos 2º, 3º e 4º da Resolução 6/2010, ambas da Câmara de Educação Básica do Conselho Nacional de Educação, as quais definem as diretrizes operacionais para a implantação do ensino fundamental com duração de nove anos e para a matrícula no ensino fundamental e na educação infantil, respectivamente. Ademais, entendeu que as resoluções impugnadas não violam os princípios da isonomia, da proporcionalidade e do acesso à educação, ao estabelecerem um critério único e objetivo para o ingresso nas séries iniciais da educação infantil e do ensino fundamental da criança que tenha, respectivamente, quatro e seis anos de idade completos até o dia 31 de março do ano em que ocorrer a matrícula.” [ADPF 292 e ADC 17, rel. p/ ac. min. Roberto Barroso, j. 1°-8-2018, informativo 909].

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Sobre o tema, é importante saber que o Procurador-Geral da República ajuizou uma ADPF 292 contra essas duas Resoluções da Câmara de Educação Básica do Conselho Nacional de Educação (CNE) pedindo que elas fossem declaradas inconstitucionais. Segundo o autor, essas Resoluções burlam o comando constitucional que, como visto, determina a oferta da educação básica obrigatória e gratuita dos 4 aos 17 anos de idade, prevista no art. 208, I, da Constituição Federal. O PGR alegou também que as crianças nascidas depois de 31 de março têm tratamento discriminatório, pois só poderão ingressar no ensino infantil com 5 anos, retardando também a entrada no ensino fundamental.

O STF considerou que a Resolução 1/2010 e a Resolução 6/2010, ambas da Câmara de Educação Básica do Conselho Nacional de Educação (CNE), não violam os princípios da isonomia, da proporcionalidade e do acesso à educação, ao estabelecerem um critério único e objetivo para o ingresso nas séries iniciais da educação infantil e do ensino fundamental da criança que tenha, respectivamente, 4 e 6 anos de idade completos até o dia 31 de março do ano em que ocorrer a matrícula. 

O importante é que seja assegurado ao aluno entre 4 e 17 anos o acesso à educação, de acordo com a sua capacidade. A faixa etária não é estabelecida entre as etapas do sistema de ensino. Desse modo, a regulamentação questionada, relativa à transição entre as etapas de ensino, está em conformidade com o art. 208, I e IV, da Constituição Federal. 

Cabe ao Poder Público desenhar as políticas educacionais, respeitadas as balizas constitucionais. O critério etário, apesar de não ser a única solução constitucionalmente possível, insere-se no espaço de conformação do administrador, sobretudo em razão da “expertise” do CNE e da ampla participação técnica e social no processo de edição das resoluções, em respeito à gestão democrática do ensino público (art. 206, VI, da CF/88). 

“São constitucionais a exigência deidade mínima de QUARTO e SEIS ANOS para ingresso, respectivamente, na educação INFANTIL e no ensino FUNDAMENTAL, bem como a fixação da data limite de 31 de março para que referidas idades estejam completas”. STF. Plenário. ADPF 292/DF, Rel. Min. Luiz Fux, julgado em 1º/8/2018 (Info 909).

“É constitucional a exigência de 6 (seis) anos de idade para o ingresso no ensino fundamental, cabendo ao Ministério da Educação (MEC) a definição do momento em que o aluno deverá preencher o critério etário”. STF. Plenário. ADC 17/DF, Rel. Min. Edson Fachin, red. p/ o ac. Min. Roberto Barroso, jugado em 1º/8/2018 (Info 909).

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  188. Hi this is somewhat of off topic but I was wondering if blogs use WYSIWYG editors or if you have to manually code with HTML. I’m starting a blog soon but have no coding expertise so I wanted to get guidance from someone with experience. Any help would be enormously appreciated!

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  199. Thanks for this wonderful article. One other thing is that a lot of digital cameras arrive equipped with the zoom lens that enables more or less of that scene to generally be included by means of ‘zooming’ in and out. These types of changes in {focus|focusing|concentration|target|the a**** length usually are reflected within the viewfinder and on massive display screen right on the back of the specific camera.

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  204. Hi! This is kind of off topic but I need some guidance from an established blog. Is it difficult to set up your own blog? I’m not very techincal but I can figure things out pretty fast. I’m thinking about making my own but I’m not sure where to start. Do you have any tips or suggestions? Many thanks

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  223. One thing I’d like to say is before acquiring more computer memory, have a look at the machine directly into which it could well be installed. If your machine is definitely running Windows XP, for instance, a memory limit is 3.25GB. Putting in above this would just constitute a waste. Make certain that one’s mother board can handle the particular upgrade amount, as well. Great blog post.

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