INCLUSIVE EDUCATION IN DIRECT ACTION OF UNCONSTITUTIONALITY 5.357: an analysis considering Martha Nussbaum’s Capabilities Approach

In democratic societies, the recognition of certain rights for vulnerable groups has been treated as a matter of justice. In Brazil, the 1988 Constitution and especially the Brazilian Law for the Inclusion of Persons with Disabilities ensure that students with disabilities must be given the same educational opportunities offered to other students, whenever possible, in regular classes. This notion of social inclusion, that the community must adapt to people with disabilities, generated a reaction from sectors of Brazilian society that appealed to the Federal Supreme Court, questioning aspects of the law. This book investigates the process of Direct Action of Unconstitutionality 5.357 of the Federal District, which deals with the obligation of private educational establishments to offer inclusive education. In it, I seek to identify whether the actors involved in the dispute made instrumental use of the Capabilities Approach, as devised by Martha Nussbaum. To deal with this issue, a literature review and document research, both of a descriptive-exploratory nature, were carried out, as well as a Critical Discourse Analysis (CDA) of the process in question. I concluded that there are elements of the capabilities approach in the DAU process through the meta-legal arguments exposed by the protagonists of the process. However, the Federal Supreme Court does not mention them directly, mainly as a result of the incorporation into the legal of the Convention on Rights of Persons with Disabilities through Decree 6.949/2009 system as a constitutional norm.