Article

Giancarlo Silkunas Foster Vay; Jacqueline Meireles Ronconi

DOI: 10.22167/2675-6528-202603624

Article derived from a Final Course Work (TCC), with content based on the student’s original work and adapted to the editorial format of the Revista E&S with the support of the ResumeAI tool, an artificial intelligence solution developed by the Pecege Institute for textual synthesis and organization.

Abstract

The judicialization of inclusive education for children with Autism Spectrum Disorder (ASD) in the State of São Paulo was analyzed. The objective was to investigate the State’s procedural behavior and the decision-making patterns of the Court of Justice in lawsuits claiming a pedagogical support professional. A qualitative approach was adopted, with documentary and content analysis of defenses, appeals, urgent relief decisions, sentences, and judgments from seven judicial processes in the district of Santo André/SP, initiated between 2023 and 2025, after the enactment of State Decree no. 67.635/2023. The results revealed that the State Attorney General’s Office employed a standardized argumentative strategy, based on abstract theses such as the legal non-existence of an auxiliary teacher and the segregationist nature of individualized support, with little reference to the particularities of each student. The Judiciary, in turn, established consolidated jurisprudence, recognizing the subjective right to specialized accompaniment by a teacher and determining the provision of the professional without exclusivity, based on federal legislation and a precedent from the TJSP. The cross-sectional analysis identified common gaps in both institutions, such as the lack of individualization in pleadings and decisions, the absence of monitoring and oversight mechanisms, the non-hearing of the family and the student, and the restricted focus on the presence of the support professional. It was concluded that overcoming the dependence on individual litigation requires the reformulation of public policy, the qualification of the judicial process, and interinstitutional dialogue for effective inclusive education.

Keywords: Subjective right; Pedagogical support professional; State Attorney General’s Office; Court of Justice; Autism spectrum disorder.

1. Introduction

The right to inclusive education for children and adolescents with Autism Spectrum Disorder (ASD) is formally guaranteed by a robust legislative framework within the Brazilian legal system. The Federal Constitution of 1988 (BRASIL, 1988) established specialized educational care, preferably within the regular school system, as a duty of the State. This directive is reinforced by the Law of Directives and Bases of National Education (BRASIL, 1996), which provides for the involvement of teachers with adequate specialization for specialized care. Law 12.764/2012, known as the Berenice Piana Law (BRASIL, 2012), instituted the National Policy for the Protection of the Rights of Persons with Autism Spectrum Disorder, considering individuals with ASD as persons with disabilities for all legal purposes and ensuring the right to specialized support in case of proven need. The Statute of Persons with Disabilities (BRASIL, 2015) expanded the guarantees of access, permanence, and participation in the educational system. However, the effective implementation of this right remains a significant challenge, characterized by the discrepancy between normative proclamation and the materialization of effective public policies.

The magnitude of the problem is significant in Brazil. The 2022 Demographic Census estimates the existence of approximately 2.4 million people diagnosed with ASD, which corresponds to 1.2% of the population (IBGE, 2022). In the educational field, the Basic Education School Census registers approximately 430,000 students with ASD enrolled (INEP, 2022). This contingent demands directed and structured state attention, which transcends the mere offering of vacancies and materializes into effective learning conditions. However, the reality of the public school system reveals a gap between what is provided for in legislation and what is offered in schools: interns and monitors without specific training frequently replace qualified professionals, focusing on behavioral and hygiene care to the detriment of the student’s cognitive, intellectual, and social development (MEDEIROS, 2023). In the State of São Paulo, the regulation of Special Education by State Decree 67.635/2023 (SÃO PAULO, 2023a), although it represented a normative advance by creating the role of School Support Professionals for School Activities (AE) and Daily Life Activities (AVD), differentiating them from the Specialized Teacher, has not managed to eliminate the distance between administrative provision and the concrete atendimento of students’ individual needs.

This scenario of ineffectiveness drives the growing judicialization of the matter. As the literature points out, the judicialization of education is an expanding phenomenon in Brazil, resulting from the positivization of social rights in the 1988 Constitution, the insufficiency of state action in realizing them, and the judicial enforcement of those rights (SILVEIRA, 2011; XIMENES; OLIVEIRA; SILVA, 2019). In the specific field of autism, research indicates that the effectiveness of the rights provided for in the Berenice Piana Law still depends heavily on the action of the Judiciary, given the inefficiency of public policies (SPÍNOLA, 2014; RODRIGUES; SANTOS, 2025). Families seek the Judiciary to ensure what the legislation already guarantees, but the State insists on not delivering.

Given this scenario, it becomes relevant to investigate not only how the Court of Justice of the State of São Paulo positions itself in the face of these demands, but also how the State Attorney’s Office articulates its judicial defense when confronted with the insufficiency of the public policy it should implement. The present work aims to analyze, through documentary and content analysis, the argumentative patterns of the defense of the State of São Paulo, based on defenses and appeals, and the decision-making patterns of the São Paulo Judiciary, based on decisions of urgent relief, sentences, and judgments of the Special Chamber of the TJSP, in seven lawsuits filed by children and adolescents with ASD in the district of Santo André, seeking to understand the legal grounds mobilized by both institutions in the (in)effectiveness of the fundamental right to inclusive education.

2. Material and Methods

The research conducted adopted a qualitative approach, of an exploratory and descriptive nature, seeking to deepen the understanding of the judicialization of inclusive education. For this purpose, documentary analysis and content analysis were employed as methodological procedures. The choice of a qualitative approach was justified by the complexity of the problem investigated, which demanded the interpretation of meanings, argumentative patterns, and discursive strategies present in the legal documents, transcending the mere quantification of judicial decisions.

The empirical object of the study consisted of procedural pieces and judicial decisions extracted from seven lawsuits. These actions were filed by children and adolescents diagnosed with Autism Spectrum Disorder (ASD), pending before the Court of Childhood and Youth of the District of Santo André, in the State of São Paulo. The territorial delimitation to the district of Santo André resulted from the researcher’s professional identification with the area of practice.

The processes were selected based on specific criteria. Actions proposed against the State of São Paulo between April 7, 2023, and April 6, 2025, a two-year period subsequent to the entry into force of State Decree 67.635/2023 (SÃO PAULO, 2023a), were included. The central object of these actions was the request for the provision of a specialized teacher and/or support professional as a condition for the effectiveness of the right to inclusive education, and the applicants had a diagnosis of autism.

Two types of procedural documents and three types of judicial decisions were analyzed, categorized according to the originating institution and the procedural phase. From the Attorney General’s Office of the State of São Paulo, we collected defenses and appeals. From the Judiciary, we extracted decisions on urgent relief issued in the first instance, merits judgments also from the first instance, and rulings issued by the Special Chamber of the Court of Justice of the State of São Paulo. The documentary set totaled documents referring to seven lawsuits, one of which had not yet been judged, containing only a decision on urgent relief and a defense.

The analytical procedure was structured in three sequential stages. In the first stage, a complete reading and systematization of all collected documents were carried out. During this process, the central arguments of each procedural document and judicial decision were extracted, organizing them according to the type of document and the case to which they belonged. This initial phase allowed for a comprehensive overview of the material and preparation for subsequent analyses.

In the second stage, thematic content analysis was applied. The recurrent argumentative axes in the pieces from the Attorney General’s Office were identified, as well as the legal grounds and decision-making patterns in the manifestations of the Judiciary. The third stage consisted of a cross-analysis between the positions of the two institutions, with the objective of mapping convergences, tensions, internal contradictions, and common gaps observed in the context of judicialization.

To ensure the ethical integrity of the research and the protection of those involved, specific precautions were adopted. The names of parties or attorneys were not used in the presentation of the results, preserving everyone’s anonymity. Judicial proceedings were referred to generically, as Case 1 to Case 7. The case files were processed under judicial secrecy, and access to the case numbers, recorded in the researcher’s database, required specific functional qualification, ensuring data confidentiality.

3. Results and Discussion

The analysis of the judicialization of inclusive education for children and adolescents with Autism Spectrum Disorder (ASD) in the State of São Paulo revealed consolidated argumentative and decision-making patterns, both on the part of the Attorney General’s Office of the State and the Court of Justice. The seven judicial processes examined, originating from the district of Santo André and initiated between 2023 and 2025, after the enactment of State Decree no. 67.635/2023, demonstrated a procedural dynamic marked by the standardization of state defenses and the consistency of judicial decisions. This uniformity, however, contrasts with the diversity of the applicants’ diagnostic profiles, who, in addition to ASD, presented comorbidities such as intellectual disability, ADHD, central auditory processing disorder, and dyslexia, evidencing the complexity of individual needs that the judicial and administrative system needs to address.

The initial results indicate that, in all cases, the first-instance decisions were favorable to the plaintiffs, being judged as valid. In one of the lawsuits, urgent relief was granted, ensuring immediate support. Subsequently, all appeals filed by the State Attorney General’s Office were rejected by the Court of Justice of São Paulo, which upheld the first-instance judgments. This consistent judicial decision-making points to consolidated jurisprudence in favor of the right to specialized accompaniment, even in the face of standardized arguments from the State, which frequently ignored the particularities of each student, treating unique cases as identical in its defense. Argumentative patterns of the State Attorney General’s Office of São Paulo

The State Attorney General’s Office employed a remarkably uniform argumentative strategy in its defenses and appeals. Six recurring thematic categories were identified, often with literally reproduced excerpts in all analyzed cases. This standardized defense, devoid of individualization regarding the particularities of each case, suggests an organized action around abstract premises, rather than a contextualized analysis of the specific needs of each child with ASD. The absence of defense adaptation to the clinical and pedagogical nuances of the students was a central finding, revealing a generalist approach by the state agency.

The first defensive thesis of the Attorney General’s Office consisted of the “Legal non-existence of the ‘auxiliary professor'”. The central argument was that the figure of the “auxiliary professor”, defined as a teacher who would constantly remain in the classroom to teach only students with special needs, had no express provision in the Federal Constitution, in the Statute of Persons with Disabilities, or in any other normative instrument. Furthermore, the Attorney General’s Office alleged that such individualized support would be segregationist and contrary to the best recommendations for inclusive education, seeking to delegitimize the demand due to the absence of a specific nomenclature in the current legislation.

However, this thesis from the State Attorney General’s Office is not sustainable in light of the Brazilian and international legal framework. The right to inclusive education for people with disabilities is solidly founded in the Federal Constitution of 1988 (BRASIL, 1988), the Law of Directives and Bases of National Education (BRASIL, 1996), the Berenice Piana Law (BRASIL, 2012), and the Statute of Persons with Disabilities (BRASIL, 2015). These regulations provide for specialized educational support and the right to a specialized attendant in cases of proven need. State Decree 67.635/2023 (SÃO PAULO, 2023a) also reorganized Special Education, creating categories of support professionals, although the Attorney General’s Office attempted to disqualify the need for a specialized teacher.

Specialized literature, such as Medeiros (2023), points out that a mere “support professional” or intern without adequate training does not meet the specialization requirement demanded by the LDB for the educational support of autistic children. International instruments, such as the World Declaration on Education for All (UNESCO, 1990) and the International Convention on the Rights of Persons with Disabilities (UN, 2007), reinforce the need for reasonable accommodations and individualized support to ensure the effectiveness of inclusive education. The Prosecutor’s Office’s thesis, by confusing the absence of nomenclature with the absence of a right, ignores that individualized support is a necessary consequence of the right to inclusive education and that the refusal of reasonable accommodation constitutes discrimination, according to UN General Comment No. 4 (2016).

The second argumentative category of the State Attorney General’s Office referred to the “Sufficiency of the current public policy and subsidiary nature of judicial intervention”. The state defense argued that State Decree 67.635/2023 and SEDUC Resolution No. 21/2023 (SÃO PAULO, 2023b) had already created the School Support Professional for School Activities, considered sufficient to meet the needs of students with disabilities. It was argued that state policy was aligned with national guidelines and that judicial intervention would represent undue interference in the implementation of public policies, violating the principle of separation of powers and budgetary limits.

However, judicial decisions identified an internal contradiction in this reasoning. Although the Prosecutor’s Office affirmed the sufficiency of the public policy, it simultaneously informed the court that the aforementioned professional was still “in the process of implementation”, without presenting concrete data on its effective availability. In none of the seven analyzed cases did the State present evidence that the School Support Professional had been effectively allocated to the plaintiff’s school. This finding revealed a merely formal resisted claim, where the legal defense did not dialogue with the reality of the provision of educational services, contesting the request without proof of the effective offer of the service.

The third defensive thesis addressed the “Segregationist character of individualized support”. The Prosecutor’s Office invoked literature from inclusive education (MANTOAN, 2004; TEODORO; SANCHES, 2007; BAMPI; GUILHEM; ALVES, 2010) to argue that individualized support could have a segregationist character, distancing the student from the pedagogical relationship with the regular teacher and stigmatizing them. It was argued that the improvement of public specialized educational support services would result in the inclusion of two distinct professionals, neither of them teachers, for daily and school activities, which would be sufficient for inclusion.

The critical analysis of this argumentation, however, reveals a paradox. Autism Spectrum Disorder (ASD) often implies difficulties in social interaction and communication, which can lead to isolation. School inclusion, with adequate support, is crucial to provide opportunities for coexistence and the development of social competence (CAMARGO; BOSA, 2009). Research such as that by Gomes and Mendes (2010) and Cunha (2022) demonstrates that specialized support is essential for inclusion to go beyond formal enrollment and materialize into effective participation. The absence of qualified support, in fact, increases the risks of isolation and rejection, as pointed out by Camargo and Bosa (2009). The Prosecutor’s Office, by denying specialized support in the name of non-segregation, ends up producing the isolation it claims to combat, using the discourse of inclusion in a distorted way.

The fourth argumentative line of the State Attorney General’s Office was “Inaptitude of the medical report to attest pedagogical necessity”. The defense argued that the medical report’s purpose was only to attest the diagnosis of the disease, not being suitable to prove the student’s pedagogical necessity. In some cases, the Attorney General’s Office argued for the need for an assessment by a pedagogue, disqualifying medical reports that indicated the need for an auxiliary teacher by considering them to be lacking pedagogical support.

This thesis was systematically rejected by the Judiciary in six of the seven cases analyzed. The judicial decisions considered that, in addition to the medical reports, the case files contained pedagogical reports produced by the Teaching Directorates themselves or state schools. These reports, although not always explicitly mentioning the need for an inclusion professional, described the student’s difficulties and the need for constant intervention. Furthermore, Law 12.764/2012 conditions the right to a specialized companion on “proven need”, without requiring this proof to come exclusively from a pedagogical assessment. The Prosecutor’s Office, by demanding additional proof, transferred a more burdensome onus to the claimant than that provided for in the legislation, inverting the meaning of the rule that aimed to protect families.

The fifth defensive thesis of the State Attorney General’s Office invoked the “Separation of Powers”. It was argued that the judicial determination to provide an auxiliary professor would violate Art. 2 of the Federal Constitution, as the competence to implement public policies and create public positions would belong to the Executive Branch. The Attorney General’s Office also cited Theme 698 of the Supreme Federal Court (BRASIL, 2023b), which establishes that judicial decisions, as a rule, should indicate purposes and determine a plan for the Administration to achieve them, rather than specific measures.

The Judiciary, however, has repeatedly rejected this argument. The judicialization of education is a growing phenomenon in Brazil, driven by the positivization of social rights and the insufficiency of state action (SILVEIRA, 2011; XIMENES; OLIVEIRA; SILVA, 2019). The realization of the rights of people with ASD, in particular, still depends heavily on the Judiciary (RODRIGUES; SANTOS, 2025). The thesis of the reserve of the possible, frequently used by the State, has been rejected by Brazilian jurisprudence, which qualifies it as a fallacy when used to justify the non-realization of fundamental social rights (KRELL, 2002; SARLET; FIGUEIREDO, 2007). Súmula 65 of the TJSP (SÃO PAULO, 2011) consolidates the understanding that judicial decisions ordering the provision of places or professionals do not violate the separation of powers. The STF has already established that inclusive education is a stable public policy and that a judicial decision imposing it does not create policy, but applies the one that already exists (BRASIL, 2016).

Finally, the State Attorney General’s Office presented subsidiary claims regarding the “Unnecessity of exclusivity and unnecessity of teaching”. Alternatively, it requested that the School Support Professional – School Activities (a non-teaching role) be admitted and, if the obligation were maintained, that specialized support not be provided exclusively. The second subsidiary request, concerning non-exclusivity, was accepted by the Judiciary in all cases. The first, which sought to waive the teaching requirement for the support professional, was rejected by the majority of the Special Chamber of the Court of Justice, as will be detailed in the next section. Judicial Decision-Making Standards

The judicial decisions analyzed, including preliminary injunctions, sentences, and judgments, presented a highly standardized structure, reflecting the stability and predictability of jurisprudence on the subject. In all cases, the requests were granted in the first instance, and the judgments upheld the sentences, denying the State’s appeals. This decisional consistency demonstrates a firm recognition of the right to inclusive education, despite the argumentative resistance from the Prosecutor’s Office. Six central decisional patterns were identified that guided the manifestations of the Judiciary.

The first decisory pattern was the recognition of the “Subjective right to specialized support”. The Judiciary consistently recognized that specialized support during classes constitutes a subjective right of children and adolescents with disabilities. It was founded that the right to education has the nature of a fundamental social right, contemplated by the Constitution of the Republic, and materializes as a norm of full efficacy, which allows the individual to demand from the State the implementation of measures for access to free and quality education. The decisions affirmed that the State’s obligation goes beyond the mere offer of a vacancy, requiring adequate attention to special needs to ensure the learning and development of all students (Ruling, case no. 5).

Although the judgments did not explicitly formulate it, the recognition of the individual subjective right to inclusive education is supported by UN General Comment No. 4 (2016), which establishes inclusive education as an individually enforceable right, and not merely a guiding principle of educational policy. The absence of direct invocation of this document in the analyzed decisions suggests a gap in the Judiciary’s dialogue with international sources and specialized literature, a point that will be revisited in the cross-analysis. However, the essence of the right was preserved, ensuring that the State must provide the adequate physical and personnel structure for the effectiveness of the right to education.

The second decision-making pattern was “Valuation of the evidentiary set: medical reports and pedagogical reports”. The sentences, although standardized, focused in more detail on the evidence presented, indicating the documentation that supported the request. In several cases, the pedagogical assessments carried out by the state schools themselves or by the Teaching Directorates were crucial. For example, in case no. 4, the sentence transcribed the pedagogical assessment that recorded the student’s difficulties in Portuguese language and motor coordination, in addition to the need for constant interventions. Medical and psychopedagogical reports corroborated deficits in communication, motor development, and learning, confirming auditory dyslexia and difficulties in reading and writing.

In case no. 6, the pedagogical assessment by the Directorate of Education – Regional Santo André described the constant need for help and commands for the student to perform tasks, depending on support to develop autonomy. The ruling in this case added that the school unit did not even have a resource room or a collaborative teaching teacher, evidencing the non-existence of the public policy announced by the Prosecutor’s Office in that context. This attention from the Judiciary to the concrete circumstances of each case, in contrast to the generalist approach of the Prosecutor’s Office, suggests a greater concern with resolving the student’s situation, although an absence of effective communication between the legal and state education sectors for a more specific challenge is still observed.

The third decisory standard was “Insufficiency of public policy in the specific case”. The rulings addressed this issue with two complementary approaches. Firstly, of a factual nature, they recognized that the public policy, even if it existed in theory, had not materialized in a concrete and satisfactory way for the students in court. This was demonstrated by pedagogical assessments and the absence of proof, on the part of the State, that the professionals provided for in Decree 67.635/2023 had been effectively made available. Secondly, of a normative nature, they argued that the state public policy, by creating the School Support Professional – School Activities as a non-teaching role, violated art. 59, III, of the LDB, which requires a teacher with adequate specialization in the classroom for children and adolescents with disabilities. The ruling in case no. 5 was explicit in stating that the Public Treasury’s claim about the sufficiency of the new educational policy was not sustainable, as the state normative act violated the LDB.

The fourth decisory standard revealed the “Teaching nature of the professional: internal dissent and majority convergence”. This was the only point where the Special Chamber of the Court of Justice registered significant internal dissent. Initially, the reporting judge in some cases expressed his contrary position to the requirement of teaching, arguing that the legislation did not impose such a requirement and that State Decree 67.635/2023 had created a non-teaching figure. However, the majority position of the Special Chamber prevailed, requiring that the pedagogical support professional be a teacher, based on art. 59, III, of the LDB. The rapporteur himself adhered to the majority understanding out of respect for the principle of collegiality, recognizing that the presence of a specialized professional in the classroom, for pedagogical purposes, does not lead to stigmatization, but rather to the real inclusion of the student.

The fifth decision-making pattern was “Non-exclusivity of the professional”. In all cases, the Judiciary determined that the right to specialized support does not imply the provision of an exclusive professional to the claimant. The attendance of other children or adolescents in similar conditions and in the same classroom was authorized, provided that there was no proof of the need for exclusivity. The ruling in case no. 4 exemplifies this position, stating that the defendant is not burdened with providing exclusive pedagogical support, allowing the sharing of the professional to ensure comprehensive care. Exclusivity would only be imposed upon proof of necessity, which was not verified in the analyzed cases.

Finally, the sixth decisional pattern was the “Departure from the reserve of the possible and the separation of powers.” Judicial decisions consistently rejected the Prosecutor’s Office’s claim of violation of the principle of separation of powers and the reserve of the possible. They reiterated the application of TJSP Precedent 65, which establishes that judicial decisions determining the provision of educational services do not violate these principles. In some cases, the understanding established by the Supreme Federal Court in Topic 698 (BRASIL, 2023b) was also invoked, which, although directing the Administration to present plans, does not exempt the State from its constitutional obligations. The ruling in case no. 3 summarizes that the eventual insufficiency of funds or budgetary restrictions cannot serve as an excuse for not providing specialized care, reinforcing the Public Power’s responsibility for offering unrestricted access to education. Cross-analysis: common convergences, dissonances, and gaps

The comparison between the argumentative standards of the State Attorney General’s Office and the decision-making standards of the Judiciary revealed both substantial convergences and dissonances, in addition to common gaps that transcend institutional differences. The only significant convergence identified was regarding the non-exclusivity of the support professional. Both institutions recognized that pedagogical support does not need to be provided exclusively, and can be shared among students in the same classroom under similar conditions. However, this convergence masks a fundamental disagreement: while the Attorney General’s Office used non-exclusivity as an argument to limit the right, the Judiciary employed it to reconcile the individual exercise of the right with the viability of public policy, always emphasizing the sharing among students in the same classroom.

The discrepancies were more substantial. The main one lies in the assessment of the sufficiency of the public policy implemented by Decree 67.635/2023. For the Prosecutor’s Office, the new state regulatory framework emptied the need for judicial intervention, while for the Judiciary, the public policy, even when it existed in theory, did not materialize in a concrete and satisfactory way for the students in court. Furthermore, the Judiciary considered that the School Support Professional – School Activities, as created by the decree, violated the LDB by not being a teacher. The second discrepancy referred precisely to the nature of the professional: the Prosecutor’s Office argued that a teacher was not necessary, while the Judiciary established, by majority, the opposite understanding, requiring teaching qualification for the pedagogical support professional.

The cross-analysis also identified four gaps that are, paradoxically, shared by both institutions. The first gap is the absence of individualization. The Public Prosecutor’s Office’s submissions are, as a rule, reproductions of standard text without any mention of the specificities of the demanding student. The sentences, although based on the evidence in the case files, present a repetitive structure that differs little from one case to another. Only the second-instance judgments showed, in some cases, a more detailed analysis of the individual clinical and pedagogical profile, but even so, the summary and the operative part are practically identical in the six examined. Although standardization can optimize efforts, it makes invisible the particularities that differentiate students with ASD, which could qualify the assistance provided.

The second common gap is the absence of listening to the family and the student themselves. In none of the analyzed processes were elements identified that indicated direct consultation with the family about their expectations, with the child or adolescent about their difficulties at school, or with the school community about their perceptions. The judicial process, both by the Prosecution and the Judiciary, treats the child with ASD as an object of protection, but rarely as a subject of rights with a voice. There is no designation of a hearing to hear the parties involved, nor even judicial technical reports. This omission is especially serious in light of arts. 100, sole paragraph, XII, of the Statute of the Child and Adolescent (BRASIL, 1990a), 12 of the Convention on the Rights of the Child (UN, 1989), and 227, §1º, II, of the Federal Constitution, which ensure the child and adolescent the right to be heard in proceedings concerning them.

The third gap identified is the absence of monitoring and enforcement mechanisms. None of the analyzed sentences or judgments provided for a mechanism to monitor the effective execution of the obligation, verify the quality of the support provided, or periodically review the need. The judicial process ends with the conviction, without any subsequent monitoring structure being established. This leaves room for the covert non-compliance with the decision, such as the formal appointment of a teacher who, in practice, does not perform pedagogical mediation functions, or the provision of a professional shared with students in other classrooms, fragmenting their availability time. The legal system has coercive instruments, such as fines and criminal offenses, but the gap lies in the failure to activate these mechanisms.

The fourth common gap is the excessively narrow focus on the presence of the support professional as the central and almost exclusive dimension of school inclusion. Both the Public Prosecutor’s Office and the Judiciary have framed the debate around the figure of the auxiliary teacher and their legal classification, without addressing other dimensions of inclusion, such as curricular adaptation, training of the regular teacher, physical infrastructure, extracurricular participation, and socialization policies with peers. School inclusion, which specialized literature (CAMARGO; BOSA, 2009; GOMES; MENDES, 2010) demonstrates to be a multidimensional phenomenon, has been reduced to the mere presence of a support professional. This limitation of focus prevents a holistic and effective approach to inclusion.

In summary, the results of this research demonstrate a consolidated pattern in the judicialization of the right to inclusive education for children with ASD in the State of São Paulo. The Attorney General’s Office and the Judiciary operate with standardized argumentative and decision-making strategies, resulting in consistently favorable decisions for the plaintiffs. However, this dynamic reveals significant limitations regarding the individualization of responses and the material effectiveness of school inclusion, given the individual nature of the demand. Overcoming the dependence on individual judicialization requires the reformulation of public policy, the qualification of the judicial process, and interinstitutional dialogue for effective inclusive education, addressing the gaps in individualization, active listening, and monitoring mechanisms, as well as expanding the focus beyond the mere presence of a support professional.

4. Conclusion

This research analyzed the judicialization of inclusive education for children with Autism Spectrum Disorder (ASD) in the State of São Paulo, investigating the procedural behavior of the State and the decision-making patterns of the Court of Justice in lawsuits claiming for a pedagogical support professional. It was found that the Attorney General’s Office of the State employed a standardized argumentative strategy, based on abstract theses such as the legal non-existence of an auxiliary teacher and the segregationist nature of individualized support, with little reference to the particularities of each student. In contrast, the Judiciary established a consolidated jurisprudence, recognizing the subjective right to specialized accompaniment by a teacher and determining the provision of the professional without exclusivity, based on federal legislation and a precedent of the TJSP. This procedural dynamic revealed judicialization as a central mechanism for the realization of the right to inclusive education, highlighting state resistance and the need for judicial intervention to guarantee rights already normatively assured.

The cross-sectional analysis identified common gaps in both institutions, such as the absence of individualization of cases and decisions, the lack of monitoring and oversight mechanisms, the failure to listen to families and students, and the restricted focus on the presence of support professionals. Although the study was limited to cases initiated up to April 2025, prior to recent federal regulatory updates (Decrees 12.686/2025 and 12.773/2025), the findings underscore the persistence of structural challenges. Overcoming the dependence on individual litigation requires the reformulation of state public policy, the qualification of the judicial process with greater individualization and monitoring, and the promotion of interinstitutional dialogue. Such measures are essential for effective inclusive education, which transcends specific litigation and promotes the necessary systemic transformation.

Bibliographic References

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BRASIL. 1996. Lei nº 9.394, de 20 de dezembro de 1996. Estabelece as diretrizes e bases da educação nacional. Presidência da República. Diário Oficial da União, Brasília, DF, 23 dez. 1996.

BRASIL. 2012. Lei nº 12.764, de 27 de dezembro de 2012. Institui a Política Nacional de Proteção dos Direitos da Pessoa com Transtorno do Espectro Autista. Presidência da República. Diário Oficial da União, Brasília, DF, 28 dez. 2012.

BRASIL. 2015. Lei nº 13.146, de 6 de julho de 2015. Institui a Lei Brasileira de Inclusão da Pessoa com Deficiência (Estatuto da Pessoa com Deficiência). Presidência da República. Diário Oficial da União, Brasília, DF, 7 jul. 2015.

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