Brazil, Court of Justice of São Paulo, 9 February 2022, Agravo Interno Cível No. 2013164-66.2021.8.26.0000/5000
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
Link to the full text of the decision
The Court of Justice of São Paulo upheld the suspension of a first instance decision, which provided for the return of teachers of the state education network to classrooms, 14 days after the second dose of the vaccine against COVID-19. The initial decision had been granted in action brought by the São Paulo official education teachers' union and appealed by the State Government.
The appeal argued that the decision compromised the strategic plan to fight COVID-19 and the necessary return to school classroom activities.
For the Court, the return to face-to-face activities involves elements linked to the merit of the administrative act that cannot be subject to analysis by the judiciary, focused on the formal aspects of validity.
Facts of the case
The Union of Teachers of Official Education of São Paulo filed an action against the Government of the State of São Paulo, seeking to suspend the return to classroom activities of the teachers who make up the state network or grid, 14 days after the second dose of the vaccine against COVID-19. In the first instance, the claim was granted. The state government filed an appeal alleging that the decision compromised the strategic plan to face the crisis caused by COVID-19 and the necessary return to school classroom activities. The Court heard the appeal.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
According to the Court, decisions such as the one handed down can promote administrative disorganization. This should serve as a warning at a time of a delicate health crisis such as the one we are experiencing.
Likewise, the coordination of the actions to fight the pandemic is up to the Executive Branch. With complex administrative decisions and acts, he has applied public policy to combat the evil that afflicts everyone effectively.
Conclusions of the deciding body
The resumption of on-site activities in the school units involves elements related to the merit of the administrative act, which cannot be subject to analysis by the Judiciary, focused on formal aspects of validity. If it cannot invalidate, it is also forbidden for the Judiciary to issue a decision that replaces the merit of this act based on technical criteria. With this understanding, the São Paulo Court of Justice confirmed the suspension of the first-degree decision.
For the Court, this decision posed a risk of injury to public order, understood as a general administrative order, equivalent to the performance of public services and the proper exercise of administrative functions by the constituted authorities.
Fundamental Right(s) involved
- Right to education
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health, Art. 6, Brazilian Federal Constitution
- Right to education, Art. 6, Brazilian Federal Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
On "type of measure challenged": the action of the Government of the State of São Paulo to order the return in the person of the teachers of the state network, 14 days after having been vaccinated with the second dose of the COVID-19 vaccine.
On "type of procedure": "Apelação Cível" in "Ação Civil pública" is an action to declare liability for damage caused to the environment, consumers, property, and rights with value (Act. 7.347/1985, Art. 13.105/2015 art. 300). Appeal by those who feel dissatisfied with the first-degree judicial rendering presented (Art. 1009-1004 Code of Civil Procedure Act nº 13.105/2015).