Occupied Public Schools in São Paulo (2015-2016): Between Public Tenure and the Right to Freedom of Expression

Introduction

Between the end of 2015 and the beginning of 2016, hundreds of public high schools in the State of São Paulo were occupied by students. The occupants initially protested against the state government of São Paulo’s decision to close schools and relocate students and against corruption involving the purchase of school meals.Alongside other massive high school occupation movements in at least eight other states, this cycle of occupations came to be known as the “High School Spring.” In the mobilizations and speeches of the high school students the protests did not directly address legal issues of ownership and property, but rather a specific educational policy. The motto, “the school is ours,” expressed a social and collective appropriation of a good, understood as common, rather than the relationship between an individual owner and that which is (exclusively) owned. Yet this conflict was brought to the judiciary under the theme of a legal framework of possession.

The reason behind this selection of judiciary framework was because the principal tactics deployed by the High School Movement was the occupation of public schools, which from the point of view of Brazilian law are part of public property and, therefore, are state-owned goods.¹ The occupations prompted calls for the repossession of occupied schools by the government of São Paulo. Although this strategy is not new in the diverse cases of occupation of state property, what is new in this case is the response given by the judiciary. As we will see, the first judicial ruling understood that it was not a matter of possession, but of the student’s right to exercise freedom of expression and, thereby, prevent eviction through the use of the Military Police (PM); a second ruling did not directly deny grounds for repossession by the State but demanded conditions for its fulfillment. Both responses are unusual on the part of the São Paulo Court of Justice (henceforth TJSP), which is considered a conservative court in matters of land, as they break with a recurrent pattern that had hitherto reasonably stabilized cases of repossession: the TJSP had only taken actions in disputes over possessory issues without dealing with the claim of other rights that may underlie the conflict.

This is, therefore, a case in which demands for the right to education have generated unforeseen consequences for the legal treatment of public ownership and property. It is moreover a case in which there was no strategic litigation—or even any kind of litigation—by students to change judicial interpretations about occupations. However, this movement ended up producing unexpected legal responses, especially an interpretive variation in the way these conflicts are conceived.²

For the moment, it is not possible to know whether these new interpretations will constitute a new interpretive standard. However, it is certain that they generated a fierce response from the State, which sought the cover of the judiciary and the fodder of legal arguments to substantiate the need to regain possession of public property. There is, however, an undesirable effect of this interpretive variation by the judiciary: if new judicial decisions insert fundamental rights arguments in previously consolidated and highly ritualized institutional processes for the defense of possession, the consequences of this change will be restricted. This is because the executive branch abandons coordination with the judiciary to intervene in this type of conflict, opting for direct force without institutional mediation. There is, therefore, a specific change in the State’s conduct as well: the novelty is not exactly the recourse to self-protection to promote forced evictions, but the relevance of a need to build a special legal argument to justify these direct evictions.³

In this article, we work with a few hypotheses. First, when we talk about “interpretive variation,” we are referring to a well-established decision-making pattern, which, up to a point, had no relevant variations. In possession conflicts, the pattern consisted in discussing only issues of ownership rights—these conflicts were analyzed entirely from this perspective. If other rights were claimed in the actions, the decisions usually did not consider them on their merits, but merely stated that the claimed right would have to be pursued in another jurisdiction.⁴ The first variation in relation to this pattern (item 2.1) is the opposition between, on the one hand, the right to possession and, on the other hand, the right to freedom of expression. Setting up the legal issue this way—as an oppositional balancing of two valid rights—is one of the novelties. The second variation (item 2.2) is the interpretation that the conflict would be limited to the right to freedom of expression, without any relation to possession issues, resulting in three possible types of interpretation of the occupations: “only possession” (standard in force until then); “possession versus demonstrations of freedom of expression” (first variation); and “only demonstrations of freedom of expression” (second variation). The decision discussed in item 2.3 also shows that it was possible to change the interpretation not only with regard to the content, but also regarding the procedure for repossession.

As our second hypothesis, we understand that the TJSP’s unusual responses show a kind of “escape from the judiciary” by the public administration, which no longer understands the judicial arena as an immediate guarantor of its rights and interests. It is not, however, a “flight from the law” (RODRIGUEZ, 2009) per se, as the State Secretariat of Public Safety still seeks to ground its by-pass position with legal arguments. Thus, it uses the law to move away from the judicial arena. Our third hypothesis understands that treating conflict as a matter of ownership and defense of public property is not just reductive; it is, above all, an attempt to depoliticize and delegitimize occupations—students are treated as “invaders” contrary to “law and order”—since forced evictions would lead to the weakening of the protests and, also, to a discussion about the public education policies that were at the heart of the occupations. Our fourth hypothesis asserts that this innovation in court rulings is linked to the intense support of the students’ claims by the public. The occupying subjects (i.e., teenagers and children), the repercussions of their demands, and the creation of strong support networks within civil society are decisive elements to understand the court rulings. Thus, it is necessary for judicial decisions and the public sphere to be analyzed together.

The purpose of this article is to analyze how the arguments brought to the fore by the occupations of the “High School Spring” were articulated by the decisions of the TJSP, by the request made by the State of São Paulo for a report, and by the response given by the Attorney General of the State—all of which signal a change in the government’s usual strategy of combat and repression against occupations. The article is divided into fourparts: the first contextualizes the struggle of the high school movement, the second deals with the requests of repossession madeto the TJSP, the third examines the rulings and reports made by the office of the State Attorney General of São Paulo, and the fourth considers the practical repercussions of these decisions.

1. The High School Students’ Movement and School Occupations

To understand how the notions of ownership of public property and the right to demonstrate entered into legal and institutional disputes, it is necessary to keep in mind the chronological order of the events that triggered the social movement of school occupations. In the second half of 2015, the state government of São Paulo announced a “school reorganization” project. This project included an extensive restructuring of the public education network that would prioritize single-cycle schools (i.e., schools that are only Elementary I, or Elementary II, or only High Schools). Hundreds of thousands of students would be relocated and ninety-four schools would be closed. Since the process was conceived and executed without the effective democratic participation of the school community (parents, teachers, employees, and students), the project was received with surprise and indignation by the public. From the beginning, students led a social and political mobilization to denounce the democratic deficit and to resist the implementation of the reorganization. Between late September and early November of 2015, at least 163 street demonstrations were held by students in more than 60 cities across the State of São Paulo (CAMPOS, MEDEIROS, RIBEIRO, 2016, 41–42). However, the State government remained impervious to the students’ demands. In response to this context of institutional closure, students organized, for the first time in Brazilian history, a massive movement of school occupations with the goal of forcing a public debate on educational reform. At least 213 schools were occupied in São Paulo between November and December 2015 (CAMPOS, MEDEIROS, RIBEIRO, 2016, 334–335). In April and May 2016, the State experienced a new cycle of occupations centered around the issue of school meals at State Technical Schools (ETECs), at the Paula Souza Center (responsible for the administration of ETECs), and at the Legislative Assembly of São Paulo (ALESP).

The collective strategy of occupying spaces has been used in Brazil by rural social movements (peasants who fight for access to land through agrarian reform), urban movements (homeless workers who fight for the right to housing), and by students (higher education students who occupied their universities and rectories). But, until this moment, there was no precedent for a mobilization of high school students in Brazil to occupy their own schools.⁵ Early indications sustained the idea that the movement was relatively successful, achieving the suspension of the State government’s reorganization project. Crucial to this achievement was the juridical recognition of the legitimacy of the occupation of schools, as well as the construction of a dense network of social support for schools occupied in São Paulo (CAMPOS, MEDEIROS, RIBEIRO, 2016, 257–267; MEDEIROS, MELO, JANUARIO, 2017).

During the second cycle of occupations, in mid-2016, the São Paulo student movement gained substantial material achievements. However, it simultaneously suffered from increased repression through the use of police violence to block the emergence of a new massive school occupation movement throughout the state of São Paulo. Hence, it is important to understand the changes that happened between 2015 and 2016, both in terms of the State government’s legal and repressive strategies as well as the social and political contexts.

2. The Juridical Arena: Patterns and Variations of Rulings

The vast majority of cases concerning the occupation of public property involve repossessions, usually through the enforcement of preliminary injunctions. These actions usually follow a well-established pattern, pursuant to the requirements determined by the Civil Code: the plaintiff must prove that he is the owner of the property and that it was unduly removed from his possession, that is, that there was disturbance or dispossession. There is a routine of arguments presented in these cases: if the requirements are present and proven, the action is affirmed; if not, it is rejected. Thus, the judiciary usually gives “yes” or “no” answers to a list of requirements established by the law without discussing other issues raised by the parties that are not directly related to possession. It is a kind of agile procedure due to the standardized routine and the requests for preliminary injunctions. The TJSP’s decisions on school occupations break precisely with this consolidated pattern, opening up the possibility for interpretive variation.

2.1 Property versus Political Demonstration: First Interpretive Variation

In early November, the week before the first occupations, the Public Treasury of the State of São Paulo (FESP) filed a lawsuit against the Teachers’ Union of the State of São Paulo (APEOESP), due to an alleged threat of “invasion” of the buildings of the Regional Board of Education and of the State Department of Education.⁶ Since there was still neither a concrete demonstration of rights nor an occupation, and since the request was based only on APEOESP news and communiqués, the procedural instrument used was the prohibitory interdict, which does not require proof of concrete damage, but only a potential threat to property.

When presenting the case, FESP used the argument that the main cause of the conflict was the threat of invasion of public buildings, resulting from a protest organized by APEOESP against the State’s public policies. FESP asked from the outset that the Union be prevented from practicing acts of dispossession. In the initial request for the prohibitory interdiction, FESP sought to contest the idea that the conflict would deal with the right to demonstration by anticipatorily framing the matter in a way that such considerations would not apply to this specific circumstance. Thus, FESP intended to contest the justifications given publicly by APEOESP, questioning the arguments of union representatives expressed in newspapers. In this instance, we see the first variation in relation to the pattern of repossession of public assets.

The opposition between these two fundamental rights (the right to property and the right to demonstration or freedom of expression) was analyzed by the Judge Luís Felipe Ferrari Bedendi. Although the decision recognizes that it is possible to make use of this opposition, the judge understood that, in this particular case, the right to demonstrate could not supersede the right to property. According to his reasoning, the right to demonstrate would have been limited by the Constitution itself by restricting its exercise to “places open to the public, peacefully, without weapons,”⁷ so as not to halt administrative efficiency or the good performance of social activities and public services. Therein lies the difference between the legitimate manifestations, on the one hand, and the “invasion of the public building” and “posing obstacles to its access,” on the other. The preliminary injunction was granted on November 4th.⁸

In response to the appeal filed by APEOESP⁹ the Court of Appeals sustained the verdict that the appropriate space to accommodate the exercise of the right to demonstrate is restricted to spaces that are explicitly open to the public and in which relevant governmental activities are not performed. In his preliminary decision, Court of Appeals Judge Coimbra Schmidt differentiated between “goods for common use of the people” and “goods for special use” to argue that protesting within offices of the Board of Education consists of an abusive practice of the right of assembly (which generates legal consequences: art.187 of the Civil Code), given that such administrative offices are not places open to the public and do not host educational activities.¹⁰

After the occupation of schools in the second week of November 2015, FESP submitted a request to repossess the schools. In response to this request, the judge ordered the repossession of State School Fernão Dias Paes, extended the interdiction of occupation order to all state school buildings within the capital of the state of São Paulo, and held open the possibility of levying a fine against APEOESP.¹¹ By positioning himself in favor of the extension of the interdiction, the magistrate created an analogy between the “invasion” of administrative buildings by APEOESP and the “dispossession” of state school buildings. Three elements support the analogy. First, in relation to the actors, as the first ruling concerned APEOESP along with “unidentified people,”¹² the uncertain scope of which would allow us to say that there would have been an analogous continuity regarding the participants, even if the students—the protagonists of the occupations—had not been mentioned by the rulings up to this moment. Second, state schools would also be covered by the initial request presented by FESP, since the protection ambiguously covers “other properties used by the State of São Paulo to carry out its activities.”¹³ Finally, the legal basis for the illegitimacy of the school occupation based on the developing analogy would also be maintained. If this right can only be exercised in spaces considered to be free, demonstrations in schools or administrative buildings would be illegitimate because they impede school activities. At no time were the legal ramifications of the “school reorganization program” considered within this framework of public services, which is especially surprising given that they quite plainly include school closures. On the following day, the order was extended by the magistrate to State School Salvador Allende.¹⁴

These first episodes of the dispute over occupations in the juridical arena show that there was a rupture in the decision-making pattern of repossession rulings: the judge discussed the content and scope of the right to demonstrate, albeit to decide, in the end, that the possessory question would prevail. As we will see below, the relation between ownership and the right to demonstrate will shift in favor of the occupations.

2.2 Possession versus Demonstration: Second Interpretative Variation

A hearing convened by the magistrate Alberto Alonso Muñoz was decisive for the right to demonstrate to be recognized and guaranteed, and for the legal issue to be understood as a conflict that deals exclusively with the right to demonstrate. The hearing included several representatives of civil society, and was held at the Central de Mandados of the São Paulo state justice system on November 13, 2015.¹⁵

That same day, a Lower Court judge, Luís Felipe Bedendi, issued a decision reconsidering his previous position and suspending orders for repossession. According to him, “the meeting appointed by the Magistrate Judge of the Central de Mandados”¹⁶ and the subsequent manifestations allowed him to have “a broader and more realistic analysis, not so strictly attached to the coldness of the process,” and motivated a re-examination of the legality of the issue. This can be interpreted as the momentary and contingent constitution of a “strong public,”¹⁷ within the framework of Nancy Fraser’s critical theory, since the judge’s revision of an earlier decision was shaped by the public debate (FRASER, 1992). Although Fraser specifically refers to democratically constituted parliaments, the judiciary could also be included when its rulings are shaped by public debate and decision-making processes are informed by democratic discussion.¹⁸

The case gained a new argumentative contour after the hearing. Initially, Judge Bedendi found that “the situation was shown to be restricted to the issue of ownership: people raided a public building in order to interrupt educational provision and, in doing so, nullified the appeal to constitutional protections of the right to free assembly and demonstration.”¹⁹ However, after having had contact with the groups opposed to the change in the educational policy of the State government, the magistrate interpreted that “the core of this procedure is not the protection of ownership but a matter of public policy, and so the orders of reintegration facilitate the protection of a governmental decision that should have been more thoroughly discussed with the population.”²⁰

Decision variations within the same series of rulings, let alone at the initiative of the judges themselves, are very rare in Brazilian courts (RODRIGUEZ, 2013). In this particular case, not only did the magistrate restructure his decision without any express request from the parties involved, but he also left in the proceedings a detailed record of his analysis of the arguments that made him change his position. Thus, we begin to realize that the break with the established interpretative pattern is due not only to the content of the previous ruling but also to the way in which the judiciary forms its decisions, one in which the democratization of the decision-making process is a crucial element.

A crucial factor for loosening the restrictions that hedged-in freedom of expression consisted in changing the understanding regarding the subjects involved (i.e., those who protest) and the object of the protest. If, previously, the decisions considered APEOESP responsible for organizing the demonstrations, the focus had shifted to the students. For the first time, they appeared in the records not as anonymous invaders but as political actors and bearers of rights. The actions of APEOESP were portrayed as bureaucratic disobedience of the Treasury Executive’s decisions, but, once the students entered the scene, the demonstrations gained a different meaning: a demand for democratic participation in the decision-making process of public policy creation. Thus, the “invasion of public buildings” takes on the guise of an “occupation” covered with an “eminently insurgent character.”²¹

Two lateral developments made this change possible. First, the demonstrations were already spreading and, therefore, neither court decisions nor police action would be effective means to contain them. Second, the (accurate) characterization of students as children and adolescents stimulated the association of imposing a need for protection and respect for their physical and psychological integrity according to the Child and Adolescent Statute. The first argument concerns the practical ineffectiveness of a decision to uphold the repossession and the second draws upon fundamental rights of minors which are recognized and protected by the legal system.

The break with the routine pattern was questioned by FESP in the Higher Courts.²² The Judges, however, unanimously decided to maintain suspending the repossession of occupied schools. We believe that the repetition of the conciliation hearing in the 7th Chamber of Public Law is fundamental to explain this result. It consists of a momentary formation of another “strong public”: students from dozens of occupied schools in the capital of São Paulo gathered in an auditorium at the TJSP and debated with judges, the State Secretary of Education, APEOESP, a prosecutor, and a public defender (CAMPOS; MEDEIROS; RIBEIRO, 2016, 162-167).

In the preliminary decision, Court of Appeals Judge Coimbra Schmidt denied the request presented by FESP. In his vote, he stated that the government’s appeal was not admissible “because there was no clear intention to strip away the State’s ownership but rather acts of civil disobedience practiced in the context of restructuring the State’s official education policy, aimed at discussing the matter.”²³ He insisted further that the object of the demand was no longer possession but “expressions of civil disobedience in the face of the civic violence of which the protesters found themselves victims.”²⁴

Court of Appeals Judge Magalhães Coelho’s vote, moreover, reinforced that this was not a procedural issue, but a “legitimate claim process” and that “the rhetoric of the prosecutor and the conduct of the State of São Paulo appears strange and perpetuates the atavistic difficulties with which the Brazilian State, founded upon the authoritarian matrix of its genesis, deals with social moments.”²⁵ His vote emphasized the need to respect the democratic management of education in accordance with the Constitution, and that educational policy cannot “be implemented from within an authoritarian bureaucratic matrix.”²⁶

In the aforementioned case, the right to demonstrate is further understood as a right to civil disobedience. Once again, the legitimization of the occupations happens on two levels: judicial and social. In addition to the two public conciliation hearings that allowed for the formation of “strong publics” within the judiciary and directly impacted Lower and Upper Court decisions, the formation of a dense support network within civil society for high school students cannot be ignored. The articulation of “subaltern publics”²⁷ within each one of the occupied schools (with daily assemblies, together with strategies devised by feminist collectives, university students and professors, and peripheral cultural movements, among others) intermediated by a number of institutions and individuals (universities, jurists, popular movements, unions, alternative media, social media, and even the culture industry) reinforced the social legitimacy of the occupations (MEDEIROS, MELO, JANUÁRIO, 2017, p. 9–17). According to a Datafolha survey carried out at the end of November 2016, 55% of the interviewed declared themselves in favor of high school students occupying schools.²⁸

FESP challenged the decision of the Court of Appeals, but its preliminary injunction was denied. In his decision, Judge Leme de Campos drew attention to the importance of public debate for the issue and to the fact that “the right to education only becomes legitimate when there is effective democratic management.”²⁹

The conciliation hearings represented a break with the judicial and procedural routine adopted up until that point and allowed the redefinition of the legal limits of the ownership of public buildings, the right to demonstrate, and civil disobedience. In relation to the matter at hand, it changed from a “question of possession” to an “issue of public policies” and fundamental rights.

This reinterpretation continued through 2016 with the decision of the TJSP regarding the occupation of the Paula Souza Educational Center, which we will analyze below.

2.3 The Court’s Decision on the Paula Souza Center: Tensions between the Executive and the Judiciary

On April 28, 2016, following a student mobilization against corrupt dealings in public-private contracts for the provision of school meals, the occupation of the Paula Souza Center for Technological Education became a testing ground for the State to experiment with a legal solution that bypassed the judiciary. Against all expectations, the judiciary had shown itself to be favorable to the organization of high school students by allowing the exercise of demonstrations and meetings within public buildings of special use, such as schools. The Paula Souza Center case is indicative of the new modus operandi of the government of the state of São Paulo.

Initially, the government’s response followed the path of the pre-2015 routine: filing a request for repossession in the local court. The preliminary decision of the first court judge Fernão Borba Franco was favorable to the government’s request. The reinstatement was granted because the legal conditions established in the earlier pattern were satisfied: proof of ownership of the property and the dispossession.³⁰

Despite the familiarity of conditions for a favorable decision (for the State) in the Paula Souza Center case, the reasoning bore features of the novel arguments and justifications put into play by the mobilization of high school students in 2015. For one thing, the judge did not grant the injunction without further ado; he argued that it was not appropriate to order a reinstatement without first verifying whether the “invasion” would be “a legitimate expression of the right to demonstrate and exert popular pressure to meet fair demands.” In other words, it would be necessary to verify if this case was analogous to the 2015 occupations. In the end, the judge concluded that there was no such analogy because the Paula Souza Center was not a school, but an administrative building. This decision, however, allowed for the continuation of occupations that were taking place in schools, which acquired, so to speak, the status of legitimate spaces for demonstrations.³¹

The case, moreover, does not end with the recognition of the hypothesis of a “legitimate invasion.” Typically, an injunction is sent to the Central de Mandados, an organ of the TJSP, where another judge forwards the warrant to a court official. The outcome in this case, however, was different. The judge’s preliminary decision is dated May 1, 2016, which was a Sunday, a public holiday. Before going through the Central de Mandatos on Monday morning, however, the Military Police were already at the Paula Souza Center without a court order. This was an attempt by the Military Police to reinstate ownership without a proper warrant.

The Central de Mandados took on a leading role in guaranteeing the fundamental rights of students and halting, even if only for a moment, the reintegration process. On the same Monday, Central Judge Luis Manuel Pires suspended the reinstatement, scheduled a conciliation hearing, and asked the Public Safety Secretary to clarify “whether he was responsible for ‘advancing’ compliance with the court order by deploying the Military Police who entered the property without a court order.”³²

The tension between the judiciary and the government escalated further throughout the day. The judge of the Central de Mandados understood that the Military Police acted in breach of the court order, in “direct and intentional affront of the Secretary.”³³ The Military Police left the Paula Souza Center at the end of the day on Monday. The hearing scheduled for Wednesday ended without an agreement. The judge at the Central de Mandados imposed conditions for the fulfillment of reinstatement, such as the physical presence of the Public Safety Secretary, and the prohibition of the use of lethal and non-lethal weapons by the police. The government filed another lawsuit and managed to overturn these demands.³⁴ On Friday, May 6th, the students were forcibly removed by the Military Police.

On May 2, the State government attempted a repossession based solely on the court’s injunction. On May 6, the date of the eviction, another important move took place within the government. The then Public Safety Secretary, now the Supreme Court justice, Alexandre de Moraes, went a step further, asking for support from the State Attorney General for the repossession.

3. Escape from the Judiciary: A New Routine?

3.1 The Private State in Matters of Ownership: A Consultation Ordered by the Secretary of Public Security

In his consultation with the prosecutors, Moraes asked them to assess the legality of applying the Civil Code to cases of occupied public real estate. Article 1210, § 1, of the Civil Code authorizes the individual to “keep or return [the property] by their own power, provided that they do so in a timely manner.” The most important thing here is, without a doubt, the expression “by their own power.” The intent of this consultation was for the Attorney’s Office to provide legal arguments to the State of São Paulo that would support immediately enforcing the vacating of the public buildings in question without juridical authorization or any other type of express authorization and, therefore, by its own means.

Moraes claims that although the State of São Paulo had pursued repossession in similar cases, the specificity of the situation would justify a new strategy:

Despite the fact that the decision process should not admit discussion beyond the issue of possession (art. 1196 c/c 1210, paragraph 2, CC), it is clear that the political component of these invasions ended up diverting the focus away from the intended protection. By broadening the legal discussion to include the political debate, one ends up delaying the reinstatement of the ownership of the invaded properties […].³⁵

A number of important issues deserve attention here. First, regulating the state in matters of ownership by private law presupposes that the public and private spheres are interchangeable spaces (BARBOSA, MEDEIROS, RODRIGUEZ, 2016). In other words, what is valid for the individual is also valid for the state without significant alterations. To abandon administrative law in favor of civil law is clearly a selective strategy, since Moraes does not want the administration to be governed as if by the private sphere in all patrimonial matters. This leads us to conclude that the possibility of vacating “by their own power” is an advantage conferred to individuals by private law but denied to the sphere of public law. This is certainly the most salient asymmetry between the public and private spheres: while Brazilian law allows, in exceptional cases, for an individual to defend his property immediately, the force that can be used in cases like this is the individual’s and should be proportionate to the dispossession. The state, on the other hand, has a monopoly on legitimate violence and, therefore, “by their own power” includes the use of armed police apparatus. While the advantage perceived by Moraes in establishing an analogy between public and private law seems to be clear, the analogy has a number of limitations.

Another important element is the context of the legal dispute surrounding the occupation of schools. Occupations of public property are nothing new, much less the enforcement of repossession. Why then did the State of São Paulo need to search for a new legal path, which would move away from public law, in order to guarantee the State’s governance? As discussed above, for the first time, the São Paulo judiciary gave an answer differing from its consolidated legal routine. Thus, it seems that the State government, based on a long history of favorable decisions, was certain that the judiciary would guarantee the repossession, and as soon as the decisions mentioned above disrupted this conviction the judiciary was no longer seen as a guarantor of previous positions but as introducing interpretive variability. From the State’s point of view, all variability is understood as eminently negative because interpretative variance is, necessarily, insecure.

For this reason, Moraes disqualifies the new judicial decisions in calling them “political” and a “diversion of focus” from what the discussion should be. If rulings deviate from the established standard, they are understood as part of the field of politics and not of law. Such a view is used to deny the legitimacy of judicial rulings and, therefore, as a justification to move away as much as possible from the judiciary as a decision-making body. This accusation of judicial politicization by Moraes connotes an illegitimate extension of the judiciary’s functions and the extraordinary abuse of interpretation regarding a decision about which, supposedly, there could be no doubts.

Finally, another crucial element is the scope of the claim in question. Although the trigger was the occupation of schools, Moraes’ consultation request referred to public properties in general, that is, any occupation of State property. This would mean that the State would no longer need to resort to repossession decisions since it would already be authorized, independently of the circumstances, to use force. This would entail a general blockade against bringing any cases of occupation to the judiciary.³⁶ The accusation of “politicization” goes hand-in-hand with a strict avoidance of “judicialization.”

3.2 From the Private State to the Property State: The Response of the Attorney General’s Office

The State Attorney General’s Office answered the consultation with two sets of arguments—the first by Adalberto Robert Alves and the second by Elival da Silva Ramos. Both answers deny the possibility of applying the Civil Code to the actions of the public administration as intended by Moraes. The set of arguments used in the opinions rejects the central thesis of the consultation, marking the difference between the public property system and the private property system. If Moraes intended a selective application of the Civil Code, the opinions reinstate the separation between these two types of property. But if it is true that the State Attorney General’s Office rejected the legal path created by the then Secretary, it is also true that it did not oppose the objective underlying the consultation: securing the power to vacate occupied public buildings without a warrant. The opinions suggest alternative legal solutions to the problem, indicating that the State would not need to be brought under the rule of private law to do exactly what had been requested. It would be sufficient to use administrative law, the police powers, and state self-regulation. There would be no need to equate public and private property. The use of force in matters of repossession of public buildings would already be granted to the State by the State. Where Moraes saw a limitation of public law, the State Attorney General’s Office interpreted the matter as an established capacity of State power broadly conceived.

The first set of arguments in favor of the State’s self-regulation in cases of occupation of public property refers the matter to administrative law. Alves cites commentators who reinforce the doctrine that there would not only be separation between the regimes of public and private property, but who also point out an incompatibility between these two logics of property. Furthermore, this doctrinal position is also used to show that self-regulation has already been a part of public law itself and that the use of necessary compulsory enforcement should not be exclusive to the private individual whose possession is wrongfully disturbed. Enforcement could thus be said to be within the domain of self-executing acts proper to public administration and thereby include police power conferred on the administration to protect its assets.

One of the points that deserves attention is the reference made to doctrinal texts that predate the 1988 Constitution. For Alves, the date of publication has no relevance for the argument, which would still be “totally current.”³⁷ The quoted text affirms that self-authorization “constitutes a very special privilege or prerogative, a true exception in the legal system, which stems from the sui generis position of unequal status that the state has in relation to the individual.”³⁸

In the reasoning developed by Alves, he doesn’t seem to question whether this “very special privilege” or this “true exception” would undermine the very pillars of a democratic regime—the mere actuality of the position would, according to him, constitute a right. For Alves, the unequal power attributed to the state is not opposed to the guarantee of public liberties and he does not consider the possibility that exercising this self-regulation could violate rights of individuals.

The second set of arguments, on the other hand, primarily refers to decisions from the State and the Supreme Courts. It is reasonable to understand that the decision of the courts seeks to be as exhaustive as possible and, thereby, to vindicate the claim that there are grounds for self-regulation both in the interpretive doctrine and in the codified law. But this citational practice in each instance already appears to be practically self-undermining, since the Court’s decisions intend to substantiate the claim that it is unnecessary (from the perspectives of both legal doctrine and judicial rulings) to resort to the judiciary in cases of occupation of public property. Each of the juridical decisions referred to in this second set of arguments discusses whether or not the public administration can use force—not whether or not the judiciary should be the arena for resolving such controversies—and entails that the judiciary has been previously consulted. This is exactly what the Prosecutor’s Office intended to avoid.

As if this were not enough, the relevance of the decisions used by this second set of arguments is quite questionable.³⁹ One of them describes the use of the police power to demolish irregular constructions built on road strips. The substantial difference in animus—the students never claimed to take public property for themselves as they do not want to become owners—was not considered. Moreover, the decisions express the need for judicial authorization to exercise self-regulation:

However, it is certain that the premises contained within administrative acts, and the powers of the administration, do not override constitutional guarantees. In truth, the proper understanding of them is performed from the interpretation of the constitutional provisions and, for the proper solution of the case at hand, it is necessary to remember the normative command of art.5, inc. XXXV, of the CF, which thus states: ‘Art.5. […]. XXXV – the law shall not exclude from the appreciation of the Judiciary any injury or threat to a right.⁴⁰

The judicial decisions brought by the Attorney General’s Office end up stating that the State’s self-regulation is not absolute and that it must be authorized by the judiciary in agreement with the constitutional guarantees. And they proceed as if the arguments were all in agreement with the Security Secretary’s background claim, when, in fact, they are precisely the opposite. They show that there is doctrinal controversy about the methods that are directly available to the State to defend its property; this reveals that the prosecutor’s first set of arguments disregarded doctrinal positions that question the legality of the direct use of force in cases of eviction. It is true that the “legal opinion model” is not founded on the effective opposition of ideas, on free persuasion, or disinterested research (NOBRE, 2003). The documents analyzed here certainly do not escape this trend. They are not mere legal opinions but the opinion of the State Attorney General’s Office, that, in theory, should not adopt a sedimented position from the outset and then seek arguments to support it. However, this is exactly what the prosecutors did. This inverted procedure becomes even clearer in view of the impossibility of following the ‘non-politicized’ civil path proposed by Moraes: there is a previously established point of arrival, and the prosecutors are merely seeking arguments to justify it.

But there is a third set of arguments remaining, which concerns the administrative jurisprudence of the Prosecutor’s Office itself. A previous opinion by Elival da Silva Ramos is used as legal ground.⁴¹ The same argumentative vice (illustrated in the previous paragraphs) appears here. In the first place, the opinion is concerned with the demolition of a construction site built on a natural well-spring. Secondly, the opinion affirms that “the law implicitly authorizes the Administration to execute the demolition penalty,”⁴² which supports a policy of self-regulation. But the law that purportedly supplies this “implicit authorization” is not explicitly cited, and the justification is not supplied for admitting a non-express authorization in this case.

In light of these three sets of arguments, Alves concludes as follows: “If the exercise of self-regulation is guaranteed to the individual in the event of turmoil or wrongful possession, the Public Administration may certainly exercise it as well.”⁴³ Upon the questionable strength of this parallel between the individual and Public Administration, we move from a state selectively identified with the individual subject in matters of possession, such as in Moraes’s petition, to a state with virtually unlimited powers that are not expressly provided for in law, in the case of Alves’s opinion. In this context, arguments that are designed to support an authoritarian state as well as arguments contradicting authoritarianism are both supportive pillars for a state protective of property and of law and order. Even though it rules out the application of civil law, the logic of “if the individual can do it, why not the state?” is perverse in so far as it disregards the necessary limitations on the use of state violence and the guarantees and fundamental rights that the state must ensure in its operations.

3.3 “Occupation” as “Criminal Invasion”: The Attorney General’s Opinion

Attorney General Elival da Silva Ramos expressed his opinion in an appendix to Attorney General Alves’s first opinion. Ramos used political arguments to defend the Security Department and the maintenance of public property:

Faced with the banalization of the occupation of public properties, affecting public services in the State of São Paulo under the false pretext that it is a matter of exercising the freedom to manifest one’s thought or the right of assembly, this State Attorney General’s Office recommends that the State Secretariats, acting in conjunction with the Secretary of Public Security, change the system hitherto adopted, by requesting this institution to obtain, in court, repossession orders.⁴⁴

Ramos is expressly disqualifying the decisions of the State Court: for the Attorney General, there is no possibility of understanding the occupations as a contraposition between rights of possession and rights to free manifestation. If Alves’s opinion sought to give legal reasons for self-authorization, Ramos’s opinion aims to end any trace of legitimacy and legality of the high school occupations. The vocabulary used is important: the occupations would not have “the slightest support in the Brazilian legal system” and, therefore, it would be necessary to “prevent their spread.”⁴⁵ Besides, the prevalence of occupations is understood as a real attack on the rule of law through making the identification of occupation with freedom of expression a banal equation.

Treating the occupations as criminal invasions is not just one more resource within a broader trend of delegitimization. There are direct legal and practical consequences to this position. Ramos goes beyond the request made by Moraes and suggests ways to sanction the occupants. Not only does he recommend that the evictions use police force “as soon as possible,” but he also indicates that the students should be criminally punished in case of damage to property. He goes further and also suggests administrative sanctions with the opening of an administrative procedure to investigate the students’ conduct in the schools. The occupations are seen as an evil to be eradicated, as a set of illegalities that cannot be repeated. Even conciliation hearings are seen as “incompatible” solutions because the groups “are not interested in maintaining a constant and productive dialogue with the Administration.”⁴⁶

For the Attorney General, it is not just a matter of the powers of self-regulation being fundamental, but of recommending that the State use all the instruments of police power without any intermediary instance or dialogue in order to vacate the schools at any cost.

Conclusion

On the morning of May 13, 2016, Governor Alckmin executed the newly enshrined repressive strategy for the first time, mobilizing the Military Police to force the eviction of ETESP (i.e., an ETEC located in the center of the city of São Paulo) and three Regional Directorates of Education. In one of the Directorates and in ETESP, police officers acted with hostility in forcibly removing students.⁴⁷ Dozens of students who occupied these buildings were taken to Police precincts and charged with property damage.

The focal point of subsequent public debate was the absence of a judicial warrant. The students’ public defender showed concern in the hearings and stated that “the decision to eliminate the judiciary is very clear” (STOCHERO, 2016). The Public Ministry did not communicate an institutional statement, but the OAB-SP⁴⁸ made a public statement criticizing the repossessions without judicial authorization (OAB-SP, 2016).

Several jurists were consulted by the press. Those against the exercise of self-authorization argued for the need for a judicial warrant to justify the police power in this case, and in similar cases, and questioned the legitimacy of the State to use force without further limitations, which points to an abuse of power. The defenders of self-authorization, on the other hand, argued in favor of the defense of public property (TUROLLO JR, BRENDLER, 2016; FOLHA DE S. PAULO, 2016). The editorials of the main newspapers in the city of São Paulo had spoken out about the new cycle of student mobilization a few days earlier: those of the Folha de São Paulo, for example, criticized the posture of the state government of São Paulo and of the Secretary of Security during the occupation of the Paula Souza Center, and the editors of Estado de São Paulo criticized the occupation of the ALESP and demanded drastic measures.⁴⁹ In late 2016, high school students across the country mass-mobilized against the Provisional Measure of High School Reform and the Constitutional Amendment Proposal of the public spending cap. The first occupied schools were in the state of Paraná (where about 850 occupations occurred) before the movement nationalized. According to a preliminary survey, students from São Paulo, in this same period and with the same demands, tried to occupy at least 25 public buildings. In general, these attempts did not last more than twenty-four hours due to the coordinated repressive action of the Military Police, which blocked any possibility of spreading this cycle of occupations.

The new strategy of the executive power is, as we have tried to show, fragile in its grounding and authoritarian in its outlook. However, it has been effective. If the flight from the judiciary effectively becomes the new standard (“banal”) routine, this will have several consequences: the legal argument around the occupation of schools and divergent interpretations about rights (which can even take place within contexts of “strong publics” that make the judiciary porous to social mobilization) will be replaced by the exercise of power as self-authorized state violence; the momentary transformation of the occupations into subaltern counter-publics will be blocked; and all of this will result, ultimately, in the vacating of the public sphere and of democracy itself.

The legal question concerning the need for prior consultation with the judiciary in evictions from public property remains open. The Socialism and Freedom Party (PSOL) filed ADPF 412 with the Supreme Court, questioning the opinion of the State Attorney General’s Office. The rapporteur of the action was designated to Alexandre de Moraes himself, then the secretary of security who formulated the request and now minister of the Brazilian Supreme Court (Supremo Tribunal Federal). Moraes did not recuse himself from presiding. In May 2017, he rejected the receipt of the action stating that the constitutional requirements for the ADPF were not present. The PSOL appealed the decision. If the action is indeed analyzed, the Supreme Court’s decision will be yet another chapter in the dispute involving the right to demonstrate and possessory issues on public property. It is to be hoped that the rapporteur will defend the same interests that motivated the request made to the Attorney General’s Office in order to guarantee the broad state powers of police and defense of property.

1
Although the regime of public property is distinct from private property, it is possible to use the expression “public property” in the sense of”patrimonial domain of the State over its assets” (MEIRELLES, 2016, 634).
2
For a sweeping overview of how protests—the North American sit-ins for civil rights and the occupations of empty buildings in various global locations—affect interpretations about possession and property, see PEÑALVER, KATYAL, 2010.
3
The immediate repossession of collectively occupied public properties for housing purposes were already taking place, even without repossession requests being filed in court—contrary to the international recommendations of the United Nations Human RightsCommittee.
4
Such a decision-making pattern can be understood as an ideal type of injunction for repossession involving public goods, as we create a typology accentuating striking features that allow us to see certain aspects at the expense of others. It would be necessary to deepen these descriptions with systematic empirical research, which was not possible to carry out in the scope of this work. However, we conducted research on jurisprudence at the TJSP with a more exploratory nature. We searched for the terms (i) “right to demonstrate,” (ii) “right tohousing” and (iii) “right to strike,” each combined with “repossession” or “public good.” In these decisions, we filtered out those that hadrequested an injunction and that were prior to November 2015. It is important to emphasize that we are talking about a decision-pattern restricted to repossession actions, with an injunction request, in public properties. Any other type of action is excluded from the analysis as are all decisions on private property. The exploratory research confirms the existence of this pattern in the sense that the right to demonstrate, the right to housing, and the right to strike were not discussed on the merit of decisions on possession. The clearest examples of this pattern concern the mobilization of the right to strike. With regard to the right to demonstrate—which is the main focus of our text—there is no case that mobilizes this argument in actions for repossession of public assets prior to November 2015.
5
Precedents of high school occupations can be found in Greece, Chile and Argentina; for the most famous case, that of the rebellion in Chile, see VON BÜLOW, BIDEGAIN (2015).
6
São Paulo State Court (Henceforth, TJSP), Interdito Proibitório n.1045195-07.2015.8.26.0053.
7
Idem, Decisão de 04.11.2015, 2.
8
Idem.
9
TJSP, Agravo de Instrumento n.2237504-03.2015.8.26.0000, Despacho de 11.11.2015.
10
Idem, 4.
11
TJSP, Interdito Proibitório n.1045195-07.2015.8.26.0053, Decisão de 11.11.2015.
12
Idem, 1.
13
Idem, 2.
14
TJSP, Interdito Proibitório n.1045195-07.2015.8.26.0053, Decisão de 12.11.2015.
15
The actions of figures whose role in the judiciary is understudied, such as judges-in-charge, substitutes and on-call judges, are decisive and structural for the holding of public hearings and for strengthening the argument in favor of the right to demonstrate. For an analysis on the centrality of these actors in decisions on school occupations in São Paulo (capital and interior), Goiás, and Paraná, see TAVOLARI, RODRIGUES, 2019.
16
TJSP, Interdito Proibitório n.1045195-07.2015.8.26.0053, decisão de 13.11.2015, 2.
17
Idem, 2.
18
According to Fraser, the “strong” public must be distinguished from the “weak” one in two aspects: institutional density and decision-making capacity. The strong public is located at the center of the political system (parliament, judiciary, etc.), that is, “inside the state” (FRASER, 1992, 90). For this reason, it is not only a sphere of opinion formation, but also encompasses decision making. The weak public, on the other hand, is dispersed in everyday opinion-forming networks outside the state. Although it is a crucial feature of the public sphere (because it is more spontaneous, communicatively fluid and, in principle, free of organizational constraints), the weak public does not encompass binding decision making, remaining exclusively focused on opinion formation (FRASER, 1992, 90).
19
Idem, 1-2.
20
Idem, 2.
21
Idem, 2.
22
TJSP, Agravo de Instrumento n.2243232-25.2015.8.26.0000.
23
Ibidem, 2.
24
Ibidem, 4.
25
Ibidem, 8.
26
Ibidem.
27
Fraser proposes to call “subaltern counterpublics” the constitution of “alternative publics”; these would be “parallel discursive arenas in which members of subordinated social groups invent and circulate counter-discourses to formulate oppositional interpretations of their identities, interests, and needs” (FRASER, 1992, 123).
28
Not a trivial percentage, if compared with the survey on the occupations in Paraná: 69% disapproved of the occupation of schools by students and 84.2% considered that students should vacate the schools and adopt other forms of contestation (MEDEIROS; MELO; JANUÁRIO, 2017, 23).
29
Warrant n.2255094-90.2015.8.26.0000, 01.12.2015.
30
TJSP. Case n.1019463-87.2016.8.26.0053. Ruling from 01.05.2016.
31
Besides Paula Souza Center, 19 technical schools, 9 state schools, and 4 regional education directorates were occupied in the so-called “school meal cycle,” not counting the ALESP. We thank Márcio Moretto Ribeiro and Antonia Malta Campos for the quantitative data.
32
Ruling of Luis Manuel Pires, mimeo, 2.
33
Central de Mandados. Case n.1019463-87.2016.8.26.0053. Ruling from 02.05.2016.
34
TJSP. Warrant n.2091154-12.2016.8.26.0000, 23.08.2016.
35
Document GS from 06.05.2016, 2.
36
In this context, Moraes uses “judicialization” as a synonym for “treatment of conflict in the judiciary.” For a critique of the concept of judicialization of politics with which we agree, see NOBRE, RODRIGUEZ, 2011.
37
Besides José Cretella Júnior’s 1972 text, great weight is given to an article by Marcello Caetano on self-tutorship, published in 1947.
38
Opinion n.193/2016, 8.
39
STJ, Resp. n.1.521.040-PB, 26.04.2016.
40
STJ, Resp. n.1.521.040-PB, 26.04.2016, our emphasis, mentioned in Opinion n.193/2016, 14.
41
Opinion PA n.29/2008, from prosecutor Elival da Silva Ramos.
42
Opinion n.193/2016, 20.
43
Idem, 21.
44
Attachment to Opinion n.193/2016, 24, our emphasis.
45
Idem, 25.
46
Idem, 24–26.
47
There are records of students being dragged across the floor and being targeted with “clubbing” by the PM. At ETESP, students woke up to shouts from police officers ordering them to “get on their knees and put their hands on their heads”; a police officer hit one of the occupants with a cudgel when asked if they had a warrant (MERLI, 2016). A high school student also reported being abused by four police officers at the exit of the occupation of the Paula Souza Center and threatened with rape (SALVADORI, 2016).
48
Translator’s note: OAB-SP is the São Paulo State Bar Association
49
“Imprudent and Illegal,” Folha de São Paulo, 05.05.2016 and “Invasion Challenges Democracy,” O Estado de São Paulo, 05.05.2016.

February 22, 2024