STF will judge whether teachers at state universities can earn more than the state cap

The Federal Supreme Court (STF) will judge whether university professors and researchers will be able to receive payments in excess of the state ceiling. In 2003, article 37, item The decision causes controversy. On the one hand it is considered constitutional, on the other it sets precedents to increase – even further – the expenditure of public resources on universities.

Direct Unconstitutionality Action (ADI) 6257 was presented by the Social Democratic Party (PSD), which asked the Court to judge the constitutionality of article 37, item XI. In January 2020, Dias Toffoli, at the time president of the STF, granted an injunction that guaranteed the application of the constitutional ceiling as the single ceiling for universities. In this way, he suspended the interpretation that salaries of professors and researchers at state universities should be below the governor’s salary. The action’s rapporteur is minister Gilmar Mendes.

Currently, the ceiling for civil servants in São Paulo, for example, is R$34,572.89 – around R$10,000 below the federal constitutional ceiling. Meanwhile, state professors at the Universidade Estadual Paulista (Unesp) receive R$39,481.49 net. In January 2023, there were 37 net salaries above the São Paulo state subceiling. But this difference was even greater in 2020, the time of Toffoli’s injunction. The difference between the federal ceiling and the state ceiling of São Paulo, which has three state universities, reached approximately R$16 thousand.

Currently, Maranhão is the state with the lowest sub-ceiling. The governor of the northeastern state earns R$15,915.40, R$28 thousand less than the salary of a STF minister, a remuneration that defines the constitutional ceiling. As for Pernambuco (PE), which has the largest sub-ceiling, the change may not make much difference: Raquel Lyra (PSDB), governor of the state, earns R$1,862.64 less than the ministers who make up the Court.

The trial of ADI 6257 was scheduled to take place this Wednesday (7), but there was no time to analyze this issue in the Supreme Court session. Minister Edson Fachin, vice-president of the STF, informed the lawyers present for the oral argument that the matter will be included on the trial agenda in the future, but did not define a new date for this to happen.

Decision is not unconstitutional, according to legal expert

“When we understand that the educational system is national, we cannot talk about a ‘subceiling’, but rather a constitutional ceiling and, in this case, it would be the subsidies from the STF ministers”, says Fabio Sobreira, specialist in Constitutional Law.

For Sobreira, the Federal Constitution attributes, in art. 23, that education is the responsibility of all federative entities, without exception. According to him, the existence of this national character of the education system leads to the conclusion that there is no reason to differentiate the salary limit between teachers. “From a professor at a municipal higher education institution and professors at federal and state universities and vice versa… It doesn’t matter”, he reiterates.

Another question raised in relation to the ADI is whether the constitutional ceiling would be restricted to teachers or would cover other university employees, given that they also work in the National Education System. Fabio Sobreira explains that the STF should only judge in relation to teachers and researchers, as the petition presented by the PSD was restricted to them.

However, if the Supreme Court maintains the understanding that teachers’ remuneration must be guided by the constitutional ceiling, the decision will set precedents for other education employees. “The wording of section XI of art. 37 of the CF is not limited to civil servants, exclusively teachers. Therefore, after the ADI judgment, a precedent can be set for other civil servants to provoke the STF in search of the same object. But to do that, you have to ask,” he emphasizes.

Decision could burden – even more – the educational system

“This ended up creating three castes at the university. The caste of teachers, the caste of prosecutors who receive payments – the two groups that earn above the constitutional ceiling – and the caste of the rest of the civil servants who will receive below the governor’s ceiling”, highlights a Unesp employee who prefers not to be identified. He believes that there should be no discrimination among university employees, whether federal or state.

A People’s Gazette showed, in 2021, that 90% of universities’ expenses are for paying payroll. The teacher hiring model leads to an automatic increase in expenses. This is because career teachers have an automatic salary progression, where the increase in the amount received is only for the time they hold the position. Institutions pay teachers’ salaries even after retirement. In this way, the resource cannot reach other expenses such as maintaining the physical structure of universities.

“It is an immoral contradiction, because whoever makes this decision is the one who benefits from it, and without any mechanism to control the effectiveness of this money”, says Ilona Beckskeházy, a specialist in public educational policies. A study carried out by the Organization for Economic Cooperation and Development (OECD) in 2019 showed that Brazil spends more than US$14,000 per year for each university student.

“Whether it is constitutional or not, I have no legal knowledge to say. What is not possible is for us to have public institutions that determine their own salaries with automatic triggers without giving society any satisfaction”, criticizes the specialist.