In 2018 The Supreme Federal Tribunal dismissed a case on homeschooling ruling that although homeschooling did not violate the Brazilian constitution it was a matter for federal congressional legislation. As of October 2018 the federal congress had not acted to provide for home education by law. Although a countrywide stay in truancy prosecutions remained in force. A number of Federal Courts had previously ruled that home schooling was not allowed as a legal consequence of compulsory attendance of basic education. The constitutional fundaments of this jurisprudence reside basically in the national effort to eradicate illiteracy and to reduce school absenteeism, with the resulting benefits of removing children and teenagers from the streets, promoting awareness and preventing the exploitation of children, among others. Since the emergence of the ECA penalties are imposed on parents and the Penal Code defines “stopping to provide primary education without a reason for a school-age child” as a crime.

In the most significant case involving homeschooling, the Superior Court of Justice – STJ examined various issues related to fundamental rights, namely: the right to education, the rights of the family, the rights of children and adolescents, the duty of the State and the family in providing education and its relationship with the freedom of learning, teaching, researching and expressing opinions; the prevalence of parental choice of education offered to children; the criminal repercussions of non-school enrollment. But what was at stake, fundamentally, was the primacy of the family status, as the base of society, vis à vis the constitutional obligation of providing care in elementary school institutions.

The grounds for the decision of the STJ focused basically on three main aspects: a) school attendance as a right of the child laid down in the Constitution and regulated by the NEL and by the ECA; this regulation cannot be challenged by the philosophical beliefs of parents. b) Though recognizing the ability of parents to provide good education, it is not sufficient grounds to deprive the child of the right to school life. c) The judiciary system cannot neglect the legal system in favor of the philosophical and political convictions of parents. In this light, the Courts stated that the link between individual and collective participation in social life and in the public space require the formal transmission of a set of values and democratic principles to each generation. Therefore, in the Brazilian legal system, the freedom of learning is related to the choice between private or public school, pedagogical method of formal education and possible religious orientation, among other possible options, but not between schooling and home education