Schools committed to the effective application of Montessori principles inherently confront government regulations which tend to stifle and burden the operation of such Montessori schools. Such inappropriate government regulation challenges private Montessori schools to seek recourse beyond the boundaries of the repressive and rigid judgments and considerations normally associated with government day care and private education regulatory agencies.
Liberty
Since a country’s laws may protect “liberty” as a higher value than rigid conformance with prevailing traditional educational standards enforced by government regulatory agencies, private Montessori schools may be able to effectively address such government interference by recourse to the law. Thus, legal issues are a vital concern of Montessori education and must be engaged to enable the fully effective operation of Montessori schools.
Common Law
Montessori education has most significantly developed in countries which protect the liberty of private parties through a legal system independent of the country’s prevailing political structure and operation. The United States and other countries which have evolved from and follow the British system of “common law” generally provide legal interpretation consistent with historical precedence and the principle of reasonableness. Accordingly, legal systems in such “common law” countries have considerable flexibility and independence in the engagement of issues brought before the court.
Human Rights
In “common law” countries, a substantial body of historical precedence has evolved from the Magna Carta which assures a significant respect for human rights beyond the authority or control of government. The principles of the Magna Carta have developed throughout recent history and are often incorporated into specific written documents; a “Constitution”, the supreme authority of a country.
Constitution
Legal systems and governments are normally constrained under the authority of a country’s “Constitution”. The United States Constitution, written and adopted in the late 1700’s stands as a foremost exemplar of such documents. This notable document provides for three co-equal branches of the federal government: Executive, Legislative and Judiciary. The Judicial branch, consisting ultimately of a Supreme Court, has a primary purpose to interpret the Constitution and laws enacted thereto.
Police Power
In the United States, the rights of freedom in private education are subject to the police power of the government. Under such police power, the law generally allows the government to regulate private schools if there is a manifest present need affecting the public welfare and the regulations are not arbitrary, unreasonable, discriminatory or otherwise oppressive. Resolution of the respective rights of the government and private schools often revolve around the extent to which the government may exercise such police power to deny complete freedom of operation in private education.
The First Amendment
The First Amendment to the United States Constitution establishes important criteria upon which the government’s police power is limited in private education. Notably, the First Amendment protects basic freedoms of expression and communication from abridgment by the federal government. Following the United States Civil War in the 1860’s, the Fourteenth Amendment was passed which, in effect, extends application of the First Amendment to state and local governments.
A Fundamental Right
Recent Supreme Court cases in the United States have established that a stricter legal standard must be applied where states attempt to impose their police power to abridge certain “fundamental” rights. Notably, freedom of expression and communication under the First Amendment are generally considered “fundamental”.
Griswold v. Connecticut
In Griswold v. Connecticut, 381 U.S. 479 (1964), the Supreme Court specifically noted rights of private education within the protection of the First Amendment.
“…the state may not consistent with the spirit of the First Amendment, contract the spectrum of available knowledge…”
381 U.S. at 482Â
Thus, the state bears a heavy burden to justify any imposition of regulations on private education.
Compelling State Interest
The measure of proof to abridge rights in the operation of private education is generally that of a ‘compelling state interest’. In effect, the government must show some special emergency or exceptional need, above and beyond a general public interest, to justify such infringement of fundamental rights in private education.
Engaging Specific Issues
Since regulatory and legal schemes vary in each county and jurisdiction, legal confrontation and strategy need individual treatment and careful planning to assure satisfactory results. Normally, it is advisable for schools to seek an exemption or exception from regulations through existing government administrative agencies and their pertinent appeal or exception procedures.Â
In seeking such exception, Montessori schools need to properly distinguish and clearly assert the unique educational requirements of Montessori principles adversely affected by application of the particularly burdensome regulation(s). Once a formal, written, official and final denial of exception is made, legal confrontation in the courts may be appropriate.
Practical Considerations
IMS supports appropriate legal confrontation to address inappropriate regulations which adversely affect Montessori education. Since IMS is generally familiar with state regulatory schemes in the United States, specific comments and assistance by IMS may be useful in individual situations. Notably, IMS members can receive upon request at no cost, a “Memorandum of Law” concerning private Montessori schools to clarify basic aspects of pertinent legal issues.
Caution
Since individual legal circumstances vary, IMS advises that the services of a qualified legal practitioner be consulted during the process of legal confrontation.
Originally published in 1981 in Vol. 2, No. 7 issue of The Montessori Observer