Starting a New Montessori School: Legal Issues

Starting a New Montessori School: Legal Issues

7. Legal Issues


This is not a comprehensive discussion of school law but rather a summary of common legal situations a school may need to anticipate. Whenever in doubt regarding legal problems within a school community, it is important to contact an attorney who specializes in school law.


Conflict of Interest on the Board

Many times board members may be asked to do work for the school in various capacities (e.g. contracting, legal representation, etc.). This is not an incorrect procedure, but the following cautions are suggested:

  1. The board member to be remunerated should disclose his or her interest in and personal gain from the decision.
  2. The board member to be remunerated should be absent from the meeting in which the contract is discussed.
  3. The board member should abstain from voting on the contract.
  4. The minutes should record the above.


Board members, teachers, and staff should be insured against any unforeseen legal liability or action. 


A school insurance policy package should include liability, property, and boiler insurance. Schools with 100 to 300 students generally have up to five million dollars in liability insurance. This figure can vary with the size of the school and regional norms. Whatever the case, do not open without coverage.


Property insurance should include coverage for building replacement cost as well as contents for all risks. Business interruption insurance is important. It covers losses caused by the termination of business due to fire or other insured perils. When purchasing insurance for the school, it would be wise to select a quality broker or knowledgeable board member to evaluate your needs and design your particular policy.



All not-for-profit organizations should display a non-discrimination clause on their employment applications. Questions about sex, religion, age, or race are considered discriminatory and should not be asked, either on the application or in the interview. The interviewer should ask the same questions of each applicant in order to avoid a "fairness" issue later on. This is particularly true when interviewing close associates.


The employment contract should contain the following sections: formal identification of school and employee, job title, term of employment, compensation, duties, expected hours, sick leave, personal leave, professional leave, termination procedures, and an agreement not to compete (i.e., an agreement that the teacher will not split off and start a competing school). A job description can be appended to the contract as a legal safeguard in the event of inadequate execution of duties and subsequent employment termination.


ERISA (Employee Retirement Income Security Act)

This act governs the presentation of benefits to staff. It requires that all benefits be promulgated in writing, which most insurance companies will prepare for you as a matter of course. The law also requires equal benefits for equal staff, and therefore if a staff member does not need a benefit, a waiver must be signed. Consult an attorney when setting up benefit packages of any kind regarding the specification of the ERISA law.



Termination of contracted employees requires the following steps:

  1. The teacher in question must be warned in writing. His or her signature indicates that the warning was read. A plan for remediation and performance evaluation should also be discussed.
  2. All accusations must be documented by fact. No generalization can be made regarding the teacher in question. Generalizations could be regarded as defamatory—libel if written, slander if spoken.
  3. No personal information about the candidate should be used maliciously under any circumstance in any discussion. Confidentiality must be maintained by both the principal and the board.
  4. Contracted employees must be given the specific cause in writing pending disciplinary action and an opportunity to have a hearing with the administrator or "fairness committee" if the administrator's decision is not satisfactory.
  5. Where litigation is concerned, schools and principals usually have the legal advantage. Nevertheless, careful documentation as outlined above can help to preclude any legal question as to due process for dismissal of a teacher.

Personnel Files

All representations in the faculty file must be complete and consistent with school specifications. In an attempt to prove negligence, a faculty file with incomplete representation or inaccurate credentials may be determined to be school negligence. All entries in the faculty files should be specific, with full understanding of the evaluation indicated by the individual faculty member's signature. Evaluations may be stored in a private file by the administrator to prevent access by board or office staff. Confidentiality of the files is the responsibility of the principal.


Payroll Liability

When a payroll is first set up, it should be reviewed by a CPA for compliance with all federal, state, and municipal laws regarding the management of personnel wages.


Exemption from Unemployment Compensation Tax

Schools may elect to reimburse unemployment, thereby exempting themselves from unemployment tax, which can save funds in many states. This should be researched on the state level. Schools that elect to self-insure may hold money in escrow, take out a surety bond or a letter of credit, or show negotiable bonds to satisfy exemption status. Schools that self-insure must be particularly careful to document all personnel evaluations and employment relations. This provides protection in case an employee who has been terminated for cause attempts to collect unemployment reimbursement.


Teacher's Liability

Legal action can be taken for intentional infliction of emotional distress, and physical and psychological damages arising out of such infliction.


The teacher is considered legally responsible for children who are excluded from the classroom (e.g., sent out into the hallway) and are subsequently injured due to lack of supervision. Liability arises in the classroom from any proven negligence that leads to injury (e.g., use of defective furniture, failure to require use of safety wear such as goggles, etc.). Play areas should be reviewed annually for safety, and only appropriate play should be permitted. (Jumping from the top of a slide, for instance, is not appropriate use of the slide and may be construed as school negligence.)


Students can be expelled or suspended only with the protection of a published procedure which includes an appeal process. Expulsion requires cause, notice, and a review process.



Fair representation of school activities in the school brochure is considered part of the contractual relationship between the institution and the persons who rely on those representations. Racial discrimination may result in money damages, loss of the school's tax-exempt status, and admission of the applicants involved. Affirmative action statements should be expressed in the school catalog or brochure.


Application fees should be reasonable and non-refundable if the student is turned down. These fees are meant to cover the cost of some of the processing. Medical authorization for emergency treatment of the child by a specific doctor at a specific facility should be filed as part of the admissions process after the child is accepted.


Information Forwarded to Other Schools

Parents have a legal right to see any information that is forwarded to other schools unless they have waived their access to such materials. Such waivers are usually represented on formal requests for letters of reference.


Tuition Collections

Families need to be billed accurately with monies applied to usual expenses and needs of the school.


Policies that exclude students or withhold records due to delinquent tuition payments should be published in parent handbook, brochure, or catalog.


Tuition refund and retention policies should be fully published. A contract is recommended for further assurance that all tuition liability will be honored.


Reporting Child Abuse

Reporting child abuse is a twofold legal problem. Not reporting child abuse objectively and immediately, with documented details, could be considered negligent. On the other hand, falsely reporting abuse with malicious intent may be construed as slander. A written record of physical injuries, suspected sexual contact, or signs of neglect will usually prevent any allegations of misreporting.


The administrator, not the teacher, should file the report. The report should include dates and times, description of the injury in detail, drastic changes in health and behavior, direct quotations from the child indicating abuse, name and address of individual suspected, name and duties of individual making the report.


Organizational Roots Site Selection

New School Capital Budget New School Operations Budget

Promotion Starting Montessori Classes Legal Issues

Startup and Cycle of Financial Operations Chart of Accounts


Dear NAMTA Colleagues,

Although NAMTA will complete its final membership year at the end of this July, we will continue to provide membership benefits through October, 2019.

Over the next few months, we will be presenting the popular Baltimore conference "Montessori: Learning for All" on Oct. 11-12, 2019. You can still count on us to supply service to the Montessori archives, produce a final NAMTA journal, accept and post job listings, and orders are still being filled through our online store.

Click here to read the full letter from NAMTA's board of director's.