The Josephsons oppose the efforts of Archer’s lawyers to apply the clause to the many intentional torts committed by Ms. English including defamation, interference with personal relations (deliberately seeking to create hostility between a student and her parents), and interference with constitutional and basic human rights through threats and intimidation, and malicious and vindictive infliction of emotional distress. Clearly, these issues are not about the enrollment contract itself, but behavior that could never have been anticipated when enrolling their children. See Josephsons’ opposition brief and a related article on why the arbitration clause is unconscionable and puts your children at risk.
In addition, the Josephson’s contend that these broad one-sided provisions that are not subject to genuine negotiation, that they seriously undermine basic civil rights and access to the courts, are inherently coercive and must be construed under standards of reasonableness, are unconscionable and in violation of public policy.
In making these arguments, the Josephsons are fighting for all families who one day could be victimized by this inherently unfair arbitration provisions.
Keep in mind though courts often speak of this in terms of what the parties agreed to, everyone, literally everyone, signs such contracts because they have no choice. The school will not and has never negotiated the terms of these clauses – it is a take or leave it scenario.
Consequently, there is no real agreement, but a surrender to the disproportionate power of the school in relation to parents who want a private school education for their children.
By signing the contract, parents also “agree” to accept an entire 60 page handbook which, among other things, purports to grant the Head of School sole discretion to dismiss a student if she concludes that a parent’s conduct is not sufficiently supportive of the school.
The Josephsons contend every parent does this believing two things: 1) the administrators of the school are professional educators who would only use their powers in good faith and to advance the welfare of each student and the genuine best interests of the school; 2) if these powers are abused in any significant way, if they are used arbitrarily or maliciously, if they depart drastically from a professional standard of care there will always be a legal remedy.
No parent enters into such a contract believing it is even remotely possible that an administrator would abandon the traditional philosophies of the school and sound educational practices vindictively or irrationally to advance a personal agenda.
No parent enters such a contract believing that the arbitration clause seemingly relating to disputes about the contract itself and disagreements about its terms or the obligations imposed on the parties would be interpreted so broadly as to cover any actions done by a school administrator against a student or parent – including intentionally inflicted injuries.
No parent enters such a contract believing that this clause will be asserted to prevent the parent from seeking judicial review of patently vindictive actions against their children intended to cause them harm to make a point and to intimidate other parents, students or teachers from disagreeing with an autocratic administrator.
Unfortunately, these reasonable expectations were violated by Archer. And this is what the case is about.
Archer’s arbitration clause was skillfully drafted by lawyers in a way that completely strips parents of any rights outside the very limited confines of an arbitrary process that limits discovery (and their ability to prove their claims), precludes the right to have one’s claims judged by a jury of peers, and requires complete secrecy (thereby insulating the school and, in this case, the head of School from any public accountability).
The heading of this post is “Beware of the Arbitration Trap” but if Ms. English and the Archer Board are successful in preventing the Josephsons from pursuing their grievances in court, the warning won’t help. Parents will be trapped, nonetheless.
Comments 3
I am curious as to what the JAG liability contract states regarding arbitration. Arbitration is a clause in almost every camp, gymnastics studio, school, doctors office,etc. We have a very litigious society and the clause helps to diminish overly litigious people and disproportionate monetary amounts in lawsuits. There are some that would not be able to operate without the arbitration clause.
Also, while your case seems to be in your favor, the Archer School is at a distinct disadvantage here because they cannot respond to your allegations as their school records are private. If they put anything on a website/or a response that contains personal information about your children/family, wouldn’t you find them in violation again?
Whatever the outcome, I find the situation very sad. You stood up for your family, but as an outsider, who knows the truth? The school was forced to protect its own so-to-speak, and you have effectively tarnished a school for many years to come in ways that are not even known yet, as well as challenged the effectiveness of Boards in general. You said you are not litigious, but by bringing the Head AND the ABOT into the lawsuit, you are doing just that, and are helping to pave the way for lawsuits to be filed more easily. There are many independent schools that would file for bankruptcy and fold up if a jury awarded a $10 million lawsuit. The fact that you asked for such an incredulously large settlement for something that did not maim, permanently disfigure or result in a physical attack, etc., makes me weary.
I don’t know what the truth is, and if your family really was treated in the manner you describe — that was horrible. If it were me, I would want to rectify the injustice as well, but I really don’t see how trying to bring down the entire reputation of a school, dedicating a website to the case using peoples’ names (that also seem to be peripheral) and provide personal information about your children, and throwing the independent school community and the Archer community into an upheaval, can produce more good than harm. You say that Ms. English had it out for you for years and was unreasonable and rude — maybe she was and she took it out on your children which is completely unacceptable — but your campaign seems to be doing the exact same thing you are fighting except you are including the entire school’s reputation in your offensive against one person.
Author
Lynn, Thank you for your thoughtful comment. It deserves a thoughtful response.
Let me say at the outset, ambiguity some people may feel about how Ms. English handled the situation with Child 1, the impropriety of forcing Child 2 to find another school (while telling her to blame her father) and the petty and vindictive decision to ban all the Josephsons, including our older daughters who are already in college, from ever coming on campus are completely indefensible. Although the written documentation on this site seems to have been enough to persuade most people that this case was badly mishandled by Ms. English and Archer, it is not unreasonable that you have chosen to suspend judgment. Perhaps I shouldn’t, but I do care what people like you think. That’s why I take the time to respond hoping I can protect a reputation for integrity earned over decades.
I am curious as to what the JAG [the gymnastics academy run by Anne Josephson] liability contract states regarding arbitration. Arbitration is a clause in almost every camp, gymnastics studio, school, doctor’s office, etc. We have a very litigious society and the clause helps to diminish overly litigious people and disproportionate monetary amounts in lawsuits. There are some that would not be able to operate without the arbitration clause.
Also, while your case seems to be in your favor, the Archer School is at a distinct disadvantage here because they cannot respond to your allegations as their school records are private. If they put anything on a website/or a response that contains personal information about your children/family, wouldn’t you find them in violation again?
With all due respect, this statement is unfair and untrue. We believe that whatever facts or claims they have were included in Ms. English’s very selective and misleading declaration. We
Whatever the outcome, I find the situation very sad. You stood up for your family, but as an outsider, who knows the truth? The school was forced to protect its own so-to-speak, and you have effectively tarnished a school for many years to come in ways that are not even known yet, as well as challenged the effectiveness of Boards in general. You said you are not litigious, but by bringing the Head AND the ABOT into the lawsuit, you are doing just that, and are helping to pave the way for lawsuits to be filed more easily.
There are many independent schools that would file for bankruptcy and fold up if a jury awarded a $10 million lawsuit. The fact that you asked for such an incredulously large settlement for something that did not maim, permanently disfigure or result in a physical attack, etc., makes me weary.
I don’t know what the truth is, and if your family really was treated in the manner you describe — that was horrible. If it were me, I would want to rectify the injustice as well, but I really don’t see how trying to bring down the entire reputation of a school, dedicating a website to the case using peoples’ names (that also seem to be peripheral) and provide personal information about your children, and throwing the independent school community and the Archer community into an upheaval, can produce more good than harm.
You say that Ms. English had it out for you for years and was unreasonable and rude — maybe she was and she took it out on your children which is completely unacceptable — but your campaign seems to be doing the exact same thing you are fighting except you are including the entire school’s reputation in your offensive against one person.
Thank you for such a thoughtful and thorough response to my comments. I honestly wasn’t expecting to get a response.
You have spent your life teaching ethics, and not knowing you, it seems you are not quick to make judgments or take unthoughtful action.
You raise good questions and counters to my queries. I guess where I am still dumbfounded, is that the Head of a prominent private girls school would knowingly act in the manner described by you for such an inconsequential “offense.” I just can’t seem to wrap my head around this — it just doesn’t add up that it would spiral out of control like it did, with members of the ABOT even getting involved. I play out the script in my mind and try to look at it from your perspective and Ms. English’s — parent vs. administrator, which aren’t always connected. I am not saying I don’t believe you, I am just speechless at the whole affair.
You asked how I would have handled the situation, and I cannot say. With so many moving parts and parties, it is difficult. You went on the offensive in a big way because this struck your family’s ethics (and your daughters’ lives) at its core. You have the means to launch an offensive such as this which is a privilege many do not have. You are getting the word out — even a little nobody like me felt inspired to respond. I would want justice for this wrong, but I wouldn’t know what form it would take until I was in the situation.
I ask this not as a judgment, but even if you got what you wanted — which is basically English to admit she took out her dislike of you on all four of your daughters and the four members of the ABOT backed her decision — would your daughters be able to separate the school from English and want to continue an association with Archer? For me, the sad part is your daughters have lost no matter what the outcome.
I wish you luck in your continued efforts and I thank you for the response.