Beware of the Arbitration Trap

Under the direction and control of Elizabeth English and her board of trustees, Archer has an exceptionally broad and oppressive mandatory arbitration provision that is intended to insulate the school from any sort of public accountability for their actions by precluding parents from seeking any remedy in the much less expensive, much fairer court system.
 Arbitration trap
This comprehensive, completely one-sided arbitration clause (it only benefits the school), requires parents to agree to submit any dispute arising under the agreement to a process designed to keep their grievances private and to prevent them from using the court system to prove their claims and provide remedies, including public accountability. But the killer is how they interpret the provision to include any act done to you or your children that has any relationship at all to your child’s enrollment at the school.

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.

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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

  1. 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.

    1. Post
      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.

      Let me address the misconception that arbitration is an adequate and less expensive way to deal with the sort of claims we raise. In fact, for parents like us (and the other families who contacted us to tell us their horror stories), arbitration is much more expensive (e.g., arbitrators in L.A. routinely charge between $6k and $10k per day, and since there are all sorts of constraints on discovery and remedies and there is no appeal (even if the arbitrator makes a clear mistake of fact or law), it is not a satisfactory process to air grievances as serious and legal issues as complex as ours.

      In this setting, the greater danger is not overly litigious parents with trumped up claims (the prospects for success are very slim and legal costs are very high – attorneys don’t take these sorts of cases on contingency) but of providing no practical avenue for very sincere parents to have their claims heard and properly adjudicated.

      As you said, if Ms. English did all the things we said she did it would be HORRIBLE. Well, we want to prove that she did and that these horrible actions inflicted horrible consequences on our children. (We are not liars or frenetic overly protective parents).

      From a board governance point of view, we also think the Archer Board’s reflexive decision to fully back everything Ms. English did w without even investigating the claims, was a reckless dereliction of duty subjecting the school to unnecessary expenses and reputational damage. We think their refusal to take our claims seriously and accept our very generous offer to settle BEFORE we filed suit is the cause of the present mess you so rightly lament.

      Please be aware, that at least to date, no one at Archer claims that the way Ms. English handled each phase of the crisis she created was consistent with good educational practices or is sound Archer policy (in fact it violated Archer’s long standing policy and tradition of collaboration and non-coercive discipline).

      They do not claim what was done was right; they merely claim it was legal because the enrollment contract grants her sole discretion. Even if Archer is correct that the actions taken were legal we think an informed Archer community will judge the conduct wrong. As we’ve asserted before, we think there is a big difference between what one has a right to do and what is right to do.

      If Ms. English did all the horrible things we said she did, and she did so with full board support, this fact should not be shrouded in secrecy. I would have thought that more parents would object that Archer has spent thousands and thousands of dollars trying to suppress the facts rather than deal with them (through a failed attempt to get a gag order and transparent attempts to prevent you and others from knowing the evidence and outcome of our allegations by trying to force the claim into arbitration).

      We do not object to mandatory arbitration confined to interpretation of contractual obligations but, here, Archer is claiming that anything they do vis a vis our family is covered, including intentional and malicious acts. Even as a former lawyer I never dreamed a reputable organization, let alone a school one has a fiduciary relationship with, would interpret the clause so broadly.

      We also never would have imagined that the Archer Board would, without any independent investigation of our claims (which we requested), blindly back actions which violates accepted professional educator practices.

      Please review the offer to settle we presented to the Board BEFORE we brought the lawsuit and the extensive memo accompanying it and tell me what was unreasonable about that offer — especially in view of the obvious alternative of litigation.

      You raise an interesting point re: arbitration clause in JAG contracts. I don’t know whether there is one but I do know she would never seek to use it the way Archer is. Even with my legal background I never imagined they would claim that the phrase “dispute arising out of the contract” would cover anything anyone at Archer would do to any parent or child — even after the contract is terminated!

      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

      believe they have held nothing back; there are no unrevealed facts that justify their actions or dispute our claims.

      Archer did not feel constrained about revealing personal information about our kids in Ms. English’s declaration (including broad misleading allegations of Child 1′s disciplinary history). But more central to your concern is the reality that the critical facts in this case are NOT about anything that is in school records. This case will turn on what Ms. English did and how I responded.

      With regard to Child 2, Ms. English acknowledges that our child did nothing wrong. She acknowledges this daughter was excluded from the school because I opposed the way she had handled Child 1. Archer is free to reveal any explanation, contention or communication that they think will justify that action. Similarly, with regard to banning all four of our daughters from Archer forever there are no private records. Archer is free to justify its actions if they can.

      Finally, as to whether my conduct was so outrageous as to justify exclusion of Child 2, every single communication with Ms. English I had relating to the incident (except for the one and only personal meeting where she announced she would not tolerate any opposition to her judgment) was by email. There were no phone discussions or meetings. I have posted every communication (including repeated pleas from Anne and me to specify what conduct she was objecting to). What’s more, the one meeting we had was audio taped at their request and they have or should have a transcript. This is not a private school record and if Archer thinks I said something inappropriate they are free to publicize it here or elsewhere.

      Conclusion: Archer is at no disadvantage to publish whatever they think will help their case.

      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.

      Forgive my bluntness but the school is only protecting one person – Elizabeth English and they certainly weren’t forced to do so and I don’t think any responsible board would have done so without the benefit of a comprehensive independent investigation.

      To say I am litigious because I support the filing of this action is unfair. I am a 71 year old former law professor with a substantial expertise in litigation yet in all those years I only remember bringing two lawsuits – one in the early 70′s on a business matter and one about 10 years ago against tenants who did not pay rent. I would have greatly preferred to negotiate a settlement but Archer’s board has refused to take our claims seriously enough to warrant an investigation, let alone a negotiation.

      Thus, we concluded that Civil court is the only forum that will allow us to prove our claims are true so you and Archer parents would know that the institution teaching values to our children punishes sincere and supportive parents who dare to disagree with the way she exercises her claim and use of “sole discretion”.

      Parents need to know that the head of school will remove a totally innocent child from the Archer community because one of her parents persisted in asking for an alternative strategy to handle a disciplinary matter (that the director of the upper school described as minor and not worthy of a suspension or other serious sanction). Parents need to know that Ms. English is willing to substitute her own judgment as to what will be “good’ for their child over their own strenuous objections and the objective opinion of a licensed psychologist.

      Before you judge us so harshly, please remember that the Board was given two distinct and separate opportunities to investigate our claims, mitigate the harm, and engage in serious discussions as to how we might contain the controversy.

      In each case, they took no action other than ratifying Ms. English’s conduct and, only the day before our offer to settle expired did they suggest mediation in a form and manner that they knew would not be fruitful or acceptable. Settlement efforts should be sincere not just a tactical ploy. Archer has yet to make any effort to discuss or negotiate alternatives insisting that our action is frivolous.

      Also, please keep in mind that our initial communications about the lawsuit were limited in scope and content. Archer escalated the public exposure dramatically when they tried to close the website down and forbid us from even talking about the case. And, at that hearing they claimed any effort to call public attention to the lawsuit would irreparably harm Archer. They did not inform the judge or us that shortly before, the chair of the Board sent a letter to every Archer parent calling the suit meritless and malicious (thereby impugning our motives and characters). Only then, did we write a letter to the Archer parents.

      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.

      This suit has never been about money though we do believe that, ultimately, the possibility of a huge punitive damages award will eventually cause Archer to come to the table and discuss other ways to satisfy our demand for accountability.

      You will have noted our initial offer to settle wasn’t about money. Instead, it centered on our request that the Board to conduct an independent investigation and take steps to mitigate the emotional harm on our daughters. Instead they chose to instinctively defend actions they did not investigate knowing it would subject them and the school to unflattering publicity.

      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.

      Thank you for acknowledging that IF we were treated as we say we were it was horrible. You seem to be open-minded as to the possibility that we are telling the truth but you say you are not now be in a position to know whether our description of the events is true. Well, that’s why we asked for an independent investigation of the Board before we sued. Our allegations are very serious with enormous implications for every Archer parent and you and others are entitled to know the truth. Please tell us what you would have done that we didn’t do?

      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.

      Forgive me but I do not see the moral equivalence of a vendetta originating in Ms. English’s resentment that I was not passive when she decided to repress important data about the behavior of Archer girls and irresponsibly accuse me of unprofessionalism and the pursuit of that vendetta through hidden ulterior motives that resulting in the punishment of all four of our daughters and our direct, open and explicit passionate pursuit of holding her accountable for unprofessional, unnecessary and unlawful conduct. The Board speaks for the school, not Ms. English and they have declared unequivocal support. Thus, they have put the school’s reputation on the line.

      Perhaps you and I will be the only ones to read this exchange but I thank you for the opportunity to respond to your honest concerns and frustrations — Michael Josephson

      1. 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.

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