(3) Ms. English Demands Absolute Power

It is evident from the responses of Ms. English whenever her authority or the propriety of her conduct has been challenged that she believes broad language about having sole discretion in the Archer Handbook and enrollment agreement purport to grant her and the “school” the right to literally do whatever she/it wants in its relationship with students and parents. In fact, Ms. English’s unreasonable construction of these provisions and the tacit approval of her interpretation of her powers by the BOT is the source her authoritarian and arbitrary assertion of power resulting in actionable improper conduct.

Clearly, “discretion” provisions in a Handbook or enrollment agreement are not unlimited. For example, they cannot be construed to grant the head of school the right to inflict corporal punishment, molest a child, or confine a student in a locked closet. These provisions would not allow her to humiliate or discriminate against a child or parent or, in fact, do anything that would endanger a child’s health and well-being. The actions described in this memorandum most certainly endangered the health and well-being of C1 and C2 and, therefore, fall outside the scope of any reasonably interpreted discretion clause.

Such provisions, if permitted to have effect at all, will be construed within the bounds of law and good sense. Just as they do not immunize the head of school from criminal liability, they do not immunize the school or the board from civil liability for intentional torts of the sort committed in this case.

The law is well settled that discretion may never be exercised arbitrarily or capriciously. Moreover, the law will not permit the use of such overbroad claims of power to abrogate the common law requirements of good faith and fair dealing. Thus, the claim of “sole discretion” will never shield a person from liability when that discretion is used maliciously, capriciously or is the result of improper motives.

We doubt that any court would afford the administrator of a private school the right to intentionally inflict emotional distress on students or parents, use unlawful threats to coerce compliance with unreasonable edicts, slander a parent who was only trying to defend his child, or violate HIPAA and FERPA laws.

Further, there is a big difference between what one may have a right to do and what is right to do. It would be shameful if the BOT, instead of requiring Archer employees to do what is right, only required them to limit their actions to what they think is legal.

Thus, we respectfully submit that evaluation of our claims by the BOT must be made in terms of reasonableness, appropriateness, necessity, and whether they represent the image of Archer it wants to project.

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