From Plaintiffs’ Revised Complaint
On information and belief, Defendants BARBARA BRUSER, MEGAN CALLAWAY, JUSTIN CHANG, STEPHANIE DARROW, SUZIE DORAN, BETH FRIEDMAN, ANN GIANOPULOS, MARK GORDON, CAROLINE GRAINGE, CATHY HELM, MICHAEL HESLOV, KATHY KENNEDY, DEBBIE LEHMAN, SCOTT LORD, JONATHAN LURIE, FRANK MARSHALL, RAY MICHAUD, CATRICE MONSON, BARBARA NATTERSON HOROWITZ, HILLARY NEWMAN, LAWRENCE O’DONNELL, JOHN OHANESIAN, KAREN RICHARDS SACHS, VICTORIA SHORR, JODY SIEGLER, ANA SERRANO, and RON STONE (collectively, the “Archer Board Members”) are individuals who were, at all times relevant hereto, members of the Board of Trustees of the Archer.
Responsibility of the Archer Board Members
Bruser, Horowitz, Helm, and Lord, without the knowledge of or formal authority granted by the Board of Trustees itself and with knowing disregard for the proper role of board members, personally participated in, conspired with, supported and/or encouraged the improper actions of English. Their participation was a material and proximate cause of 1) the exclusion of Child 1 and Child 2 from Archer, 2) violations of their rights privacy, 3) intimidation and coercion, causing injury to personal relations, and 4) all injurious other consequences resulting from this conduct. All these acts together demonstrate professional malpractice as well as intent and malice justifying punitive damages.
Prior to the conduct of English excluding Child 1 and Child 2 from Archer, all members of the board of trustees knew or should have known about other incidents where English abused the discretion and authority granted her by the board including arbitrarily and capriciously creating, construing and implementing policies that unfairly, improperly and unlawfully caused injury to students, parents and employees and that subjected Archer and board members to liability and reputational damage. This information did, or should have, put each Archer Board Member on notice of the need and their responsibility to assure that English’s conduct was reviewed and corrected and that guidelines and internal controls were created and implemented to detect, prevent and remedy abuses of discretion or other improper conduct.
Despite these duties, each Archer Board Member, in violation of their duty of care, failed to review, correct and hold English accountable for her improper and unlawful actions. This failure encouraged and allowed English to continue to use her discretion arbitrarily, capriciously and maliciously in a manner that resulted in injuries to students, teachers, staff and parents. As a result of this failure, the acts and omissions of each individual Archer Board Member was a proximate cause of all damages alleged herein.
Prior to the conduct of English excluding Child 1 and Child 2 from Archer, members of the board of trustees knew or should have known of their duty to exercise due diligence and oversight to assure that internal controls were established and implemented to prevent, detect and, where necessary, promptly and properly deal with unlawful, unethical and unprofessional actions of English and other employees of Archer.
In dereliction of these duties, each member of the board failed to provide thorough and effective oversight or require creation and implement policies, procedures, guidelines or other forms of internal control to protect students, parents and staff and prevent liability and reputational damage to Archer. These failures constitute proximate cause of all harms alleged herein.
On April 29, 2014, Plaintiffs sent to each Archer Board Member a letter summarizing Plaintiffs grievances and allegations and an extensive memorandum containing specific allegations and presenting documentary evidence supporting those allegations concerning the conduct of English toward the plaintiffs. The April 29, 2014 letter also provided each member of the board with:
a. Complete information with detailed documentation of the nature and scope of English’s actions and the harm caused thereby and notified them of severe impending harm that would be caused if the board failed to mitigate the severe emotional distress resulting from decisions to: 1) prevent Child 1 from participating in senior activities with her friends and teachers and graduating with her class on May 29, 2014; and 2) coerce Child 2 and her parents to find a new school for Child 2 and subject her, as an openly gay female, to financial costs and social and emotional trauma related thereto.
b. The opportunity to repudiate, or cause English to reverse, those decisions before they caused additional harm to plaintiffs. The letter informed them that a failure to do so would constitute ratification of those actions and create additional grounds for their personal liability, including punitive damages.
c. The opportunity to demonstrate due diligence and meet their obligations arising from the duty of care by agreeing to and conducting a thorough, independent investigation of plaintiffs detailed claims and allegations contained in the letter an extensive and well-documented accompanying memo. It also demonstrated the willingness and desire of Plaintiffs to cooperate with a thorough and objective investigation by their offer to provide to the Archer Board Members evidence of other incidents of misconduct by English demonstrating a pattern of misconduct.
d. The opportunity to demonstrate due diligence and meet their obligations arising from the duty of care by agreeing to establish internal controls, including guidance, policies and procedures to detect, prevent or promptly and properly ameliorate or mitigate harm caused by the unlawful, unethical and inappropriate actions of English or other employees of Archer that could injure students, parents or employees and subject the school to liability and reputational damage.
e. Concrete and conclusive evidence of Plaintiffs’ ardent desire to avoid resource-draining and reputation-damaging litigation and their willingness to settle all claims against the Archer, the board and individual board members based on four moderate and reasonable requests:
i. That the decisions to prevent Child 1 from participating in graduation activities and ceremonies and to prevent Child 2 from continuing her education at Archer were reversed prior to May 15, 2014.
ii. The Archer Board of Trustees commits to conducting a thorough, independent investigation of plaintiffs allegations.
iii. The Archer Board of Trustees commits to developing and implementing internal controls, including guidance, policies and procedures to detect, prevent or promptly and properly ameliorate or mitigate harm caused by the unlawful, unethical and inappropriate actions by employees of Archer.
iv. Archer to reimburse plaintiffs for the tuition paid to Archer for the 2013-2014 academic year (Defendants’ legal expenses alone are bound to far exceed this amount as will Plaintiffs’).
Section 43 of the California Civil Code states, inter alia, that every person has the right of protection from injury to his personal relations. Reversing the decision to allow Child 1 to graduate with her class and participate in senior activities (plaintiffs offered to prove that Child 1 had successfully completed at another institution the one semester coursework needed to earn a diploma) would have had no serious deleterious effect on Archer. On the other hand, denying Child 1 to opportunity to experience one of the most momentous and memorable events in a person’s life with her teachers and lifelong friends and subjecting her to the pain and regret of seeing happy pictures and comments posted on social media by girls she grew up with – all because she was rude to a teacher and emotionally unable to subject herself to a judicial panel of peers – is outrageously cruel and hurtful.
Faced with the choice of ratifying or repudiating the decision of English and the opportunity to mitigate the harm to Child 1 and her parents, the Archer Board Members chose to ratify the decision, allow the infliction of huge and lasting emotional harm on Child 1 and her parents and, thereupon, are complicit in it and responsible for its consequences.
Given that, by English’s own admission, Child 2 had done nothing wrong and was a student in good standing before she was coerced into leaving Archer by threats and intimidation from English, reversing the decision to prevent Child 2 from re-enrolling at Archer for the 2014-2015 academic year and relieving her and Anne and Michael of the enormous stress (and expense) of finding and adjusting to a new school (admission deadlines to private schools were long past when Child 2 was informed that she would not be permitted to complete her education at Archer) would have had no serious deleterious effect on Archer. On the other hand, ratifying the decision was bound to intensify the stress and emotional pain and force Child 2 to face unknowable and frightening possibilities – all because English thought Michael’s conduct in advocating for Child 1 was offensive – is outrageously cruel and hurtful.
80. Faced with the choice of ratifying or repudiating the decision of English and the opportunity to mitigate the harm to Child 2 and her parents, the Archer Board Members chose to ratify the decision, allow the infliction of huge and lasting emotional harm on Child 2 and her parents and, thereupon, are complicit in it and responsible for its consequences.
The failure of each Archer Board Member to prevent or properly deal with the improper and unauthorized conduct of Bruser, Horowitz, Helm, and Lord was a proximate cause of all damages suffered by plaintiffs.
The failure of the Archer Board Members to provide English with any guidance, instruction or oversight in interpretation and implementation of her authority was a proximate cause of all damages suffered by plaintiffs.
On August 15, 2104 plaintiffs made still another effort to direct the board to its fiduciary responsibilities to Archer as an institution and to the students and parents of the school by making an offer to settle all claims without any payment of money. The offer which was not accepted by the board asked for only three commitments all intended to improve and safeguard Archer in the future: 1) Employ an independent neutral investigator to investigate and report on the truth of plaintiffs’ allegations and defendants responses. (An obligation inherent in the Board of Trustees’ duty of oversight). 2) Modify the current mandatory arbitration clause in a manner that will not deter parents from submitting contract-based disputes to arbitration nor prevent them from pursuing tort claims in court, and 3) Adopt internal controls and policies for all Archer administrators, teachers and employees to guide their interactions with students and parents including the use of discretion to impose discipline and exclude students based on the performance of a parent or guardian. In rejecting this offer (and making no counter offer), and electing to prolong this litigation and to subject the institution to further derision and cost, each Archer Board Member failed to meet their fiduciary obligation to Archer and it major constituents – students and families.