Detailed Facts and Allegations Concerning Child 2

Plaintiff’s Claims Concerning CHILD 2

53. CHILD 2 is a 15 year-old, openly gay female who was subjected to malicious, vindictive, unjust and unlawful actions of defendants that inflicted and continue to inflict severe emotional injury and forced her in February 2014 to leave her school. These actions, taken in retaliation for MJ’s efforts to advocate for her sister CHILD 1, denied her the comfort and education of continued relationships with teachers and classmates, and denied her comfort, pleasure and value of receiving her diploma from ARCHER, and participating in school activities.

54. During time period encompassed in this complaint, CHILD 2 was dealing with and adjusting to the reactions of her classmates and teachers to her decision to be open about her sexual orientation. In addition, she was struggling with tumultuous domestic events, including CHILD 1’s conflict with the school and she was in the midst of dealing with the impending death of her best friend’s father, a man she was very close to.  Weighed down by these burdens, she was struggling academically.

55. Prior the actions by ENGLISH designed to drive a wedge between CHILD 2 and MJ, CHILD 2 and MJ enjoyed a warm and loving relationship. ENGLISH told CHILD 2, who was very upset to learn that she would not be permitted to continue her education at ARCHER that the only reason she was excluded was because her father, MJ, acted badly in his efforts to advocate for her sister, CHILD 1.,

56. This was an intentional and malicious effort by ENGLISH to damage the father-daughter relationship in violation of California Civil Code section 43: “Every person has . . . the right of protection from injury to his personal relations.” This conversation did in fact, create great anger and resentment against MJ and did and has seriously damaged their relationship.

57.During the January 13, 2014 meeting between MJ, ENGLISH and LORD, ENGLISH declared that she doesn’t negotiate with parents about disciplinary matters. This position is inherently unreasonable and AJ and MJ know of several instances when ENGLISH did negotiate with parents to achieve a mutually satisfactory result. Her unwillingness to collaborate with MJ was not the result of school policy or her invariable practice, but of her animosity and malice toward MJ.

Archer - because I said so

58. MJ disagreed with her decision to disregard the psychologist’s opinion and her refusal to consider alternatives in accordance with ARCHER’s long-standing policy of collaboration with parents and non-coercive discipline and her own statement as to the goals of discipline.

59. In a manner that MJ interpreted as an intentional threat designed to intimidate and coerce him from persisting in his opposition to ENGLISH’s decision, ENGLISH made it clear that she would not tolerate opposition or other reactions she construed as an unwillingness to support her decisions and referred to the ARCHER parent code of conduct which purports to give her “the right to dismiss a student if the Head of School, in her sole discretion determines that the actions of a parent/guardian impair the positive and constructive relationship with the School.”

60. MJ indicated that he was not sure he and AJ could accept a decision that they believed was unfair, unnecessary and which an expert had advised, and they believed, could cause severe and lasting emotional harm to CHILD 1. MJ asked ENGLISH and LORD whether either of them would construe efforts to seek judicial review and possibly injunctive relief, as improper conduct warranting adverse actions against either CHILD 1 or CHILD 2. ENGLISH responded ominously, “I expect our parents to support my decisions.”

61. This response reinforced MJ’s belief that ENGLISH was threatening punitive action if he persisted to challenge her decision in court and he asked both ENGLISH and LORD whether they would assure him that no action would be taken against his daughters if he respectfully pursued his efforts to protect his daughter CHILD 1 from the impact of ENGLISH’s decision.

62. LORD and ENGLISH indicated that they would not provide any assurances and LORD added that MJ would have to proceed at his own risk.

63. MJ construed this as a clear threat and an effort to intimidate him from seeking judicial review and seeking to coerce him into accepting ENGLISH’s demand, not merely for obedience, but for passive and subservient acceptance of her decisions.

64. Although AJ and MJ were seriously considering seeking immediate injunctive relief to preserve CHILD 1’s senior year, they decided that, given ENGLISH’s demonstrated animosity toward MJ and her willingness to quash any form of dissent irrespective of the harm it might cause to a child, the threat was real and that she could make things even worse for CHILD 1 and take harmful adverse action against CHILD 2 as well. Consequently, they were coerced to abandon the intent to seek an injunction or pursue any other legal action that would precipitate additional malicious, capricious and arbitrary actions by ENGLISH that would inflict severe emotional pain and damage the social and academic lives of CHILD 1 and CHILD 2.

65. Shortly after the January 13 meeting, ABOT co-chair BRUSER and ABOT member HELM sought a meeting with AJ to discuss whether it was appropriate for her to remain as a member of ABOT in view of the controversy surrounding CHILD 1’s discipline by ENGLISH.

66. During that meeting, AJ explained that though she normally dealt with the academic and disciplinary issues directly and personally that she asked MJ to handle the matter concerning CHILD 1 as she thought she should recuse herself now that she was a member of ABOT. Unfortunately, both AJ and MJ erroneously thought that ENGLISH’s bad feelings about the previous confrontation in 2009 would have dissipated and that, in any event, a sense of professionalism would prevent her from allowing her personal feelings about MJ to affect her handling of the situation with CHILD 1.

67. Though they came to the meeting predisposed to ask AJ to resign, both BRUSER and HELM (a lawyer) praised AJ for the way she handled the situation, describing it as “textbook” and they appeared to be convinced that AJ could and should stay on ABOT. Despite the controversy regarding CHILD 1, AJ’s devotion to ARCHER  as an institution and to her so many friends on the faculty and staff of ARCHER was so strong that she desired to and intended to remain on ABOT.

68. During that meeting, AJ explicitly raised the issue of the possibility of adverse actions against CHILD 2 including the possibility that CHILD 2 would not be offered the right to reenroll as a result of MJ’s efforts to advocate on behalf of CHILD 1. Both ABOT members indicated they were familiar with the situation and expressed shock that AJ was concerned about Child 2’s status at ARCHER, assuring her that there was no reason for concern as the two situations were entirely separate.

69. AJ’s comfort on the issue was disturbed a few days later when she got a message from ENGLISH’s secretary requesting a meeting “to discuss Child 2’s status as a student.” AJ called HELM and asked her if she should be worried. HELM said that the decision was made that Child 2 would not be permitted to complete her education at ARCHER; that she would not be offered a contract for the following year because of MJ’s conduct in opposition to English’s decision.

70. HELM was unable or unwilling to specify what conduct was considered so egregious by MJ that it warranted this extreme and unprecedented action without any effort to identify the problem and seek a solution. AJ was aware of at least one situation where the difficulty with one parent was resolved by confining the sanction to that parent rather than removing the child from ARCHER.

71. In justifying and supporting ENGLISH’s action, HELM said without any reference to specifics that “Michael’s conduct was beyond the pale” and she reminded AJ of the confrontation between ENGLISH and MJ in 2010 (actually it was in in November 2009).

72. This conversation makes it absolutely clear that HELM and, in all likelihood BRUSER, LORD, HOROWITZ and other ABOT members, were aware of and likely participated in the decision to exclude CHILD 2 and that the characterization about MJ’s conduct clearly included, and the decision was linked to, the incident occurring in 2009.

73. The involvement of individual ABOT members in the direct decisions regarding specific disciplinary matters (as opposed to policies and guidelines regarding the imposition of discipline), without the authority from the ABOT or the knowledge of the majority of ABOT members, violated basic principles of governance and made, at least these board members, accomplices to ENGLISH’s malicious and otherwise improper actions.

74. Plaintiffs are informed and believe that said discussions about these disciplinary issues included ENGLISH’s false and defamatory characterizations of MJ’s conduct in 2009 and in his dealings with ENGLISH on the matters concerning CHILD 1.

75.  Plaintiffs are informed and believe that it is probable that discussions about ENGLISH’s actions regarding both CHILD 1 and CHILD 2 included revelation of private medical and educational information members of ABOT had no right to know in violation of plaintiff’s rights to privacy, fundamental professional practice and the federal Health Insurance Portability and Accountability Act (HIPAA) and the Family Educational Rights Act (FERPA) and comparable California laws.

76. On February 2, 2014 ENGLISH sent an email to AJ including the following statement:

The School does not just enroll a child, it enrolls a family that becomes part of the school community.  In this case the issue was not with the student but with a parent.  You were copied on and forwarded several emails from Michael in which he demonstrated his unwillingness to support the School and its policies and to cooperate with and act civilly toward members of the ARCHER community.  His opposition was also firmly established in a meeting with Samantha Coyne Donnel, Scott Lord, and me.

As a result of Michael’s conduct, the relationship between the family and the School has been irreparably harmed and the School cannot offer re-enrollment.  This is a particularly tough decision for the School because of your family’s long-standing relationship with ARCHER as well as your service to the Board, but we must adhere to the same standards that we would with any other family.

77. In describing MJ’s behavior as “beyond the pale”, HELM referred to the 2009 confrontation. This confrontation took the form of a telephone conference call (characterized by the president of the Archer Dads who joined the latter part of the conversation as an “ambush”). The call was set up by ENGLISH without giving MJ foreknowledge of the presence of others or the agenda. The call was made for the purpose of rebuking and threatening MJ in the presence of and with the assistance of two ABOT members, including HELM.

78. During the call ENGLISH angrily, disrespectfully, and falsely accused MJ of unprofessionalism and a lack of integrity based on the erroneous assumption (which ENGLISH made no attempt to verify prior to the call) that he intended to reveal negative survey data he had collected from a survey ENGLISH asked MJ to conduct through the Josephson Institute of Ethics. Though at the time she commissioned the survey it was agreed that the results would be shared with students, parents and faculty, ENGLISH decided, instead, to repress the data. ENGLISH also accused MJ of flouting her authority by not seeking her permission to conduct an entirely different survey for a different purpose at the behest of the Archer Dads. Though it became apparent both accusation were false and unfair once the President of the Archer Dad’s organization was brought into the conversation, ENGLISH’s animosity toward MJ persisted and was clearly a major factor in her handling of CHILD 1 and CHILD 2’s status as ARCHER students.

79. Despite HELM’s reference to this incident, ENGLISH stated that the entire basis of her decision to separate CHILD 2 from ARCHER was based on her conclusion that MJ demonstrated an “unwillingness to support the School and its policies and act civilly toward members of the ARCHER community.” According to ENGLISH her characterization of MJ’s conduct was entirely based on “several” emails sent by MJ and 2) his “opposition” demonstrated during the January 13, 2014 meeting.

80. The e-mails ENGLISH found so offensive, sent to AJ by ENGLISH, consisted of two very similar letters sent on January 23, 2014 to two faculty members at ARCHER who played a major role in CHILD 1’s life. The full content of these letters is reproduced below:

From: Michael Josephson to Brian Wogensen

Dear Brian,

I want to thank you so very much for being so supportive of CHILD 1 during this, the most difficult time of her life. She is putting up a very brave front and I have high hopes she will come through this stronger, but it’s hard to tell. There is no question that she will always have a deep scar from the trauma of being denied the opportunity to spend her last semester with the friends and teachers she really came to love. No senior prom, no graduation picture, no graduation party – it’s unfathomable.

I don’t know what you are being told, but the fact is that CHILD 1 was forced by Ms. English, over the express advice and warnings of her therapist and the ardent pleas of Anne and me, to take a medical leave or be suspended with the explicit comment that a suspension would be sent to Barnard and might jeopardize her admission. CHILD 1 wanted to be in school and was ready to be in school (in fact she came to school Monday of last week and was sent home by Ms. Warner without any notification to Anne or I). Ms. English said she was effectively banned from campus unless and until she subjected herself to a process that CHILD 1 (rationally or not) sincerely believed would be totally humiliating. The fact that she would choose not to be with and graduate with her class is compelling evidence of how much she dreaded the process (information presented to Ms English by CHILD 1’s therapist but ignored).

CHILD 1, with our consent, decided to withdraw from ARCHER because the idea of receiving her diploma by mail (Ms. English’s explicit words) was too painful and staying within the range of power of this administration just seemed unwise. We have found an alternative to allow her to get the credits she needs to earn her diploma. It costs about $20,000 but we had little choice and CHILD 1 is enthused about the alternative.

I am beside myself that this became a power struggle instead of a legitimate attempt to determine how to best deal with CHILD 1’s occasional outbursts of disrespect (which we never defended and she already apologized for).  Sorry to burden you with this but I think there has been a lot of misinformation out there and good friends like you are hard to find.

Anyway, I am so grateful for you true love and loyalty. It has meant a HUGE amount to CHILD 1.

Michael S. Josephson

__________

From: MSJ to Andrea Locke

Dear Andrea,

I want to thank you so very much for being so supportive of CHILD 1 during this, the most difficult time of her life. She is putting up a very brave front and I have high hopes she will come through this stronger, but it’s hard to tell. There is no question that she will always have a deep scar from the trauma of being denied the opportunity to spend her last semester with the friends and teachers she really came to love, especially you. And she is devastated that she will not be able to dance with you and the other girls. Add to that: no senior prom, no graduation picture, no graduation party – it’s unfathomable!

I don’t know what you are being told, but the fact is that CHILD 1 was forced by Ms. English (over the express advice and warnings of her therapist and the ardent pleas of Anne and me), to take a medical leave or be suspended with the explicit comment that a suspension would be sent to Barnard and might jeopardize her admission. CHILD 1 wanted to be in school and was ready to be in school (in fact she came to school Monday of last week and was sent home by Ms. Warner without any notification to Anne or I). Ms. English said she was effectively banned from campus unless and until she subjected herself to a process that CHILD 1 (rationally or not) sincerely believed would be totally humiliating. The fact that she would choose not to be with and graduate with her class is compelling evidence of how much she dreaded the process (information presented to Ms English by CHILD 1’s therapist but ignored).

CHILD 1, with our consent, decided to withdraw from ARCHER because the idea of receiving her diploma by mail (Ms. English’s explicit words) was too painful and staying within the range of power of this administration just seemed unwise. We have found an alternative to allow her to get the credits she needs to earn her diploma. It costs about $20,000 but we had little choice and CHILD 1 is enthused about the alternative.

I am beside myself that this became a power struggle instead of a legitimate attempt to determine how to best deal with CHILD 1’s occasional outbursts of disrespect (which we never defended and she already apologized for). Sorry to burden you with this but I think there has been a lot of misinformation out there and good friends like you are hard to find.

Anyway, I am so grateful for your true love and loyalty. It has meant a HUGE amount to CHILD 1. Please continue to find ways that you and the other girls can show her your love.

Sincerely,

Michael

Michael S. Josephson

81. Upon learning that ENGLISH had obtained copies of these personal letters and viewed them to be a primary justification to exclude his innocent daughter Child 2 from ARCHER, MJ wrote ENGLISH and asked:

What is the nature of your objection? Throughout our time at ARCHER I frequently have communicated directly with faculty members on a wide range of topics. Are you saying I violated a school policy by writing them? Are you saying I violated a school policy by discussing CHILD 1’s situation with them, that I had no right to discuss my perceptions and frustrations with friends at the school?  Is there anything in my description that is untrue? … There was nothing the least bit uncivil about that those communications, let alone something serious enough to justify banning my daughter from ARCHER.”

ENGLISH refused to respond to these questions. 

82. ENGLISH’s decision to separate CHILD 2 from ARCHER was based on two separate unjustified conclusions motivated by malice rather than reason: 1) that MJ’s conduct was egregious that it irreparably damaged the Josephson family’s relationship with the school, and 2) that there were no less drastic alternatives to achieve legitimate institutional needs.

83. The conclusion by ENGLISH that MJ’s “opposition” to her decision during the January 13, 2014 meeting justified banning his daughter from ARCHER and exiling the entire Josephson family is outrageous and unsupportable. And her   demand that her decisions should be immune from dissent or disagreement is unprofessional and unreasonable. This meeting was taped by LORD and in an April 29, 2014 letter to every member of ABOT, plaintiffs explicitly encouraged them to listen to the tape or read a transcript. This letter also included the two emails cited by ENGLISH so that each member of ABOT could make an independent decision as to whether these communications justified preventing CHILD 2 from completing her education at ARCHER, especially in the absence of any effort whatever to clarify expectations or remediate the situation ENGLISH found offensive.

84. Careful examination of the letters and the content of the meeting demonstrate Ms. ENGLISH’s false characterizations of MJ’s conduct was a pretext to justify her vindictive efforts to punish and injure MJ and that the enormous harm done to CHILD 1 and Child 2 was, simply, collateral damage

85. ENGLISH, with the intent to inflict maximum injury on plaintiffs, disregarded a wide range of much less drastic alternatives to deal with conduct she viewed to be non-supportive of her decisions, including the option of banning MJ from communicating with the school, an option she had taken in at least one other situation.

86. ENGLISH’s letter to AJ stated that the conduct embodied in these two letters and the content of the meeting “irreparably” harmed the relationship between the Josephson family and the school. Since something is irreparable only if it is impossible to fix, it is erroneous and disingenuous to say the relationship between the family and the school was irreparably damaged as no effort whatever was made to fix it. In fact, ENGLISH repeatedly refused to provide any specifics as to what she found objectionable and what MJ could do to ameliorate the situation.

87. The decision to not allow CHILD 2 to re-enroll at Archer for the 2014-2015 academic year left her as a student for the remaining part of the spring semester. However, in view of ENGLISH’s past actions, both AJ and MJ were insecure about how CHILD 2 would be treated and whether ENGLISH would find another pretext to dismiss her in mid-semester as she claimed she had the right to do.

88. A series of letters from AJ and MJ to COYNE and ENGLISH seeking clarification as to ENGLISH’s expectations yielded nothing but the same veiled treats as conveyed in the January 13 meeting. ENGLISH’s unwillingness to explain her decisions or specify her expectations constitutes a clear example of arbitrariness.

89. On February 7, 2014, MJ sent a letter to English including the following passages:

Since every child’s enrollment depends on your sensitivities and interpretation of what is or is not acceptable disagreement and discussion it seems only fair that you provide guidance as to how you will exercise your discretion. . . . I respectfully submit there is nothing that occurred during our meeting and nothing that was said in my letters to justify your conclusion. 

 I have listened to the tape of the meeting several times . . . I do not think there is a single thing you can point to in content or tone that was uncivil. . . . Please identify for me any part of that meeting that qualifies as incivility so egregious as to justify your punitive action. . . .

Similarly what evidence is there that I demonstrated an unwillingness to abide by your rules and policies?

In fact, though I disagreed with the results and reasoning for your decision to force CHILD 1 to participate in the student honor council process I did so respectfully and never refused to comply with your interpretation of the school policies. . . .

Since your description of my conduct is simply not supported by the facts, will you consider reversing it? Otherwise I don’t think you can escape the implication that your accusations concerning my conduct are simply a pretext to express your dislike for me and my refusal to passively surrender to your will by punishing my children.

ENGLISH did not provide any further explanation or guidance nor did she deny the accusation that her conduct was motivated her dislike for MJ and his unwillingness to surrender his right to protest and purse other avenues to seek relief from her decisions.

90. Though ENGLISH knew she had thrown the entire Josephson family into crisis and that they legitimately feared that she would strike again with arbitrary and unannounced criteria, ENGLISH’s answer to MJ’s letter was arrogant and deliberately nonresponsive. Even when she administers an academic and socials death blow to children she feels no need to explain or justify her action. On February 10 she wrote MJ the following curt response to his request for specifics:

Your pattern of conduct is clear from your communication with the School.  The decision is final and thus further discussion would not be constructive.  Please contact Samantha Coyne for any assistance you might need with CHILD 2’s transition.

91. Still trying to decide whether it is wise or safe to send CHILD 2 back to school where she would effectively be a hostage of ENGLISH’s whim, AJ tried to get assurances or information from her friend COYNE. Following are pertinent passages of AJ’s letter sent on February 13, 2014:

As I am sure you know, CHILD 2 is not being offered a contract for next school year.  We broke the news to her on Tuesday evening, and CHILD 2 is absolutely devastated.   Despite her typical adolescent grumblings about school, Archer has been her home since the 6th grade and she has formed meaningful and important relationships with faculty and students.  Her contributions to the school through theater and GSA are core to who she is as a person.  To have this all taken away from her not as her own decision or through any fault of her own is nothing short of traumatic.

CHILD 2 is not in school today and likely will not attend tomorrow either as we are working with her psychiatrist to help her through this as well as her physician (she is suffering from migraines, probably as a result of stress).  

Additionally, we are exploring what her options are for next year.  A feat that is not terribly easy given the number of spaces in 11th grade, that application deadlines have passed, the sensitivity to choosing a school that will protect a gay child and a school that fits CHILD 2’s strengths and interests. . . .

Moreover, I need to be reassured that whatever the ill will generated between Michael and Elizabeth and their on-going communications regarding their disagreements will not be taken out on CHILD 2.  It is bad enough that adult conflict has forced CHILD 2 out of her school for next year, but the thought that she would suffer any further humiliation by being removed mid-year is not a risk I can take with my daughter.

Can I please have your assurance that this is not a possibility – that the school will keep CHILD 2’s enrollment for this semester completely separate from any actions or communications concerning CHILD 1?

If you cannot provide such assurance, can you give me some guidelines as to what sorts of communications could result in action against CHILD 2 so I can consult with Michael to see if he is willing to accommodate these guidelines?

While CHILD 2’s opportunity to graduate with her class is gone, I want CHILD 2 to at least have chance to finish her sophomore year with her friends.  Without assurances or at least guidelines, I don’t know how to proceed.

I am hopeful that the positive, collaborative and supportive relationship that I have enjoyed until recently can be reinstated for the sake of CHILD 2. . . .

92. The response from COYNE, previously a close friend of AJ, was clearly controlled by ENGLISH and was designed to intimidate rather than inform. The curt and cold tone also demonstrates ENGLISH’s control over her staff and her mandate to interfere with AJ and MJ’s personal relations with ARCHER staff.

In regards to your reference to Michael’s conduct, he is still responsible for supporting all policies, rules, and regulations of Archer, and cooperating with and acting civilly toward members of the Archer community.

93. MJ, on February 4, 2014, followed up on AJ’s letter to COYNE with another letter to ENGLISH making one more request for guidelines and making clear his willingness to try to accommodate ENGLISH to protect CHILD 2. The letter contains the following passages:

I’ve seen Anne’s email to Samantha about CHILD 2. I echo her concern that the trauma CHILD 2 has already suffered will be compounded by the fear that at any time she might be removed from school because of something I do or say that I think is right and reasonable but you don’t.

I join in Anne’s request for assurances that any further communications or actions I take in pursuit of my grievance with the way you handled CHILD 1’s situation will not affect CHILD 2’s ability to complete her semester at Archer without hindrance or harassment. CHILD 2 is completely innocent in all this and is entitled to this assurance.

If you are unwilling to provide us with such assurances, I still hope to find a basis of accommodation. . . .

CHILD 2’s well-being is my highest priority. Please give me some guidelines as to the criteria you will use in determining whether anything I say or do would justify actions against CHILD 2. . . .

94. English responded with a contemptuous non-answer:  “Here is the email from Samantha to Anne. All the best, Elizabeth.”

95. This exchange of correspondence exemplifies ENGLISH’s disdain for even rudimentary standards of civility and professionalism and demonstrates still another instance of arbitrary and capricious exercise of her power.

96. ENGLISH’s action to remove Child 2 from Archer based on the alleged misconduct of one parent (MJ) violated professional educational standard and constituted a malicious, arbitrary and capricious abuse of discretion because such an action cannot be justified when the other parent,  AJ, was, even by Ms. English’s standards, an exemplary member of the Archer community.

97. ENGLISH’s action to remove Child 2 from Archer based on the claim that MJ’s conduct irreparably damaged the family-school relationship violated professional educational standard and constituted a malicious, arbitrary and capricious abuse of discretion because ENGLISH did not and could not substantiate what was damaged, how the conduct of MJ affected the school or that she made sincere and substantial efforts to repair the relationship.

98. ENGLISH’s action to remove Child 2 from Archer based on MJ’s actions were unprofessional and improper as the enrollment rights of a student cannot be terminated on the basis of a third parties conduct.

99. ENGLISH’s action to remove Child 2 from Archer based on MJ’s actions were unprofessional and improper as the enrollment rights of a student cannot be terminated on the basis of a third parties conduct unless there is a process involving a fair hearing and due process including an impartial decision making body and a right for those most affected to participate in the hearing and tell their side of the story.

 

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