Elizabeth English and Nurse Ratched
One of the reasons Nurse Ratched in One Flew over the Cuckoo’s Nest is such a frightening villain is her assertion and exercise of complete power over the patients in her care. The pleadings and documentation posted on this site demonstrate that Elizabeth English asserted and exercised a similar power over students and parents in contravention of the law, professional standards and common decency.
The documents show that she invented and imposed new rules and procedures and onerous demands on one of the Josephson children to force her to withdraw in her senior year. Then she informed a second Josephson child that she would not be permitted to continue her education at Archer because she found Michael Josephson’s efforts to protect the first child offensive. Then she decided to ban all Josephsons including two graduates of the school from ever appearing on campus for any reason.
In any world where fairness and respect govern these completely arbitrary and vindictive actions would not be permitted. And if the Josephson were not blocked from going to court by massive efforts of lawyers the Josephsons would have asserted California law that clearly establishes that “sole discretion” clauses do not grant the right to act arbitrarily and capriciously, especially when there is a contractual relationship. Here is an excerpt from the Josephsons’ memorandum in Support of Motion to Settle concerning Elizabeth English’s claim that she has a right to do whatever she wants because all parents signed an enrollment contract purporting to give her “sole discretion.” :
It is evident from the responses of Elizabeth 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 her board of trustees (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 over broad 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.