On April 29, 2014, prior to the filing of any legal action, plaintiffs sent a letter to each member of the Board of Trustees including the following offer to settle their claims against Archer and the Board (the portion of the letter explaining and documenting the underlying basis of the offer is included just below the terms of the offer itself and a more comprehensive memo outlining plaintiff’s claims and evidence is available under this tab “Memo Supporting Offer to Settle”:
TERMS OF OFFER TO SETTLE AND COMPROMISE
Anne and Michael Josephson, for themselves and their children, hereby offer to execute a full and complete release from any liability of the Archer School for Girls and individual members of the Board of Trustees (BOT), on the following conditions:
1) On or before May 15, 2014 the Board repudiates Ms. English’s decision to forbid C1 from participating in graduation ceremonies with her class and that C1 be given the option of receiving a diploma from Archer (upon demonstration that C1 has successfully completed all requirements for graduation at another Institution).
2) On or before May 15, 2014 the Board repudiates Ms. English’s decision to forbid C2 from returning to Archer for the 2014-2015 academic year and that C2 be offered a contract.
3) The BOT commits to the expeditious (within 60 days of execution of this release) employment of a credible, independent professional individual or firm to fully investigate the facts and allegations made in this letter. The investigation is to be completed and the results reported in a comprehensive, detailed, objectively written report submitted to the BOT on or before August 1, 2014. The BOT agrees to assess the report, and within 30 days of its receipt, determine what, if any, sanctions it will impose to hold Ms. English accountable.
4) The BOT agrees that prior to October 1, 2014 it will adopt reasonable internal controls and policies for all Archer administrators to comply with its legal obligations and to prevent abuses of power and discretion by administrators, teachers and staff of Archer, including specific guidelines relating to the exercise of discretion.
5) Archer returns to the Josephsons tuition payments for C1 and C2 for the 2013-2014 academic year.
This offer will expire at 5:00 p.m. May 15, 2014.
Letter Supporting Offer
Kosnett Law Firm
JAMES VICTOR KOSNETT 11355 West Olympic Boulevard Suite 300 Los Angeles, California 90064
April 29, 2014
To: Members of the Board of Trustees, The Archer School for Girls
RE: Josephsons and the Archer School for Girls
I present this offer to settle and compromise on behalf of my clients Michael and Anne Josephson (hereafter “Josephsons”), and two of their daughters: Child 1 (hereafter “C1”), a senior at The Archer School for Girls (hereafter “Archer”) who was subjected to extreme emotional distress and denied her right to complete her senior year as the result of unlawful threats and the imposition of arbitrary, unreasonable, unnecessary and unauthorized forms of discipline; and Child 2 (hereafter “C2”), an openly gay 10th grade student, who was forced to leave the school and permanently banned from future enrollment at Archer in retaliation for efforts of Michael Josephson to protect C1 from the consequences of the conduct of the Head of School, Ms. English.
As more fully described in the list of causes of action encompassed in this offer below, my clients assert and are prepared to prove in court that they have been damaged by a pattern of egregiously unlawful, unprofessional, unnecessary, and unethical actions by Ms. English, and that such damages were proximately caused by the failure of the Board of Trustees (hereafter “BOT”), collectively and individually, to exercise due care and oversight, and to implement adequate internal controls to prevent and/or hold accountable the Head of School for intentional and reckless misconduct.
Because my clients have continuing concern and respect for members of the faculty and the institution itself, they would prefer to avoid public and protracted litigation. Consequently, prior to filing actions against members of the Board of Trustees, certain individual Board members, Archer, and Ms. English personally (for intentional and reckless torts), I have been authorized to make this formal offer to settle and compromise all claims and causes of action they have against the BOT, individual Board members, and Archer (a separate offer to settle will be tendered to Ms. English).
Failure of the Board of Trustees to Exercise their Duty of Due Care and Oversight
In light of the enormous and lasting impact educators have on the intellectual, social, emotional and moral development of students, the governing boards of primary and secondary educational institutions have an especially high duty to assure that policies and procedures are in place to assist and encourage administrators and teachers to provide a physically and emotionally safe environment that promotes the well-being of every student and helps each of them reach their highest potential. These policies and procedures must also assure that administrators and teachers do not knowingly or negligently abuse or misuse their power to affect the lives of the young people entrusted to their care.
Under universally accepted principles of governance, neither the board nor individual board members should be involved in day to day decisions of school administrators including matters concerning student discipline. A growing body of law, however, holds, unequivocally, that governing boards are responsible to assure that their organizations have in place a robust process for identifying, prioritizing, managing and monitoring critical risks, and that the process is improved continuously.
Specifically, the Archer BOT’s “risk oversight” duties include:
1) Assessing and understanding of the liability and reputational risks inherent in the administration of a private school which reserves the right to discipline and exclude students and regulate parent behavior in the context of its contractual and other legal obligations.
2) Assuring it acquires and regularly assesses information from internal and external sources to determine whether staff, especially the Head of School, has or is engaging in conduct that creates undue and avoidable liability and reputational risks.
3) Establishing a systematic and reliable process to detect and prevent inappropriate, improper, unethical or illegal conduct that would subject Archer to liability or reputational risks.
4) Assuring that it provides direction and guidance to the Head of School and other administrators as to conduct that raises significant liability of risk, including conduct that could be viewed as unfair, illegal and inconsistent with Archer’s values and traditions.
5) Installing internal controls and requiring training as necessary to accomplish its risk oversight responsibilities.
We contend the BOT has not merely fallen short in meeting these duties, but has made no effort whatsoever to exercise due care and oversight with regard to each of these obligations. Moreover, we contend that the liability of the BOT, and a justification for punitive damages, is enhanced by two additional factors:
1) The co-chairs of the Board and at least two other members, acting without the knowledge and authority of the entire Board, participated in some of the decisions and actions forming the basis of our causes of action.
2) Instead of providing internal controls and oversight, in clear violation of their duty, the BOT authorized and has permitted the Head of School to exercise “sole discretion” (with no guidance or oversight) to engage in the highly risky actions of abrogating contractual commitments, imposing discipline, and excluding students and parents from Archer.
In failing to provide guidelines for the use of discretion and the exercise of powers to exclude parents and students, the current BOT has followed the pattern of previous Boards by not vigorously or systematically monitoring the policies and practices of the Head of School. The impact of this philosophy, not suitable to today’s environment and contemporary conceptions of the ethical and legal obligations of governing boards, is revealed not only in the vast damage done to my clients (and the reputation of Archer) by the unaccountable conduct of Ms. English, but also by the board’s failure to meet its obligations to assure that Ms. English effectively pursues and accomplishes specific aspects of the Five Year Strategic Plan, which would have prevented or made less likely the improper conduct described in this document. In particular, we are confident that a thorough investigation will reveal that Ms. English has not been held accountable with respect to the following aspects of the Strategic Plan.
1) Goal 7 imposes on the Head of School the obligation to “support the highest ethical and moral standards in an atmosphere of honesty, respect and responsibility for all members of the school community.” Ample evidence of her dishonesty, disrespect and irresponsibility (detailed in the attached Memorandum) during her dealings with my clients demonstrate the impact of the Board’s failure to hold Ms. English accountable to this objective.
2) Goal 7 also states that “Equally important to academic excellence is the quality of community that has been established by the School’s commitment to character development.” Ms. English has not been held accountable to demonstrate specific, tangible and effective means of promoting character development employed during her tenure. To the contrary, she dismembered the formal character development models that were in place and in process when she arrived at the school and failed to replace them with a different strategy or program. She also installed an inherently defective student review process that has been ineffectual at widely promoting the development of positive ethical values and has, instead, promoted distrust. Most pertinent to our case, she also used the discretionary power conferred on her by the BOT to maliciously punish Mr. Josephson for what she perceived as a challenge to her authority.
3) Goal 2 requires the Head of School to “Create compelling incentives to continue to attract and retain an outstanding faculty, administration and staff from diverse backgrounds.” It adds that “Excellent schools require outstanding educators. The caliber of its teachers is the School’s highest priority.” An explicit objective of efforts in this area is to encourage long-term commitment to Archer.” Had the BOT monitored the pursuit of this objective, it would have found that another negative result of allowing Ms. English to base her management style on intimidation rather than inspiration is the departure of an unprecedented number of outstanding faculty members and a palpable alienation of a significant number of current teachers and administrators who are in constant fear of the consequences of disagreeing with Ms. English on any issue.
4) Goal 3 focuses on Archer’s commitment to academic excellence. While the many excellent faculty members who remain have, by and large, achieved this goal, the lack of board oversight has permitted Ms. English to conceal or understate major deficiencies in the math and science curricula, so as to force families, including Josephson’s, to supplement Archer curricula by online courses (approved of and subsidized by Archer). Moreover, the BOT permits Ms. English to proclaim that Archer is a STEM school (an institution with robust courses in science, technology, engineering, and mathematics) although she has not been able to attract or retain teachers capable of offering calculus-based physics, computer science or a math class beyond Calculus BC, a math level two full levels lower than other independent schools in the area.
Because it is likely that most if not all Board members were unaware of these duties (we realize they are all volunteers dedicated to the best interests of Archer), my clients are willing to release the Board of liability, under the very moderate terms of this offer which includes a thorough and objective investigation of my clients’ allegations, and a commitment to hold Ms. English accountable for her actions.
Causes of Action Encompassed in this Offer to Settle and Compromise
The claims encompassed in the proposed settlement include causes of action seeking compensatory and punitive damages in the amount of $10 million dollars from Archer, the BOT, named individual board members and Ms. English. The causes of action encompassed in this offer to settle arise from improper conduct by Ms. English, other administrators of Archer, and certain individual members of the Board of Trustees, including but not limited to:
Intentional, Reckless and Negligent Infliction of Emotional Distress. Ms. English, in collaboration with Barbara Bruser, Barbara Natterson Horowitz, Cathy Helm, and Scott Lord, intentionally or recklessly committed the intentional torts of infliction of emotional distress in a pattern of extreme, outrageous, unlawful, unprofessional and unethical conduct that was calculated to and did in fact cause severe emotional distress to C1 and C2 and the Josephsons as well as substantial economic injury and reputational damage to the Josephsons. (This conduct (outlined in more detail in the attached Memorandum) includes but is not limited to:
- Unlawfully demanding that C1 participate in, and C1’s parents consent to, a disciplinary process, against the explicit written advice of a mental health professional.
- Forcing C1 to choose between two unreasonable, arbitrarily constructed, and unlawful options: 1) subjecting herself to extreme emotional distress by participating in a process against the explicit written advice of a mental health professional or 2) accepting a forced suspension under the guise of a “medical” under unnecessarily oppressive conditions preventing her from coming on campus, meeting with her teachers, participating in student activities, and participating in graduation ceremonies.
- Upon C1’s returning to school after a brief voluntary absence for diagnosis and treatment of stress and anxiety, Ms. English instructed the Dean of Students to summon C1 in front of her peers and send her home, causing great embarrassment and increased emotional stress.
- Refusing to adhere to Archer’s rules and traditions of seeking non-coercive discipline and collaborating with parents to find effective strategies of discipline in the best interests of the child.
- Subjecting C1 and her parents to severe emotional stress concerning finding and adjusting to new schooling arrangements to complete her senior year and earn her diploma.
- Informing C2 that she would not be permitted to continue her education at Archer because her father’s conduct in support of C1 required that the Josephson family be separated from the Archer community. (This conduct is also embraced in the cause of action for alienation of a child’s affection).
- Subjecting C2, an openly gay female, and her parents to severe emotional stress finding and adjusting to new schooling arrangements.
- Intimidation. Ms. English, Barbara Bruser, Barbara Natterson Horowitz, Cathy Helm, and Scott Lord engaged in the intentional torts of intimidation by a pattern of unlawful, inappropriate, unprofessional and unethical conduct that was calculated to and did in fact:
- Force C1 to withdraw from Archer and relinquish her opportunity to complete her education at Archer, participate in school activities, meet with her teachers, participate in graduation ceremonies, and receive an Archer diploma.
- Force C2 to withdraw from Archer in the midst of her 10th grade year because of fear of further acts of retaliation by Ms. English and the creation of a hostile atmosphere.
- Permanently ban C2 from enrolling in Archer after the completion of the 2013-2014 academic year.
- Exclude the Josephson family from the Archer community and inflict economic injury on the Josephsons.
- Defamation. Ms. English committed the intentional torts of defamation and false light by knowingly disseminating false written and oral statements and characterizations calculated to defame and damage the reputation of Michael Josephson, a nationally prominent ethicist.
- Alienation of Child’s Affection. Ms. English committed the tort of alienation of a child’s affection by intentionally and maliciously informing C2 that she had done nothing wrong but was barred from re-enrollment at Archer because of her father’s unacceptable conduct.
- Invasion of Privacy; Violations of HIPAA and FERPA. Ms. English committed the intentional tort of invasion of privacy and violated the Health Insurance Portability and Accountability Act (HIPAA) and the Family Educational Rights Act (FERPA) by unauthorized revelations of private medical, educational and other personal private information of C1 and C2 to select board members, staff and others who had no right or need to know such facts.
- Invasion of Privacy; Violation of HIPAA and FERPA Law and Intimidation. Ms. English committed the intentional torts of invasion of privacy and intimidation by seeking to coerce C1 into participating in an adjudicatory process where the only way she could defend herself and avoid exacerbated penalties for failing to be accountable was to reveal private medical, educational, and family information to fellow students.
- Intentional Interference with Personal Relationships. Ms. English engaged in unprofessional and improper conduct (including threats and intimidation) intended to alienate Mr. Josephson and humiliate him by instructing faculty members and staff to refrain from communicating or associating with Mr. Josephson and demanding that they inform her of any attempts by Mr. Josephson to communicate with them.
- Justification for Punitive Damages. Whether the actions of Ms. English were malicious and intentional, the result of callous indifference or simply ineptitude, there is little doubt that Archer, the BOT and Ms. English will be held liable to compensate my clients for the damage they suffered. If, however, we can demonstrate malice, evil intent or reckless disregard for the injuries these is an ideal case for the imposition of major punitive damages.
We are confident that any fair-minded person (especially if they are parents or grandparents) will conclude that Ms. English’s behavior was extreme and outrageous. She inflicted intense emotional distress on C1 against the explicit recommendations and warnings of a professional when far less harmful alternatives to accomplish her goals were available. She punished a totally innocent 15 year-old (C2) by telling her she was no longer welcome at the school because unspecified conduct by her father was so offensive that the BOT decided to remove her from the school. And Ms. English repeatedly defamed Mr. Josephson by falsely characterizing his conduct.
Ms. English did all this in violation of Archer policies of non-coercive discipline and its tradition of seeking alternatives in collaboration with parents to achieve the best possible outcome from the students’ perspective.
Our case for punitive damages will, we believe be solidified by ample and compelling evidence that this seemingly irrational behavior is the result of malice resulting from Ms. English’s deep-seated animosity stemming from a confrontation she precipitated in 2009 shortly after assuming her position at Archer.
Conflicts of Interest.
Our offer to settle and compromise raises challenging conflict of interest issues affected by how the BOT answers these questions:
- Whether and how it will investigate these allegations in order to respond to the offer to settle and compromise on behalf of Archer.
- Whether and how the board members who we allege were complicit in Ms. English’s actions and have been singled out for personal liability should be permitted to participate in the Board’s deliberations and decision.
- How it will handle representation relating to the distinct allegations against the Board itself, particular Board members who were directly involved in some of the actions forming the basis for causes of action, and other individual Board members who may have differing interests or seek independent advice.
- Determination of whether it (or its insurance carrier) will provide legal counsel for the defense of various intentional torts alleged to have been committed by Ms. English.
As it is possible that that various parties will obtain their own representation, I am willing to meet with individual counsel to consider separate releases and/or a representative designated by the parties to discuss this offer.
If the BOT is to remediate the damages caused by refusing to allow C1 to participate in graduation ceremonies and to provide C2 the option of returning to Archer next semester (before committing to another school) it is imperative that the unlawful and unprofessional decisions of Ms. English be repudiated before May 15, 2014.
Duty and Difficulty of Objectivity
Many of the facts are undisputed, but as to issues subject to differing perspectives, we trust board members to understand and meet their obligation to be objective – once they feel confident that they know the facts.
As Anne Josephson has, until recently, served as a member of the BOT, we are aware that the unflattering picture of the Head of School, Ms. English, painted by our allegations, may be a surprise to most members of the BOT. The natural instinct may be to conclude that they can’t be true. Moreover, the tendency to “circle the wagons” and support the Head of School and the named members of the BOT could make it very difficult, in the absence of a professional independent investigation, to assess the accuracy and significance of my client’s allegations. In this context we make a sincere and ardent plea to read and consider my client’s allegations objectively so as to better pursue the best interests of Archer.
Duty to Investigate
My clients know that the seriousness, level of specificity, and credibility of the source of these allegations impose a duty on the BOT to conduct a thorough, objective investigation irrespective of our offer to settle. Nevertheless, such an investigation is the cornerstone of my client’s willingness to settle their substantial claims for a tiny fraction of their financial and reputational costs, and the cost to Archer and the BOT should my clients win a judgment on any or all of its causes of action. My clients are pledged to do no more than is necessary to assure that they and their children are vindicated, that Ms. English will be held accountable, that steps will be taken by the BOT to improve the school and assure that the sort of misconduct described in these papers is never repeated, and that the positive Archer culture they have long and ardently supported is restored.
Thank you for your consideration.
KOSNETT LAW FIRM
JAMES VICTOR KOSNETT
 The Board has access to the names of Mr. Josephson’s daughters, but because of the sensitive nature of some of the information that is central to this offer to settle and compromise, we have chosen not to use their names in a communication likely to be shared with each Board members’ personal lawyers and advisors, and possibly others. We reveal the fact that C2 was openly gay because this was a major factor in Anne Josephson’s pleas to Ms. English that she not be forced to find and adjust to a new school and a whole new social setting.
 We are informed and believe that Barbara Bruser and Barbara Natterson Horowitz Co-Chairs, Cathy Helm, and Scott Lord directly participated and in at least some decisions and actions damaging my clients. In fact, knowing it would increase C2’s emotional distress and drive a wedge between her and her father, Ms. English explicitly told C2 (the daughter who was told she could not return to Archer because of her father’s conduct) that she (Ms. English) did not make this decision, rather, “the Board did.”
 The basis of her hostility to Mr. Josephson is described later.
 In forcing this choice on C1 and her parents, Ms. English ignored professional opinion that the requirement of making a decision itself would inflict severe emotional distress and that the short- and long-term emotional and social harmful consequences of each choice was serious and lasting
 Ms. English admitted C1 had not been previously suspended according to standard Archer procedures and claimed that forbidding her to be on campus or go to classes was not a suspension. She offered no other explanation justifying the conduct other than her assertion that the Archer handbook gives her “sole discretion” in matters of discipline.
 The arbitrary and capricious nature of Ms. English’s behavior was demonstrated in this context by her repeated assertions that Mr. Josephson’s conduct was so egregious that it required her to ban C2 from re-enrolling at Archer although she acknowledged in writing that C2 had done nothing wrong and she repeatedly refused to specify what Mr. Josephson did to justify her decision or support her defamatory assertions.
 This action was maliciously calculated to and did in fact seriously damage the relationship between C2 and Mr. Josephson, and the relationship between C2 and C1, as C1 was convinced that her entire “life was ruined” because of actions of her father and sister.
 At a meeting to discuss Archer’s character development efforts, Ms. English asked Mr. Josephson, President of the Josephson Institute of Ethics to conduct a survey of attitudes and behavior of Archer students. Mr. Josephson agreed to do so without charge based on the understanding that the data would be shared with parents, students, faculty and the Board to stimulate discussion and enhance Archer’s character development strategies. Mr. Josephson conducted the survey and prepared an analytical report as well as discussion questions in October 2009. The report revealed a disturbingly high rate of cheating, drinking and drug use and Ms. English reneged on her commitment to share the information with parents, faculty and students and, through another administrator he was asked to (and he reluctantly agreed to) not reveal the data. When Ms. English learned Mr. Josephson had been asked to deliver a program for the Archer Dads organization and that he was conducting a separate survey for that program, she apparently feared he might collect and reveal data similar the information included in the report on the survey she commissioned, she decided to “put him in his place”. Based on completely erroneous assumptions (that she made no effort to verify), Ms. English, in the words of Archer Dad’s president, Jeffry Spitz, “ambushed” Mr. Josephson with conference call attended by several Board members. During that call Ms. English rebuked, insulted and sought to intimidate Mr. Josephson accusing him of being unprofessional and unethical in conducting another survey without her permission. One of the Board members, Cathy Helm, implied legal action if Mr. Josephson did not comply with Ms. English’s wishes. In a tirade that lasted for more than an hour, Ms. English disregarded Mr. Josephson’s attempts to correct her false assumptions about the nature of the survey and the circumstances under which it was created. Mr. Josephson expressed his own outrage at inappropriate behavior and he insisted that Mr. Spitz be included in the conversation. When it became clear even to Ms. English that the beliefs underlying her disrespectful and defamatory accusations were wrong and irresponsible, she eventually backed off. But, instead of apologizing for her inappropriate behavior, Ms. English formed a deep animosity for Mr. Josephson that she expressed with retributive actions against Mr. Josephson’s daughters and unfounded accusations that Mr. Josephson acted improperly.
 Since some of the harm caused by Ms. English’s actions can still be avoided and/or mitigated, we contend that the failure of the BOT to take corrective actions should and will be treated as ratification of and/or direct participation in those actions for purposes of liability.
 The guidelines should include provisions regarding: i) disciplinary matters, ii) determinations as to whether a current student is to be offered a contract for the succeeding year, iii) determinations as to when and whether a student’s status is to be affected as a result of parental conduct or communications, iv) determinations as to what sorts of conduct is considered adverse to a proper parent-school relationship, v) a process to assure that all parents are informed of the guidelines and that parents whose conduct is deemed to warrant sanction of any sort be given fair warning and an opportunity to take corrective action, and vi) policies to prevent retaliatory actions against students, parents, faculty or administrators.