Where Are We Now, How Did We Get Here?  Q & A With Michael Josephson About Josephson vs. Archer

April 26, 2015

Q: What is the current status of the Josephson vs. Archer lawsuit?

MJ:  It’s over – unless the Archer lawyers pull another stunt to prolong the case to punish my family further for daring to challenge Elizabeth English’s claim to absolute despotic authority. Though the litigation phase of our efforts to reform policies and procedures at Archer and other schools is over the unbridled and arrogant bullying inflicted on my family by lawyers who consistently abused the process and shamelessly advanced groundless claims and arguments to prolong the case justifies maintaining this site and a watchdog role to keep Archer parents informed and to allow other parents to hold Ms. English and  a board (which never even investigated our claims ) accountable.

Q. Why can’t you talk specifically about what the arbitrator said about Archer’s efforts to  prolong the case and oppose our dismissal?

MJ:  According to Archer’s lawyers we are not allowed to say anything about the arguments they made to the arbitrator. We know they have continually grossly misinterpreted their rights under the confidentiality provision of the arbitration clause in an effort to censor our discussion of the case, we want to end the case and not give them further excuses to make more legally groundless claims that will inflate our costs. So, at least for now, I’m not going to describe their legal arguments but the fact that i am very happy with the outcome leads to the inference that their ploy to bully us and punish us by increasing our legal fees were not successful.  We’ve contended from the beginning that Archer’s lawyers not only asserted an unreasonable arbitration clause to keep us out of court, they repeatedly sought to rub sand in our eyes and frighten us into silence. They spent a not so small fortune in one failed attempt after another trying to force us to take down this website and stop telling the truth about how the leadership of Ms. English and her board is hurting Archer.

The following Questions and Answers prior to the final ruling provide important context:

Q. Are there any conditions under which you would agree to take down this site and refrain from publishing information about Archer?

MJ:  Nothing could please my family more than to find a way to become supporters and advocates for Archer rather than a critics.  As long as Archer is under the control of a leader we think is destroying the institution we have loved for so many years we intend to play a watchdog role to keep the Archer community informed and put continuous pressure on the Board to acknowledge the multitude of shortcomings of Ms. English and install new leadership. Thus, the way out for the Archer Board is to change leadership and undo some of the more insidious processes she installed. Thus, we are willing to end the legal aspects of our dispute and convert our energies to constructive support of the Institution. Here’s what would work for us.Settlement of Dispute

We will take down this site and cease our watchdog reporting and criticism on all platforms of communication, execute mutual releases and dismiss our claims against all Archer defendants with prejudice, AND donate $150,000 to Archer to help them restore morale and their reputation if :

1)  The Board agrees to commission an independent investigation of our claims and make the report public as Marlborough did (click here What a Board should do).  

2) The Board removes Elizabeth English as head of school.

3) Board members Barbara Bruser, Barbara Natterson-Horowitz, and Cathy Helm resign.

4) The Board modifies the mandatory arbitration clause by removing the confidentiality requirement and modifying other provisions that we objected to as being unfair to parents; and

5) The Board adopts reasonable policies to prevent any administrator from excluding children and parents without just cause and a reasonable process. 

If the Board was truly looking out for the best interests of Archer, they would take us up on this. Unfortunately, past experience suggest something other than the best interests of Archer are motivating decisions.

[AS WITH EVERY OTHER OFFER, THIS OFFER WAS COMPLETELY IGNORED]

Q: If the board is not receptive to this approach and since Archer is trying to prevent you from dismissing the case, why don’t you pursue your claims in arbitration?

MJ: I don’t think most people understand how useless this sort of proceeding is for parents. As we’ve said throughout, the remedies and reforms my family seeks can only be achieved if we are able to pursue our grievances in court. Among the shortcomings of arbitration it does not all us to get a formal determination of the facts and a legal judgment regarding the behavior of Elizabeth English, and the Archer Board. When we filed the lawsuit we hoped that the Board would mitigate the harm done to our daughters, but their intransigence in refusing to conduct an investigation of our claims and their ratification of the banning of my family (including two alumni daughters) from ever coming to the campus, destroyed that hope and exacerbated the harm. Thus, all that was left was for us to hold Ms. English and the Board publicly accountable to deter them and other schools from unprofessional conduct and to establish new legal standards of professionalism for educational administrators and oversight responsibilities for governing boards.

Q: Why can’t you accomplish these goals in arbitration?

MJ: In addition to the fact that the way Archer lawyers have rigged the arbitration process so it is more expensive and difficult to prove our claims, even if we did so the results would be kept secret. There would be no public accountability or deterrence. We couldn’t even tell people that we were vindicated. What’s more, an arbitration result has no legal effect on other cases. That’s why we announced to court and the defendants from the beginning that if we could not pursue our causes of action in court we would dismiss them. The posting of our briefs to the court of appeals under the “Arbitration” tab provide detailed arguments with legal authority concerning the inadequacy of the arbitration process.

Courtroom door.

 Q: Your family had a long and positive history with Archer. You sent all four of your daughters to the school, you personally trained 30 faculty members on how to integrate character development into the curricula, your wife was a member of the Board of Trustees and your family made major cash and in-kind donations to the school – what happened?

MJ: Frankly, it took a perfect storm of hubris, callousness and vindictiveness of Elizabeth English and a Board of trustees that was so blindly loyal they ignored their responsibilities to investigate and provide oversight. Our love affair with Archer started in 2005, well before Ms. English took the reins of leadership. We entrusted the intellectual, moral, social, and emotional development of all four of our daughters to Archer. Until Ms. English’s erratic and imprudent behavior departed from the successful tradition of collaborating with parents for the best interests of the child, we were among the school’s most vocal and visible supporters.

The controversy developed incrementally as Ms. English at every decision point chose the most offensive and provocative course of conduct. She made it personal and decided to use a minor disciplinary matter with one of our daughters as an excuse to demonstrate her power to us and other families and to punish me for questioning her decision to subject my daughters to totally emotional suffering with absolutely no legitimate educational purpose.

Q: But what did she do that was so offensive that you decided to sue the school? You say, she made the dispute personal, has this been personal for you, as well?

MJ:  Yes, there is an aspect of this that is very personal. I reacted as a father as I saw Ms. English knowingly, callously and needlessly inflict harm on my daughters. I confess that this experience re-awakened by warrior instincts and unleashed feeling that caused me substantial turmoil. [See Mr. Josephson’s post discussing his moral turmoil http://josephsonvsarcher.com/michael-josephson-discusses-moral-turmoil-re-lawsuit/]

We were was appalled and yet Anne and I felt helpless as every effort we made to deescalate the conflict and find mutually acceptable alternatives were treated with arrogance and disdain.

But it was bigger than that. Anne and I came to believe that the school we joined in 2005 had been hijacked by an egocentric, authoritarian administrator who never embraced the progressive educational policies that drew us and others to Archer. Her thin veneer of civility masked a level of callousness that is a treat to every parent and student who would dare to disagree with her. We tried to get the Board to look at the facts and re-calibrate school policies but every effort we made resulted in further abuse and threats. In the end, we had no viable alternative but to seek help from the courts. ( click why so adament)

I make the rules

 Q: Ms. English contends that you and Anne were simply seeking special treatment to protect your daughter from sanctions for her bad behavior and that when you didn’t get your way you tried to intimidate her.

Anyone who will take the time to read all the letters we wrote and all the strategies we employed to get Ms. English to find alternative ways to sanction our daughter. We absolutely did not condine her rudeness but there is no way it justified subjecting her to a process her therapist told us whould likely cause severe and lasting emotional injury. The Josephson vs. Archer lawsuit was precipitated by several specific actions taken by Head of School, Elizabeth English, in January and February of 2014 resulting in the forced separation of two of the Josephsons’ daughters. Child 1, a second semester senior, was prohibited from all senior activities, graduation ceremonies and told she would not receive an Archer diploma. Child 2, was told that she could not return to Archer because of the undesirable conduct of her father in advocating for Child 1.

Q. When did you decide to sue and did you pursue other options first? 

Elizabeth English unnecessarily humiliated Child 1 by having her ejected when she came prior to her final decision to ignore our pleas for alternatives and refusal to consider a written report of a licensed therapist and force her to withdraw from school and prevent her from graduating with her class in January. She then made her decision to prevent Child 2 from completing her education at Archer in February forcing us to look for other schooling possibilities (Ms. English knew that the deadlines for all private schools had passed when she told us Child 2 could not stay at Archer). After exhaustive unsuccessful attempts to find alternatives, we consulted with an attorney to see if there was any way to protect their daughters from the long term emotional injuries and mitigate the harm by at least allowing Child 1 to participate in graduation ceremonies with her classmates.

Archer - accountability

It was decided that the only chance was to appeal to the Board of Trustees by asking them to review Ms. English’s decisions (and conduct an independent investigation, if necessary).  Anne had been a member of the Board and knew that their tendency was to automatically support and endorse the actions and recommendations of Ms. English. What’s more, their limited and controlled interactions with Ms. English when she was on her best behavior would make it hard for them to believe that she would use her authority irrationally and vindictively.

As graduation ceremonies were to occur the last week of May, time was of the essence. Thus, to assure that the Board would take the matter seriously enough, it was decided to ask for their intervention in the context of an offer to avoid further controversy and litigation. The offer was intended to stimulate immediate and serious negotiations that could result in a mutually satisfactory result and therefore, it was accompanied by a very extensive memo including the Josephsons’ side of the story and all pertinent communications and documents to permit the board to made an informed judgment.

On May 1, 2014, a letter was sent to each Board member including an official offer to settle and the supporting memo. The offer was set to expire on May 15 so there was sufficient time to allow Child 1 to avoid the trauma of missing her graduation. The Board waited until the day before the expiration and informed our that they would not intervene to mitigate and prevent injury to our children but they would consider binding secret mediation.  Archer’s attorney refused to have any direct discussions with Anne or me so we decided to sue.

Q: Expand a little more on the comment that you reacted as parents.

MJ:  As the parents of four adolescent daughters Anne and I know how deeply and dramatically their emotions affect their perspective, their performance and their self-image. What’s more, we know that the remnants of emotional trauma can persist and negatively affect their lives.

Anyone reading the documents posted here will see Anne and I tried everything we could to work with with Ms. English to find an appropriate way to deal with our daughter’s rudeness. There were many alternatives but inexplicably Ms English insisted on a rarely used public humiliation process that a licensed therapist told us would inflict intense and lasting emotional harm on our daughter. Ms. English imposed one abuse after another and I asked for a formal meeting to explore other options. At the meeting, Ms. English was disdainful and implacable.

Archer - emotional stress on a child

I believed that choice was not only unprofessional, unnecessary and inconsistent with Archer’s own policies regarding discipline but I believed it was illegal. My objections, always asserted respectfully, were interpreted as a rebellion and, as a result, Ms. English decided to make her point by throwing my other daughter out of school. I urge every parent who thinks we went to far to read the facts (See JosephsonvsArcher/Pleadings/Facts and Allegations) as I think most people would not imagine the level of arrogance and vindictiveness demonstrated by Ms. English and the willful blindness of the board.

A mantra in our home is: “All that is necessary for evil to triumph is for good people to do nothing” and its corollary, “What you allow you encourage.” Thus, we felt a moral obligation to live up to our principles and protest, and if possible stop, conduct we believe was evil.

Q: With all this passion, how do you and your family feel about dismissing your civil complaint?

MJ: Of course, we are (or will be) relieved when this emotionally and financially draining legal battle is over but naturally, we are disappointed that Archers’ army of lawyers were so successful in thwarting our efforts to have a hearing on the merits of the case and to hold Elizabeth English and the Board legally accountable.

We knew, and we think Archer’s lawyers knew, that if we were able to offer our evidence to a jury they would have concluded that Ms. English engaged in outrageous unprofessional, unethical, and illegal actions justifying punitive damages.  And, in view of the character assassination strategies directed against us, we are very frustrated that neither our factual claims nor our efforts to reform and/or clarify the law were, or will ever be, formally considered.

Finally, we are saddened that the school we loved and supported for so many years remains under the control of an authoritarian educational administrator who seems to put her need to prove her power above the interests of children and a Board of Trustees that has ignored its oversight responsibilities even to the point of refusing to properly investigate our claims.

Archer - Edmund Burke quote

Q: So, do you view this as a complete defeat? Do you regret pursuing your claims against Archer?

MJ:  Absolutely not. Of course, I’d like it a lot more if we were able to prove our claims in court and subject Ms. English to legal accountability, but we did our best and we have been able to subject the conduct of Ms. English and her Board to to public scrutiny. They have tried so hard to shut us up and shut the website down I presume they have been appropriately embarrassed.

We made very strong legal arguments opposing Archer’s efforts to force our case out of court. I think we should have won those arguments, but the arbitration clause is so insidious and the judicial preference for arbitration is so strong we simply were not successful.

I hate losing but don’t regret the fight. We showed our daughters that we are willing to walk our talk and fight for what we believe in. I am proud of our effort and our willingness to challenge an organization able to devote unlimited resources to defeat us. And, while we didn’t get our day in court, there is solace in the knowledge that we have and can continue to subject Ms. English’s conduct to public review.

Q: Did anything surprise you as you litigated your claims?

MJ: Yes, quite a few things.

  1. I was surprised that we were contacted by more than 10 families who shared their own horror stories about Ms. English. Yet all but two of the families (including the mom whose child was driven out of the school because she criticized the expenditure of $1.4 million to renovate Ms. English’s home) were explicitly afraid of vindictiveness against their daughters if they went public. The unwillingness of accomplished and powerful professionals to stand up to a bully did shock me.
  2. I was surprised at the Board’s to defend Ms. English’s conduct without recognizing the huge conflict of interests and their legal and ethical duty to at least conduct an independent and objective investigation of our claims.
  3. I was surprised at the way Archer’s lawyers were allowed to interpret and enforce an incredibly expansive and totally one-sided arbitration clause. Under their interpretation, no matter what anyone connected with the school does to a child and no matter the motivation, the only option was a secret arbitration.
  4. I was surprised that Archer’s board was literally obsessed with fear that parents would publicly criticize Ms. English or disclose disagreements or grievances. I was surprised that with so many better uses of funds they would spend $200,000 – $300,000 to shut us up, shut our website down and shuttle our complaints into the confidential arbitration process clothed with an impenetrable veil of secrecy.
  5. I was surprised at how many parents seemed comfortable authorizing Ms. English to do whatever she wants, irrespective of the educational value or institutional impact.
  6. I was surprised that Archer’s Board made no effort whatever to understand our position or see if there was a peaceful way to resolve our complaints. Board InActionI taught litigation as a law professor and I never participated in or saw a case where one of the parties absolutely refused to engage in any discussions or negotiations.  Most people don’t know that I never had a single discussion with any member of Archer’s board or Archer attorney.
  7. And, given my background as a law professor, I was genuinely surprised at how resistant the trial judge was to our legal arguments that the nature of our claims fell outside the language of the arbitration clause and, in any event, that the arbitration provision was unenforceable for a number of legal reasons.

Q. When did you decide to sue  and did you pursue other options first? 

MJ: Elizabeth English unnecessarily humiliated Child 1 by having her ejected when she came prior to her final decision to ignore our pleas for alternatives and refusal to consider a written report of a licensed therapist and force her to withdraw from school and prevent her from graduating with her class in January. She then made her decision to prevent Child 2 from completing her education at Archer in February forcing us to look for other schooling possibilities (Ms. English knew that the deadlines for all private schools had passed when she told us Child 2 could not stay at Archer). After exhaustive unsuccessful attempts to find alternatives, we consulted with an attorney to see if there was any way to protect their daughters from the long term emotional injuries and mitigate the harm by at least allowing Child 1 to participate in graduation ceremonies with her classmates.

It was decided that the only chance was to appeal to the Board of Trustees by asking them to review Ms. English’s decisions (and conduct an independent investigation, if necessary).  Anne had been a member of the Board and knew that their tendency was to automatically support and endorse the actions and recommendations of Ms. English. What’s more, their limited and controlled interactions with Ms. English when she was on her best behavior would make it hard for them to believe that she would use her authority irrationally and vindictively.

As graduation ceremonies were to occur the last week of May, time was of the essence. Thus, to assure that the Board would take the matter seriously enough, it was decided to ask for their intervention in the context of an offer to avoid further controversy and litigation. The offer was intended to stimulate immediate and serious negotiations that could result in a mutually satisfactory result and therefore, it was accompanied by a very extensive memo including the Josephsons’ side of the story and all pertinent communications and documents to permit the board to made an informed judgment.

On May 1, 2014, a letter was sent to each Board member including an official offer to settle and the supporting memo. The offer was set to expire on May 15 so there was sufficient time to allow Child 1 to avoid the trauma of missing her graduation. The Board waited until the day before the expiration and informed our that they would not intervene to mitigate and prevent injury to our children but they would consider binding secret mediation.  Archer’s attorney refused to have any direct discussions with Anne or me so we decided to sue.

Q: So, is it over for you?  

MJ: Though the legal dimension of our campaign is (or soon will be) over, I remain passionate about the issues we raised concerning unfair and oppressive arbitration clauses, the unrestrained abuse of power by school administrators, and lack the lack of oversight and safeguards to protect children from erratic and vindictive conduct.  And I have not abandoned our hope that a more responsible governing board will install new leadership to restore the Archer School for Girls to its pre-English state.

Q: What will you do now?

MJ: For starters,  I have converted the JosephsonVsArcher website to a new purpose: providing parents, educational professionals, board members and legislators to help them create safe and ethical school environments for children that assures the physical and emotional well-being of students.

Resilience - not the way the story ends FB

Q: What do you mean by a safe and ethical school environment?

MJ: Public and private schools must have the principles, policies and practices to be sure that every student is permitted to develop intellectually, morally, emotionally and socially in a climate free of fear of physical or emotional harm. The website will seek to inspire all those who deal with children to pursue the highest potential of education and to assure that administrators, faculty and staff have the incentive and tools to  teach, enforce, advocate, and model core ethical values such as trustworthiness,  respect, responsibility, fairness, caring and good citizenship.

The site will provide a resources of exemplary and model standards, commentaries, critiques, news summaries and recommendations that bear on the safety and ethical quality of policies, procedures and practices either advocated or tolerated by schools. The site will also have the additional goal of continuing to inform and serve the Archer community to assist it in making the Archer School for Girls an exemplary model for the nation.

Because this website has earned a very substantial national following, we are retaining the name and URL www.JosephsonVsArcher.com.

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