Memo in Support of Offer to Settle

MEMORANDUM OF FACTS AND ALLEGATIONS IN SUPPORT OF JOSEPHSONS OFFER TO SETTLE THEIR CLAIMS AGAINST THE ARCHER SCHOOL FOR GIRLS, THE ARCHER BOARD OF TRUSTEES AND INDIVIDUAL MEMBERS OF THE BOARD OF TRUSTEES

This memorandum of facts and allegations is presented to provide detailed facts and contentions pertinent to the Archer Board of Trustees’ (“BOT”) determination as to how it will respond to the attached offer to settle and compromise the various causes of action possessed by my clients Michael and Anne Josephson (“Josephsons”), and two of their daughters, “C1”, a senior forced to withdraw from The Archer School for Girls (“Archer”) and “C2”, a 10th grade student who was also forced to withdraw from the school mid semester and permanently banned from enrollment at Archer by Elizabeth English, Head of School.

Opportunity to Mitigate the Damages

A critical aspect of our offer to settle requires the BOT, on or before May 15, 2014, to repudiate and reverse two decisions by Ms. English that have not fully culminated in harm. There is still time to offer C1 the opportunity to graduate with her class and receive an Archer diploma, and there is still time to alleviate the enormous pressure put on C2’s parents to find a new school for the 2014-2015 academic year and remove the stigma placed on C2 by the decision of Ms. English to forbid her from completing her education at Archer.

There is also time to mitigate the damage done to C2’s relationship to Mr. Josephson by instructing Ms. English to retract her groundless, defamatory allegations about Mr. Josephson’s conduct. Such actions are appropriate and desirable even if the BOT decides not to accept our offer to settle and compromise our claims against Archer.

These actions can and should be taken even if the board elects not to accept all the terms of our offer to settle, as they will substantially mitigate the damages already caused by Ms. English and demonstrate the BOT’s accountability. A failure to do so, however, will effectively condone and make the BOT complicit in those actions and liable for the resulting injuries. Such a failure will also bulwark our claim for punitive damages.[1]

Summary of Allegations

The gravamen of our allegations is that, as a result of malice and/or malfeasance, Ms. English, Head of the Archer School for Girls, unnecessarily and unlawfully transformed a simple disciplinary issue concerning a momentary and minor act of rudeness by a graduating senior (C1)[2] into a pretext to remove C1 from her school and activities during her final semester and force her totally innocent, openly gay 15 year-old sister (C2) to find and adjust to a new school.

In the course of wreaking this havoc, Ms. English intentionally inflicted emotional distress on C1, C2 and the Josephsons and unlawfully coerced compliance with arbitrary and capricious edicts, alienated the affections of C1, interfered with and damaged the Josephsons relationships with members of the Archer community, defamed Mr. Josephson, violated Health Insurance Portability and Accountability Act (HIPAA) and Family Educational Rights Act (FERPA) laws by revealing private and protected information to select board members, and continually defamed Mr. Josephson

Whether these actions were the result of malice in an effort to settle an old score with Mr. Josephson or simply the result of bad judgment, Archer, the BOT, Ms. English and complicit board members are liable for compensatory and punitive damages.

Believing she has been given the unfettered discretion by the Archer Handbook and enrollment agreement and the BOT, Ms. English claimed and exercised the right to nullify Archer’s tradition of collaboration with parents and the pursuit of non-coercive discipline, Ms. English ignore the advice of other administrators, disregard the wishes and ardent efforts of C1 and C2’s parents to find more effective and less damaging alternatives to achieve Archer’s disciplinary objectives, and spurn the warning of a mental health professional that the course of conduct she was pursuing would inflict serious and lasting emotional distress on a 17 year-old girl who, in a momentary emotional outburst, was rude to her math teacher .

The second major event concerns the exclusion of C2 from the Archer community based on the unsupported defamatory claims of Ms. English that, in the course of advocating for C1, Michael Josephson refused to follow rules and policies pronounced by Ms. English, and otherwise acted so outrageously that Ms. English was justified in preventing C2 from completing her education at Archer.[3]

In her efforts to demonstrate the high cost of dissent, to deter resistance, and to further her personal agenda of inflicting punishment on Michael Josephson (as retaliation for previous conduct she construed as a challenge to her authority), Ms. English consistently rejected conciliatory strategies and, instead, chose drastic options certain to create acrimony and inflict severe emotional trauma and other forms of damage on the Josephsons and their children.

All the misconduct embraced in our allegations was the proximate result of the Board’s failure to exercise due care and oversight to provide guidance regarding the proper use of discretion by Ms. English.

The Limits of Discretion

It is evident from the responses of Ms. 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 the 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 overbroad 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.

The root of all causes of action 

In this context, it is relevant that the evidence will show that at the root of our causes of action for the intentional torts is an autocratic leadership style employed by Ms. English that demands subservience and requires unchallenged power to create, interpret and enforce rules to preserve and enhance her sense of control. At best, these characteristics are totally inappropriate in an educational setting. At worst, this attitude leads to unlawful and improper behavior that causes severe damage to the victims and subjects Archer to massive resource draining and reputation-damaging scandals and litigation.

Need to look beneath the surface and read between the lines

It may be hard for BOT members to accept the reality that the highly intelligent, articulate and charming Ms. English they know has an entirely other side when she is dealing with subordinates, students and parents, or anyone else who may get in her way. Nevertheless, we are confident an investigation will show these characteristics are well known by many of the people who work at Archer, and by students or parents who have had the temerity to question her policies.

We are confident that a qualified investigator who can win the trust of current and, especially, recently departed faculty members will uncover a pattern of conduct characterized by intimidation and the arbitrary and capricious use of power similar to that experienced by my clients.[4]  This is precisely the kind of knowledge the BOT should have had and should have in the future.

The investigator will discover that Ms. English has a keenly developed skill to disguise her true intentions, that she completely controls her immediate subordinates by fear, and, when needed, uses them as shields for her decisions.

The character and quality of the relationship between Archer and the Josephson family.

The end result of the cumulative actions of Ms. English has been to exclude the Josephson family from the Archer community. The two Josephson children enrolled in the school at the beginning of the school year have both been forced to leave the school. The character and conduct of Michael Josephson has been defamed and Anne Josephson was effectively forced to resign as a member of the BOT. All this happened as a direct result of Ms. English’s conclusion that the family was not a constructive part of the Archer community.

We are confident that this claim will not withstand objective scrutiny.

The evidence is overwhelming that Michael and Anne Josephson have been active, positive members of the Archer community since 2005. They have enrolled four daughters in the school. The two that graduated received various awards and recognitions and one of them was selected to deliver the valedictory speech to both her middle and high school class. A third daughter (C1) was in her last semester at Archer having already received early admission of Barnard College and earned what my clients were told the highest ACT score of any girl in Archer history. C1 also distinguished herself as a leader of both dance troupe and several community service projects. A fourth daughter (C2) was an enrolled in the 10th grade and was a popular student, a natural leader who was very active in Archer’s theater program.

Anne Josephson is founder and CEO of one of the largest and most prestigious gymnastic academies in the country. She is a graduate of Barnard College and serves on the College’s Advisory Board. At the invitation of Ms. English, she became a member of the BOT nearly two years ago. She is well known as one of the school’s best advocates and active recruiters of both faculty and students. She also was a much loved and respected friend of Archer with extensive and intensive friendships with many administrators, staff and faculty. She repeatedly hosted, at no cost to Archer, parties and gatherings of student groups. Anne also provided free scholarships to the Josephson Academy of Gymnastics to the children of faculty and staff.

Michael Josephson, a former law professor, is a nationally known radio commentator, speaker, writer and consultant on ethics and character. He has devoted the past 25 years to serving, for no salary, as CEO of the nonprofit Joseph & Edna Josephson Institute of Ethics and the CHARACTER COUNTS! Coalition, the world’s largest and most influential student development program. He voluntarily conducted a three day workshop for Archer faculty, conducted a school-wide survey of student behavior, presented sessions on parenting for character for Archer parent groups and taught sessions of several Archer classes.

Ms. English’s hostility and animosity toward Mr. Josephson

Many of the actions of Ms. English only make sense when they are considered in the context of her animosity toward Mr. Josephson stemming from a major confrontation they had in 2009 concerning Ms. English’s decision to renege on her commitment to share the results of a survey she commissioned Mr. Josephson to undertake with parents, teachers and students and a conference call during which Ms. English, based on erroneous assumptions she made no attempt to verify, accused Mr. Josephson of unprofessional and unethical conduct. The incident is described in more detail in the offer to settle letter but the following e-mails give context and credence to demonstrate Ms. English’s hostility to Mr. Josephson.

The confrontation, later described as an “ambush” by the President of the Archer Dads organization Jeffrey Spitz began with a seeming innocent request by Ms. English to meet with Mr. Josephson. We have underlined sections we think are particularly relevant.

November 20, 2009 2:29 PM From: Maria Servello To: MSJ Subject: Speaking with Ms. English

Hello Mr. Josephson:

Thank you for speaking to me today.  Due to your event this evening and the start of the Thanksgiving holiday, Ms. English would love to set something up for Monday, November 30th.  She is free from 10:30 am until 1:30 pm.  Please let me know what time might be best for you.

Kind thanks, Maria, Assistant to the Head of School

————–

November 30, 2009 10:06 From: MSJ to Maria Servello:

Hi Maria,

I understand Chris [Mr. Josephson’s assistant] has been talking to you about setting up a time for a conversation with Ms. English. I am so sorry that other commitments preclude a face-to-face at Archer today. I understand we have a phone appointment scheduled.

I am delighted to have a discussion about the survey (I presume we are talking about the survey administered by the school at the end of last semester) but I need to refresh myself on the data and my previous communications regarding it to make the best use of Ms. English’s time.

Is this to be the discussion concerning the meaning/significance of the data and/or a possible strategic plan to address it and/or the way it might be introduced constructively to students and parents? Are others to be present?

Is Ms. English available in the next hour for a brief telephone discussion about her goals so I can assess whether I can be prepared for the discussion as scheduled?

I will ask Chris to follow up to see if we can have a touch base conversation prior to the real conversation.

Best, Michael

______________

            November 30, 2009 10:48 AM

Mr. Josephson:

I am forwarding your email to Ms. English so she may respond to your questions.

Kind thanks, Maria

______________

It is very significant that Ms. English never responded to clarify the purpose of the meeting or who would be attending as exactly this same technique was used prior to her meeting with Mr. Josephson on January 13, 2014, the one and only personal interaction between Mr. Josephson and Ms. English regarding discipline of C1 or the exclusion of C2.

When the phone conference began as scheduled, Ms. English surprised Mr. Josephson with the news that she had asked two board members to participate in the call, one of whom (Cathy Helm) was described as an educational lawyer. Ms. English also surprised Mr. Josephson with the news that her topic was not the school-wide survey she asked him to conduct a year earlier but an online survey Mr. Josephson had just conducted in preparation for a presentation to Archer Dads organization scheduled for December 1.

Ms. English opened the conversation expressing outrage and dismay that Mr. Josephson would conduct a survey of Archer girls without her permission. She also seemed concerned that Mr. Josephson would reveal some of the negative data from the survey she had commissioned or that the data he just collected would be similar in nature.

An acrimonious conversation ensued consisting primarily of a tirade by Ms. English and Ms. Helm apparently designed to humiliate and intimate him. Ms. English repeatedly accused him of being unethical and unprofessional for his failure to recognize the right of the head of school to control such matters and to seek her approval. Mr. Josephson protested that she was operating under a false assumption that she could have and should have sought to verify. He insisted that she did not understand the nature or origin of the survey, that he had no intent to reveal the data she was so intent on concealing and that since this was an Archer Dads event he did not think it was his role or responsibility to “clear” the matter with her.

Mr. Josephson expressed his own outrage at the tactic she used to set him up for this sort of phone call without any notice of its purpose or knowledge of who would be involved, especially since he specifically inquired on these issues. Finally he asked that Jeffrey Spitz, President of Archer Dads be included in the call. A recess was arranged and the conference call resumed at 5:00 PM. This letter sent by Jeffrey Spitz to members of the Archer Dads Board written and sent midway through the call reveals the tone and nature of the conversation he experienced.

Underlining is added to highlight particularly relevant information

November 30, 2009 5:28 PM

From: Spitz, Jeffrey To: Kevan Lynd; Greg Spahr; Mark Sarkowsky; Morgan, Nicolas; Jan Russell;

David Howard
I am on a contentious phone call with MSJ, Archer and the Archer Board (by representation).  We will need to have a discussion shortly about the Thursday event and maybe beyond. Are folks available NOW for a call???  IF not, how about tomorrow at 3 or 4 pm???

Jeffrey Spitz, Attorney at Law
Greenberg Glusker Fields Claman & Machtinger LLP
___________________

Immediately after the call he wrote this note to his board demonstrating both Ms. English’s need and demand for complete control and how angry (Mr. Sptiz used the term “incensed”) she was at Mr. Josephson. Unfortunately, this emotion did not subside even when she learned that her accusations were groundless and based on false assumptions. Apparently she has harbored a grudge against Mr. Josephson since that time and decided that the incident with C1 concerning a minor act of rudeness could be the excuse for a vendetta that ended with the exclusion of his two daughters and the separation of the Josephsons from the Archer community.[5]

Nov 30, 2009 at 6:07 PM

From: Spitz, Jeffrey to Board of Archer Dads
 
EE ambushed MSJ this morning, complaining about the things discussed below.

The call was continued to 5 pm and I joined at that time.

Elizabeth and her Board, as represented by Debbie Bass and Cathy Helm were incensed that we were doing the survey without talking to her first and getting her input (read, approval).  She is particularly concerned b/c the survey includes questions about rating the job Archer is doing and inquires about the  prevalence of drug use, cheating, bad behavior, etc.

I told her it was not on our radar to run our activities by her in advance, that no disrespect was intended and apologized that she felt that way.

Michael and I tried to steer the discussion to what do you want us to do now?  The answer is for Michael not to discuss the actual survey results on the sensitive topics but to simply use the results to inform the discussion.  I am ok with that.

Unfortunately, Michael may have suggested previously that we would allow school administrators to attend the meeting; EE wants to have Samantha Coyne Donnell and Karen Pavlick attend.  On reflection, Michael pointed out that their presence would likely chill the discussion from some of the girls.  I agree 100%.

 I advised EE and the others that we would consider her requests and get back to her quickly.

You should all be aware that the entire tenor of the discussion kept coming back to how offended they were that we did this without prior disclosure to EE.  EE stressed that we are tie together with the school, use their name, etc.  I said that she and we had a meeting in her office and numerous discussions with her from day one about the relationship between AD, Inc. and the school.

My recommendation is that we NOT undermine this program that we have busted our asses over by allowing school administrators to attend and chill the discussion but that we DO AGREE not to have Michael discuss the specific survey results.  I think we also need to give the Thursday night crowd a caveat that what we discuss in that room should stay there, between us, and not be discussed outside the meeting.  At bottom, EE’s big nightmare, I think, is that Michael reveals negative survey results (Archer girls drink and do drugs) and that this info winds up in the LA Times or on some blog.

I do not think EE will be happy with us over this and we may be endangering AD, Inc.’s long term relationship with the school, but I think it is the right decision.

Based on the forgoing and the shortness of time, if we all agree, great.  If not, or if folks want to talk, and I am more than fine with that, we should have a discussion tomorrow afternoon; I can be available after 3 pm.

 Jeffrey Spitz  Attorney at Law 

Mr. Josephson’s contemporaneous reaction to the incident is conveyed in his note to Mr. Spitz at 10:34 that night.

Sadly, none of this matters. EE was absolutely beside herself with indignation that someone did not explicitly and reverently approach her “as head of school” to get her approval (which it is absolutely clear she would not have given) BEFORE we decided we wanted the survey. Though she occasionally used the language of the courtesy of advance notice she made it clear that she was “incredulous” that we would not abide by her wishes.

 I remain personally offended by the manner in which this has been handled but I don’t think it’s good for anyone to widen the gap between Archer Dad’s and the admin. It’s not clear what role she thought the Board members were playing and why they were in any way necessary to the conversation unless she intended intimidation with the lawyer and wanted to send the message that she has full Board support.

 I think she will view a refusal to allow her deans to attend the meeting as a declaration of war and a cooler head than hers will be necessary to prevent her from being vindictive even though it is not justified nor in the best interest of the school.  Is there anyone you know on the Board that might take a more conciliatory approach?

 I am sooooo sorry I dragged you in this direction.

Michael

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.

Intentional, Reckless and Negligent Infliction of Emotional Distress.

Summary: 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.

DEALING WITH C1’S RUDENESS TO A TEACHER

In December 2013, C1 was rude to her math teacher. This was reported to both Anne and Michael Josephson by Gretchen Warner (“Ms. Warner”) and both, as they had before, offered their support to the school to determine a proper sanction. They made it clear that they did not condone any act of disrespect.

C1 said she was under unusual stress (response to her early application to Barnard was imminent and she was suffering from the impact of substantial family drama involving her sisters). She accepted responsibility for her inappropriate behavior and, on her own, apologized within a few hours of the incident.

According to Ms. Coyne Donnel (“Ms. Coyne”), C1’s advisor and Director of the Upper School, the behavior was not egregious and C1 had demonstrated accountability. The matter would have been closed but several months before there was a different incident in the library where C1 had talked back to the librarian and was disciplined. At that time she was told that if she acted inappropriately again the matter would be reviewed by a student honor council.

A hearing was scheduled to take place just before the winter break but it was cancelled on December 17 by Gretchen Warner (“Ms. Warner”), Dean of Students.

Thursday, December 12, 2013 8:40 AM From: Gretchen Warner To: Anne Josephson; MSJ

Dear Anne and Michael,

I want to let you know that we are not able to assemble the necessary number of Honor Education Council members together for a hearing, given the timing around the Winter Concert and final exams.  We are going to move forward with scheduling the HEC hearing after the winter break, which I am optimistic will be helpful for C1, too.  I know that C1 is not at school today, and I will follow-up with her about this when she is back on campus.

As you know, Ms. Coyne Donnel will not be able to serve as C1’s advocate in the formal process of the hearing.  However, I know that she will work closely with her and support her throughout the coming days and help her choose a strong advocate.

I will stay in consistent communication as we move forward, and please don’t hesitate to reach out with any questions.

Sincerely, Gretchen

The fact that C1 was not permitted to have her advisor as her advocate reveals one of many flaws in the student judicial process. The structure is an inherently intimidating one. The accused student must explain her actions and demonstrate accountability before up to 12 students, 3 faculty members and one administrator – that’s 16 people scrutinizing the words and body posture of the “defendant” and empowered to affect her future. [6]

Mr. Josephson wrote a cordial cooperative response.

________________

December 13, 2013 7:58 AM

From: MSJ

To: Gretchen Warner, Samantha Coyne

Thank you for your thoughtful and sincere efforts in all aspects of this unfortunate situation. I understand that C1 was quite accountable and acknowledged the inappropriateness of her behavior. To me, that is 90% of the success we seek. You may have heard that C1 received notice from Barnard yesterday that she was admitted. This lifts a huge pressure off all of us and I think we all have reason to be proud of her. Archer’s caring guidance has definitely been a positive factor in her growth.

I am sure that after a few weeks’ hiatus we will have an even more objective the perspective that will help determine the most effective next steps.

I hope you have a wonderful holiday season.

Best to you, Michael

_______________

The hearing was rescheduled for Monday, January 6 at 2:00pm.  (This is the day before classes resume on January 7).

December 17, 2013 8:20 AM From: Gretchen Warner  To: C1 Josephson

Hi, C1,

I want you to know the HEC hearing has been scheduled for Monday, January 6 at 2:00pm.  (This is the day before classes resume on Jan 7.).  Please plan to arrive to campus with plenty of time to meet your advocate before we begin. I am still waiting to hear from you about who you have chosen as your advocate, so please let me know once your decision is made. I will send another email closer to the date that shares where you and your advocate should meet beforehand. Please let me know if you have any questions. 

Sincerely, Ms. Warner  Dean of Students

Prior to cancellation of the hearing C1, in at least one emotional meeting with Ms. Coyne, tried to persuade her that this process would be highly traumatic for her. She implored Ms. Coyne to consider other sanctions if they were thought necessary. C1 said she just couldn’t participate because she was sure she would break down in front of her peers and that she might have to reveal personal information about her and her family that she felt should be kept private. Ms. Coyne said she would talk with Ms. English but if Ms. English insisted on the hearing she would be suspended or she would have to withdraw from the school if she refused to participate.

Anne Josephson met with Ms. Coyne to discuss her reservations about the appropriateness of the student hearing process as designed. She said she did not oppose additional sanctions against C1 if the school thought they were needed but that requiring an emotionally fragile girl to be confronted and judged by more than a dozen adolescent peers was too harsh for C1. She pointed out various deficiencies and defects in the process, including the likelihood that it would violate HIPAA laws. Ms. Coyne said she would pass on her objections to Ms. English.

During the winter break Ms. Coyne informed Anne and C1 that Ms. English was insistent on requiring the student hearing and she urged C1 to comply rather than risk her entire career at Archer. On December 31, 2014 she sent this letter to C1:

Hi, C1,

I hope you are enjoying the break.  In addition, I hope that the time away from school has afforded you the opportunity to reconsider your participation in the hearing.   While I understand you are concerned about being asked to reveal private family matters, I want to reiterate that there is no expectation for you to do so, nor would you be asked to do so by any of the HEC members.  The process is designed for you to reflect on your actions and take responsibility for your behavior as it relates to the School’s Honor Code; hence, the focus of the hearing will be the incident, itself, and your reaction to Ms. Amaya.

I spoke with Ms. English regarding your concerns, and she reiterated what I told you on Friday when we met.  If you are not emotionally fit to handle a hearing, then we could consider a medical leave with the proper documentation.  The other option would be for you to choose to withdraw.  Both of these options seem like they would be more detrimental than the hearing process, and I am not sure how either would impact your admission to Barnard.  Before you make your decision, I urge you to speak with Keddie. 

Ultimately, C1, I want you to learn from this experience and to find more productive ways to manage your emotions during your final semester at Archer.  I also would like to see you graduate from Archer, as you have grown significantly during your time here and you have worked hard both inside and outside of the classroom.

I am happy to discuss further with you this break if you want to talk by phone.

Best, Ms. Coyne

This letter (which coincided with attempts by both Anne and Michael Josephson to induce her to participate in the hearing process) resulted in a severe emotional breakdown, which included expression of excessive fears of the impending student hearing. The intensity and the duration of the emotions caused C1’s parents to conclude that they needed a professional to diagnose and, if necessary, treat C1’s condition. On Friday, January 3, while Archer was still on winter break (and 3 days before the scheduled hearing), Michael Josephson sent the following letter to Ms. Coyne, informing her that C1 had suffered a severe emotional breakdown and that that C1 would not attend school for the first week (obviously requiring a re-scheduling of the hearing). He also asked for a meeting with Ms. Coyne so he could update her and discuss the new situation and explore when and whether a new hearing or an alternative strategy would be pursued:

 Dear Samantha,

Anne and I know and deeply appreciate how much time and energy you and Ms. Warner have invested in trying to determine how best to proceed with finding a constructive way to deal with C1’s inappropriate conduct including the scheduled upcoming hearing.

We also appreciate your sensitivity and assurance (via you note sent to us and C1 on December 31) that C1 will not be asked to reveal private personal or family information as:  “the process is designed for you to reflect on your actions and take responsibility for your behavior as it relates to the School’s Honor Code; hence, the focus of the hearing will be the incident, itself, and your reaction to Ms. Amaya.”

We also want you to know that we fully support your statement of your objective and approach: “Ultimately, C1, I want you to learn from this experience and to find more productive ways to manage your emotions during your final semester at Archer.  I also would like to see you graduate from Archer, as you have grown significantly during your time here and you have worked hard both inside and outside of the classroom.”

You know C1 holds you in the highest regard and these were important qualifications. Frankly, we hoped C1’s anxiety about the hearing would have been alleviated by these assurances.

Unfortunately, when we discussed your letter and the impending hearing with her last night – the first chance we had after the New Year’s activities (I was out of town), we were very disturbed to discover that the immediacy of the hearing triggered an extreme emotional response revealing even deeper anxiety issues than we had realized.

Her emotional reaction was such that we have concluded they must be addressed by a professional before we can allow her to be subjected to what may, despite your good intentions, exacerbate the emotional issues which are causing her great pain and could affect her ability to properly deal with the hearing and, for that matter, her school work.

Consequently, we intend to keep her out of school at least for the next few days as we seek professional advice on how to best meet the good intentions of Archer while protecting C1’s mental well-being.

C1 is dedicated to graduating from Archer and we do not foresee any circumstances that will result in our decision to withdraw her from the school or jeopardize her ability to graduate with her class. Thus, we will assure that, to the best of her ability, she keeps up with assigned school work during what we hope will be just a short hiatus in attendance.

We will work with you to re-schedule the hearing once we have professional input and shall endeavor to respect the school’s needs and requirements.

We do not know whether, as a result of professional advice, we will seek an official medical leave. We hope not, but if it looks like it is moving in that direction we will seek further information from you as to the requirements and consequences of that alternative.

We sincerely hope you understand our position and that we can continue to count on Archer’s patience and creativity as we find the best way to proceed.

Because Anne wants to avoid any appearance of conflict of interest relating to her role on the Board, I will be taking lead on further discussions. I will be happy to meet with you or, if you prefer, talk on the phone, about this any time today or in the afternoon on Monday.

Thank you for your continued cooperation and understanding. We are sure that together we will get through this with a positive outcome for all concerned.

Respectfully, Michael Josephson

Ms. Coyne responded on January 4 (still two days before the scheduled hearing and 3 days before classes resume:

Hi, Michael,

Thanks for your email. I am sorry to hear that C1 is not able to participate in the hearing at this point. I was hoping some time and distance would help to shift her perspective, but it does not sound like that has happened. Yes, let’s connect on Wednesday. What time of day works best for you?

Best,

Samantha

It is important to note that Ms. Coyne did not object to the delay nor say anything about C1 not being able to return to school when she was ready. On January 7, Mr. Josephson sent this email to Ms. Coyne:

Hi Samantha,

I am sorry for not responding sooner. Anne and I wanted to have further discussions with C1 and the therapist she was talking to so we could develop coherent strategy that could work for everyone. At least as of today, C1’s anxiety has not fully subsided but I see progress and light at the end of the tunnel. Clearly, the “hearing” has been blown out of proportion. But it tapped into some much deeper mental health issues that must be addressed both short and long term. Nevertheless, according the therapist, the problem has grown to the level of genuine trauma.

Though the matter is delicate I’m convinced that with the kind of patience and creativity that characterizes your approach, C1 is going to be fine in the end and that she will be able to complete her last semester.

Just recognizing and paying attention to the deeper sources of anxiety that C1 has repressed has already provided a door to constructive problem solving. We have some ideas for moving forward.

Can you and I we meet at either 11am or 3:30-4:00 pm tomorrow? If not I will make whatever schedule changes I can to accommodate your schedule.  Michael

In a January 9 letter to Ms. English prior to his meeting with her, Michael Josephson elaborated on the reasons why he and Anne had come to believe that requiring participation in the student hearing would be dangerous and damaging and why they thought pursuit of an alternative strategy was essential.

Dear Elizabeth,

Thank you for making yourself available on such short notice.

 I have been engaged in discussions all morning concerning C1’s situation with particular focus on concerns and questions Samantha raised in our discussion, including the therapist’s willingness and availability to meet with Patty Lancaster as Samantha requested.  As a result, we have an appointment with the therapist this afternoon and C1 has another session with the therapist tomorrow.

 We will ask the therapist to address issues in her session with C1 that will permit her to give a considered opinion on several questions Samantha posed that bear on the school’s consideration of our request for an alternative means of resolving the disciplinary issue that will not require her to appear before the Honor Council.

 We will also ask her opinion as to whether and how long it would take to prepare C1 to believe that she can participate in the student honor council hearing without undue risk of an emotional meltdown.

 We are very anxious to resolve these issues as soon as possible as the process is taking a huge toll on C1, Anne and other stakeholders.

The information we will gather in the next few days is essential to give us a more reliable insight as to the emotional risks of the various options discussed with Samantha.

 Samantha made it clear that you will be the ultimate decision maker on our request for an alternative means of completing the disciplinary process. Thus, it is essential that we have adequate time – at least 45 minutes – so you have all the information you need and so we can fully understand your perspective and you can fully understand ours in our efforts to achieve a result that meets Archer’s needs without causing C1 avoidable emotional trauma. I think you know we are not trying to immunize C1 from accountability for her rudeness, we are only asking that the process for determining the proper sanction be one that does not raise such fears in her that she might be unwilling or unable to participate.

 After my meeting with Samantha it seemed that some at the school think C1 is merely being headstrong and stubborn and that it is appropriate to force her to choose between participating in the hearing and being forced out of the school and not participating in dance or graduating with her class. The hearing, it would seem it is no big deal and she should just do it. That was my initial position. Unfortunately, as the therapist will document, she has developed such a phobia about the possibility of melting down before peers that if C1 was forced to decide today, she would choose to be forced out of Archer knowing that would be a horrible result. This itself, is pretty compelling evidence of the seriousness of the issue. Of course, her fears are irrational, but that does not make them less real.

 In any event, the matters are delicate and complex and the consequences of the resolution can have lifelong impact on C1. Therefore, I respectfully request an in person meeting rather than a telephone call.

To assure your convenience and availability I will clear any prior appointment I can. I will also see if the therapist can be available if you think that would be helpful. I will also meet on the weekend, early morning, or evening if any of those times are feasible.

 Perhaps the best time will be Monday morning – any time before 2 and as early as 6:00 am if you prefer (the only appointment I can’t change next week is a trip to San Diego where I am booked to give a presentation).

 Please let me know the best way to find a mutually convenient time.

 Sincerely, Michael

Mr. Josephson met with Ms. Coyne on Thursday, January 9, 2014. Ms. Heather Keddie, C1’s college advisor, was present. During the meeting, Mr. Josephson explained the extraordinary nature of C1’s fragile condition and the failure of his efforts to persuade her that the process would not be as traumatic as she feared. He informed Ms. Coyne that he had spoken extensively with the therapist and she was of the firm opinion that C1 had developed an irrational but sincere phobia about the hearing and that if she were forced to participate it would inflict great and lasting emotional harm.

Mr. Josephson cited the school’s commitment to non-coercive discipline and repeated the criteria Ms. Coyne had sent in terms of the goal of discipline. He pointed out that the student hearing process was purely discretionary and that, clearly, other means of assuring that C1 was accountable for her rudeness could be found to accomplish Archer’s disciplinary goals. Ms. Coyne was sympathetic but she said Ms. English expressly instructed her that she could not discuss any alternatives to the student hearing.

Mr. Josephson indicated the long-term emotional and mental well-being of C1 was at stake and that the hearing process had turned into a sanction itself, rather than simply a means to determine the proper sanction for conduct C1 had already apologized for. Ms. Coyne repeated that she had no authority to discuss other options.

Mr. Josephson asked Ms. Coyne whether the school was prepared to insist on imposing the hearing over the objection of the parents who had been advised by a mental health professional that subjecting C1 to the process could cause deep and lasting injury. He asked what the reaction of the school would be if, based on this professional advice, he instructed C1 not to participate. He indicated that forcing her to go against a professional expert’s advice or withdraw was not right or legal and that if that was the ultimate position they would have to consider seeking relief from a court.

Ms. Coyne also informed Mr. Josephson that Ms. English had also decided that C1 was not going to be allowed to return to school until she first participated in the student hearing. Mr. Josephson protested and asked for the basis and authority for suspending C1 before the hearing. He pointed out that neither C1 nor her parents were given any notice of this requirement and that he thought it was unfair, wrong and probably illegal.

Ms. Coyne reiterated she had no authority to alter the position of Ms. English and said he would have to take up his case directly with her. They both expected that the meeting would take place the next day (Friday) and that the issue of the suspension would also be discussed.

Ms. English was not available for a Friday meeting so the meeting was set for 11:00 AM Monday January 13.

In the interim C1’s therapist prepared a comprehensive written report and asked if she could attend the meeting to explain her findings and recommendations, including alternative ways to deal with the underlying disciplinary issue. Mr. Josephson and Ms. English exchanged several e-mails during which Ms. English denied the request to allow the therapist to attend. She indicated that she asked Scott Lord, a Board Member and a lawyer, to attend the meeting.

It turned out the meeting was a sham. At the outset, when Mr. Josephson asked Ms. English what her goals were for the meeting, she said her purpose was to personally reiterate the position she had conveyed through Ms. Coyne, that she doesn’t negotiate with parents, that she expects full support for her decisions from parents, and that, irrespective of the opinions of C1’s parents and the mental health professional, she thought the hearing would be good for C1. Mr. Josephson’s efforts to seek a different solution were summarily rejected.

In view of the fact that Ms. English had no intent to consider any alternatives or seriously discuss the opinion of C1’s therapist, the following stream of emails reveals the intent of Ms. English to harass and punish Mr. Josephson by leading him and Anne to believe otherwise.

January 9, 2014   From: Elizabeth English To: MSJ

Dear Michael, 

Thank you for following up.  I can be available on Monday, January 13 between 11:00 and 1:00. Ms. Coyne will be joining us as will Scott Lord, a member of the Board of Trustees. The reason for Scott’s joining us is the legal overture you made during your meeting with Ms. Coyne.

Please let Maria Servello know if any time in that window works for you. Her email is mservello@archer.org. In the meantime, I hope things go well with C1 and her therapist.

I look forward to talking with you.

Elizabeth
__________ 

January 9, 2014  From: Anne Josephson To: Elizabeth English

Dear Elizabeth,

I suspect you must be aware of what is going on with C1 as Michael mentioned to me that the two of you will be speaking later today.

I am just dropping you a note to let you know that I am remaining at arm’s length on this not because I don’t care or have an opinion, but rather because I take my role as a trustee seriously and am respectfully following the advice to allow the other parent to deal with issues of discipline at the school.  

As my friend and as someone I know cares deeply about C1, I do want to tell you that I am very concerned with the amount of psychological pain C1 is and how much she has been holding in regarding her anger and anxiety about her sisters’  depression [other family matters]and our divorce.  It’s easy to conclude given her obstinate personality that this is a battle of wills that C1 has entered.  And, because of her marvelously developed defense mechanisms, there are moments it reads that way.  However, once you can get past that layer of defense, what is left is a very fragile, terrified, anxious and traumatized kid who has been tamping down very large feelings, including tremendous worry that one of her sisters will kill themselves, and pretending that everything is ok.  I share this with you not by way of creating a justification for her poor behavior but rather to give you context of where she is right now.

As you can imagine, the past couple weeks have been the capstone on what has been the worst 18 months in my life.  

I think you know how much I love Archer and the thought that C1 wouldn’t graduate with her class makes me sick.  (literally, I have lost 10 pounds since all of this has happened–small silver lining, I guess.)

I hope your discussion with Michael goes well and that you can find a resolution that is respectful to both the needs of C1 and the school.  

Sincerely, Anne

_________

Thu, Jan 9, 2014 at 5:30 PM From: Michael Josephson To: Elizabeth English, MSJ wrote:

Dear Elizabeth,

I am very grateful you were able to make the time to allow us to present the facts and considerations that we think justify our request for an alternative disciplinary process. Though I see no reason at all to talk legal options at this meeting, I think it is a very good idea to have Mr. Lord present. We have known his family for a long time and Anne speaks very highly of him.

Samantha and I discussed Anne’s and my concern that this particular disciplinary process at this particular time in the life of C1 creates a significant risk of lasting trauma. What we learn tomorrow after C1’s therapy session will we help us formulate our final position. I do not know whether she will be available, but do you object if C1’s therapist joins the meeting to answer your questions?

 Samantha mentioned that it would be important for the therapist to talk directly with Patty Lancaster. In the hope we can resolve all issues Monday, I wonder whether it would be wise to have Patty Lancaster present as well?

I know you would not require the student hearing if you believed it could cause C1 serious harm but that granting an exemption on mental health grounds must be done only upon presentation of credible and persuasive evidence. Is there anything beyond a letter from the therapist (or her direct testimony, if you prefer) and a meeting with Patty that you would need to make your determination? Do you want her statement in affidavit form? Would you need a second opinion? Do you want C1 to speak to a therapist of your choosing? Though we would prefer to not cause C1 further stress and anxiety we are willing to cooperate with you to assure you have sufficient information for your decision.

Finally, I know Anne is deeply concerned with how these issues are handled and resolved but feels that because of her status a member of the Board of Trustees that she should recuse herself. I would like to induce her to be present so you can hear her perspective and she can hear yours. Do you believe it would be appropriate for her to do so without compromising her role a board member? If not, I’m certain she will elect to keep her distance.

Sincerely, Michael

________

Friday, January 10, 2014 10:20 AM

From: Elizabeth English To: MSJ

Hi, Michael –

Thank you again for following up. Anne should most certainly join us if she would like to. There is no need for either C1’s therapist or Ms. Lancaster to attend the meeting. I’ve attached a copy of our release form so that C1’s therapist can speak with Ms. Lancaster directly. The sooner that can happen, the better.

Just in case you have not already had a chance to review these documents, I’ve attached copies of our Student/Parent Handbook (Honor Code and Constitution pp. 28-29, 63-68) and your Enrollment Contract.

I look forward to meeting with you and Anne on Monday.

Sincere regards, Elizabeth

Please note that while both Michael and Anne Josephson were explicit in expressing their belief that the purpose of the meeting was to allow Mr. Josephson to present alternatives and that the information from the mental health professional would be relevant if not determinative, Ms. English never indicated that her goal for the meeting was only to reassert her previously stated conclusions. We believe this was extremely manipulative and disrespectful and designed to frustrate and harass Mr. Josephson. But there is more.

Friday, January 10, 2014 12:54 PM, MSJ wrote:

Hi Elizabeth,

Anne may still decide not to attend our meeting but I will convey to her your opinion that it would not be an inappropriate conflict of interest for her to do so. Thank you.

Thank you for sending me copies of the student manual, I am quite familiar with the provisions you refer to but I appreciate your courtesy.

Can Patty meet with C1’s therapist, Dr. Esparce, Monday morning prior to our 11 am meeting (she will come to Archer) so you will have the benefit of the information which is crucial to our request?

The professional opinion of Dr. Eileen Escarce regarding C1’s current mental state and the potential impact of a student hearing are central to our belief that an alternate process to determine appropriate discipline would better meet the needs of C1 and Archer. Dr. Esparce just completed another diagnostic session to provide the basis of her opinion. [7]

Michael

——–

Friday, January 10, 2014 4:44 PM  From: Elizabeth English To: MSJ

Hi, Michael –

I’ve been downtown for a meeting all afternoon and just saw your email.  I called Patty to see if she is available on Monday morning.  Unfortunately, she has gone home for the weekend. 

 I think the best thing to do is have Dr. Esparce call Patty and leave her number.  That way Patty can call her on Monday morning as soon as she has a chance.  Patty’s number is 310-873-7033. Please return the signed release form to me via email so that Patty is at liberty to talk with Dr. Esparce.

 Many thanks, Elizabeth

What was the point of all this if Ms. English had no intention of considering the outcome of such a meeting?

Sunday, January 12, 2014 2:07 AM, MSJ wrote:

Hi Elizabeth,

 Sadly it seems nothing is as simple or easy as one thinks it should be.

I am responding so late because I spent the day moving Samara into her new dorm at Loyola (and related emotional stuff relating to starting in a new school with a new major).

Re: the meeting between Dr. Esparce and Patty. I did initially think one was needed because the objective was to let Patty, as your representative hear and question Dr. Esparce as to her opinions on C1’s current emotional state and the potential impact of forcing her to participate in a student hearing to determine her sanction for misconduct in December.

Nevertheless, since you asked, I intend to seek C1’s consent.  I did not have a chance to approach her about it yet. This sort of communication is more delicate than one would imagine.  

You are far more familiar with adolescents and their defense mechanisms than I am but I find it hard to deal with the emotional roller coaster. Most of the time C1 seems fine to me. Thank God, she is eager and anxious to get back to school and she is interacting positively with her friends.

 But when I try to direct her to any aspect of the upcoming meeting and your impending decision on our request for an alternative process of determining the sanction for her inappropriate behavior, she becomes so anxious that she either shuts down, melts down or refuses to deal with it.

Although she understands that if she does not participate in the student hearing that we have been told she will be forced to withdraw from Archer.

I can’t even fathom the short and long term impact of being denied the opportunity to graduate with her class not dance with her classmates, and perhaps to lose her admission to Barnard. I pressed her very hard “to suck it up and just do it” and though Anne and I tried to convince her that this alternative is far worse than whatever may happen during a hearing, she says she simply “can’t.”

Elizabeth, you know Anne and I are very familiar with C1’s stubbornness and I have typically been very hard on her when I think her actions are wilful. We are at this juncture in the process because, this time I truly believe this is not wilful stubbornness but an emotional crisis that must be handled with great sensitivity. On balance, it could be positive as this is the first time C1 has ever asked us to get her therapeutic help but this crisis occurs at the worst possible time.

Over my great initial resistance, I now understand her notion of “can’t.” It is as if she feels she is a volcano that will disintegrate if all the emotions she is struggling so hard to control uncontrollably erupt. I am not talking about anger I am talking about excruciating humiliation and fear.

So this is the context of a request for her permission to allow Patty to talk with Dr. Esparce (further complicated by the fact that C1 thinks that ever since Patty “kicked her out” of her class that Patty has firm and negative opinions about her and I suspect she will think allowing the discussion will be just one more nail in her coffin). Please understand I am merely talking about C1’s perceptions since her mental state is the crucial point here.

Sorry, for all the detail, but this issue has literally consumed me and Anne for weeks. As the authority and responsibility of handling the situation has been given to me, I feel burdened with the knowledge that the outcome of Monday’s meeting truly may be one of the most important events in C1’s life. If that sounds like hyperbole, just think about the chain of events that may flow from it.

To give her the best chance of a good result, I am committed to doing anything and everything I can to be sure you have all the information you need to justify a decision to grant our request to collaboratively find an alternative means of determine the sanction for her past misconduct.

I will have a letter from Dr. Esparce and I may ask her to join me on Monday. (I will be talking with her today)  Is the meeting with Patty essential to your decision? If it is I will do everything I can to get C1’s permission so a meeting can occur Monday or at their earliest mutual convenience.

It is so important for C1’s sake that we reach a resolution as soon as possible and will do anything and everything I can to be sure you have the information you need.

Thank you for your understanding,

Michael

__________

Continuing to lead Mr. Josephson on to believe she had altered her opinion

On Sunday, January 12 (10:40 AM) Ms. English denied Mr. Josephson’s request to have C1’s therapist come with him to the meeting so she could personally explain and/or discuss her findings and recommendations, but the highlighted text created (and probably was intended to create) the impression in both Michael and Anne Josephson that, instead of insisting on the student   judicial hearing as the only way to deal with determination of C1’s sanction for her rudeness to her teacher, she (Ms. English) was open to explore other means of accomplishing the three critical goals (highlighted in yellow).

Thank you, Michael.  

I understand C1 would prefer that her therapist not speak with Ms. Lancaster and that instead you would like her to attend the meeting on Monday. However, as the school counselor and a mental health professional, Ms. Lancaster is the person best suited to evaluate the situation. If you would prefer to simply submit a letter from the therapist, that is fine. Attendance at the meeting will be limited to you, Anne (if she chooses), Scott Lord, Samantha Coyne, and myself. 

Please reassure C1 that my goal for her (as it is for every graduating student at Archer) is to:

1. Demonstrate capacity for self-reflection; 

2. Take responsibility for her actions and their impact on others, in this case her teachers and classmates;

3. Have a clearly articulated plan and strategies for conducting herself in a way that is fundamentally respectful and line with Archer’s Honor Code (I would expect that her therapist can help her with this).

If C1 can do these things, then I see no reason why she should not graduate from Archer and ultimately be successful in her relationships in college and beyond.

Looking forward to talking with you tomorrow,

Elizabeth
________

Deliberate refusal to clarify her position

Led to believe that a looming crisis could be averted, but remembering how he had been set up before his meeting with her in 2009 Mr. Josephson immediately wrote back the following letter (10:41 AM) – as this was sent within a few minutes of receipt, it is almost certain that Ms. English received it.

Hi Elizabeth,

If I understand your last note properly, C1, Anne and I are relieved and grateful to know that you will not require C1 to appear before the student panel as the only requirement going forward is demonstrating: 1) C1 has engaged in meaningful self-reflection concerning her behavior in December, and in general; 2) C1 has taken responsibility for her actions and their impact on her teachers and classmates (and that if more is required she will demonstrate that sense of responsibility further); and 3) you want us to present you with a clearly articulated plan and strategies to help C1 monitor and control her emotions so that she conducts herself in a way that is fundamentally respectful and line with Archer’s Honor Code.

This is completely consistent with your philosophy of non-coercive discipline and both Anne and I will, as we have in the past, cooperate fully with Archer to devise and implement a plan that meets these very reasonable needs. (In fact, we believe we have already done so). Of course, we would expect and have no objection to Ms. Lancaster’s participation in this process.

I hope that in my eagerness to move forward without creating further stress on C1 that I have not misinterpreted your intent.

I would greatly appreciate a confirmation of this as I will change dramatically my preparation for the meeting and allow me to focus on the solution rather than on supporting our objections to use of the student panel in this particular case.

Thank you, again.

Michael

____________________

Receiving no response, Mr. Josephson wrote again at 2:32 PM:

 Sent: Sunday, January 12, 2014 2:32 PM

Hi Elizabeth,

I realize that you may not have seen or yet formulated a response to my last e-mail seeking to clarify whether my understanding of your previous note to me was correct. I am sorry to repeat my request but as your response will have a great effect on how I prepare for tomorrow’s meeting your earliest attention would be appreciated.

Thank you.

Michael

Intent to frustrate and harass

Clearly, Mr. Josephson’s communications were reasonable and respectful. Nevertheless, Ms. English refused to answer Mr. Josephson’s inquiry and forced him to go to the meeting unsure of the agenda and whether his belief that Ms. English had decided to focus on the end objectives rather than a particular means (i.e., the student hearing) was correct. As subsequent events will prove, this was just one more ploy to provoke and harass Mr. Josephson and demonstrate her power.

Humiliating C1 and sending her home from school

C1 had been out of school for nearly a week and her parents and her therapist thought she needed to get back to school. C1 agreed. Believing that the issue of Ms. English’s premature and peremptory suspension would be held in abeyance until his meeting (scheduled for 11:00 am Monday morning) with Ms. English, Mr. Josephson supported the decision that C1 should go to school.

Unfortunately, Ms. English, however had one more poke in the eye planned. Ms. English knew from Ms. Coyne that Mr. Josephson took strong issue with the suspension edict and intended to raise the issue during his meeting. She never once during their many pre-meeting exchanges raised the issue of C1’s attendance at school but she apparently anticipated that Mr. Josephson might send her to school and she instructed Ms. Warner to be on the look out. If C1 did come to school she must be sent home.

So, when C1 appeared for classes, she was surprised and humiliated to be publicly summoned to Ms. Warner’s office where she was told she was not allowed at school and that she must go home. C1 was upset and confused and asked Ms. Warner to please call her father. In what we contend was an incredible display of callousness and irresponsibility Ms. Warner refused and told C1 she would have to tell her father.

C1 was deeply upset about being ousted from her school in front of her friends and she called Mr. Josephson gasping in tears to tell him what happened. He immediately placed calls to Ms. Warner, Ms. Coyne and Ms. English, leaving the message that it was urgent and requesting a return call. He received no response and instructed his crying daughter to go home as ordered.

This is a significant event and will be heavily emphasized in our argument for punitive damages. It is clear Ms. English had no regard for the well-being of C1 (previously a good friend of her own daughter) and was willing to inflict more pain on her rather than seek more moderate and more effective ways of handling the situation.

Even if Ms. English thought Mr. Josephson was deliberately flouting her suspension edict (which emphatically was not the case), her willingness to subject an innocent teen-ager to such humiliation rather than deal with the matter with Mr. Josephson is positive proof of her malice, her intent to inflict emotional distress on a child just to make a point and her bad faith use of her discretion.

Still believing the meeting with Ms. English might be productive and knowing it was important not to be provoked into anger, Mr. Josephson sent this calm email at 9:23 AM:

Hi Elizabeth,

I am perplexed and concerned. Could you please call me asap to tell me your agenda and goals for our meeting today? Are you open to exempting C1 from the student hearing if a professional says it would be damaging to her to do so.

I would also appreciate if during the meeting you could explain your view as to C1’s current status? I understand she was sent home because she has been suspended. Please help me understand what this means, the basis of the suspension and what she has to do to get back to school. Please call me at 424 750 0286 if you possibly can.

Either way I look forward to our meeting where I will present you with a letter from Dr. Esparce and other new information I know will be relevant to your decision. I’m still hopeful we can reach a collaborative agreement on this.

Michael

Of course, Ms. English did not respond and neither Ms. Coyne nor Ms. Warner returned his calls.

The Meeting

Mr. Josephson arrived at Archer about 45 minutes before the scheduled meeting with Ms. English to deliver to Ms. English’s assistant copies of Dr. Esparce’s report so that Ms. English and Ms. Coyne could review it before the meeting.

Mr. Lord assumed the position of leading the meeting and asked Mr. Josephson for permission to tape record it. Mr. Josephson agreed.[8] Mr. Lord conducted himself throughout this meeting as if it were a deposition. He continually interrupted Mr. Josephson, rebuked him when he thought he was getting too passionate and gave guidance to Ms. English as to whether she should answer certain questions posed by Mr. Josephson, who was trying to treat the meeting as a dialogue.

Mr. Lord asked what it was that Mr. Josephson wanted. Mr. Josephson said his goal was to achieve the three objectives outlined in Ms. English’s January 12 letter by formulating a mutually acceptable process that provided an opportunity for C1 to 1) demonstrate that she has engaged in meaningful self-reflection concerning her behavior in December and, 2) taken responsibility for her actions and their impact on her teachers and classmates and 3) to present to Ms. English a clearly articulated plan and strategies to help C1 monitor and control her emotions so that she conducts herself in a way that is fundamentally respectful and in line with Archer’s Honor Code.

Mr. Josephson pointed out that Dr. Escarce had suggested several alternatives that would achieve these goals in her letter but that he was willing to discuss and devise any other process that would achieve Ms. English’s goals for C1.

Mr. Josephson also pointed out that the student judicial process had a similar goal – “A critical goal of the HEC is for a student to take responsibility for her actions and acknowledge her mistakes, as this is an essential part of the learning process.” –Archer Handbook). Mr. Josephson also reminded Ms. English and Ms. Coyne that: 1)  C1 had already accepted accountability for her actions and sought to make amends and 2) the student judicial process  was not designed as a sanction itself but merely one way to determine whether and how the student should be sanctioned. Clearly in C1’s mind, as verified by her therapist, the process was a punishment – a gigantic, disproportionate punishment.

Finally, he stressed that both he and Anne Josephson were not seeking to deter the school from holding C1 accountable. Instead they wanted to do so in the collaborative tradition of Archer and avoid unnecessary and unconstructive pain.

Mr. Josephson then asked Ms. English what her goals were.

He was dumbfounded when she said her goal was to make it clear to Mr. Josephson that her decision was final, that she expected all parents to support her decisions, that lots of girls have an aversion to the judicial process, but it always turns out to be a positive experience and that, despite the fears of C1 and her parents (and in direct opposition to the professional opinion of Dr. Escarce), she was confident this would be a good and constructive experience for C1.

She concluded that C1 will either comply with her decision or she will be suspended until she did. Of course, Ms. English added, she could withdraw from Archer.

As Ms. English doubtless intended, Mr. Josephson was frustrated and upset by her intransigence and the games she played before the meeting. He said he felt he had been lured to the meeting under false pretenses and that Ms. English’s misleading and ambiguous communications caused him to waste time preparing arguments and alternatives. If she had no intent to engage in a true effort to find a solution that would meet the needs of Archer and C1’s parents, then she just should have said so in the email to save everyone time.

The Unfair Ultimatum

Ms. English presented one other alternative previously mentioned by Ms. Coyne: Ms. English would allow C1 to take a medical leave (despite knowing that her parents and therapist said this was unnecessary and would itself be detrimental). This option would keep her out of school unless and until she was ready to comply with Ms. English’s edict concerning the student hearing.

Though there is no basis for this in the rules or principles of constructive discipline, Ms. English invented the requirement that during the forced medical leave C1 could submit course work to finish her required courses, but that she would receive no instruction nor would she be permitted on campus for classes, conferences with teachers, or to participate in school activities. She was told that even if she completed the assignments and received passing grades she would not be permitted to participate in graduation services; rather, she said, she would receive her diploma by mail.

In summary, Ms. English invented rules, used intimidating threats to coerce surrender (e.g., that she would suspend C1 and report it to Barnard, the college that granted C1 early admission), imposed unauthorized forms of suspension, and, in asserting her claim to complete discretion, forced C1 and her parents to make an unreasonable and unfair choice: consent to be subjected to a poorly designed student hearing process her therapist said could cause severe and lasting emotional harm, or accept a medical leave under unnecessarily oppressive conditions forbidding her to meet with her teachers, come on campus, participate in any school activities, or participate in graduation ceremonies.

THE REMOVAL OF C2 IN RETALIATION FOR Mr. JOSEPHSON’S EFFORTS TO PROTECT C1

C2, is a 15 year-old 10th grader still adjusting to her classmates and teachers reactions to her decision to be open about her sexual orientation. And at the time encompassed in these allegations she was struggling with tumultuous domestic events, including C1’s growing conflict with the school. She was also in the midst of dealing with the impending death of her best friend’s dad, a man she was very close to. He was dying a slow and painful death from Lou Gehrig’s disease. She visited virtually every day for a month. And, not surprisingly, weighed down by these burdens, she was struggling academically.

Anne Josephson had made Ms. English aware of these facts and her fragile emotional state (a fact she reiterated in a letter reproduced below to Ms. English reacting to the decision for terminate her right to complete her education at Archer).

Thus, this was her known mental and emotional state when Ms. English decided to ignore a wide range of much less drastic alternatives in favor of a decision to not allow C2 to complete her education at Archer. Thus, she could have had no doubt that this discretionary decision (one more that she made under her claim of unbridled power granted her by the BOT) would inflict intense and lasting emotional pain on C2 and her parents.

Anne and Michael Josephson suspected and feared that Ms. English might seek to punish Mr. Josephson further by invoking her discretion to remove C2 from the school. When Mr. Josephson raised the issue in his meeting with Ms. English, she clearly reserved the right to do so and conveyed the message that she might if he continued to resist her authority.

In a meeting instigated by Board members Barbara Bruser and Cathy Helm to discuss her continuing role on the BOT in light of the controversy involving C1 and Mr. Josephson, Anne explicitly raised the issue. Both board members expressed shock that she thought C2’s position in school was endangered and assured her there was no reason for concern as the two situations were entirely separate.

Anne’s comfort on the issue was disturbed some days later when she got a message from Ms. English requesting a meeting to discuss C2’s status. She called Cathy Helm who confirmed her fears – C2 would not be offered a contract for the following year because of Mr. Josephson’s conduct (always unspecified as to what he supposedly did to justify this action). Asked why she had received assurances just days earlier that this would never happen Cathy Helm said “Michael’s conduct was beyond the pale” (again with no reference to any specifics). Most significantly she reminded Anne of the confrontation in 2010 (it was actually in November 2009).

This conversation makes it absolutely clear that Cathy Helm was aware of and likely participated in the decision to exclude C2 and that Ms. English’s decision was linked to the incident she precipitated more than four years prior.

 Two issues:

In reviewing the evidence and arguments concerning Ms. English’s conduct regarding C2, it is important to keep in mind there are two distinct issues (and two contexts in which Ms. English acted outrageously):

1)  The decision to exclude C1 based on Ms. English’s assessment of Mr. Josephson’s conduct and its impact on the family-school relationship

2)  Whether C1 and her parents had a right to guidelines as to the criteria used by Ms. English while C2 finished out her last semester at Archer.

Ms. English’s decision to not offer C2 a contract in the future (thereby terminating her relationship with Archer). In this context we contend:

1) Ms. English could not properly exclude a student from school because of the perceived misconduct of only one parent, especially when the other parent, even by Ms. English’s standards, was an exemplary member of the Archer community. (Remember, it was Ms. English who recruited Anne for the Board.)

2) One cannot support the claim that the family-school relationship was irreparably damaged without solid evidence of sincere efforts to repair the relationship

3) One cannot support a claim that the family school relationship was irreparably damaged without specific evidence of what was damaged and how it affects the school.

4) No rational or fair system would allow terminating enrollment rights of an innocent student without a fair process including an impartial decision making body, and a right for those most affected to participate and tell their side of the story.

5) Even if Ms. English has the power to unilaterally decide when parental conduct is so outrageous that it justifies excluding a child from the school there is enough evidence in this case to support our claim that Ms. English’s conclusion was arbitrary and capricious and based on malicious motives

The evidence

The following correspondence provides a compelling case that Ms. English acted maliciously and vindictively in removing C2 from the school without any prior notice or attempt to find collaborative solutions.

It shows her claim that Mr. Josephson’s conduct irreparably damaged the relationship between the Josephson family and the school is not valid because, among other things no effort was made by Ms. English to repair what she claimed was broken.[9]

It demonstrates a total inability to support her defamatory allegations about Mr. Josephson’s conduct and it unequivocally demonstrates her arbitrariness in her refusal to give any guidelines to Mr. Josephson re: future behavior.

This letter is the formal confirmation of what Cathy Helm told Anne, that Mr. Josephson’s unspecified conduct was used as the reason to refuse to offer C2 the right to continue at Archer. Since Ms. English mentions the behavior in the meeting (which she never before complained of) and in the two emails we urge the BOT to listen to the tape or get a transcript of the meeting and we have included the two emails below and Mr. Josephson’s response.

Feb 7, 2014

Dear Anne,

I asked Maria to set up a meeting with you because I wanted to inform you in person that the School has decided that it will not offer your family a re-enrollment contract for C2.  I truly regret that C2 cannot stay at Archer, but it is an unfortunate consequence of Michael’s conduct.  

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, 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.

Elizabeth

——————–

Feb 7, 2014 at 10:07 AM From: MSJ To: Elizabeth English

Dear Elizabeth,

Anne has forwarded me your recent letter indicating your decision to not allow C2 to continue at Archer as “a result” of my conduct which you said irreparably harmed the relationship between the family and the school. The basis of your decision is my “conduct” during our meeting and the letters I sent Brian Wogensen and Andrea Locke. 

I must suppose you considered my words or actions severely egregious to justify your imposition of this enormous penalty on an innocent 15 year old. You took this action knowing that she will be forcibly separated from her friends and teachers and, despite Anne’s clearly stated concern that your refusal to let C2 return to Archer next semester would subject her to enormous trauma as an openly gay girl with no friends or contacts. And though it seems there was no urgency for this communication, you chose to convey the information at a time when you knew C2 is truly suffering with {the death of her best friend’s father]. 

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. In that context, I do not think you can justify your conclusions that I was “unwilling to support the School and its policies and to cooperate with and act civilly toward members of the Archer community.”

Even if we assume this is a legitimate test of irreparable harm to the Archer-parent relationship, 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 and I am having a transcript made. I do not think there is a single thing you can point to in content or tone that was uncivil. There were no obscenities, vile accusations, yelling or threats. Please identify for me any part of that meeting that qualifies as incivility so egregious as to justify your punitive action. Respectfully, if you cannot do so I think it is clear that you erroneously characterized my conduct.

Is it possible that the mere act of disagreeing with you and/or challenging your reasoning is grounds to disenroll my daughter? If this is the case, I think you are obligated to put that in the Handbook as no one could rationally believe that anything short of passive compliance is permitted.

 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 C1 to participate in the student honor council process I did so respectfully and never refused to comply with your interpretation of the school policies. To the contrary, the entire last portion of the discussion was about how we might make it easier for C1 to minimize the trauma of participating in the process.

Similarly, though I disagreed with your decision that C1 would not be allowed on campus unless and until she participated in the student hearing, I complied with this decision as well. We did not send C1 to school and we continued to explore with her therapist the possibility of preparing for the hearing. You will recall I sent several follow-up emails suggesting possibilities, including allowing a parent or C1’s therapist to be with her. You rejected every proposal and reiterated your refusal to meet with the therapist so she could help you understand the enormous risk you were demanding her to take and to explore less traumatic alternatives.

I continued to comply with your interpretation of school policy re: the medical leave. C1 did not go to school and complied with your edict that she could not seek any help from her teachers (we were told to hire private tutors – which we did).

As to the letters to Brian and Andrea – two faculty members that I have a personal relationship with and who have played a major role in the lives of several of my daughters – 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 C1’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? Again, there was nothing the least bit uncivil about that those communications, let alone something serious enough to justify banning my daughter from Archer.

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.

 Michael S. Josephson

Here are the letters Ms. English used as the basis of her conclusion that C2 must be removed from the school. Please examine in reference to Mr. Josephson’s comments to Ms. English in the above letter.

From: MSJ to Brian Wogensen 

Dear Brian,

I want to thank you so very much for being so supportive of C1 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 C1 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. C1 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 C1 (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 C1’s therapist but ignored).

C1, 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 C1 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 C1’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 C1.

Michael S. Josephson

__________

Thursday, January 23, 2014 11:18 AM From: MSJ to Andrea Locke

Dear Andrea,

I want to thank you so very much for being so supportive of C1 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 C1 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. C1 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 C1 (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 C1’s therapist but ignored).

C1, 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 C1 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 C1’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 C1. Please continue to find ways that you and the other girls can show her your love.

Sincerely,

Michael

Michael S. Josephson

Though Ms. English knows she has thrown the entire Josephson family into crisis and that they legitimately fear that she will strike again with arbitrary and unannounced criteria, Ms. English’s answer is 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.

Monday February 10, 2014 8:54 AM

Dear Michael,

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 C2’s transition.

Elizabeth

__________________

Still trying to decide whether it is wise or safe to send C2 back to school where she will effectively be a hostage of Ms. English’s whims, Anne tries to get assurances or information from her friend Ms. Coyne. The response below, most certainly dictated by Ms. English is clearly designed to intimidate rather than inform.

Please read the following letter with particular care. Every sentence provides valuable information as to the harm already caused, the request for assurances that C2’s last months at Archer would not be under the cloud of further arbitrary punitive actions by Ms. English, and the effort to seek less drastic ways to deal with “Michael’s conduct.”

 Thursday, February 13, 2014 From: Anne Josephson To: Ms Coyne

Dear Samantha,

Elizabeth asked that all communication regarding C2 be directed to you.

As I am sure you know, C2 is not being offered a contract for next school year.  We broke the news to her on Tuesday evening, and C2 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.

C2 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 C2’s strengths and interests.

Furthermore, before I can comfortably send C2 back to school, I need assurance that C2’s educational needs will be attended to with the same vigor and respect that any child’s needs are that attends the school.   She needs support in catching up on her school work given the trauma of Neil’s death, and her College Board decision needs to be appealed.  Catie Chase has been superb in helping C2, and I am so very grateful for her efforts.

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 C2.  It is bad enough that adult conflict has forced C2 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 C2’s enrollment for this semester completely separate from any actions or communications concerning C1?

If you cannot provide such assurance, can you give me some guidelines as to what sorts of communications could result in action against C2 so I can consult with Michael to see if he is willing to accommodate these guidelines?

While C2’s opportunity to graduate with her class is gone, I want C2 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.

Samantha, assuming good faith is always my first instinct.  And I am trying hard to continue to do so.  But I am stepping forward to address these issues as it seems that no one is considering C2 as a stakeholder (who is caught in the crossfire of conflict that should have been limited to the adults) and because of my deep disappointment in what is clearly a disregard for her needs or how this decision impacts her.

I am hopeful that the positive, collaborative and supportive relationship that I have enjoyed until recently can be reinstated for the sake of C2.

Please feel free to share this email with whomever needs to make these decisions.   I do ask that you remove any references to C2’s psychological and physical health concerns so as not to violate her privacy. 

Thanks, Sam. 

Best, Anne

In the following letter from Mr. Josephson to Ms. English you will see not only a reiteration of Anne’s concerns but a willingness to try to accommodate Ms. English to protect C2. Note again the reasonable and explicit request for guidelines. Please read this letter with equal care

Friday, February 14, 2014 3:23 PM From: MSJ to: Elizabeth English

Dear Elizabeth,

I’ve seen Anne’s email to Samantha about C2.

I echo her concern that the trauma C2 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 C1’s situation will not affect C2’s ability to complete her semester at Archer without hindrance or harassment. C2 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.

You well know, I don’t agree you had a right to punish and exclude my children for my efforts to induce you to adopt alternative ways to accomplish Archer goals (a position I sincerely believe I have always advanced with civility and propriety). Still, I am a realist and it is clear that this is a prerogative you have and could again exercise.

I wonder if you can understand my frustration that you never provided guidance, notice or opportunity to me to learn of and react to your view that my communications in our meeting and my two emails (to faculty people I know well) constituted a breach of your standards of proper parental behavior great enough to prevent C2 from coming to school. Without guidance I feel I am in the midst of Franz Kafka’s classic novel, The Trial.

Nevertheless, I acknowledge your de facto power and unless and until I can get a neutral authority to limit your exercise of discretion, the only way I can protect my family from further injury is to submit to your definition of propriety.

Though I am continuing my creative search for options that protect and advance both C1’s and C2’s best interests without causing undue harm to Archer, an institution, despite our personal differences, I respect and support, I am willing to consider postponing, modifying or even abandoning some options I have if it would guarantee a peaceful and secure completion of her school year.  

C2’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 C2.

As Anne said, without assurances that you will keep the two matters separate or guidelines we cannot safely send C2 back to school. This would amount to another constructive expulsion that would damage a student without any compelling offsetting institutional purpose or advantage.

Please let us know as soon as possible so we can prepare C2 to return to school on Tuesday.

Sincerely,

Michael S. Josephson

Instead of answering, Ms. English simply sent Mr. Josephson a copy of Ms. Coyne’s unhelpful letter.

_________

February 14, 2014 3:58 PM From: Elizabeth English To: MSJ

Michael,

Here is the email from Samantha to Anne. All the best, Elizabeth

———- Forwarded message ———-

Fri, Feb 14, 2014 at 3:36 PM

From: Samantha Coyne To: Anne Josephson

Dear Anne,

Thank you for your email.  I can assure you that C2 will be given the same attention as any other student at Archer for the remainder of the school year.

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.

I spoke with Ms. Chase today, and she will continue to work closely with C2 to establish a new plan for getting caught up with her academic work following her recent absences. 

Kind regards,

Samantha Coyne Donnel Upper School Director

________________

Thus, the administration’s response to Anne’s sensitive, courteous and reasonable request for assurances that Child 2 would not be subject to additional retaliation or for guidelines on the sorts of communications that would evoke further retaliation, was a cold, curt and contemptible statement that, construed as intended, constituted an implied threat that to allow Child 2 back in school would subject her to possible random acts of spite by Ms. English:

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”

What more proof is needed to prove arbitrary and capricious use of power?

CONCLUSION

In light of the above evidence and arguments we respectfully submit that a quick and inexpensive settlement of our claims is in the best interests of Archer and the BOT.

___ 

[1] We acknowledge that our allegations that four members of the board (Co-chairs Barbara Bruser and Barbara Natterson Horowitz and members Cathy Helm and Scott Lord) have additional personal liability because they directly participated in advising Ms. English and/or approved of some of the actions may complicate matters and make consideration of all aspects of our offer by May 15 difficult. The BOT’s legal counsel may conclude that it would be inappropriate for the specially named board members and Ms. English to participate in the deliberations, and some or all the parties may obtain personal representation. To facilitate implementation of this critical aspect of our offer, we will cooperate with counsel to tailor modified settlement agreements, if necessary.

[2] C1, on her own, almost immediately apologized to the teacher, was accountable for her actions, and her teacher accepted her apology. Normally this is sufficient at Archer but as this was a repeated offense (there was another minor act of rudeness to alibrarian a few months prior), Ms. Warner, Dean of Students, believed an additional sanction would help C1 realize the importance of regulating her behavior.

[3] It is of vital importance to note that despite repeated requests of both Anne and Michael Josephson, Ms. English never was able to identify any rule or policy that was not followed or what specific things Mr. Josephson did or said to justify the extreme actions she took against C2 or her attacks on the character and reputation of Mr. Josephson.

[4] My clients will be happy to guide the investigator to particular cases of bullying and intimidation in direct response to any conduct Ms. English perceives as a challenge to her authority.

[5] It is also relevant that when Mr. Josephson referred to her animosity for him in several communications after she forcibly removed C! and C2 from Archer she never denied these feelings.

[6] As described in the Archer Handbook: Structure of the Honor Education Council. The HEC will consist of the following individuals: 3 Seniors (including the Senior Chair, which is elected by the HEC), 3 Juniors, 3 Sophomores

3 Freshmen, 3 Faculty, 1 Administrator (non-voting). SECTION D: Hearing Protocol: A hearing will consist of at least one faculty member, seven student members (including one upperclassmen and one lower classmen), the senior chair, and the Dean of Students. In a rare instance when the Senior Chair might not be available for a hearing, the hearing can continue provided that 8 student members are present, including 1 senior who would then serve as Senior Chair for the particular hearing. The Dean of Students will oversee and advise the procedures, but will not participate in voting.

[7] Leading Mr. Josephson on to believe that Dr. Esparce’s opinion would be seriously considered had another impact. Mr. Josephson paid Dr. Esparce over $2,000 to devote her weekend to preparing the letter that Ms. English totally ignored.

[8] It is very important to note that the meeting was tape recorded. We hope the Board is given the opportunity to hear the entire meeting, or at least, read a transcript. Ms. English contends that Mr. Josephson’s conduct at the meeting, combined with a personal email he wrote after the meeting to two teachers especially close to C1, justify removing C2 from the school, and repeated defamatory claims about Mr. Josephson’s conduct. No objective reviewer will agree with this assessment.

[9] Something is irreparable only if it is impossible to fix. One cannot say the relationship between the family and the school was irreparably damaged as no effort whatever was made to fix it

 

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