The “She withdrew voluntarily” ploy

In her Declaration Ms. English states: “As he did with Child 1, however, Mr. Josephson voluntarily withdrew Child 2 from the school, on March 21, 2014.”

Like a landlord who induces a tenant to vacate or an employer who makes a job so unpleasant it induces a employee to quit, Ms. English has perfected the technique of making it look like parents are withdrawing voluntarily if she wants a child to leave before she ejects them by refusing to re-enroll the child.

We have already collected substantial evidence that this is a common tactic for Ms. English. At trial we will be able to produce quite a few families who will testify that she made it so clear that she wanted the family out that they dared not subject their child to her hostility and vindictiveness. Thus, they decided to leave the school to protect their child. This is not voluntary.

It insults intelligence to claim that Child 1 “voluntarily” withdrew. While she clings to this legalistic distinction in the hope it will insulate her from accountability, we are confident that any fact-finder will see this as no more than a cynical ploy. Based on a clearly established medical condition, Child 1’s parents implored English to work with them to devise an alternative sanction for Child 1’s rude behavior rather than subject herself to a process that Child 1’s psychologist said would be traumatic and could cause severe and lasting emotional stress, English gave the family two choices: 1) Child 1 would be suspended and the college that had granted her early admission would be informed or 2) she could take a “medical leave” based on a false premise that she was medically incapable of performing her coursework and accepting ridiculously onerous prohibitions including barring her from campus and preventing her from talking or working with her teachers.  These choices were, and they were intended to force Child 1 to withdraw and seek to complete her education at another institution so she could graduate. As a practical matter Child 1 was constructively expelled without justification.

In her declaration, Ms. English omits the crucial fact that Anne Josephson, then a member of the Board of Trustees, repeatedly expressed to Ms. Coyne and Ms. English that she was fearful that without some guidance as to Ms. English’s intentions and as to what sorts of conduct she found objectionable that Child 2 would be finishing her semester under a constant threat of being dismissed from school (a prerogative Ms. English claimed to have) if Mr. Josephson persisted in of opposing or seeking judicial review of her decision re: Child 1.

Extensive correspondence (provided to the board in plaintiffs’ effort to settle the claim before a lawsuit was filed reveals a carefully calculated plan to justify exclusion of the entire Josephson family from Archer simply because she wanted to be rid of Mr. Josephson and his family.

E-Mail: Feb 7, 2014 (from Elizabeth English to Anne Josephson:

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

(Note there is absolutely no mention of feeling intimidated. This was invented for the declaration.)

E-mail: 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. . . .”

Please identify for me any part of that meeting that qualifies as incivility so egregious as to justify your punitive action. 

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

Though Ms. English knew she had thrown the entire Josephson family into crisis and that they legitimately feared that she would strike again to terminate Child 2’s last semester with arbitrary and unannounced criteria, Ms. English’s answer was arrogant and deliberately non responsive. Even when she administered an academic and social death blow to an innocent child she feels no need to explain or justify her action.

E-Mail: Monday February 10, 2014 

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 tried to get assurances or information from her friend Ms. Coyne. The response below 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.

E-mail: 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.   . . . 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).  . . . 

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.. . .

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

E-Mail: Friday, February 14, 2014  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.

. . .

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.

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

E-Mail: February 14, 2014 From: Elizabeth English To: MSJ

Here is the email from Samantha to Anne. All the best, Elizabeth———- Forwarded message ———-

Fri, Feb 14, 2014 From: Samantha Coyne To: Anne Josephson

Dear Anne,

. . . 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. . . .

 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. What more proof is needed to prove arbitrary and capricious use of power? There was nothing voluntary about Child 2 withdrawal from Archer. She was pushed out the door.

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