At the core of this legal action is Michael and Anne Josephson’s contention that, as a result of both malice and malfeasance, Archer’s Head of School, Elizabeth English, transformed a disciplinary issue involving a minor and momentary act of rudeness to a teacher by one of their children into a major confrontation resulting in the removal from the Archer of both that child and her younger sister, the resignation of Anne Josephson from the Board of Trustees, the defamation of Michael Josephson and a complete and permanent banishment from the Archer campus of the entire Josephson family (including two daughter who previously graduated from Archer and are attending college in New York).
Legal Status After exhaustive efforts to resolve their claims, including an offer to settle and a direct appeal to the Board (see “Settlement Efforts” tab), Michael and Anne Josephson and two of their teenage children, filed a detailed, documented Complaint in the California Superior Court (Santa Monica division) on May 28, 2014 against the Archer School for Girls, an elite private school in Brentwood, CA; the head of the school, Elizabeth English; and individual members of the school’s board of trustees including co-chairs Barbara Bruser, Barbara Natterson Horowitz, Scott Lord and Kathy Helm (board members the Josephsons allege played a direct and active part in the injurious action).
The case seeks compensatory and punitive damages for wide range of injuries resulting from the intentional infliction of emotional harm, professional educator malpractice and the malicious use of threats and intimidation to discourage assertion of constitutional rights (including the right to bring this action. (The entire Complaint can be found under the “Pleadings” tab).
Defendants responded with a motion to force plaintiffs to take down this website and refrain from all communication about the suit and their claims and a petition to force this action into a private arbitration where all evidence and outcomes would be protected by a shroud of secrecy and where the plaintiffs would be forced to prove their case without the benefit of full discovery or the right to present its case to a jury in a setting which would subject the defendants to public scrutiny and accountability.
In addition, the legal clarifications and reforms sought to be accomplished by the plaintiffs could not occur because the outcome must be kept confidential. (Both motions can be found under the “Pleadings” tab). The gag order sought by defendants was quickly and firmly rejected by the judge (see “Judge rejects Archer’s Effort to Shutdown This Website” on homepage) and a hearing on the petition to send the case to arbitration will occur on August 26, 2014. This summary of facts includes the defendant’s side of the story as stated in a declaration from Ms. English which was filed as part of this motion.
Summary of the Facts.
You can not get the whole story and the full picture of what this case is really about without reading the full amended complaint which sets forth the facts in detail and in chronological order. You should also read the Josephson’s personal note and critical allegations about Ms. English’s actions and leadership style. Finally, you may find the must current summary of recent developments useful.
Nevertheless here is a brief thumbnail of the facts as stated in the Josephson’s Opposition to Defendants’ Motion to Compel Arbitration.
STATEMENT OF FACTS
Plaintiffs C. Josephson (“Child 1”) and M. Josephson (“Child 2”) are minors who attended the Archer School for Girls (“Archer”), a private single-sex middle school and high school. Plaintiffs Michael and Anne Josephson (the “Parents”) are the parents of Child 1 and Child 2. In December 2013, Child 1, a 12th grader, was involved in a minor disciplinary incident during an exam. In response, Defendant Elizabeth English, the Head of School of Archer, insisted that Child 1 be disciplined by means of a public shaming ritual in which Child 1 would be brought before a tribunal of mostly her fellow students in a mock trial procedure. Child 1 was terrified of this, and showed signs of extreme distress, so her Parents asked a psychologist to evaluate her. The psychologist’s report stated that the shaming ritual would be severely harmful to Child 1’s mental health, and the Parents respectfully requested an alternative discipline for Child 1. English maliciously insisted on the procedure and, after receiving the psychologist’s report, announced that Child 1 would not be permitted to attend school again until she participated in the shaming ritual.
The school’s action devastated Child 1, who did not go through with the shaming ritual (understandable, given her psychologist’s advice) and was not permitted to participate in Archer’s graduation ceremony or other curricular and extracurricular activities. But it got worse. Not satisfied with ruining the senior year of Child 1, defendants decided to take revenge on the Parents for challenging their authority, and defendants then turned their attention to punishing Child 2, a fifteen year old who had nothing to do with the incident for which Child 1 was disciplined and nothing to do with the conduct of her Parents in objecting to the archaic discipline that defendants sought to impose on Child 1. Defendants maliciously expelled Child 2 from school as well, by declining to renew her contract for the following year. To top it off, defendants barred both minors from attending school functions or even stepping foot on campus to see their friends or teachers.
Both minor plaintiffs understandably were devastated. They were denied the opportunity to attend a school that they loved, that they had attended for years, and where all their friends were. They were denied the opportunity to complete school activities that they had been working on for months. They could not graduate from Archer, and could not even attend their friends’ graduation.
The Parents signed the same enrollment contract with respect to both minors. It provided as follows:
APPLICABLE LAW AND BINDING ARBITRATION
This agreement will be governed by the laws of the State of California. Any actionable legal controversy or claim arising under or relating to this Agreement or its breach, including any dispute relating to Student’s enrollment at Archer or to Student’s completion of the academic year at Archer, and including without limitation the determination of the scope or applicability of this agreement to arbitrate shall be settled solely by final and binding arbitration before a single neutral arbitrator…. The arbitrator shall determine all challenges to the legality or enforceability of this Agreement…. All costs unique to arbitration shall be divided equally between the parties to the arbitration. The initiation, existence, and outcome of any arbitration—including without limitation any material filed with the arbitrator, the contents of all depositions or testimony, all documents produced during the course of the arbitration, any written decision, and any remedy imposed or damages awarded by the arbitrator—shall remain confidential. This arbitration agreement applies during the term of this Enrollment Agreement and survives after the termination of this Enrollment Agreement.
The arbitrator shall have the power to control discovery, to award reasonable attorney’s fees and costs to the prevailing party, and to make all other determinations that the parties’ mutual agreement or the then-existing JAMS/Endispute rules may permit. Any court of competent jurisdiction shall, upon petition of any party, confirm the award of the arbitrator and enter judgment in conformity therewith. Any such judgment shall be final, binding, and non-appealable.
In the event that multiple claims are asserted, some of which are found not subject to this Agreement, the parties agree to stay the proceedings related to the claims not subject to this Agreement until all the claims subject to this Agreement are resolved in accordance with this Agreement. In the event that claims are asserted against multiple parties, some of whom are not subject to this Agreement, the parties agree to sever the parties subject to this Agreement and to resolve all claims against them in accordance with this Agreement.
If any aspect of this “Applicable Law / Arbitration” provision is found by an arbitrator or a court to be incomplete or unlawful, then as set forth elsewhere in this Agreement, that determination will not render any other portion of the provision invalid or unenforceable, and the balance of the provision shall remain in full force and effect. In addition, the parties authorize the arbitrator or court to add to or revise (“blue pencil”) the language of this provision in order to make the provision complete and lawful so as to effectuate to the maximum extent possible the parties’ mutual intent to have all disputes subject to this provision be resolved solely by final and binding arbitration.
Further, the agreement provided that the more-than-$30,000 in tuition paid by the Parents was non-refundable even if the student failed to complete the academic year, id., and that the tuition constituted a sum of liquidated damages payable to Archer if the student failed to complete the academic year, id.. The agreement also requires parents to make additional donations to Archer above the tuition payment, id., and states that parents are expected to support “all policies, rules, and regulations” of Archer, id.. “Unacceptable parent behavior” may result in non-renewal of a student’s contract, i.e., effective expulsion from the school. Id.
Finally, the agreement wrests sole discretion in the decision as to whether expel students in the Defendant English, the Head of School:
Archer shall at all times have the right, for any reason considered sufficient by Archer in its sole discretion, to decline enrollment or re-enrollment and to discipline, suspend, or dismiss any student. Student may not be permitted to attend classes for any reason…, and arrangement for continued attendance lies within the sole discretion of the Head of School or her designee.
To understand why the arbitration clause as interpreted by English and her board is unconscionable and offense please read this post.
A hearing on the Motion to Compel Arbitration is set for August 26, 2014