Where we are now, how we got there, and what’s next.

Elizabeth English and Archer Board Refuse to Accept Arbitrator’s Decision, Ask Court for Additional Hearings

Talk about cutting off your nose to spite your face . . . At the direction of Archer Head of School, Elizabeth English and the Archer Board, a small army of lawyers launched a money-is-no-object, scorched earth strategy to force the Josephsons out of court and into an arbitration process. Ironically, the arbitration turned out to be Archer’s worst nightmare.

0 Archer cut off nose

They seemingly got what they wanted when the superior court judge sent it the case to arbitration. Realizing that they could not attain the public accountability and school reforms in the arbitration context, Josephsons did what they said they would do and dismissed their claims in court. But instead of accepting that as a form of victory Archer lawyers opposed the dismissal, making the legally and morally groundless demand that the Josephsons either litigate their claims in arbitration or pay all of Archer’s attorney’s fees.

It was clear that this strategy only made sense in terms of their real objectives in the Josephson v,. Archer case: 1) punish and intimidate the Josephsons to back down for challenging the authority of Ms. English and deter other parents from future challenges, 2) prevent the Josephsons from publicly criticizing Ms. English and the Board (including taking down this website and forcing them to sign an agreement to never again say bad things about the school) and 3) to force the Josephson’s to pay their fees incurred in a repetitive series of frivolous and failed legal contentions (approaching $400,000). What they did get is a scathing rebuke by the arbitrator and an Award that they are unwilling to accept.

Thus, on June 15, 2015, instead of agreeing to to the formality of  having the superior court judge confirm the Arbitrator’s award they asked the court for another hearing date and the right to seek costs and an order forbidding the Josephsons from pursuing any aspect of their grievances in the future. Both issues were covered in the Arbitrator’s final award and according to their contract an arbitration award is final, binding and not appealable. It is almost certain the court reject these claims as frivolous and legally groundless and he will probably grant the Josephsons’ request for sanctions against the school, and possibly the lawyers. They simply don’t know when to stop.

The history of this litigation has shown that every new tactic to punish and intimidate the Josephsons, including the recent refusal to accept the Arbitrator’s decision, simply re-fuels their will to stand up to the bullying. This most recent provocation increases the likelihood of additional legal actions by the Josephsons and/or members of their family (see for example, www.josephsonvsarcher.com/josephson-family-banned/.

Moreover, the attendant publicity has attracting a substantial number of present and former students and parents to the www.JosephsonVsArcher.com webite who feel victimized by Ms. English’s autocratic style and deceptive practices and want to hold the school accountable (this includes Brentwood community residents). One or more may bring their own legal actions.

After all Archer’s threats and saber-rattling, we were thrilled with the Arbitrator’s ruling including her scathing rejection of Archer’s claims and tactics. We got virtually all we asked for and Archer got nothing it asked for. Of course, we wish we could have pursued our substantive claims in the California judicial system but we are content that we can do so in the court of public opinion.  We feel we won whatever was winnable and successfully withstood a massive assault attempting to punish and intimidate us. – Michael Josephson

We think we’ve laid a strong foundation for others to challenge Archer’s truly unfair and over-reaching arbitration clause and the Board’s seemingly reflexive support of Ms. English’s authoritarian actions and leadership. We believe it is only a matter of time before Ms. English is recognized as a liability and her reign will end in her resignation or termination. This will liberate the school from her iron grip and free it to re-build its reputation.

We think we’ve laid a strong foundation for others to challenge Archer’s truly unfair and over-reaching arbitration clause and the Board’s seemingly reflexive support of Ms. English’s authoritarian actions and leadership. If the rumors of her imminent resignation are true it may mean that the Board finally recognized that she is a major liability. When her reign ends a basically wonderful institution will be liberated to re-build its reputation. – Michael Josephson

OTHER NEW POSTINGS: 1) RESIGNATION OF MS. ENGLISH? http://josephsonvsarcher.com/elizabeth-english-to-resign-facts-speculation-rumors/  2) PARENT REBELLION?  http://josephsonvsarcher.com/what-archer-is-not-telling-parents/    http://josephsonvsarcher.com/archers-ill-conceived-epansion/  3) LAW SUIT WOES. Decision by Archer lawyers to prolong Josephson v Archer case by refusing to accept Arbitrator’s decision re: fees and Josephsons’ right to file new and additional claims.  http://josephsonvsarcher.com/josephson-v-archer-prolongs-case/

Summary and Sequence of Events and Candid Reflections of Michael Josephson

1. In May 2014, after extensive unsuccessful efforts to induce the Archer Board of Trustees to investigate and repudiate well-documented allegations of illegal, unethical and unprofessional conduct of Archer’s head of school, Elizabeth English, directed at two of their children, Anne (a member of the Archer Board of Trustees until the suit) and Michael Josephson (a prominent ethicist and radio commentator) filed a civil action against Ms. English and the members of the Board. The suit contained detailed allegations of arbitrary, capricious and malicious actions of Ms. English resulting in great harm to their children. It also alleged that these actions were facilitated and condoned by governing board that failed to meet its duty to provide reasonable oversight and require the administration to establish reasonable standards regulating the conduct of school administrators.  

2. Ms. English and the Board responded by launching a massive assault including legal threats, character assassination and an unprecedented and illegal edict banning Michael and Anne, their four daughters (two of which had graduated with honors from Archer) and all other relatives from attending events at the school (explicitly including impending graduation ceremonies) or visiting teachers or friends.

3. The viciousness and aggressiveness of this response, particularly the vindictive banishment timed and delivered in a manner designed to inflict maximum emotional and social harm on the Josephson children, revealed Archer’s strategy: use every means possible in a no-holds-barred, money is no object, effort to crush the Josephsons rebellion (damage to the children was collateral damage) prevent any public airing of the Josephsons’ grievances and evidence.  

4. The courtroom dimension of the attack consisted of a motion to compel the Josephsons to pursue their complaints in an arbitration proceeding designed by Archer to limit a parents remedies and require nondisclosure of the allegations and outcome of the process. They also sought a gag order requiring the Josephson’s to take down this website and refrain from any  discussion, in every possible forum, of the lawsuit and the actions of Ms. English. 

5. The judge summarily refused to abridge in any way the Josephsons’ freedom of speech making it clear that the request by Archer’s lawyers was legally groundless and he ordered both sides to submit briefs on the arbitration issue. The Josephsons argued that the arbitration clause was inapplicable to their claims and was, in any event, unenforceable because it was inherently unfair and one-sided (i..e., unconscionable). They also argued that the arbitration process would not permit them to attain two of the major objectives of the litigation: holding an out-of-control school administrator publicly accountable and reforming the law regarding the use of discretion in private schools and the duty of boards of trustees. The Josephsons explicitly and repeatedly said that if they were denied the right to prove their claims in a court (where they could subject to public scrutiny Elizabeth English’s conduct and the Board’s complicity and pursue reformation of the law regarding mandatory arbitration clauses and the capricious and vindictive use of authority by a school administrator) that they would dismiss their claims rather than participate in an arbitration rigged against them.

6. The judge ruled that the specific language of the arbitration clause in the enrollment contract precluded judicial jurisdiction. In essence, the Josephsons would not be permitted to pursue their claims in court. standup_speakout

7. The Josephsons exercised their legal right to ask the Court of Appeals to review their legal arguments, but for procedural reasons (unrelated to the merits of the Josephson’s legal arguments), the court refused to do so.

8. While the Josephsons were preparing their request for appeal, Archer’s lawyers in an unprecedented and clearly improper legal maneuver (they knew the Josephsons had a right to voluntarily dismiss their claim and no intent to arbitrate), filed an obsolete version of the Josephsons court complaint with the arbitration association (JAMS), demanding arbitration.

9. As they said they would, the Josepshons sought to avoid the entanglements and secrecy of arbitration of their substantive claims and avoid escalating legal fees, voluntarily dismissed their claims, reserving (over the objection of Archer lawyers) the right to refile them in their current or modified form. Both the court and JAMS dismissed the case.

10. Archer’s lawyers objected asserting that the action could not be dismissed without their permission and demanded that an arbitrator be appointed to rule on this argument. They also sought massive attorneys fees relating to their attempts to censor the Josephsons and prevent them from dismissing the action.

11. The judge and JAMS revoked the dismissal and ordered the appointment of an arbitrator to determine the legality and propriety of ethically questionable legal maneuvers by Archer’s attorneys.

12. On April 23, 2015, after months of legal wrangling and two sets of extensive briefs focusing on Archer’s procedural ploys and attempt to make the Josephsons’ pay their fees and costs (no substantive issue concerning the Josephsons’ claims in their First Amended Complaint were dealt with) the appointed arbitrator issued a “Final Award” containing a scathing opinion agreeing with all the Josephson’s claims, rebuking Archers’ tactics and denying as inequitable and unreasonable Archer’s request to recover attorney’s fees and costs  (in excess of $300,000.) With this Award the arbitration officially ended.

13. On June 15, 2015 the Josephsons asked the superior court judge to confirm the Arbitrator’s award (normally a formality since such awards are final and nonappealable), but the motion was opposed by Archer lawyers who asked for still another hearing so they could challenge the Arbitrators’ ruling regarding denial of their request of reimbursement of certain costs and the ruling that the Josephsons’ had an absolute right to dismiss their claims without prejudice (meaning they are free to re-file re-formulated claims). As these claims are legally groundless and designed only to prolong the case and increase the Josephson’s costs, the Josephson put the attorneys on notice that they will seek punitive sanctions for this abuse of process.

14. The Final Award dismissing the arbitration filed by Archer’s attorneys leaves the Josephsons with the right to re-formulate their allegations and file a new complaint. It also leaves Archer vulnerable to separate lawsuits from Josephson family members (including two adult daughters who graduated from Archer) who were maliciously and improperly banned from attending any on-campus event or visit former teachers. See www.josephsonvsarcher.com/josephson-family-banned/.   

15. The Josephsons are free to maintain this website and comment on the the behavior of Elizabeth English and the Archer Board with respect to any and all matters, including the facts that gave rise to the lawsuit and Ms. English’s deceptive tactics and lack of transparency regarding the proposed expansion of the Archer campus. Moreover, this site continues to receive accolades of grateful students and parents who have confidentially shared stories (they are still fearful of retaliation) of harm caused by Ms. English’s autocratic leadership style and propensity toward vindictiveness. The Josephsons seem committed to persist in their watchdog role until Archer is liberated from the iron rule of Ms. English.

Josephson v. Archer Interview with Michael Josephson

Updated June 15, 2015

Q: How do you feel about the outcome of the Josephson vs. Archer lawsuit?

MJ: Well, I guess its not over yet and the way Archer has litigated this matter, it may never be. I am amazed at Archer’s stubborn commitment to pursue strategies that continue to keep the wound open and continue to inflict more injury on themselves than us. Their now obviously petty and legally groundless efforts to intimidate and silence us has generated  a parade of new allies who have their own grievances with the English Administration.

I was completely thrilled with the Arbitrator’s ruling. We got virtually all we asked for and Archer got nothing it asked for. Of course, we wish we could have pursued our substantive claims in the California judicial system but we are content that we can do so in the court of public opinion.  We feel we won whatever was winnable and successfully withstood a massive assault attempting to punish and intimidate us.

We think we’ve laid a strong foundation for others to challenge Archer’s truly unfair and over-reaching arbitration clause and the Board’s seemingly reflexive support of Ms. English’s authoritarian actions and leadership. We believe it is only a matter of time before Ms. English is recognized as a liability and her reign will end in her resignation or termination. This will liberate the school from her iron grip and free it to re-build its reputation.

Q. You  reserved the right to re-file your claims as a condition of your voluntary dismissal, do you intend to do so?

Though we have a right to refile the claims, I very much hope that the litigation phase of our efforts is over. Frankly, I was more optimistic before Archers June 15, 2015 shenanigans. Archer has threatened to bring further claims against us. If they do so we will assert our claims in defense. And it depends on whether Ms English and the Board engage in any more provocative actions. An early indicator will be whether the Board revokes the illegal banishment of our daughters and other family members from visiting their teachers or attending events at Archer. Our two adult daughters, and other family members who were included in the ban from campus, may decide to file a separate action and since they are not bound by any arbitration clause, they could seek remedies in court.

Q. Since you didn’t get to prove your claims and ultimately decided to dismiss them, what did you accomplish?

MJ:  Of course,  I wish we were able to stay in court and prove our claims, but we did our best. We have subjected the conduct of Ms. English and her Board to to public scrutiny. They tried so hard to shut us up and shut the website down I presume they have been appropriately embarrassed and they won’t try that again on other parents.

We did a lot of research and made very strong legal arguments opposing Archer’s efforts to force our case out of court. I think we should have won those arguments, but the arbitration clause is so insidious and the judicial preference for arbitration is so strong we simply were not successful. Still, I think we laid a foundation for others to challenge the schools oppressive and unfair arbitration clause and they can use our research and arguments.

On a personal level, we showed our daughters that we are willing to walk our talk and fight for what we believe in. I am proud of our effort and our willingness to challenge an organization able to devote unlimited resources to defeat us.

Q. So will you retain this site and continue to criticize the school and Ms. English?

Though we hoped to vindicate our two daughters who were victimized by the actions of Ms. English, our major goal was and still is to reform policies and procedures at Archer and other schools to prevent the kind of conduct that injured our family. We intend to advocate for Archer parents, students and teachers held hostage by Ms. English’s unbridled and arrogant leadership style. Currently, we are playing a watchdog function with respect to her efforts to keep parents in the dark about the likely impact of her ill-conceived expansion plan. Our ardor to stand up to her lawyer-backed bullying tactics was strengthened rather than diminished by the way Archer’s attorneys abused the process and shamelessly advanced groundless claims and arguments.

Q. Can you describe exactly what happened with respect to the arbitration?


MJ: 
 According to Archer’s lawyers, we are not allowed to say anything at all about the arbitration proceedings including specific arguments made to the arbitrator or the arbitrator’s ruling. We know if we challenge this they will lose just as they have every other attempt to limit or intimidate us but, at least for now, we don’t want to give them further excuses to make more legally frivolous claims that will further sap our energy and our financial resources. As to the outcome of the arbitration process I can say we are very, very happy with the result. Any lawyer looking at the result would agree, I think, that we achieved total and complete victory.

Q. Did anything surprise you?

MJ: Yes I was truly surprised that the Board refused to investigate our claims as they were legally obligated to do. I think if they had done so they would have quickly disassociated themselves from her conduct. I was really surprised that Archer hired lawyers who continuously made things worse by pursuing ruthless and, at the same time, frivolous legal arguments. I am sure they did more harm than good. But mostly I was surprised that the Board refused every attempt to negotiate and to even respond to our various offers to settle our claims, especially our last offer to donate $150,000 if they would just promise an independent investigation and revise some of their policies regarding arbitration and the disciplinary process. (see below).

Finally, I was surprised that we were contacted by more than 10 families who shared their own horror stories about Ms. English. Yet all but two of the families (including the mom whose child was driven out of the school because she criticized the expenditure of $1.4 million to renovate Ms. English’s home) were too afraid of vindictiveness against their daughters to go public. The unwillingness of accomplished and powerful professionals to stand up to a bully did shock me.

Q. Do you have any regrets?

MJ: Of course. This whole episode is full of regrets. I regret that we couldn’t find a more dignified and less damaging way to challenge actions we truly and deeply felt were unnecessary and motivated by petty malice. I regret that this fight depleted the resources of Archer and damaged its reputation. I regret that two of my children were not able to complete their education at archer and that all four of our daughters are not permitted to visit teachers or friends or attend any events at Archer. I regret that despite our actions to date, the school we truly loved, is still being held hostage by an unsuitable leader. I regret all the money and time we had to invest pursuing our sense of justice. And I regret that my personal involvement in this fight has cost me the esteem of many people who disagreed with my actions.

Still, I would have far greater regrets if I didn’t stand up for my beliefs and accept responsibility to do what I can to make things better for other parents and their children. I would have regretted far more if I failed to live up to my convictions. Edmund Burke’s timeless observation, “All that is necessary for evil to triumph is for good people to do nothing” motivated me. And I hope our example will embolden others to muster the courage to stand up for their beliefs, even if it costs more than they want to pay.

More on how we got to where we are

The following Questions and Answers previously posted provide important context to understand how Archer lawyers provoked and prolonged the case, and how many times and ways the Josephsons tried to settle the case

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

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

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

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

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

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

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

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

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

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

Q: Why didn’t you just pursue all your claims in arbitration?

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

Courtroom door.

Archer lawyers have rigged the arbitration process so it is more expensive and difficult to prove our claims than it would be in court and even if we did so the results would be kept secret. There would be no public accountability or deterrence. What’s more, an arbitration result has no legal effect on other cases. The posting of our briefs to the court of appeals under the “Arbitration” tab on this site provide detailed arguments with legal authority concerning the inadequacy of the arbitration process.

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

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

The controversy developed incrementally as Ms. English, at every decision point, chose the most offensive and provocative course of conduct. She made it personal and decided to use a minor disciplinary matter with one of our daughters as an excuse to demonstrate her power to us and other families. She was also blatant about wanting to punish me for questioning her decision to subject my daughters to emotional suffering.

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

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

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

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

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

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

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

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

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

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

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

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

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

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