Memo From Michael: How do you do the right thing when you’re not sure what the right thing is? (Even ethicists face dilemmas).

by Michael Josephson on July 3, 2014

in Memo From Michael

[Revised July 4, 2014]

(What follows are lengthy musings of an ethicist struggling to live his values in the real world.)

Have you ever found yourself in a place (I don’t mean a physical location) you really don’t want to be in and  wondered how you got there and how you can get out of the bad place and get to a better one?

I am dealing with that now.

A metaphor that comes to mind is setting off for a destination with a road map and confronting unexpected “road closed” detours, each presenting a new set of choices, and you find yourself going in a direction that will never get you to the destination you originally had in mind.

Regular readers know that my family reluctantly became embroiled in a very acrimonious lawsuit with a private school that was the center of my family’s lives since 2005 (see JosephsonVsArcher.com for details).

As a former law professor teaching in the area of litigation, I know better than most that while filing a lawsuit can be the last rational resort for frustrated parties who faced “road closed” signs in less confrontational efforts to resolve their grievances, going to court is like throwing the map away and hoping that a compass alone will keep you going in the right direction.

Lots of things are unpredictable once one “goes to court” and lawsuits among former friends or partners are particularly precarious. They can quickly drive the parties further apart in the exchange of accusations that intensify differences and resentments as each side feels betrayed by the other.

Feelings of betrayal set into motion a predictable chain of emotions: anger turns into hostility, hostility into a passion for revenge and the passion for revenge creates a desire/need to punish — and all these negative and destructive feelings evolve beneath our consciousness, hidden by a sense of righteousness.

The problem is that recognizing the reality of all this can’t, by itself, prevent it or the damage it causes.

I certainly can see this progression of feelings and actions in my families battle with my kids’ former school.

Okay, I realize that in trying to avoid making this article about the case itself, this all may sound too vague and convoluted. So, for those who want to consider my theoretical musings in the context of the real case I have included below this post a summary of critical events. I really tried to be objective.

So, what is the ethical conundrum we now face?

Extreme reactions of support and condemnation induce constant reflection including the realization that we are not now we we wanted to be. That the controversy threatens to grow and take us even further from our initial objective.

I acknowledge that I may have crossed the fine line between righteousness and self-righteousness but the problem is even self-righteousness can be based on a reasonable, genuine, unshakable belief that one is right.

Even if the anger and desire to punish blur the issues the underlying cause can still be real and the motives can be noble. And when i consider disengagement I can’t rebut the internal argument: “if you let them get away with this” it will perpetuate, even validate, the conduct believed to be evil.”

My sense of righteousness is fortified by an honest my conviction that the purpose of our lawsuit  are morally sound — to assure that those who hurt my kids are held accountable and to teach by example that by pursuing this case we are teaching our kids to stand up to bullies and to stand up for themselves.

I also believe that if we are successful it will vindicate others that were similarly wronged and it could change the way private schools all over the country interact with parents and students.

In further self-justification I remind myself that though I taught litigation I am not personally litigious. In my 71 years on this planet, except for one small claims action, I can’t remember suing anyone for anything.

Finally, I have no difficulty reconciling my strong feelings and my my conduct in this case with my ethical values. I am not willing to walk away. Yes, I really do believe forgiveness is a good and noble thing, but so is justice.

Unless the person one is forgiving has expressed genuine remorse and sought to make amends (the Jewish requirements for atonement), I do not think anyone is ethically obligated to forgive. In fact, forgiving one who accepts no accountability may be wrong. After all:

Ethics is not for wimps.

What you allow you encourage.

All that is necessary for evil to triumph is for good people to say nothing.

Ethics does not require one to be a doormat.

Ethics often requires us to do hard and difficult things to protect those we love and to right wrongs.

So, while I can shield my conscience with a bodyguard of aphorisms how can I be sure I’m not just rationalizing?

Just as paranoids can have real enemies and broken watches can correctly tell the time twice a day, beliefs can be true even if they are shrouded in self-righteousness and mixed motives. There really are bad people who do bad things.

So, here’s my dilemma, and I invite your informed and caring input. What do I do now?

While I  believe it is ethical to subject the offending party’s conduct to public scrutiny and to the legal system to obtain compensatory and punitive damages, I have to be open to the possibility that there are less confrontational options that are equally or more ethical and effective.

My problem is compounded by the fact that there is no dimmer knob on my zeal. When I am committed to something I am wholly committed and I will devote the full measure of my passion, energy, creativity and resources to bring our adversaries to their knees and reform. If i am not careful this can lead to a scorched earth strategy that goes beyond what is just and needed.

The question is whether there is any course of action that allows me to be faithful to all my core beliefs — to justice as well as forgiveness, to courage as well as compromise, and to idealism as well as real-world pragmatism.

I invite your thoughts, but I beg you to make them more nuanced and realistic than “just walk away”.  At least at this moment we can’t/won’t do that.

_________

The Situation. (A Case gone Wild)

In a private all girl school setting, Child 1, who was in the midst of a personal emotional crisis, engaged in disrespectful conduct that merited discipline (there was no profanity or threats).

The educator in charge (I will call E) sought to impose a particular form of discipline that my wife and I thought would cause severe and lasting harm that was way out of proportion to the offense.

To verify our judgment and provide documentation of our opinion that an alternative sanction was warranted a licensed clinical psychologist examined C1 and wrote a report with her conclusions and recommendations for alternative sanctions,

E ignored our pleas and the letter and my persistence that her ruling was unfair and unnecessary was interpreted as a form of insubordination, a challenge to her authority, and E responded by refusing to allow our youngest daughter (Child 2) to complete her education at the the school.

E’s ruling and accompanying actions resulted in the termination of Child 1;s career at the school, during her last semester.

I need to be clear here. We believe that the treatment of Child 1 was wrong , unprofessional and malicious BUT our legal action does not rest on this. It is the conduct afterwards against our other children that made us furious.

Within a few weeks of the actions concerning Child 1, E  informed us that Child 2 would not be allowed to continue at the school because of my efforts to advocate on behalf of her older sister. E met with Child 2, an openly gay female who was traumatized at the prospect of being forced to go to a new school with no one who knew her, to “blame your father.”

As we were dealing with the feelings and reality of seeing our two youngest daughters (we have four) exiled from their school in a very painful way by an educator who then explicitly sought to drive a wedge between me and my youngest daughter, anger blossomed into hostility and deep resentment (feelings of betrayal).

We appealed to the school’s board of trustees and asked them to commission an independent investigation of our claims and mitigate the harm being done to our children. The Board stood behind E and ratified all her actions.

When a formal offer to settle was rejected we filed a legal action,

E and the board retaliated by banishing all four of our daughters from ever coming on campus (sort of –“and the horse you rode in on.”) . Our two youngest were crushed when they learned a day before graduation ceremonies that they could not be with their best friends on their biggest day and our two older daughters who were going to college in New York were dumbfounded when they learned that they would not be allowed to attend alumni  events, student performances and from visiting old teachers.

Now we were furious and, clothed in the body armor of a righteous cause we embarked on our crusade to hold accountable (i.e., punish) E and the Board for what they had done to our children.

The school informed all faculty and staff (many of whom were among our closest friends) about the lawsuit and the ban of our children.

We set up a website to make our side of the story available and wrote the faculty and staff asking them to withhold judgment until they read the facts.

We wrote about two dozen parents who held leadership positions in the parent association to inform them about the website.

Though we did not know it at the time (we were informed by a Los Angeles Times reporter), the chair of the school’s board — based on the erroneous assumption that we had written them about the case — widened the scope of engagement by writing a letter to every parent at the school impugning our motives and labeling our lawsuit frivolous and malicious.

The school sought a court order to make us take down the website, stop talking about our lawsuit, and force us to go into an arbitration proceeding that would prevent us from holding E and the Board publicly accountable (they said a clause in the contract required this, we said the clause did not apply to the particular wrongs we alleged).

The judge rejected their application for a gag order and ordered a hearing on the question of whether the civil case had to be dismissed and sent to arbitration.

The L.A. Times published a story (which we thought distorted our grievances and, in my opinion made both sides look bad — I guess that’s journalistic impartiality).

The article, which made it seem that our case centered on the way C1 was treated as opposed to the later acts of retaliation, evoked vigorous public response. Some letters strongly supported our actions and the lawsuit (including offers to help by a handful of parents and teachers with experiences similar to ours); others were critical and some were quite vicious, asserting that I had lost any standing to comment on ethics. The ones that hurt were the ones that characterized our child and her actions without any knowledge of the facts.

Whew! That’s where we are now.

{ 43 comments… read them below or add one }

Brandon July 3, 2014 at 7:46 pm

Michael, about 2 hrs before receiving you’re plea [here] for advice I posted the following at [http://whatwillmatter.com/2014/06/personal-note-good-wolf-versus-evil-wolf/#comment-453055].

I repeat it again here with minor edits for clarity:

Being a consultant in human capital management and having a series of articles published on ethics in business relationships; it seems Mr. Josephson’s red line in the sand is not an objection to a reasonable disciplinary measure against an acknowledged transgression by his daugher; but against an irrational act of administrative overreach engaging in improper influence over staff, teachers and a governing body. What parent would not defend and allow an administrator to stand in the way of a child walking graduation; particularly a vulnerable child? What parent would allow an overzealous administrator to penalize a completely innocent sibling who had no involvement in the incident? What parent would allow a school employee or governing entity [or anyone] to penalize an entire family with expulsion, perpetual exclusion and the character assassination of each member of the family and malign their collective reputations?

There are situations when all good faith efforts have failed that defensive measures aren’t enough; where the best defense is a good offense. Was the ‘governing body’ ‘for show only’ and unduly influenced i.e. derelict in exercising its charter responsibilities? Can any professional, particularly an acclaimed ethicist of national renowned stand silent in the face of an attack? Beyond the business side of the equation there are indeed unreasonable people in the world; people whose sense of self-importance no know bounds, and must be confronted. Sociopaths for example, inflict emotional pain on others with a passion and without limit, unless confronted. While I can’t say whether this school administrator in this situation is a sociopath; was the prescribed discipline of excluding C1 from high school graduation [a one-time life’s event] over a single outburst, reasonable discipline? Was ouster of C2 from the school program reasonable or responsible professional behavior? Was alienation of an entire families deep-rooted social relationships a moral or reasonable act in the face of an otherwise long, good standing affiliation within this school and community?

Finally, and most importantly from my perspective fellinnehoney’s simplistic analysis presumes too much in the relation to: (1) the implied damage of Josephson’s standing/reputation in the business community from this action; and (2) more specifically to C1’s future employability or desirability as a spouse, or any other relationship. All things being equal such assertions [fellinnehoney AND others] are over-the-line and without merit. The real “millstone around C1’s neck” will come from the harm of continued character assassination on a child who will eventually develop the executive decision making capacity absent in people under [about] age 25.

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Michael Josephson July 6, 2014 at 4:45 pm

Brandon,

I thank you for your very cogent summary of how we got to this awful place. So few observers were able to separate as you did the separate escalating offenses. Our case is about much more and much worse than Ms. English’s handling of our daughter’s rudeness to a teacher. As bad as that was, ousting her younger sister, knowing the huge trauma adjusting to a new school would cause, simply because I advocated for an alternative sanction was, in our view, far worse. And the back-breaker was the patently vindictive decision to ban all four of our daughters (including two who graduated from Archer and are in college in New York) from attending any events on campus. This was done with the knowledge it would be humiliating and painful for the two younger daughters to be told a day before the ceremonies that they could not witness the graduations of their best friends.

As hurtful as it is when readers of this blog assume the worst of me and my children and, without even taking the time to read the facts, rebuke or condemn me, it is so gratifying to have a reader like you understand where I am coming from and express your support. Thank you.

Michael Josephson

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Julie July 3, 2014 at 9:03 pm

Mr. Josephson,
Your latest response was filled with reasons why you DESERVE to be treated with dignity because again “I am a lawyer, a law professor, a profession.” You are treading uphill in sand and you are losing your focus and balance. Why don’t all the “other” parents grip and bicker and draft and serve lawsuits? You’re using your law degree like an untrained or off balanced law officer if he uses his gun without proper reason.
Why are you dragging the issue of your past two failed marriages? Is this the real reason you are fighting so vehemently? You feel you have to prove something to the third wife? Have you thought about the innocent children that are and will be affected at the School you are suing? They don’t deserve this. Again, your child made mistakes as all children do…are you going to threaten litigation on everyone who displeases her or upsets your family? Balance Mr. Josephson…..

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Michael Josephson July 4, 2014 at 9:13 am

Thank you for your comment. It may not change any thing but after another night of tossing and turning I revised my previous post and tried to refine my thinking. -MJ

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John Deluca July 3, 2014 at 10:19 pm

Judging from the outside, it seems to me that the impasse had a critical point: when your daughter developed anxiety due to her upcoming appearance in front of the board, you had it authenticated by a psychiatrist. The principal was hesitant to believe it and, believing she and the faculty might know your daughter more realistically than you, decided you were being played by your daughter but the principal wanted to call your daughter’s bluff. Thus, she came up with the ridiculous assumption that since she wasn’t well enough to come in front of the board, she obviously could not attend school.
I believe this is where the suit came from. The principal believes your daughter had everyone duped into thinking she was too anxious to appear, the principal took offense at that and made a rash decision. When you called her on it and brought the suit, she couldn’t back down and thus this is where you are today.

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Michael Josephson July 4, 2014 at 9:12 am

Thank you for your comment. It may not change any thing but after another night of tossing and turning I revised my previous post and tried to refine my thinking. -MJ

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Ari Samson July 4, 2014 at 12:32 am

As a former Archer family, your predicament comes as no surprise to me. Several years ago our family encountered an administrator that I can only describe as so filled with self-importance that she was unable to even discuss any conflicts occurring at the school. Our daughter had a teacher that was extremely abusive. She was his target and he was unrelenting. (I have to state that my daughter is perfectly behaved and never a discipline problem). I did a little research and found that he was fired from his previous 2 private schools jobs. When I approached the administration they wanted no part of me and would not listen to anything I had to say. They defended this teacher completely. It was at this point that we realized Archer was not about the students but more about their reputation. I tell this story because Archer has always had an arrogance and culture that reverberates self importance. The students were made to feel that they were lucky to be there. i hope Michael sticks with his lawsuit. It is about time that Archer is brought down to earth. the truth needs to be exposed and the culture changed.

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Michael Josephson July 4, 2014 at 9:12 am

Thank you for your comment. It may not change any thing but after another night of tossing and turning I revised my previous post and tried to refine my thinking. -MJ

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Wende Wilson July 4, 2014 at 7:43 am

If there was only one person in the world I could trust to make a thoughtful and ethical decision it is you, Michael. Your extraordinary examination of the facts of the matter and your response(s) to them tells me that your actions are not one bit reckless or knee-jerk. Your children deserve the respect you are providing them by standing up to callous and thoughtless behavior. While many parents instantly react to any perceived wrong to their children you worked within the system to have C1 understand the consequences of her behavior and apologize and to have the school accept that a teen-ager occasionally overreacts and deserves a second chance. When the righteousness and undue punishment for all your daughters began I cannot see what other choice you may have had in responding. Your daughter has learned a terrible lesson that a sincere apology isn’t enough when given to a vengeful person. All your daughters have learned the valuable lesson that their father will stand for what is right even when it costs more than he wants to pay. I salute you and your ongoing examination of your high ethical standards.

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Michael Josephson July 4, 2014 at 9:11 am

Thank you for your comment. It may not change any thing but after another night of tossing and turning I revised my previous post and tried to refine my thinking. -MJ

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Marlena Jareaux July 4, 2014 at 10:19 am

I’m not sure if your responses are automated, because they all contain the exact same language. But here’s my two cents worth. I think that effective and authentic communication is sorely lacking in our country. Could the school have handled this differently? Yes. Could you have handled things differently? Yes. Have both sides taken jabs at each other as a result? Yes. And is it going to get worse? Oh, yes. As an attorney, I’m quite sure that you know that once parties have to resort to communicating via their attorneys (while having to watch what they say/write, for fear that the other side will gain a foothole that is used against them later), effective and authentic communication is all but killed. Each attorney is then locked into a dance pattern that involves their performance (and duty) to their client, each of which is polarized on their respective sides. Will you both get all of what you want? No. Can you both get some (and hopefully the most important parts) of what you really want? That’s where there is hope. Unless one side is totally fabricating stuff in the attempt to beat you into submission, is using the lawsuit to strong-arm you into doing what is not right, and/or is known to be habitually litigious, then perhaps there is a way to carve out a space to each get what they REALLY want, while preserving dignities of all.

The fallout from media coverage, etc was inevitable. I am making the assumption that what was started, was done so with giving a lot of thought about the “right thing” you mentioned and the different paths that it could take you down (unpredictable with the law and the humans charged with interpreting and presenting it to “win”). Just as the concept of “doing your best” changes day to day, and even hour by hour, I think the concept of “right thing” is also fluid. Even with “character”, it is advised that one does the things that they wouldn’t mind having people read about on the front page of the Washington Post (our paper here), as a guide to their behavior and decisions. And now, it is there. If that’s unexpected in any way, the good news is that tomorrow’s newspaper will either run a continuation of yesterday’s story, or will talk about yet another one. The choice is yours.

Yes, “All that is necessary for evil to triumph is for good people to say nothing”, bad things sometime happen to good people, and bad people happen to good people. But every day, we get to choose the wake we leave by our actions and decisions… and course-correct when/if we decide we don’t like the direction we steered to, or were blown towards.

Good luck!

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Michael Josephson July 4, 2014 at 11:49 am

Thank you- the responses aren’t automated but I sent the identical message to those who commented before I revised my post. – Michael

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Philip Henderson July 4, 2014 at 6:04 pm

When you wrote that you filed the lawsuit as a last resort in anger I wondered if your emotions colored the situation so much that you were unable to discover another option to resolve the matter. Lawsuits are a last resort in a civil society. These actions invariably divide the parties to take the strongest position against each other and to reject compromise. Everyone wants to WIN a lawsuit. Nonetheless, there is still an opportunity to withdraw the lawsuit and to seek resolution with the help of a independent party who is trusted and respected by both parties.

With the issue you have at hand the legal system will have little ability to resolve the problem without harming one party if not both parties reputation and well-being. Seeking a real solution out of a Court of Law is still the best option. You have t thousands of people who support you because of all the good you have made possible. i Follow your instinct to resolve this mess with grace and dignity. You do not want to be in a lawsuit, you will be able to resolve the problem without the help of a judge and jury. Sending you my best wishes. You are a lovely person. When you follow your angel, you make the world a better place.

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Michael July 5, 2014 at 3:52 am

When you write that you want to “bring our adversaries to their knees” it sounds like punishment or revenge. It fails to use the principles of non violence. If your goal is to do violence then by all means try to bring your adversaries to their knees. If your goal is non violence and reconciliation then you don’t have adversaries. Either you find a way to resolve your differences or you avoid dealing with those who are acting against you. You can speak the truth about them but avoid trying to bring them to their knees.

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Michael Josephson July 5, 2014 at 1:14 pm

That was the point of the article. This is the dark side of the pursuit of accountability and it is why I am searching for an alternative that will still make things better and assure that the behavior we experienced is not tolerated by the Archer Board or community. Thanks for you comment.

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Annette Vineyard July 5, 2014 at 10:29 am

Michael: I have read all your documentation, and respect you for challenging this faulty school administration. I do take issue with one statement in this latest posting, in the last paragraph prior to the listing of ethetical points:

“I do not think anyone is ethically obligated to forgive.”

I totally disagree! Just because you forgive doesn’t mean you forget, and don’t continue to resolve an issue. Think of Jesus on the cross… What did he say? “Father, forgive them, for they know not what they do.” When you recite the Lords Prayer, you pray… “Forgive us our trespasses as we forgive those who trespass against us!”

Perhaps you should rethink that one statement, and hopefully decide to remove it. You are such a role model for making the moral, ethetical and Christian decision.

With prayerful concerns…. Annette Vineyard

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Kendra July 5, 2014 at 11:03 am

I’ve never posted online responses, but felt compelled… so here goes:

Things do happen for a reason; at a moment in time and circumstance that, I believe, enable us to grow even wiser through this lifetime.

So with this hurdle in your (and with those who matter most to you) life/lives, perhaps the question is “what is there to be learned from this scenario?”… What is it you and yours can best evolve forward in your quest toward wisdom, peace and happiness? People of all walks of life will have their own answers, but I believe you already know your answers are in you.

Not being ‘in you’, I wouldn’t offer advice; but would perhaps provide a question that might help you find your own answers. What path can you take that will lead to a fuller life for yourself and all those you impact? I know you’ve probably been asking yourself this question; but perhaps asking the question from a perspective of your own awareness and growth is where the answer lies.

We have the immense power to define our own paths, not the paths of others. Those who act out of self-importance and act out of a need to protect their own self-esteem (as well as the organizations they are supported by) have paths that they will have to grow beyond to find their own wisdom, peace and happiness.

Your choice for yourself and for those you impact should be how to thrive and be the person who is evolving beyond whatever objectionable people and circumstances have made their way into impacting your life.

I’m feeling that you are ready to move on and become stronger in your quest for wisdom, to share your growth and awareness, and to lead those you impact to evolving beyond those petty scenarios.

Your ability to shine and succeed (as well as for those who have been affronted by this circumstance) can in the long term help those who are stuck in the mire of their destructive decisions to see that there are better ways to deal in their lives. Those who have been treated wrongly can best meet the challenge at hand by thriving and becoming stronger for it. You are a leader among those seeking answers about evolving beyond life challenges and if you can thrive beyond this challenge, you now only elevate yourself, you elevate countless others.

Your answers are in you; and you and those you care about can succeed at thriving, making your own existence meaningful, and finding your own peace and happiness by becoming stronger in defining your own lives beyond the confines of differing institutions. Those who believe in retribution and who believe in punishing others have their own hurdles to finding their own answers towards happiness. You can’t do it for others.

Keep on keeping on.

Best wishes,

Kendra

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Ellen July 5, 2014 at 4:17 pm

I have religiously followed your articles whenever I needed a pick me up and a reminder that there are still some good people in this world although there seems to be a flurry of “bad people doing bad things to good people.” There is no doubt in my mind that with the legal entanglement you are describing as of late with the Archer School, that you are absolutely in the right and now you are in need of your readership who has learned so much from your commitment to making this a better world to come to your side in an empowering way.

I am an educator with decades of experience. When I was a hearing officer for a major school district, it was a necessity of mine to tease out the facts from the emotionally charged accusations and come to a compromise so that the child
was not the casualty in the case. Barring a child from graduation even though up to that point they were the exemplary student leaves me speechless. It is nonsensical and a cause of irreparable damage to the student. In fact, it should never have gotten to the point where you have to prove your daughter’s worth.

Society is seeing an unprecedented number of people sporting an “I don’t care attitude.” This is supported by their actions of hurting others just because they can. It used to be believed that justice will prevail. Unfortunately, this too is taking a back seat and giving way to more of a tribal mentality. Just as you pointed out in your article about your lawsuit, the Archer Board of Trustees threw all of their support behind the headmistress.

Regretfully, reading about your lawsuit comes at a time when I have done all that I know how to do to bring the multiple years of favoritism and partiality to
the eyes and ears of people in key roles where I have been an educator for 2 decades. Over many years these two issues have become the building blocks of the school’s infrastructure. Just as your other daughters experienced with Archer, a guilt by association, dismissal- I have experienced the same. To make matters worse, I was just passed over for consideration for a promotion because of what you wrote so succinctly and what is obvious more today than ever:

What you allow you encourage.

All that is necessary for evil to triumph is for good people to say nothing.

Ethics does not require one to be a doormat.

The administration of my school is guilty of doing nothing and allowing injustice to prevail. They are more concerned about protecting their jobs than caring about those who serve on the frontlines and make their jobs possible.

Michael, will we ever change the evil that are exuding from so many people today? I don’t know but I am thankful that you are dedicated to this cause. In me, you have a true follower. I am hoping that justice will win out and do the right thing by your family.

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Brenda July 6, 2014 at 4:20 pm

Since this is about your children, ask them what course of action they advise you to take and guess what Michael, you have to allow yourself to forgive and be forgiven, and be courageous to allow God to take justice in HIS hands in HIS way. That is ideal in this pragmatic world we live in.

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Girl Talk July 6, 2014 at 5:04 pm

Whenever we make choices about our behavior, we need to be aware that there are intended and unintended consequences. Your “sassy” daughter chose to continue to “sass” the adults around her – even though she was warned in advance to stop. Your daughter chose to not take her punishment, with the help of the best psychologist money could buy. The unintended consequence of her actions meant that her younger sister was asked to leave the school. This is an excellent time for your “sassy” daughter to learn the concept of unintended consequences. Not only can we hurt ourselves with ugly behavior, but we can also hurt those we do not intend to hurt. As difficult as it may be, at a certain point, every parent needs to let their children learn their own lessons in life without hiring lawyers to slug it out in court on their behalf. Nobody will “win” this court battle – well, maybe the lawyers in fees – but definitely not your daughters. Let your daughters move on and heal at new schools, instead of dragging them backwards to relive this debacle in court, on the internet, in the newspapers, on your website, etc. Sometimes the most resolute fight is no fight at all – and maybe that’s a lesson your “sassy” daughter might want to learn too.

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Michael Josephson July 6, 2014 at 11:23 pm

Okay, lets assume that you are right that that my “sassy” daughter was rightfully presented with a choice between participating in the hearing and withdrawing from school in her last semester and that Ms. English had no professional obligation follow Archer policies and practices re: collaborating with parents to find an alternative sanction that met schools need. Are you suggesting that the separate decision of Ms. English to remove her innocent sister from school as a direct result of my efforts to advocate for the sassy daughter were a natural, inevitable and proper consequence? Do you not impose any responsibility on Ms. English when she chose to escalate the problem by punishing my daughter for my behavior (especially when the other parent was a perfectly behaved member of the board? Are you suggesting that the separate decision to ban all my daughters-including two long graduated- from Archer was fair and proper?

Blame me and my first daughter for our shortcomings as you see them but please don’t let Ms. English off Scott free.

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Girl Talk July 7, 2014 at 11:01 am

Because one party is perceived to “escalate” a conflict, is the proper response continued escalation? Or is de-escalating a conflict letting the other party off “Scott free”?

Are you waging this war in court for you, or your daughters and family?

Are the intended and unintended consequences – because in every action there are both – of this war really worth it to you? To your wife? To “sassy” daughter, to younger daughter? To daughters 3 and 4?

Is this war worth all the battle scars everyone involved will receive? Is it worth the months (maybe years) that it will take from your life and your family’s life?

What are your daughters really learning from this escalating and costly on all fronts war?

I wonder….

I don’t have a million degrees. If I were judge, I would order all parties involved to attend an apology party on school grounds. Everyone in the Archer community would be invited, and everyone involved can say only “I’m sorry for everything”, “let’s move on”, “I will be nicer in the future”. And I would ask your “sassy” daughter to provide her younger sister and the rest of the family a special apology for the unintended consequences of her actions. Maybe a simple apology party – where EVERYONE apologizes for their role in escalating this mess – is too primitive in this high falutin’ society we live in. :)

But I keep thinking there must be a better solution than to choose to drag my family through the mud and blood of a court war. In matters of life or death, wars are sometimes necessary, but the people who benefit the most remain the mercenaries and battle gear suppliers (the lawyers in your case, not your daughters or wife, or even you). Sometimes choosing to take the high road around the battle field is the best road forward. It may not be the easiest to walk and it’s probably full or rocks and debris – but your dignity will always remain intact while you are on it, even if you stumble.

Sincere best wishes to all involved.

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Sparky July 7, 2014 at 9:35 pm

I am 100% in agreement with you, Girl Talk. I started to write an opinion, but yours is so much better than what I was writing.

I agree that escalation is not the answer. If there were absolutely no blame on one side and all the blame on the other that might be a different story.

Also, Mr. Josephson, this is some unsolicited advice from someone who has a 21 and a 24 year old: now is the time to stop helping your children out of circumstances that they find themselves in, that are a result of their actions. It is absolutely crucial to let your children deal with these things on their own. It’s so easy to see when other parents step in where they shouldn’t, and so hard to see when we do it ourselves. Believe me, I have done it, too. But it is the absolute wrong thing to you. At the end of the LA Times story it talks about how your daughter tried to communicate with the administrator, and I am 100% sure she could have fixed this problem. You should have stayed out of it. You made the problem worse.

When my daughter started college we parents were made to go to a meeting where we were told to avoid the temptation to send emails, call teachers and administrators, and to try to “help” and “fix” things. This was the best advice I have received about raising children. Apparently, this is what Archer advocates, too (according to their website). Your daughter wrote a wise message, and could definitely have figured this out–without a lawsuit.

Please try to step back and see yourself from the other side. Your advice to someone might be the opposite of the path you are taking.

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Strong Parent July 30, 2014 at 9:48 pm

Mr. Josephson – I read all the information on the website twice to make certain I clearly understand the parties, the issues and damages caused by the actions taken by those in power at the school and by you and your family. Bottom line, shame, shame, shame on Ms. English and Archer. Malevolence was preferred over being magnanimous. I know that filing a lawsuit is not what you wanted and I commend you for protecting your daughters against despot. Your family has been harmed in spite of your efforts to come to an amicable and fair resolution to your C1 rudeness. All children from time to time are rude or sass adults. It is part of growing up and good parents correct their children (as you and your wife did). Your daughter apologized and it should have ended there. Any parent or adult that expects children to be perfect have unrealistic expectations and will be disappointed. Teenager years are exciting, fun and wonderous time for children as well as difficult. They are still developing and learning and even with the best of efforts by parents, many children are filled with doubts and anxiety which is why I agree it was in the best interest of C1 not to have appeared before this HEC. This would have done more harm than good. However, Ms. English (an adult) actions towards your family is shocking and Archer condoning her action is even more shocking. And….

to answer to your question whether there is any course of action that will allow you to be faithful to all my core beliefs, to justice as well as forgiveness, to courage as well as compromise, and to idealism as well as real-world pragmatism; I say be try and be faithful to your core beliefs (you will never regret this); seek justice via the courts (Ms. English nor will Archer ever see the error of their decisions or actions). This won’t be easy, there will be casualities; forgive only those who apologize and ask for forgiveness. I do not think you have an issue with courage. You are a courageous man (your family, friends, and admirers know this); compromise only if you must. Comprise infers that someone wins and someone loses. If you are going to lose, lose on your terms; and put idealism aside for now and focus on real-life pragmatism.

You and your family will be in my thoughts and prayers.

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Michael Josephson August 1, 2014 at 5:56 am

Thank you for your generous thoughts and for taking the time to appreciate the genuine conflict i feel on this matter.

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Philip Henderson July 7, 2014 at 6:43 am

Girl Talk is on the right track on this terrible situation. There are unintended consequences but the genesis of the problem is your daughter. She has a lesson to learn. Taking this matter to the courts will only make the issue worse. I am confident that you can find a solution to this that is a win-win for all parties including your daughters and family. There is so much emotion tied up in this situation that even if you are the only winner in court, that the victory would leave you with a bad taste. Seek the way of peace and love, lawyers are for adversaries. Your family has benefitted for many years with this school, honor all those years of success.

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Jennifer July 7, 2014 at 10:33 am

So sorry for your situation and the emotional effects on you and your family. Admittedly, I’ve been scanning this article for one word: contract. When you and your wife agreed to send your daughters to this private institution, you signed a contract. Have you reviewed ALL of the paperwork to see if there is language about who prevails in a teacher vs. student conflict? The only other thing I can recommend is to consider mediation, not court.

That school isn’t the only card game in town, and while it’s very difficult for your daughters, please recognize that a lot of kids their age change schools and end up with a growth experience. You may be happy engaging a counselor if that may help. I was their age once, too; I do remember when everything was larger than life itself. Prayers for all of you.

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Brandon July 7, 2014 at 9:12 pm

Jenifer, on your comment about Archer not being the only card game in town; really, for the child who will miss her graduation, it is indeed the only card game, for a life time.

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Jennifer July 8, 2014 at 11:40 am

Good point, Brandon. True, I was thinking of the younger girl. Just not to be jerks, the school should let the older girl graduate–unless it’s already happened and they’re just being jerks to her now. To be fair, I don’t know how private schools operate, but it is apparent the best conclusion would be for this school and the Josephsons to part ways, and it appears they have done. Litigation isn’t going to restore the girl’s opportunity to walk in the ceremony with her friends, in any event. This is a terrible lesson in the unfairness of the world for a young girl who should be looking forward to her next educational adventure instead of mourning this past one.

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Jennifer July 7, 2014 at 10:37 am

One more thing, “Holding on to anger is like grasping a hot coal with the intent of throwing it at someone else; you are the one who gets burned.” This quote is credited to Buddha. Remember the example you set for your family.

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Bill July 7, 2014 at 2:50 pm

From your article:
“Extreme reactions of support and condemnation induce constant reflection including the realization that we are not now we we wanted to be. That the controversy threatens to grow and take us even further from our initial objective.”

To use one of your quotes: “When your in a hole, quit digging.” Nothing good comes of a lawsuit. Both sides loose- only the lawyers win.

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Brandon July 7, 2014 at 9:50 pm

Bill, while this war has cost both sides a lot, one side will prevail. If Josephson’s facts bare out, Archer will loose big, and it should; because “All that is necessary for evil to triumph is for good people to do nothing.” Having gone this far, this is one matter that should never see the light of an out of court settlement with stipulations that mute and overshadow bad behavior.

Indeed, Mr. Josephson has a unique opportunity to use this incident, not only to make Archer an example of to other private schools, but to impact much more broadly on the American education system. Think for example about the impact the Josephson Institute could have had, had it directly challenged the Obama administration closing down high-performing Charter Schools in D.C. in favor of forcing mostly minority and less advantaged students back into failing public school environments and where the ‘Road Not Taken” will leave these students on paths far from success. Was this not a case where good [liberal] people did nothing and evil triumphed?

Inclined to believe Josephson’s facts are correct, this is a war of belligerence he tried to avert. His diplomacy didn’t fail, Archer failed to understand its responsibility to every stakeholder, acting first in the interest of one insecure administrator and a board of sheep. Archer failed in its fiduciary duty on so many levels. I know I advised against any settlement, but if the opportunity for such were on the table it should include no less than the removal of the headmistress and every board member, at a minimum; no compromise.

My advise to Michael on his quest to know: ‘How do you do the right thing when you’re not sure what the right thing is?” Just think of Edmond Burke’s wisdom “All that is necessary for evil to triumph is for good people to do nothing [or fold because its the pragmatic thing to do].”

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Sparky July 8, 2014 at 9:09 pm

Brandon, I’m not sure why you are inclined to believe that the Josephson’s facts are correct, but you have some things wrong, for sure. For instance, you ask, “was the prescribed discipline of excluding C1 from high school graduation [a one-time life’s event] over a single outburst, reasonable discipline?” Actually, no one, including the Josephsons, asserts that it was a single outburst. That would indeed be an absurd overreaction if the student was not allowed to participate in graduation over a single outburst.

I am surprised that Mr. Josephson didn’t correct your incorrect statement, seeing as you repeated in two places on his blog.

According to the school, the behavior happened before, to other staff at the school, and the parents don’t dispute this. The student was told if it happened again that she would have to face the Honor Education Council. This is apparently a group of students and faculty who are tasked with deciding what to do about behavior issues. The students are elected by the student body and receive training. So, after previous bad behavior and warning, that’s when the student was rude to the math teacher, and the promised punishment was required.

The student then had a breakdown, and the parents tried to have the punishment changed.

In my opinion, though, this would have undermined the school’s behavior guidelines. Would any student be able claim they had a breakdown, and avoid facing the council? Or just students whose parents facilitated the claim by sending the student to a psychiatrist? Or would a psychiatrist even be necessary? What about students who had taken their licks, despite being upset about it? Would they feel betrayed, and wonder, “Why didn’t I just say I had a breakdown?” Probably the school didn’t want to make a special case for this student, because it would have seemed like special treatment, and undermine their stated behavior guidelines.

Should the sister have been barred from returning to the school? This does indeed seem harsh. I don’t know anyone at the school, so I have no preconceived notions, but I can certainly imagine that they might not want to have had to deal with the parents anymore. We don’t know everything the father said and did. In fact, we pretty much only know his side. And even from his side, the behavior is unreasonable, in my opinion. In any case, the school apparently decides every year which students come back. In this case they decided she wouldn’t.

Mr. Josephson keeps stating that this was unfair, and is what people should focus on. I agree it might be unfair, but you can’t isolate this one action from all the other actions that occurred before. On punch in a fight might seem overboard, unless you look at all the things that happened beforehand.

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Michael Josephson July 9, 2014 at 3:31 am

Dear Sparky,

While I carefully read and consider each letter posted on this site, it is difficult to decide when, whether and how much time to devote responding to each person’s theory and judgments, especially as I have yet to see anyone change their mind even when clear undisputed facts are presented that undermine their previous views.

While I was preparing this response I noticed Brandon already responded. Still I have decided to respond personally to your letter. I assume you have no connection with any of the defendants and I want to make clear that neither I nor my family has any connection with Brandon, though we greatly appreciate his support and admire his cogent comments.

I think the answer to every issue you raised and more is covered in our rebuttal to Elizabeth English’s declaration recently posted on our website http://www.JosephsonVsArcher.com. I will assume you did not have the chance to read it.

But before I try still again to paint the whole picture (as you said, “you can’t isolate this one action from all the other actions that occurred before. On[e] punch in a fight might seem overboard, unless you look at all the things that happened beforehand.”), I want to point out that anyone who publicly shares their judgment on the merits of this dispute and/or the motives and character of the respective parties has a moral responsibility to review and fairly evaluate the evidence and arguments available to them. I presume you agree.

I have learned that our case does not do well when in the form of a one-minute summary or even a short and shallow article in a newspaper. I know that very few will have the interest or patience to even read this lengthy and meticulous response. Even you may be tempted to skim it.

A major reason to seek a full trial is that juries on the other hand, are obligated to hear all the evidence before rendering a judgment.

I will address your specific questions in detail but some preliminary statements lay a needed foundation.

Our family is united (despite Ms. English’s insulting effort to suggest otherwise her declaration) in our commitment to vindicate our actions and subject Ms. English’s actions and leadership style to public judgment.

Though we are aware of the hazards and costs of litigation, we are confident that all the tools our civil legal system provides will allow both parties to develop and present their respective cases under oath and subject to the cross-examination of the other party. This rigorous process which separates facts from assumptions, credible opinions from speculations and truth from lies will serve our cause well.

Archer has raised the cost of this dispute enormously trying to prevent us from having our day in court and from exposing our respective claims to public scrutiny. They have spent many thousands of school funds trying to force us to take down our website and communicate about this case. They are spending thousands more (and inflicting costs on us) trying to prevent us from availing ourselves of all the protections of our legal system.

Because they have very clever lawyers they have a chance at succeeding, but there is a big difference between what one has a right to do and what is right to do and we will fight this effort to shut us down tooth and nail.

If Archer has its way, we will not have our day in court. No one will ever know whether our claims were sustained or not. Resolution on both our factual and legal contentions will be veiled in confidentiality, there will be no clarification of the law to guide Archer or other private schools and Archer and Ms. English will, regardless of the outcome, be free to exercise “sole discretion” in a manner that we think would outrage most, if not all, objective observers – especially those who have children at Archer.

If Archer has its way, it is likely we will not be able to discover and offer evidence proving each of our causes of action against Ms. English and individual members of the Board who were involved in various degrees in the actions that damaged our family. For example, we almost certainly not be permitted to discover many statements to staff and board members proving Ms. English’s unacceptable motives for the consistently drastic actions she took at every phase of this developing disaster. And we will not be able to discover and offer evidence of an extensive pattern of arbitrary and capricious use of her discretion in dealing with other parents and staff demonstrating the Board’s dereliction of duty to provide oversight and internal controls to prevent such abuses.

If our family is willing to expose our actions to public scrutiny what is Archer trying to hide? Since the vast amount of publicity this action has already received raises serious questions about the propriety of Ms. English’s conduct and Archer’s policies, wouldn’t you think the best way to uphold the reputation of the school is to demonstrate publicly that they did no wrong? We think they know the more the public knows, the worse they look.

Now, let me respond to the key questions/issues raised in your letter (in italics).

Brandon, I’m not sure why you are inclined to believe that the Josephson’s facts are correct, but you have some things wrong, for sure. For instance, you ask, “was the prescribed discipline of excluding C1 from high school graduation [a one-time life’s event] over a single outburst, reasonable discipline?” Actually, no one, including the Josephsons, asserts that it was a single outburst. That would indeed be an absurd overreaction if the student was not allowed to participate in graduation over a single outburst. I am surprised that Mr. Josephson didn’t correct your incorrect statement, seeing as you repeated in two places on his blog.

Let’s start with Archer’s side of the story as told through Ms. English’s Declaration.

6. The school referred C. Josephson (Child 1) to the HEC as a result of her documented history of disrespectful conduct to faculty members throughout her career at Archer. Most recently, in October 2013, the school provided Child 1 an explicit warning, after she was rude to the librarian and repeatedly disrupted other students in the library, that the school would refer any further misconduct to the HEC. Thus, when she disrupted a test during her Advanced Placement Calculus class, on December 13, 2013, by having an outburst during the test, repeatedly leaving and returning to the classroom, and making disrespectful comments to her teacher, the school followed through on its warning and asked her to go before the HEC.

Ms. English does not specify what Child 1 said but we will prove it was very mild – “this is ridiculous” and “this is unfair”. Ms. English’s declaration omits the fact that Child 1, on her own initiative and shortly after the incident apologized to the teacher and her classmates and, after speaking with her father, precipitated a meeting with Director of the Upper School, Samantha Coyne, and Dean of Students, Gretchen Warner, during which apologized, accepted accountability and expressed acceptance of the possible need for additional sanctions.

No one at Archer has ever contended that Child 1’s rude conduct in December 2014 justified or would have resulted in a suspension or expulsion. To the contrary, during a January 9, 2014 meeting with Mr. Josephson, Ms. Coyne indicated that, in view of the nature of the violation and CHILD 1 ‘s subsequent apology and acceptance of accountability that there was “no need to worry” since only a minor sanction was appropriate. She explicitly ruled out a suspension as a sanction for Child 1’s rudeness. (Complaint, para 27)

Ms. English’s reference to Child 1’s “documented history of disrespectful conduct to faculty members throughout her career at Archer” seems designed to imply that Child 1 was a chronically troublesome student on the edge of expulsion. In fact, Child 1’s history of infractions over a six year period, involved a small handful of inappropriate but mild demonstrations of disrespect – none involved profanity or violence and none were deemed serious enough to warrant suspension.

Ms. Coyne, the director of the upper school trusted her enough to ask her to babysit for her children on many occasions and Child 1’s successful application for early admission to Barnard was supported strongly by letters from the faculty and administrators counselor. Child 1 was selected by peers and faculty for leadership in the school’s dance program, and she was very active in global social causes (including spending one summer in Ghana and another in Cambodia volunteering to assist orphan children).

The declaration also fails to point out another fact Archer does not dispute: Child 1’s parents Anne and Michael Josephson had always, and in this case as well, supported the imposition of sanctions for her disrespectful conduct.

According to the school, the behavior happened before, to other staff at the school, and the parents don’t dispute this. The student was told if it happened again that she would have to face the Honor Education Council. This is apparently a group of students and faculty who are tasked with deciding what to do about behavior issues. The students are elected by the student body and receive training. So, after previous bad behavior and warning, that’s when the student was rude to the math teacher, and the promised punishment was required.

As documented in our Complaint, the Honor Council is an optional method of determining whether an honor offense has been committed and they recommend a sanction. The fact that the school originally determined that this process should be used for a subsequent incident does not “require” that it be used, especially when new and potent information as to its necessity and impact was provided.

Suppose a gym teacher informs his team that anyone who comes late to practice will have to run two laps and an athlete appears late but has seen a doctor about a leg injury. Assuming the coach believes the child and his doctor, she would impose a different sanction as forcing the child to run laps could exacerbate the injury and changes dramatically the nature of the sanction. If the coach does not believe the athlete or the doctor (as you appear to disbelieve the depth or sincerity of Child 1’s emotional disability in this case),l she should investigate further or require additional evidence before concluding that the athlete and doctor are lying.

In my opinion, though, this would have undermined the school’s behavior guidelines. Would any student be able claim they had a breakdown, and avoid facing the council? Or just students whose parents facilitated the claim by sending the student to a psychiatrist? Or would a psychiatrist even be necessary? What about students who had taken their licks, despite being upset about it? Would they feel betrayed, and wonder, “Why didn’t I just say I had a breakdown?” Probably the school didn’t want to make a special case for this student, because it would have seemed like special treatment.

A fundamental precept of good education practices and discipline is that it be tailored to the student with the goal of a educating the student. Taking into account the circumstances and likely impact of any particular disciplinary strategy would not undermine but fortify the school’s disciplinary process. Blindly ignoring credible evidence and rigidly insisting on following a strategy selected under different assumptions, on the other hand, discredits the process.

All accommodations to special circumstances can be labeled special treatment but it is improper only if other children with the same circumstances were treated differently. We are confident that Archer has never before insisted on subjecting a student to the HEC process under similar circumstances.

It is pointless and probably ineffective to state how much I resent the implication that Anne or I would trump up a phony excuse to let our daughter escape accountability for her conduct. Our history at Archer belies this contention and I have no doubt that an objective fact finder will believe we were both diligent and sincere before we decided to seek a professional diagnosis. We also resent the implication that we would seek a therapist without the integrity to give nothing more or less than an honest professional opinion.

We don’t support a system where someone can avoid a sanction just by “saying” I had a breakdown but equating what actually happened in our case to undocumented claims just to get out of an uncomfortable situation is not appropriate. We do think our history with the school and our personal reputations for integrity justified our expectation that our judgment about the welfare of our child be taken seriously and that the judgment of a licensed clinical psychologist with a sterling reputation be deferred to unless there is clear and compelling reason to ignore it.

The decision of Ms. English to ignore the judgment of credible parents and an objective expert and substitute her own conclusion “I think this will be good for Child 1” (this is what she told me at our one and only meeting) seems arrogant and reckless and it mystifies me that you can so casually support this.

Should the sister have been barred from returning to the school? This does indeed seem harsh. I don’t know anyone at the school, so I have no preconceived notions, but I can certainly imagine that they might not want to have had to deal with the parents anymore. We don’t know everything the father said and did. In fact, we pretty much only know his side. And even from his side, the behavior is unreasonable, in my opinion. In any case, the school apparently decides every year which students come back. In this case they decided she wouldn’t.

First, consider whether effectively expelling a high achieving, well-respected senior in her last semester is, in any way, an appropriate sanction for her unwillingness to subject herself to an experience both her parents and a qualified psychologist thought could cause her sever and lasting harm even if you think she should have. Assuming this unwillingness to appear before the HEC was unjustified, do you really think academic capital punishment was warranted. There are no other facts to justify this result other than those which demonstrate Ms. English’s deep and abiding animosity toward me (have you read the allegations and supporting evidence demonstrating her malice?).

Second, the actions against Child 2, including efforts to drive a wedge between me and my daughter and subjecting her to enormous trauma of having to find a new school given her high anxiety as to how she would be received as an openly gay female, simply can’t be justified under any theory of due process or good educational practices.

You say you don’t know everything I said or did. In fact you do. Except for one meeting with Ms. Coyne and the one and only meeting with Ms. English and one of her Board members (which was recorded by Archer), every single interaction on this matter was by email and every pertinent email is included in context in the memo to Support Plaintiff’s Offer to Settle provided to the Board of Trustees BEFORE we filed this lawsuit. Ms. English was repeatedly asked to specify what she objected to and she repeatedly refused to identify anything other than a letter to two faculty members which is also included in the memo.

Please don’t speculate on what else might have been said or done. You have it all!

Please, please read all the facts re: this incident. Archer does not disagree with our statement of facts at all, instead it relies on a provision in the hand book that gives Ms. English sole discretion to do whatever she wants without justifying her actions. This is the incident that caused us to bring the legal action. It was vindictive pure and simple. There were so many better alternatives, especially when Child 2 had another parent, a model parent, a board member who sought to determine what needed to be done to repair the family-school relationship Ms. English claimed was damaged. We know of another incident, far more egregious, where the child of a sitting board member was not asked to leave the school.

Finally, how do you justify a decision to ban the Josephson’s older daughters who had absolutely nothing to do with this case from ever attending alumni functions, events at Archer and visiting their former teachers? What more evidence do you need of malice and abuse of power?

Mr. Josephson keeps stating that this was unfair, and is what people should focus on. I agree it might be unfair, but you can’t isolate this one action from all the other actions that occurred before. On[e] punch in a fight might seem overboard, unless you look at all the things that happened beforehand.

Anyone who takes the time to truly understand the facts will realize that my family was not hit by one punch but a whole barrage of punches, many below the belt. These events have had life-changing impact on every member of our family and we deserve a true and full hearing. And Ms. English and the school deserves whatever consequences will come from revelation of her conduct.

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Sparky July 10, 2014 at 12:02 am

Dear Mr. Josephson, I want to first set the record straight. I read your entire website, including your complaint, the emails, your oldest daughter’s comment, everything, before I posted here. I also read the school’s website, including their mission and history, and I even read their student/parent handbook, which I found by googling.

I had never heard of you or the school before the LA Times article, but the story really piqued my interest, so I spent a lot of time researching the whole story. I base my comments on this research.

Just recently I started reading your blog, and I am impressed with your advice and wisdom on ethics. I try to be an ethical person, and to me this means fighting the urge to use my biases as part of my opinion, versus actually reading and understanding all the facts. Obviously I can’t know everything, but if something new comes up I try to suppress preconceived notions and allow my opinion to change.

That said, I am sorry to say that I am disappointed in some of your statements and actions. From reading your website I am lead to believe that you have exaggerated what the school has done (or leave out or minimize what you did to precipitate their actions). For example, you say that the school has slandered you to the parents, but from what I have read the school is extremely closed-lipped about discussing anything with other parents. The reason they said anything to other parents is because you emailed first, and it’s understandable that the school would want to clarify from their side. You down-play your email by saying that you only emailed a “few dozen” people, but the school couldn’t possibly know how many–and what’s a “few dozen?” Thirty-six? Fifty? That’s a lot of people in a small school with a graduating class of 64.

I can give other examples, all from your website, but the other examples are similar. For instance, you imply here that the psychiatrist’s advice was “ignored” but this is also not entirely true. The principal wanted the psychiatrist to talk to the school counselor, but you wouldn’t sign the release.

And, hugely for me is the fact that you didn’t correct Brandon’s false statement. Brandon was the first comment, you thanked him, and he even posted it twice on your blog. I would have been really impressed if you had corrected it, but you didn’t.

You also downplay the number of times the student had been “sassy,” but how has it happened more than once? A handful of times is way too many, in my opinion.

You say that punishment should be tailored to the person, and refer many times here and on your website to your prominence and reputation. But the prominence of the family, or their donations to the school can’t be taken into the equation. That would be unfair and unethical. It’s also why the school would be wary of altering rules and requirements for people, because they could be accused of bias or prejudice –and rightly so! Imagine if less prominent families felt they were required to do things that others weren’t. That would be a slippery slope indeed.

You make a lot of points, and I don’t want to write a book here, so very briefly, you say that your older daughters shouldn’t have been banned from school functions–but this happened AFTER you filed a lawsuit against the school for $10 million. I can imagine that a lot of businesses would do the same (ban the family from their property) if they were faced with such a lawsuit. They could have been more magnanimous, but I don’t think it is so off base. As a lawyer you might have even recommended the same if you were representing the school.

You say, “Please don’t speculate on what else might have been said or done. You have it all!” But obviously that’s not true. You had several lengthy meetings, and we don’t know exactly what was said, or how it was said (except for your condensed descriptions). We don’t even know exactly what your daughter said or did, except from what you heard. We don’t know what other students who were in the room witnessed, or what the teacher’s version was, IN HER OWN WORDS. We only have your interpretation, which could be downplayed in your favor, or exaggerated against the school.

This is your blog, and I am a guest here. I appreciate that you have allowed me and others to post comments that are in disagreement with you, and I find that admirable. I apologize for bluntness, but I didn’t want to beat around the bush as this is already too long. Because of this, I won’t post again so that you have the last word. I can’t help, though, succumbing to the desire to give a little advice. Several people have said this as well. I believe we parents must allow children of that age to be responsible for themselves. Ironically it’s a mission at Archer School–“We graduate courageous, committed and ethical young women who take responsibility for their own physical, financial and emotional well-being.” Please consider this.

Brandon July 8, 2014 at 11:35 pm

Sparky, I appreciate your questions and observations. On the matter of Josephson’s credibility having seen no information to the contrary, I’m inclined to give Josephson’s representations the benefit of the doubt until other facts prove differently. As to whether the child’s behavior happened before, I agree that’s an important fact to not miss. I appreciate the correction. I guess I focused on the comments that C1 was an involved student and generally well liked and about to graduate was a student in otherwise good standing. That said, if this behavior was recidivist to the point of [basically] expulsion just prior to graduation; where was the leadership and the Honor Education Council before? What was to be gained by pushing for purely punitive measures given the child was leaving anyway; she was graduating, right?

On balance, who are we [readers of a blog] to second guess the opinion of a psychiatrist? Mental illnesses are serious and there are federal statutes protecting the afflicted from the arbitrary actions of laymen [general education teachers] and in this case minors with limited training and zero insights. Many mental illnesses only begin to appear and only begin to become obvious in late teen years and often not until mid to late 20’s. Some such illnesses are at best difficult to treat and highly recurrent [OCD, GAD, BPD are just some examples that are brutal in their effects on the entire family]. Any parent who would allow their child to be subjected to the judgment and punishment of other children and ignorant adults should themselves have their heads examined. In fact, a parent who would allow this might find themselves in family court on charges of being unfit.

To ask “would a psychiatrist even be necessary?” is on its face a preconceived notions and an absurd question. In my opinion, yielding to the advice of what I presume was a board certified psychiatrist [letting go] would have undermined nothing. Indeed it would have been the compassionate thing to do, would it not?

Was this but one punch, or a beating at the hands of an imperious administrator? I guess we will see when we learn who cries uncle.

And, finally, if indeed the school makes annual decision which students [families] come back; what was the point?

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Anthony July 9, 2014 at 10:59 am

The emotional weight on you and your family is indescribable. In my opinion, you sought a very logical and just means to enable the school to gracefully remove themselves from the stranglehold of an impertinent administrator. You were pushed to the limits of civility and when that happens, the legal process may be the only recourse. I hope you, and especially all four of your daughters, recieve punitive damages as well.

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AC Purple July 10, 2014 at 11:20 am

I’ve known Michael for a long time and have only the best wishes for his success and the well being of his family. I feel there is pain in his heart as he reflects on “how did we get to this place” and “how do we get out of the bad place and get to a better one?” Unlike others, I don’t feel this is so black and white and am torn with the issues presented by both sides. I don’t have any definitive answers, although I did like the points made by Girl Talk, especially the “apology party” – something I’ll probably start making my children do.

I often pray for and seek an end to all wars. It’s nearly impossible as human nature will always make it an issue of good vs. evil, the last resort, and firmly entrench their positions to duke it out. And while history will declare a winner, the reality is war is hell and there are many more losers, both dead and alive. So if we can find a way to get both sides embroiled in a lawsuit to find a resolution before “going to war,” then perhaps we’ve found the ingredient needed to bring about world peace. It’s very idealistic, I know, but idealism is the foundation of ethics and character. The peace starts in our hearts.

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Brandon July 10, 2014 at 8:43 pm

Dear Sparky,

I hadn’t intended another post on this matter; until you invoke my name, again.

Candidly, I found your initial comments and questions more reasoned and rational than your follow-on.

Self-made billionaire Jon Huntsman writes in his acclaimed book, Winners Never Cheat, “We are not always required by law to do what is right and proper. Decency and generosity, for instance, carry no legal mandate.”

Maybe you are having a difficult time differentiating between ethics and the rule of law. So, here’s a definition:

A Code of Conduct according to the Ethics Resource Center (ERC) is important as an open disclosure of principles regarding the way an organization operates reflecting its commitment to employees, business partners and the community. It’s a well-written and thoughtful behavioral reference and central guide for communicating a clear linkage between an organizations mission and values, with standards of professional conduct. It’s a complement to relevant standards, policies and rules not a substitute. It’s a tool to encourage discussions of ethical dilemmas and improve member relationships. Finally, it’s an “invaluable opportunity for responsible organizations to create a positive public identity for themselves which can lead to a more supportive political and regulatory environment and an increased level of public confidence and trust among important constituencies and stakeholders.”

If this, your post above, is an example of fighting the urges of bias, opinion and suppress preconceived notions, I fail to see the evidence. What you write “…I am lead to believe …You down-play …you only … the school couldn’t possibly…”; is all speculation and judgment on your part.

Regarding your comment about whether to permit a school counselor to discuss a major medical condition, that’s absurd on its face; particularly given the nature of the escalating conflict. First, I doubt that you know anything about the specific condition of the child and I further doubt whether you know the professional qualifications [competencies] of that councilor.

The assertion that Josephson “…didn’t correct Brandon’s false statement.” Really! You’ve got to be kidding? By my rough count, Josephson ponderously addressed that and related issues over the course of a dozen paragraphs.

Your comment “Imagine if less prominent families felt they were required to do things that others weren’t.” Sparky, has it escaped you that most if not all the students in such schools come from families of some prominence at least in their financial status. Here too, you completely missed the fact that the student/teacher hearing was an alternative i.e. optional not a requirement. If that’s the case, no rules where altered. How did you miss that?

Have you ever heard it said “there is no justice, only decisions”? Except for the three-strikes rule every decision, civil or criminal, is a function of someone’s judgment and interpretation of laws and regulation.

Regarding the older daughters being banned, specifically where you say “…I can imagine that a lot of businesses would do the same…”; well, only if they wanted additional lawsuits. Josephson’s daughters, adults in their own rights, with their own respective rights, are not his property or chattel. I think it likely the school, administrator and governing board could yet find themselves on the receiving end of two more righteous civil actions should the school persist in this seemingly faulty thinking.

And, as for what the general public knows about “what else might have been said or done”, how does that matter at this stage, the specifics will come out in court? As for what his daughter said, he told you specifically, and you still question his integrity saying “…obviously that’s not true” along with other such assertions. You go on-and-on with “we don’t know …We don’t even know …We don’t know …We only have your interpretation, which could be downplayed in your favor, or exaggerated against the school.”

I would ask you and the other speculators/critics; which of you in a similar situation would be as forthcoming in exposing so much, admitting any wrongdoing, in advance of a trial?

As for what “we parents must allow children of that age to be responsible for themselves”; are you aware they are not yet allowed to: vote, buy a drink, rent a car, get a credit card, join the military or sign a contract of any kind without parental or guardian consent.

Again, if this, your post above, is an example of fighting the urges of bias, opinion and suppress preconceived notions, I fail to see the evidence.

Finally, Huntsman says, Play By The Rules: “Make it a point to never misrepresent or to take unfair advantage of someone” and “Have as a goal both sides feeling they achieved their respective objectives.”

I think we will find out who played by the rules and who didn’t.

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Girl Talk July 10, 2014 at 9:57 pm

Brandon, Sparky took the time to go through the information on http://www.JosephsonVsArcher.com . I went through the website as well and came away with the same conclusions as Sparky.

Regarding your comment to Sparky: ‘As for what “we parents must allow children of that age to be responsible for themselves”; are you aware they are not yet allowed to: vote, buy a drink, rent a car, get a credit card, join the military or sign a contract of any kind without parental or guardian consent.’

Are you aware that we are not talking about voting, drinking, renting a car, obtaining credit, joining the military or signing contracts? We are talking about personal responsibility. And a goal of every good parent is to raise a child who is unafraid to take personal responsibility. Lessons in personal responsibility start as soon as a child is able to take their first steps and make choices, not when they turn 18. :)

Sparky, you sound like a thoughtful dad who has the courage to step back and allow his children to make choices and learn from them. Your children are very lucky – from your courage, they also learn to be self-confident and brave. You are modeling awesome behavior for your children.

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Brandon July 11, 2014 at 1:39 pm

Yes, I think we are talking about responsibility, but who’s responsible for the escalation to the current state of affairs in this matter: the Josephson’s or Archer? What is the real point? Where [some] are talking about personal responsibility of a minor and good [parenting] they fail to consider Archer’s escalating behavior, its failures in administrative restraint and poor governance leaving no other remedy but civil action.

Ethics pick up where our legal system leaves off when it comes to addressing business and professional conduct. Business and professional practices differ from one industry and/or profession to another. One of the most often stated reasons for establishing a professional code of conduct is to establish a mechanism for self-regulation that promotes adherence to appropriate norms in standards of conduct in business practices and for professional behavior. When self-regulation fails, the legal system comes into play.

To make the point, I offered a definition about what goes into a code of conduct:

A Code of Conduct according to the Ethics Resource Center (ERC) is important as an open disclosure of principles regarding the way an organization operates reflecting its commitment to employees, business partners and the community. It’s a well-written and thoughtful behavioral reference and central guide for communicating a clear linkage between an organizations mission and values, with standards of professional conduct. It’s a complement to relevant standards, policies and rules not a substitute. It’s a tool to encourage discussions of ethical dilemmas and improve member relationships. Finally, it’s an “invaluable opportunity for responsible organizations to create a positive public identity for themselves which can lead to a more supportive political and regulatory environment and an increased level of public confidence and trust among important constituencies and stakeholders.”

Because legal and ethical standards are not the same thing, they cannot be evaluated in the same light.

Some in this discussion seem to be confused when trying to differentiate between applied ethics and legal remedy. When it comes to accountability it’s essential to differentiate between personal standards of behavior, professional codes of conduct and the potential necessity for pursuing civil remedies when reason fails to prevail.

This is key to the Josephson/Archer dispute. Unfortunately some in this discussion have not taken the time to examine or to understand or discuss ethics in the context of their purpose. This situation morphed from poor student behavior to poor adult judgment. The masses respond to ethical issues on the basis of raw emotion, interpreted through individual prisms of morality, rather than upon a defined standard or the situation in play. The individuals taking Josephson to task somehow think there is no place for legal action, particularly for an ethicist. They miss the point entirely. Litigation is, at times, the only alternative left when all reason and pleading has failed.

Civil codes (the rule of law) apply to everyone in society and are evaluated in the context of established legislative, regulatory and legal standards. Codes of conduct serve a different purpose and ehical guidelines are established to regulate principles with standards that go beyond [in addition to] civil and criminal codes. Most ethical standards are based on common principles of fair play and doing what is right, they are more subjective—for example the standards of every professional and trade association are uniquely different i.e. aligned to their respective environments.

Ethics aren’t entirely absolute. Ethics are context sensitive. Ethics issues although judged in relationship to personal character and conduct are not about morality; rather, they are directly related to the standards of a civilization and civil discourse, which influence the cultural, social, and economic norms in business practices, and professional conduct. While the catalyst in the Archer/Josephson dynamic started with apparent violations in student conduct, how do the adults at Archer escape their responsibility to act on a higher plain of behavior?

Plato in his seminal work, The Republic referred to the “ideal leader” as ‘philosopher-king’ or ‘guardians philosophers’ . He defined such a person as having “…the perfect marriage of a philosophic mind and an ability to lead [also saying] the necessary combination of qualities is extremely rare.”

Plato said, “Our test must be thorough, for the soul must be trained up by the pursuit of all kinds of knowledge to the capacity for the pursuit of the highest—higher than justice and wisdom—the idea of the good.”

Rare though they may be, did Archer meet those tests of justice, wisdom or good; i.e. fair dealing with: C1, MJ, MJs wife, C2, the adult children, indeed the entire family? Did Archer even come close?

As, Huntsman says, Play By The Rules: “Have as a goal both sides feeling they achieved their respective objectives.”

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Marlena Jareaux July 12, 2014 at 6:30 am

It was written above that: “..our civil legal system provides will allow both parties to develop and present their respective cases under oath and subject to the cross-examination of the other party. This rigorous process which separates facts from assumptions, credible opinions from speculations and truth from lies will serve our cause well.” One thing that is missing from the discussion is something that I’d like to believe is tied to the very reason why you, as an attorney, decided to spend more time in the realm of ethics: HUMANS, with all of their faults and strong points, are who run and interpret the laws in that legal system you mentioned. And THAT is not something that is predictable, and as your whatwillmatter site implies, can run amuck as a result of personal ethics. I think that may in essence be what those advocating for another solution are trying to say. Perhaps if there were a way to ensure that all attorneys, parties, expert witnesses, jurors and the judge were well-versed and living demonstrations of the ethics your site tries to impart, you could be confident that you will get what you wrote/wish. I think you know, as I certainly do, that that’s not the case.

The case will be a test for you, in the position that you have in the worldly discussion of ethics, to allow you to see yourself and maybe reconnect with clarity with the reasons you thought ethics were a needed topic in the first place (resulting in the Institute). Maybe it was time, with a real-life lesson and experience, to do some course correcting with your personal goals, and those of the Institute? Remains to be seen.

On a final note, I wanted to say that the direction of the comments above, and your responses to them, are probably best left on the lawsuit website and NOT on this one. Perhaps it is time to consider closing the comments to this thread? Whether you call them your adversary, opponent or whatever, their mission is made easier when things spill out onto your livelihood and then reputation in that arena. You may want to consider compartmentalizing, to the extent that you can. Fallout from the suit, shouldn’t be so obviously infecting your work, the Institute, or this site (and its’ visitors).

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Michael Josephson July 10, 2014 at 7:23 pm

First, I apologize for suggesting you had been less than thorough in reviewing the facts and I thank you for taking the time to do so. That you and I come away from our posts with differing conclusions is unfortunate but I had my chance to persuade you as you have had yours to persuade me. I will post this response as I did the first both on this site and the JosephsonVsArcher site as your points and perspective are worth considering. It is always painful to discover that I’ve disappointed folks who think I should have done things differently. I will continue to reflect on my past and future actions but I have to accept that sometimes good and smart people disagree. Thank you for investing so much time thinking about this and expressing your thoughts. – Michael

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