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.

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