A legal industry built on private school sex abuse

It has become almost routine in recent months: An elite prep school announces the result of an outside investigation revealing how faculty members sexually abused their students, while administrators did little, if anything, to protect the children in their care.

For the schools, which include places like Phillips Academy in Andover, Mass.; the Pingry School in New Jersey; Choate Rosemary Hall in Connecticut and dozens more, the investigations are a way of owning up to past misconduct, and pledging that in a more transparent and enlightened time, children are safer in their hands.

For the victims, the investigations can be healing, a signal of recognition in the face of long-expired statutes of limitation.

But for the investigators, many of them at big law firms, they are good business, a lucrative new practice area taking its place among their professional offerings.

For each investigation, a team of up to half a dozen people can spend months conducting interviews, digging into records and chasing leads. Inquiries frequently cost schools hundreds of thousands of dollars, lawyers and school officials say, and at least one school spent $2 million on its comprehensive report.

While many firms have done just one or two of these investigations, a few major players have emerged in the field, including T&M Protection Resources, a global security firm that has worked for Milton Academy in Massachusetts and Pingry. The firm bills its services on its website by saying, “we investigate the true nature of sexual misconduct claims, promoting justice for alleged victims and those accused while limiting liability for institutions.” There is also Holland & Knight, a firm with two dozen offices around the country, whose inquiries include one for Phillips Exeter Academy, in New Hampshire.

Gina Maisto Smith and her partner, Leslie M. Gomez, of Cozen O’Connor, a Philadelphia-based firm, have worked with more than 400 institutions doing investigations, developing policies and offering legal advice — colleges and universities, dozens of K-12 schools, as well as religious institutions, camps and businesses. Ms. Smith, a former sex crimes prosecutor, founded the practice more than 10 years ago to focus on how institutions respond to abuse and discrimination. They recently completed two reports for the Emma Willard School, a girls boarding school in Troy, N.Y.

Ms. Smith and Ms. Gomez argue that expertise is crucial in their field, where laws are complex, interviewing is delicate and there is a body of child abuse research to master.

“It’s not only the process of these investigations but what we do with the information, how do you weight it, how do you value it,” Ms. Smith said. “We have a better sense of context of these cases by doing thousands of them, as opposed to one or two of them.”

But critics say that the firms, often described by administrators as “independent,” can be too close to the schools they are investigating. Ultimately, it is the schools that pay their bills, and decide what information will be released.

“If they do this full time, there is a perception issue, that they’re not going to draw tough conclusions in all cases,” said Roderick MacLeish, a lawyer who represents victims of abuse at private schools. “If you’re going to keep doing this, how tough are you going to be on some private school client, when you are basically marketing yourself for other investigations in the future?”

Even the firms that conduct them acknowledge that the investigations are not free of conflict.

“It’s important for institutions to be careful about the word ‘independent’ and be transparent about what this means,” said Paul G. Lannon Jr., a partner at Holland & Knight. “They are paying for these services, it’s not like these are volunteers coming in.

“But they are professionals coming in with professional experience,” he said. “They are members of the bar who are obligated to comply with ethical standards, rules of professional conduct, of behavior — and to seek the truth. Absent a better alternative, this is probably the best the schools can do.”

Investigators also acknowledge that there are limits to their work. They are private lawyers, not law enforcement, and they cannot compel people to participate by issuing subpoenas. Often, investigators are working with limited records from long ago, and contacting alumni using addresses schools have on file. As a result, many survivors — and perpetrators — are left out.

Schools often discuss the reports in terms of their obligations to victims and the larger community, and many survivors and their advocates welcome the more thorough reports. Sexual abuse survivors from Horace Mann School in the Bronx say they have been asking the school for years to commission an independent investigation, which the school has declined to do.

“We want the validation of an independent third party looking objectively at the facts and saying, ‘Yes, I believe this happened to you, and here’s my understanding of how it happened,’” said Joseph Cumming, who said he was abused at Horace Mann in the 1970s. Horace Mann did not respond to multiple requests for comment.

But the reports serve a public relations function as well. At schools that haven’t seemed proactive and transparent, “school reputation and financial well-being” have “experienced collateral damage,” warned a recent draft of guidelines on how schools should respond to allegations of staff sexual abuse from the National Association of Independent Schools and The Association of Boarding Schools.

At the outset, schools generally outline parameters for the firms they hire. Some ask investigators to focus on a specific span of time, or on adult misconduct, as opposed to student-on-student sexual violence. They will decide whether the inquiry will culminate in a written report, or some kind of oral presentation. A budget is discussed. Some reports name several perpetrators and the administrators who protected them, while others present almost no information about what happened.

Some pledge ahead of time to release their findings, while others wait to see what is uncovered before they decide what they will make public. Laura Kirschstein, vice president of Sexual Misconduct Consulting & Investigations a six-year-old division at T&M said that it is not necessarily the institutions’ reputations that are being protected when reports or details are withheld.

“You can have individuals coming forward who have never disclosed what happened to them,” she said. “What, if any, effect will a report that has a lot of detail about what occurred have on them? Our experience has been that many people want it to remain confidential.”

In the case of Choate Rosemary Hall, the investigation was announced in October 2016, shortly after an article was published in the Boston Globe that described abuse at Choate and other private schools. The school hired Nancy Kestenbaum, a former federal prosecutor now at the international law firm Covington & Burling, to conduct the investigation and in a letter to the school community, administrators said they would release whatever investigators uncovered and asked victims to come forward. What resulted was a brutal, detailed and public look at frightening abuse, and past administrators, called out by name, who failed to report it.

But even sweeping reports are not comprehensive. Topey Schwarzenbach graduated from Choate in 1965, and not long after, he was abused by one of his former teachers at a summer camp, he said. The man subsequently wrote to him about sexually abusing other students at the school. But Mr. Schwarzenbach was not part of the Choate investigation because he did not know it was happening.

“They sent out 22,000 inquiries and got back 42 responses?” he continued, citing information from the school’s report. “They haven’t gotten anywhere near what the scale of the problem is.”

After the investigation was released, he wrote a letter to the school. “I would like my story to be a part of the publicly acknowledged history of the Choate School,” he said. “I would like that history to be fully and accurately recorded and understood: the bad along with the good.”

In May, the school hired a team at the East Coast law firm Day Pitney to investigate the allegations it received after the original report was published. The team, led by a former United States attorney, has done similar work at three other schools.

The Sanghavi Law Office, a Massachusetts firm founded by a former civil rights lawyer at the United States Education Department, has conducted investigations at a number of schools, including Phillips Academy in Andover. The school released a letter to its community last year with some findings, and then in July, it released the full report, which named perpetrators but provided few hints about what administrators knew or what they did with the information they had.

Marie Sapienza, a former state legislator in New Hampshire, said she was abused at the school by Alexander Theroux, a former teacher whom the report names. Ms. Sapienza said that she told the headmaster what happened to her when she was still a student in the 1980s, and her complaint was brushed aside. She did not participate in Sanghavi’s investigation.

“I thought it was propaganda,” Ms. Sapienza said of the report. “It gives the wrong impression that, here we’ve done this great, complete job, when in truth it’s very limited.”

John Palfrey, the head of school at Andover said that “no report could possibly include a comprehensive account of all harms that have occurred,” and that the investigation was just “one further step in a long process of understanding what happened.”

Mr. Theroux denied “engaging in any inappropriate behavior with Ms. Sapienza or anyone else,” his lawyer, Michael J. Mazurczak, said in an email.

Perhaps no investigation has been more widely decried than one released in 2015 by St. George’s School in Rhode Island. The report was greeted with a roar of displeasure from survivors who considered it compromised because the investigator’s law partner — and wife — was the school’s lawyer. The school commissioned a second investigation, which it released last year.

Mr. MacLeish, who represents victims, said that schools that commission truly thorough, independent reports can promote “real healing by being honest,” while keeping their reputations relatively intact.

But Mitchell Garabedian, a lawyer who represents Ms. Sapienza and many other victims of private school sex abuse, is skeptical. He said that most reports do not address critical issues, like whether the school has used confidentiality agreements in settlements with victims, the culpability of supervisors and whether the sexually abusive teachers went on to teach elsewhere.

“They are a shallow attempt at window dressing to place the school in a positive light,” Mr. Garabedian said. “What is lacking in these investigations is telling.”

Mr. Garabedian and Mr. MacLeish are part of another emerging industry: lawyers, many of whom spent years representing victims of clergy abuse, who now focus their practice on institutions that serve children — or in the case of Mr. MacLeish almost exclusively on private schools.

“This is all I do now,” he said. “I don’t have time to do anything else.” ©2017 The New York Times News Service