Charlotte School of Law turns to one of America's top lawyers to fight back in lawsuit

Defunct Charlotte School of Law, which closed its doors last year, has reached beyond the grave to challenge the accreditation decision that expedited its demise.

And it will be using one of the country's elite lawyers to make its case.

Last week, the failed for-profit school sued the American Bar Association, claiming that the accrediting organization acted improperly when it put Charlotte Law on probation in 2016.

The 28-page complaint was authored in part by Paul Clement, a Republican considered by many to be one of the best courtroom litigators in the country. Clement, 51, has argued more cases before the Supreme Court since 2000 than any other U.S. lawyer. Many of those cases involved touchstone political and cultural issues for conservatives — including gun rights, the marriage debate, religious liberty and Obamacare.

As solicitor general of the United State under President George W. Bush, Clement represented the government's conduct in the war on terror and the legality of the military tribunals at Guantanamo Bay.

In 2011, he was hired by the Republican majority in the House of Representatives to defend the Defense of Marriage Act, which federally defined as being between a man and a woman and was later thrown out by the Supreme Court.

He also represented the National Rifle Association in a landmark Supreme Court case that overturned a Chicago handgun ordinance and upheld Second Amendment protections of the right to bear arms.

Clement also led the challenge by 26 states to the Affordable Care Act, and is frequently mentioned as a future Supreme Court nominee by a Republican administration.

Now he's helping represent a former uptown Charlotte law school that's been shuttered for 10 months. The question remains why? Media spokesman Robert Gemmill did not immediately respond to an Observer email seeking comment.

Paul Clement.JPG
Paul Clement, center, attorney for Hobby Lobby and Conestoga Wood, center, speaks to reporters in 2014 after the Supreme Court heard oral arguments in the challenges of President Obama's health care requirement that businesses provide female employees with insurance that includes access to contraceptives. Clement is now representing defunct Charlotte School of Law in its new lawsuit against the American Bar Association of the school's loss of accreditation in 2016. Charles Dharapak/AP

One clue may be geography. Clement is a partner in the international law firm of Kirkland & Ellis, which is based in Chicago. Chicago is also the home of Sterling Partners, a private equity firm that owns InfiLaw, a consortium that operated Charlotte Law and two other for-profit law schools. One of those schools, Florida Coastal School of Law, has also sued the ABA on similar grounds, with Clement serving on its legal team.

The bar association pulled Charlotte Law's accreditation in November 2016, citing "persistent" and significant problems with the school's admissions, curriculum and student performance on the bar examination.

A month later — and shortly before the start of a new semester — the U.S. Department of Education expelled Charlotte Law from the federal student-loan program, which paid $50 million to the school's students the year before. The department said school leaders had hidden the true nature of its accreditation problems to protect enrollment, along with tuition payments of up to $41,000 a year.

Enrollment plummeted. Faculty was slashed. An emergency food back was started for students. After 11 years in operation, Charlotte Law closed in August 2017.

Now the school and its parent InfiLaw Corp. are fighting back behind a legal team that includes Clement and former U.S. Assistant Attorney General Viet Dinh.

The school's attorneys also include Charlotte lawyer Lee Robertson Jr., the president of Charlotte Law's alumni association, which became a frequent criticof the school's leadership during the accreditation and loan crisis. Robertson did not respond to an Observer email seeking information about his new role.

Charlotte Law's complaint accuses the bar association of unfairly revoking the school's accreditation even though it knew its leaders had taken steps to toughen admission standards. The suit also alleges that the Department of Education under the Obama administration pressured the bar to single out CSL for punishment while other schools with similar or lower passing rates on the bar exam were left alone.

In a press release, Clement said the bar's actions violated due process and ultimately made it "impossible for CSL to operate as a law school."

The complaint calls for a jury trial along with damages, as well as a court order restoring the school's accreditation. Charlotte Law and InfiLaw also have asked the courts to prohibit the bar from enforcing its standards for admissions, curriculum and student attrition against other law schools. Florida Coastal has been found to be out of compliance with some of those standards, according to the ABA Journal.

An ABA spokesman did not respond to an Observer request for comment. In a statement posted on the group's website last week, Barry Currier, managing director of accreditation and legal education, says the accrediting process gives schools ample opportunity to prove they are meeting bar standards.

"We will continue to follow our established procedures and expect to be successful in any future litigation," Currier said.

Meanwhile, school critics wonder how a defunct school can afford this level of legal help.

"In the course of our litigation we have been told that there is no money for the (Charlotte Law) students ... All available information suggests that InfiLaw Corp. is deeply in the red," says Charlotte attorney Gary Jackson, who is representing dozens of former Charlotte Law students who have sued the school.

"So who's paying for these high-faluting lawyers? And if they win and presumably get tens of millions of dollars, do they intend to share the money with the students?"

It was not immediately clear how Charlotte Law would benefit from regaining its accreditation. Robertson did not respond to an Observer email seeking an explanation.

Charlotte Law alumnus Margaret Kocaj, whose senior year was marred by the financial crisis, says her school may be following a scorched-earth strategy in its legal fight against the bar.

"If they exhaust all their money on legal fees suing for things that are, in my opinion, arbitrary and ridiculous, then CSL and InfiLaw will have nothing left to pay the students whom they defrauded," she said.

"While it irritates me as a former student, it is a pretty smart legal strategy: Pay your attorneys, not your enemy, in this case the students."

Michael Gordon: 704-358-5095; @MikeGordonOBS.