By Ashley Barker
Published June 4, 2014
Officials from a private Florida-based company looking to purchase the Charleston School of Law were pleased with an attorney general opinion released last week.
S.C. Attorney General Alan Wilson’s office said state agencies such as the Commission on Higher Education “must only evaluate an applicant for a license based upon licensing criteria.” Making a decision based on the “best interests of the state” is not in the criteria.
|The S.C. Commission on Higher Education is expected to decide on Thursday whether InfiLaw will receive a license to purchase and operate the Charleston School of Law. (Photo/Ashley Barker) |
Click for PDF of Attorney General Alan Wilson’s opinion on the licensing of the Charleston School of Law under InfiLaw.
But the commission’s Committee on Academic Affairs and Licensing disagreed. By a vote of 3-1, the committee approved a motion to deny a licensure for the for-profit consortium of independent law schools (.pdf).
The full commission will receive the negative recommendation and is expected to make a final decision on Thursday.
InfiLaw saw the attorney general’s opinion as a victory. In a statement, InfiLaw said the commission’s Committee on Academic Affairs and Licensing considered other factors when it recommended denying the license.
The committee held public comment sessions last month in North Charleston and West Columbia to hear from school founders Robert Carr, George Kosko and Ed Westbrook along with faculty members, students, alumni and area attorneys.
By law, the commission requires an applicant to be “of good reputation and character,” and the law includes six items for consideration of reputation, including no felony convictions and no recent successful lawsuits.
“An applicant who does not violate any of the six factors must be ‘considered to be of good reputation’ as a matter of law for purposes of licensure,” the attorney general’s opinion said.
Rumors, speculation or generalized opinions about an applicant’s reputation would violate federal and state due process requirements, according to the opinion.
During the public sessions, two lawsuits were discussed as examples for not recommending a license to InfiLaw. The suits are against schools owned by InfiLaw. The opinion, though, says litigation against a wholly separate legal entity that is not seeking a license is not allowed to be considered.
“One suit has been dismissed with prejudice, and it is likely the other will as well,” InfiLaw said in a statement.
If an applicant meets “statutory and properly promulgated regulations, an agency such as the CHE lacks discretion to deny a properly qualified applicant a license,” the opinion said. Those regulations include details on the applicant’s academics and curriculum, facilities, finances and reputation and character.
“While it is true agencies are charged with investigating facts to assess whether an applicant meets criteria for obtaining a license, ‘the right to a license is fixed’ by law,” the opinion said. Any decision based on outside criteria would be subject to judicial review and possible reversal, according to the attorney general’s office.
“Besides the clarity it provides, this opinion is important to the licensure process because the AG provides representation for the state in all legal proceedings,” InfiLaw said in a statement.
The attorney general opinion made it clear that the office does not investigate facts and does not make recommendations to administrative agencies about policy decisions that are within their jurisdictions. It only issues legal opinions.
Julie Carullo, deputy director of the commission, said staff members of the Commission on Higher Education have received a copy of the attorney general’s opinion. It has also been given to commissioners and the commission’s counsel, which was retained for “consultation on issues relating to the Charleston School of Law and InfiLaw’s application for licensure.”
Carullo said the commission has “no further statement at this time.”
Rep. John Richard C. King, D-Rock Hill, requested the attorney general opinion via a letter on May 23. He did not return messages seeking comment before press time.
The Commission on Higher Education is scheduled to meet at 10:30 a.m. Thursday in Columbia to make a final decision on InfiLaw’s request for a license (.pdf).
Reach staff writer Ashley Barker at 843-849-3144 or @AshleyNBarker on Twitter.