Judge reinstates fired Charleston School of Law professor

A judge has reinstated Charleston School of Law professor Nancy Zisk after she was laid-off in May along with six of her tenured colleagues as part of what the school described as a “strategic right-sizing effort.”

Circuit Judge Markley Dennis verbally granted Zisk’s motion for a preliminary injunction order during a hearing Aug. 3 and is expected to issue a written order soon, according to her attorney, Capers Barr of Barr, Unger & McIntosh in Charleston.

Richard Gershon, the founding dean of Charleston law, noted in a blog post, “These type of temporary injunctions are rarely granted in employment cases, and the plaintiff would have to show irreparable harm, and a likelihood of success at trial.” Gershon now serves as dean of the University of Mississippi School of Law.

Zisk and another laid-off professor, Allyson Stuart, have filed separate wrongful termination suits against the school. Stuart had also initially sought an injunction, but decided to move forward with her lawsuit instead. Her attorney, Nancy Bloodgood, said she was rethinking that move.

“We chose to proceed with the litigation but now that the judge granted another professor’s request and indicated all six could go back if they wanted, we’re considering our options,” added Bloodgood, who practices at the Foster Law Firm in Charleston.

Another professor who was fired, Miller Shealy, wrote in an email that he was “strongly considering” following Zisk’s lead and filing for an injunction. He was unsure about what the other four professors were going to do. So far, Zisk and Stuart are the only axed professors who have taken legal action against the school.

During the injunction hearing, Dennis ordered Zisk to post a $500,000 bond to cover potential damages the school might incur from her reinstatement. Zisk would be liable for such damages if the school prevails in defending itself against her suit. The school had proposed a $5 million bond, Barr said.

Charleston law’s owners, Robert Carr and George Kosko, and their attorneys argued in a court filing that granting Zisk’s motion for an injunction would be disastrous for the school because it cannot afford to pay her. She made $129,000 a year, plus benefits.

“The real damage to the CSOL should an injunction issue is not limited to the salary and the benefits to be paid to Zisk,” the school’s attorneys at Cleveland & Conley in Charleston wrote in an opposition to the injunction.

“In short,” they said, “the damages the CSOL will suffer if an injunction is granted are large and will, consequently, significantly and negatively impact the continued operation of the CSOL and the legal education of hundreds of students.”

‘Too late for the CSOL”

Carr and Kosko assert that the layoffs were necessary to keep the foundering school afloat –they had publicly contemplated closing the doors to first-year students for the upcoming fall semester but enrolled another class after pointing Zisk and her colleagues toward the exit.

“It is now too late for the CSOL to take other action that was forestalled by the terminations of Zisk and the six other faculty,” the school’s attorneys told the court. “In addition to the obligations resulting from admitting another class, other damages would ensue including, but not limited to, laying-off other employees, curtailing services, reducing operational hours, limiting facilities use, complying with regulatory standards, and, most importantly, the impact on student educational opportunities.”

The school’s dean, Andy Abrams, its spokesman, Andy Brack, and its attorneys did not respond to an email seeking comment.

But Carr asserted in an affidavit that he and Kosko had to give the boot to Zisk and her six colleagues because the school was too cash-strapped to keep paying the professors, who were among the faculty’s top earners.

The school has reported that it declared financial exigency to the state’s Commission on Higher Education in December 2014. Such a declaration is one of the few ways in which a school can terminate tenure without running afoul of widely followed guidelines from the American Association of University Professors.

But Zisk argues that she was fired because she spoke out against a deal that would have allowed the InfiLaw System of for-profit law schools to buy Charleston law. She accuses Carr and Kosko of using financial exigency as an excuse to refuse to renew her contract. She wants the private school to lift the veil on its financials and prove that it is, in fact, in dire straits. Others, including students and faculty, have sought the same information, but to no avail.

“Fundamentally, our argument was that it was incumbent on the school to show to professor Zisk before terminating her that indeed some bona fide financial exigency existed and they just refused to do that,” Barr said in a phone interview shortly after the injunction hearing. “They even refused to do that today.”

However, Wende Wood, the school’s chief financial officer, revealed in an affidavit that revenue for the spring semester this year was down 46 percent from the same time in 2012.

The school’s deal with InfiLaw came to light in 2013 – around the same time that its downward spiral began – and sparked fierce opposition from faculty, students and alumni who say InfiLaw is a diploma mill. The company owns three bottom-tier law schools, including the Charlotte School of Law.

Wood also reported that the school’s revenues dropped by 33 percent from January 2012 to December 2014, and that student enrollment fell by 38 percent from the spring semester of 2012 through the spring semester of 2015.

She added that the school shaved 9 percent off its expenses by firing the seven tenured professors.

Barr, meanwhile, dismissed the financial details included in Wood’s affidavit as “only broad generalities.”

Back to school

Zisk and Stuart allege in their complaints that their terminations violated the provisions of the school’s faculty handbook and the American Association of University Professors. Zisk’s injunction should allow her to remain on the job until the court determines the merits of her allegations.

Zisk had initially requested in her motion for an injunction that the court order the school to make “only routine expenditures” while the case was playing out, saying she had been “informed that [Carr and Kosko] intend to waste school assets and funds in order to avoid their obligations” to her.

She also wanted the court to order expedited discovery regarding the details of the financial exigency. But she later dropped both requests and focused solely on reinstatement.

She and Stuart are suing the school primarily for breach of contract. Carr and Kosko contended in their opposition to the injunction that Zisk’s case is flimsy and will fail because it is built on her assertion that her termination was retaliatory. They note that other professors who also publicly opposed the InfiLaw sale still have their jobs.

“Consequently,” their attorneys argued, “it is unlikely Zisk will be able to succeed on her contention that the CSOL breached the employment contract for the reason she states in her verified complaint – retaliation.”

Zisk hopes to be teaching at the school when classes begin Aug. 17, Barr said. She is a graduate of the Duke University School of Law and specializes in torts, employment discrimination law and equitable remedies.

 Follow Phillip Bantz on Twitter @SCLWBantz