Did South Carolina’s higher education commission have to make private college licensing depend on ADA compliance in 1995?

Plain-English summary

In February 1995, South Carolina's Commission on Higher Education asked whether it had to ensure that nonpublic postsecondary institutions complied with the Americans with Disabilities Act before licensing them. The Deputy Attorney General said no such requirement appeared in the federal regulation or the state provisions he reviewed. The letter was deliberately narrow: it did not decide what the Commission could consider under separate licensing criteria for space, equipment, or learning resources.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Higher education regulators

The writer distinguished administering a public licensing program without discrimination from enforcing the federal accessibility obligations of every institution it licensed. He found no additional state requirement compelling the Commission to condition licensure on ADA compliance in the circumstances presented.

Nonpublic institutions

The opinion addressed only what the licensing Commission had to enforce. It did not determine an institution's own federal obligations or the meaning of the separate state licensing criteria it mentioned.

Common questions

Did the 1995 opinion require the Commission to verify each applicant's ADA compliance? No. It found no duty to make that verification a condition of licensure under the provisions discussed.

Did the letter say private colleges were exempt from the ADA? No. Its conclusion was limited to the Commission's licensing duty.

Did it decide how accessibility affected space or equipment criteria? No. The writer expressly left the scope of those separate licensing criteria unaddressed.

Background and statutory framework

The letter considered the ADA, a federal regulation distinguishing a public entity's licensing program from the licensed entity's own programs, and South Carolina's nonpublic postsecondary licensing provisions. It identified state criteria but expressly did not interpret their scope. Its conclusion was an informal, limited response to the Commission's 1995 question.

Citations and references

• §35 .130 ( 6): federal regulatory provision quoted in the source with OCR spacing.
• § 59-58-10 et seq. and state licensing provisions: cited as the framework for nonpublic institution licensing.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-21-1995/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995feb21sheheen.pdf

Original opinion text

T. TRAVIS MEDLOCK
ATTORNEY GENERAL

RllMUERT C. DllNNIS DUILDINO
POST OFl-1CE BOX llS49
COLUMBIA, S.C. 2921 l·IS49
TEU!l'J IONE: 803-734-3970
FACSIMILE: 803-2.53-6283

February 21, 1995

.'

Mr. Fred R. Sheheen
Commissioner
South Carolina Commission on Higher Education 1333 Main St . Columbia, SC 29201 Re:

Informal Opinion

Dear Fred:
You have requested the advice of this Off ice as to whether the Commission on Higher Education is required to ensure that nonpublic postsecondary institutions in this State comply with the Americans with Disabilities Act (ADA) (42 u.s.c. S12101 et seq.) as a condition of their licensure by the Commission. See s.c. Code Ann.
§ 59-58-10 et seg. (Supp. 1993).
The Commission does not appear to
be required to ensure ADA compliance by these institutions seeking licensure. Federal regulation 28 CFR §35 .130 ( 6) states that " .•• [ t] he programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part." Because the preceding part of
§35 .130 ( 6)
addresses
nondiscrimination by public entities in administering licensing programs, this regulation appears to exempt an entity from requiring ADA compliance by an institution that it licenses. State law does not appear to impose any additional requirements on the Commission to enforce this federal law under these circumstances. See SS 59-58-40 and 59-58-50 and 25A s.c. Code Ann. Reg. 62-6(H). The conclusion herein is limited to the absence of any requirement that the Commission condition licensure upon ADA compliance. This letter does not address the scope of such licensing criteria as "adequate space, equipment" and "sufficient learning resources" under Reg. 62-6(H). Finally, this letter is an informal opinion. It has been written by a designated Deputy Attorney General and represents the position of the undersigned attorney only as to the specific questions asked. It has not,

Mr. Fred R. Sheheen
Page 2
February 21, 1995

however, been personally reviewed by the Attorney General officially published in the manner of a formal opinion.

nor

If you have any questions, please let me know. Yours vePf truly,

~Jr.

I

Deputy Attorney General

JES

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