Could MUSC's trustees add sexual orientation to the university's nondiscrimination policy?

Plain-English summary

The Medical University of South Carolina's general counsel asked whether its Board of Trustees could adopt a student government proposal adding sexual orientation to the university's nondiscrimination policy. The Attorney General said the board had authority to adopt such a policy and found no state or federal law preventing the addition. The proposed language covered admissions, education, financial aid, employment, and other university activities.

The opinion relied on statutes giving the board management and control of MUSC and power to make rules and bylaws consistent with state and federal law. It also discussed Romer v. Evans, a U.S. Supreme Court decision striking down a state constitutional measure that barred protections against discrimination. The AG cited that decision as further support for its conclusion. The letter addressed the board's power to adopt this proposed policy; it did not say the board was required to adopt it.

Currency note

This opinion was issued in 2007. 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

University trustees

The opinion read the board's management and rulemaking statutes as allowing it to state MUSC's nondiscrimination policy, provided that policy did not conflict with state or federal law. The AG found no legal bar to including sexual orientation in the proposed resolution.

Students and university staff

The resolution submitted to the board proposed protection against discrimination in several university activities. The opinion decided the trustees' authority to adopt that language; it did not report that the board had voted to adopt it.

Common questions

Could MUSC's board include sexual orientation in its nondiscrimination policy?
The AG said yes. It found broad board authority to set policy and no state or federal law barring that addition.

Did the AG say MUSC had already adopted the resolution?
No. The opinion described a proposed resolution submitted for the board's consideration.

Which university activities did the proposed wording cover?
The text in the opinion named admissions, educational policies, financial aid, employment, and any other university activity.

Why did the opinion discuss Romer v. Evans?
The AG read that U.S. Supreme Court decision as further support against prohibiting policies protecting people from discrimination based on sexual orientation.

Background and statutory framework

Section 59-123-40 established the trustees' management and control of MUSC. Section 59-123-60 gave the board rulemaking and bylaw powers. The AG applied those provisions to the proposed resolution and found no contrary state or federal law.

Citations and references

• Section 59-123-40 and section 59-123-60: the board's governance and rulemaking authority.
• Romer v. Evans, 517 U.S. 620 (1996): federal equal protection decision discussed in the opinion.

Official title

Concerning a proposed resolution submitted to the Medical University of South Carolina’s (“MUSC’s”) Board of Trustees by MUSC’s Student Government Association for the Board’s consideration.

Requester

Joseph C. Goode, Jr., Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-2-2007-3/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/good-j-c-jr-5-2-07-os-8371-muscs-non-discrimination-policy.pdf

Original opinion text

May 2, 2007

Joseph C. Good, Jr., Esquire
General Counsel, Medical University of South Carolina
Post Office Box 250204
Charleston, South Carolina 29425
Dear Mr. Good:
We received your letter concerning a proposed resolution submitted to the Medical University of South Carolina’s (“MUSC’s”) Board of Trustees (the “Board”) by MUSC’s Student Government Association for the Board’s consideration. Per your letter, the resolution aims to expand MUSC’s “policy on non discrimination to specifically include non discrimination in any University activities based on ‘sexual orientation.’” You included a copy of the resolution with your request. The resolution proposes an amendment to MUSC’s admissions equal opportunity policy to read as follows: The Medical University of South Carolina does not discriminate on the basis of race, color, creed, sex, age, national origin, disability, veteran status, sexual orientation, or marital status in the administration of admissions policies, educational policies, financial aid, employment, or any other university activity. (emphasis added). You ask “whether MUSC is empowered to adopt this Resolution and not be in violation of State or Federal laws.” Law/Analysis First, we consider MUSC’s authority to adopt an anti-discrimination policy. Chapter 123 of title 59 of the South Carolina Code (2004) establishes MUSC and governs its operations. Section 59-123-40 of the South Carolina Code, in particular, creates the Board, giving it “management and control of the university . . . .” Through section 59-123-60 of the South Carolina Code, the Legislature affords certain enumerated powers to the Board. Among these is the power to create “rules for the government of the university” and the power to “make bylaws and regulations considered expedient for the management of its affairs and its own operations not inconsistent with the constitution and laws of this State and the United States . . . .” According to these provisions, the Board has broad authority to enact rules and regulations concerning MUSC. Therefore, we

Mr. Good
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May 2, 2007
believe the Board has authority to pass a resolution explaining MUSC’s policy with regard to discrimination assuming this policy is not contrary to State or federal law. In our review of State law, we found no provision preventing MUSC or any body, private or public, from adopting a policy stating that it will not discriminate based upon sexual orientation. We also did not find a federal law preventing the adoption of such policies. Furthermore, the United States Su preme Court, in Romer v. Evans, 517 U.S. 620 (1996) ruled a state constitutional provision prohibiting such policies violates the Federal Constitution. In that case, the plaintiffs challenged an amendment to the Colorado Constitution prohibiting legislative, executive, or judicial action protecting homosexuals from discrimination. Id. The Court examined the amendment and determined it denies homosexuals equal protection for the following reasons: First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Id. at 632. Thus, not only did we not find any federal or state law prohibiting MUSC from adopting the policy included in the resolution, Romer indicates to prohibit the adoption of such policies would violate the United States Constitution. In conclusion, we believe MUSC, acting through the Board, is authorized pursuant to its enabling to adopt an anti-discrimination policy. Furthermore, we find no State or federal law prohibiting MUSC from including in such a policy that MUSC does not discriminate based on sexual orientation. Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook

Cydney M. Milling
Assistant Attorney General

Mr. Good
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May 2, 2007
Assistant Deputy Attorney General