Did an earlier USC Greenville medical school opinion exempt other new college programs from state review?

Plain-English summary

In 2011, the South Carolina Attorney General reaffirmed that the specific expansion of the University of South Carolina medical program in Greenville did not require Commission on Higher Education approval. First- and second-year courses were to be added where the third and fourth years of that already established program had long been offered. The AG treated this as an addition to an existing program, rather than creation of a “new program.”

The Commission worried that the earlier opinions might be read to exempt other university changes that looked like expansions but really were new programs. The AG rejected that broad reading. The statutes still gave the Commission authority to approve new public college and university programs. The office limited its earlier conclusion to the unique Greenville facts and left the Commission to apply the law in other circumstances.

Currency note

This opinion was issued in 2011. 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.

Common questions

Did the USC Greenville expansion require Commission approval? A: The AG reaffirmed its earlier conclusion that adding the first two years of the existing medical program in Greenville did not require approval under the “new program” provisions.

Could another university call a new course of study an expansion and skip review? A: The opinion did not approve that. It said the Greenville result depended on its facts and that the Commission should apply the new-program statutes to other situations.

Did the Commission still approve genuinely new programs? A: Yes. The AG quoted statutes requiring Commission approval before public institutions undertook new programs, subject to the statutory terms.

Did this opinion define every possible program change? A: No. It clarified the reach of its prior USC opinion but left unrelated program classifications to the Commission.

Background and statutory framework

The Commission sought clarification of AG opinions issued in January and May 2011 about USC medical courses in Greenville. The AG reviewed the statutory approval requirement and distinguished the described addition to an existing program from other new programs. It declined to turn one fact-specific conclusion into a general exemption from review.

Citations and references

The opinion quotes § 59-103-35, § 59-123-10 and § 59-101-150 on approval of new higher education programs and discusses the January and May 2011 AG opinions.

Official title

Concerning two prior opinions of this Office dated January 5, 2011 and May 11, 2011. Specifically, you asked us to address the definition of “new” or “new programs” as related to the Commission on Higher Education’s (CHE) authority to approve a new USC/Greenville Hospital System School of Medicine in Greenville.

Requester

By: Mr. Kenneth B. Wingate, SC Commission on Higher Education

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-7-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/10/wingate-k-b-os-9332-10-07-11-prior-opinions-new-CHE-USC-GHS-School-of-Medicine1.pdf

Original opinion text

ALAN WILSON

ATIORNEY GENERAL

October 7, 2011

Mr. Kenneth B. Wingate
SC Commission on Higher Education
1122 Lady Street, Suite 300
Columbia, SC 29201
Dear Mr. Wingate:
We received your letter requesting clarification concerning two prior opinions of this Office dated January 5, 2011 and May 11, 2011. Specifically, you asked us to address the definition of "new" or "new programs" as related to the Commission on Higher Education's (CHE) authority to approve a new USC/Greenville Hospital System School of Medicine in Greenville. You have expressed concern that there are situations with respect to academic programs where at first glance, certain new programs may appear to be simple expansions. You explained that the core of your concern is the two above referenced opinions "might be used in the future to contend that certain program expansions or additions or other program changes might not be subject to" CHE review even though "we have long interpreted [such authority] to be the intent of the General Assembly." We understand the proposed addition to the USC Medical School is not part of your mqmry. In the opinion dated January 5, 2011, we opined as follows:
[T]he proposed addition to the USC Medical School Program in Greenville does not require CHE approval. Employing the common and ordinary meaning of the phrase "new program," as used in the statutes relating to CHE's authority, we deem the addition of first and second year USC Medical School courses in Greenville to the already established program - one in which third and fourth years of USC Medical School have long been offered in Greenville - to be the addition to an existing program rather than the establishment of a "new program" for purposes of§ 59-103-35 and related statutes. Op. S.C. Atty. Gen., January 5, 2011 (emphasis added). This conclusion was affirmed in our opinion dated May 11 , 2011. See, Op. S.C. Atty. Gen., May 11, 2011. This Office also opined that "the Legislature itself expressly recognized a distinction between the initiation of a 'new program' and the expansion or addition to an existing program." Op. S.C. Atty. Gen., January 5, 2011 .

REMBERT

c. DENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA , SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Wingate
Page2
October 7, 2011
The law is clear that the South Carolina Commission on Higher Education has authority to approve new public college or university programs in South Carolina. For example, S.C. Code § 59-103-35 provides in pertinent part as follows: No new program may be undertaken by any public institution of higher education without the approval of the commission. The provisions of this chapter apply to all college parallel, transferable and associate degree programs of technical and comprehensive education institutions. All other programs and offerings of technical and comprehensive education institutions are excluded from this chapter. S.C. Code§ 59-103-35. Similarly, S.C. Code§ 59-123-10 provides in relevant part:
[i]t is further intended that any new programs undertaken by the institution [of higher education] will first be approved by the Commission on Higher Education and that no organizational changes in the operation and management of the institution shall be made as a result of the change in name." S.C. Code § 59-123-10. Also, S.C. Code § 59-101-150 states that "[n]o new program shall be undertaken by any State-supported institution of higher learning without the approval of the Commission [on Higher Education] or the General Assembly." S.C. Code § 59-101-150. Nevertheless, it remains the opinion of this Office that "the proposed addition to the USC Medical School Program in Greenville does not require CHE approval." See, January 5, 2011. The conclusion drawn in the January 5, 2011 and May 11, 2011 opinions is based upon the situation addressed in those opinions. We reaffirm our conclusion that CHE approval is unnecessary with respect to the unique situation involving the proposed expansion of the use Medical Program in Greenville. Such is not to say, however, that CHE approval is not required in other circumstances unrelated to the USC/Greenville Medical Program. We leave it to the Commission to apply the law in these other circumstances.

Very truly yours,

O(~~.~-.~
Leigha Blackwell Sink
Assistant Attorney General
REVIEWED AND APPROVED BY:

~/;)1 ~

Robert D. Cook
Deputy Attorney General