A significant constitutional dispute over Clemson University’s Board of Trustees is making its way through South Carolina’s court system. The case, brought by NOLAS Trading Co. and Ned Sloan, later taken over by his son, John Sloan challenges the appointment and service terms of the university’s lifetime trustees.
Background and Legal Framework
Clemson University was established through the will of Thomas G. Clemson, which provided for seven “Life Trustees” to govern the institution alongside six trustees elected by the State for four-year terms. These life trustees, originally appointed by Clemson’s will, have operated as a self-perpetuating group since the university’s founding, with existing life trustees appointing replacements when vacancies occur through either death or resignation.
The constitutional challenge centers on two key restrictions found in South Carolina Constitution of 1895 which established no person may be “elected or appointed” to office in the state for life or during good behavior, and all officers must serve terms “for some specified period” except for notaries public and officers of the militia. The plaintiffs argue these provisions directly conflict with Clemson’s governance structure, as the life trustees effectively serve unlimited terms while overseeing the expenditure of more than $100 Million annually in state taxpayer funds.
Lower Court Proceedings
The case began in 2020 when plaintiffs initially petitioned the South Carolina Supreme Court, which denied the petition. Plaintiffs then filed in Greenville County Circuit Court before it was transferred to Pickens County Probate Court due what the court believed to be a matter involving charitable trusts.
In April 2023, the Probate Court granted Clemson’s motion to dismiss basing its decision on three main grounds. First, the court determined that the lifetime trustees were not “elected or appointed” within the meaning of the Constitution because they were originally named by Thomas G. Clemson and have been self appointed by the life trustees since. Second, the court found they were not “public officers” under state law. Third, the court concluded that requiring constitutional compliance would impair the contractual obligations established by Thomas G. Clemson’s will and the state’s acceptance of this will. The plaintiffs appealed this decision.
Appellants’ Constitutional Arguments
In their appeal, the appellants make several constitutional arguments. They argue that under S.C. Code Ann. § 8-1-10 which defines public officers as all officers of the State that have been commissioned as well as all trustees of the various colleges of the State, the life trustees are public officers and therefore subject to the Constitutional restrictions.
The appellants also challenge the lower court’s interpretation of “elected or appointed”, citing precedent showing that public officers can be selected though carious means beyond just popular election or appointments by the governor.
Perhaps most significantly, the appellants argue that the 1895 Constitution fundamentally changed the legal landscape of South Carolina from the time Thomas G. Clemson’s will was accepted by the State. This would mean that although the life trustees did not violate the 1868 Constitution of South Carolina because it accepted service “during good behavior”, they do violate the constitution South Carolina follows now.
Respondents’ Trust Law Defense
Clemson University’s defense relies heavily on charitable trust law and the doctrine of equitable deviation. They argue that as a charitable trust, Clemson is subject to special protections under South Carolina probate law that prevent the General Assembly from altering their trust. Clemson argues that any changes to the trust must be approved by a court of equity.
Appellants argue the university has benefited from many instances of equitable deviation over the decades. For example, courts have altered the trust to allow women into the university and end racial segregation in the university. Due to this, the appellants argue courts can authorize necessary modifications to the trust while preserving the original intent of the trust.
Next Steps and Broader Implications
This case is currently in appellate court with the appellants’ final initial brief expected to be entered in October. It is important that the constitution is adhered to by public institutions, and if the appellants’ position succeeds, it will be an enormous win for the citizens of South Carolina.