Are Clemson “Life” Board Members Flouting the Law?

February 4, 2014

Inside Insight

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clemson“Oaths,” “constitutions,” “law,” “ethics,” “education.” All of these words are used in a myriad of contexts in and out of the classrooms of every institution of higher learning in the United States and elsewhere. We learn that witnesses in trials must swear “to tell the truth, the whole truth and nothing but the truth,” and that if they do not, they are subject to punishment or are not accepted as reliable witnesses. And oaths are used in many other ways. Our constitution and the constitutions of other nations are at the very root of a country’s ability to be peaceful and civilized. Respecting our constitution as it is currently written is seen as a duty of every citizen. And whether or not that respect translates into action is fundamental to the writing and enforcing of our laws. Those laws are constantly subjected to scrutiny and change and challenge by the general public and the elected and appointed officials charged with determining whether or not such changes are right or wrong.

Our laws can be changed, certainly. But not ignored — and that, unfortunately, is what appears to be happening at Clemson University’s highest governing body.

Let me explain. The university where I spent the last sixteen years of my professional life, Clemson University, was created as a land grant college in the latter part of the nineteenth century. It is today a major public research university in that state. It is governed by a Board of Trustees, the composition of which was imposed on the State of South Carolina by the will of Mr. Thomas Green Clemson, who donated his estate and a large part of his fortune toward the creation of an agricultural college. The will and all of its terms were accepted by the state legislature.

Clemson’s Board of Trustees, according to Mr. Clemson’s will, had to be composed of seven members with the right (“which right the legislature shall never take away or abridge”) “to fill all vacancies which may occur in their number by death, resignation, refusal to act, or otherwise.” The legislature provided six other members. The makeup of the Board was therefore seven members who could perpetuate their number themselves, without any oversight by the legislature and six others who did have oversight. Basically, Clemson University’s governance was (and still is today) the responsibility of a Board of Trustees, the majority of whom are elected and perpetuated by themselves alone, with no oversight or control by the State.

This is where the “subject” begins to emerge. There was a change in the constitutions of the State of South Carolina. When Clemson University opened its doors, the constitution of 1868 was in power. A few years later, however, the current constitution, the constitution of 1895, was enacted and, though amended many times, is still in effect.

When the legislature accepted the terms of the will of Thomas Green Clemson, it did so with some apprehension but nevertheless concluded that it had the power to do so at the time. But the new constitution, in Article XVII, states that:

The provisions of all laws which are inconsistent with this Constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions of this Constitution as require legislation to enforce them shall remain in force until such legislation is had.

So, what does this have to do with Clemson’s Board of Trustees? A lot. The state law code defines who “officers of the State” are, and Clemson’s Board members clearly fall into that category:

The term “public officers” shall be construed to mean all officers of the State that have heretofore been commissioned and trustees of the various colleges of the State, members of various State boards and other persons whose duties are defined by law. [Chapter 1, General Provisions, Section 8-1-10]

The 1895 constitution, furthermore, states (in Section 1-B) that:

No person shall be elected or appointed to office in this State for life or during good behavior, but the terms of all officers shall be for some specified period, except Notaries Public and officers in the Militia.

Now, Clemson’s seven self-perpetuating Board members refer to themselves as “Life Members” of the Board. In fact, they use the term “Life Member” on the University’s website and they sign an oath, entitled the Life Trustee Oath, in which they state:

I do solemnly swear (or affirm) that I voluntarily accept the duties of a Life Trustee of Clemson University, to which office I have been elected, and that I will, to the best of my ability, discharge the duties and responsibilities thereof in accordance with the laws of this state and the policies of the Life Trustees, as may be changed from time to time by the Life Trustees, and that I will preserve, protect and defend the constitution of this State and the United States.

So: the majority members of the Board of Trustees of Clemson University, those who refer to themselves as “Life Members,” clearly appear to be violating their oath of office. On the one hand, they swear to protect and defend the constitution, and on the other they hand, they are in direct violation of that same constitution.

The ethical depth here is what’s important. For without clear and unequivocal trust that the governors of any institution, and particularly any educational institution, are following the ethical mandate of that institution, the institution itself cannot pretend to merit trust and will forever be vulnerable and untrustworthy in the eyes of many.
John Bednar received his B.A. in English from Princeton University in 1965. He also holds postgraduate degrees from the Sorbonne and the University of Besançon. He joined the faulty at Clemson University in 1989. Before retiring in 2005, he was Director of the Language and International Trade program. John is now professor emeritus.