As UT alumni with long-standing interest in Texas Student Publications, we read Texan editor A.J. Bauer's open letter on July 30 to outgoing UT President Larry Faulkner with approval. Bauer asked Faulkner to approve an upcoming TSP Board resolution to end so-called "prior review" at The Daily Texan.
We know that Faulkner or his successor is likely to get legal advice telling him that approval of that resolution is a bad idea. That's why we want to suggest a way to make both Bauer and the UT lawyers happy - let's have the University spin off Texas Student Publications and restructure TSP as a non-profit corporation.
Such a step would hardly be revolutionary - TSP was a non-profit corporation for 50 years, from 1921 to 1971, and would still be today if not for the machinations of then UT System Regent Frank C. Erwin, who stalled the corporation's rechartering back in the early '70s. As a result of Erwin's maneuvers, TSP and its assets were given over to the University of Texas to be held in trust by the UT System Board of Regents.
Of course, Erwin did more than stall the rechartering - he was clearly settling scores because the Texan had politically embarrassed him when he repeatedly meddled in campus affairs.
Few today know of Erwin as anything but a name on a sporting arena, but there has not been so powerful and autocratic a regent before or since him - a larger-than-life personality, who drove an orange-and-white Cadillac and personally directed the arrests of students trying to save trees along Waller Creek from an expansion of Memorial Stadium. Had it not been for Erwin's score-settling, there is no doubt that TSP would have simply been rechartered in 1971.
Erwin wanted ownership and control over the Texan, and he got it. But with ownership comes responsibility - after 1971, the restructured TSP was an auxiliary enterprise of the University of Texas, which means that any party (such as a libel plaintiff) who sued the Texan had the potential to reach the larger assets of the University as a whole. This remains true today.
Long before 1971, the University and the Board of Regents had asserted the prerogative to censor student journalists. Even as a non-profit corporation, TSP endured efforts by UT administrators to prevent controversial stories and editorials from being published - perhaps most notably in the 1950s during the tenure of editor Willie Morris.
But after the dissolution of TSP Inc., the Tower and the UT System could argue with a bit more legal force that they had an obligation to impose "prior review" - having a professional review all student copy before it is published - in order to limit liability for the newspaper's official owners, the Board of Regents. (The fact that the regents are only owners holding TSP "in trust" for the benefit of UT students wouldn't add up to any legal protection either, in our view.)
Texan editor A.J. Bauer is on the right track when he writes, "By giving the Texan more independence, the University becomes less liable if a mistake does somehow slip through edits." But we also believe this is true only if TSP is an officially independent corporation and not merely an auxiliary enterprise of the University.
The world of tort law is filled with cases in which liability is found for an owner who didn't know precisely what his agent was doing - the best prevention for such liability is to arrange things so that TSP, and all the publications and other enterprises under its umbrella, are no longer arguably agents of the University.
We recognize that spinning off TSP once more as a non-profit corporation raises important issues, such as how to devise joint ownership of the TSP building and physical plant; not to mention the broadcast facilities and licenses that both TSP and the University have invested in together over the years. Similar issues regarding the relationship between the student media enterprises and the UT-Austin journalism department also would need to be worked out.
We don't think these issues are insuperable, however - it helps that we have a model of how this arrangement could work in the history of TSP Inc. between 1921 and 1971.
It's also worth noting that properly structured non-profit corporation status would immunize TSP from the mere possibility of university-administration censorship like that upheld in the Hosty v. Carter case decided recently in the federal 7th Circuit Court of Appeals.
We also believe that the current UT administration and the current Board of Regents are more disposed than any of their predecessors to consider restoring TSP to its original nonprofit corporation status (including reversion to its original ownership by the Students' Association) with appropriate safeguards to ensure editorial independence.
If it's time to ask Faulkner or his successor for an end to prior review, then it's also time to ask for restoration of TSP's full independence, which can be structured in a way that renews its ties to the UT student body that it serves - ties reflected most strongly in the election of the Texan editor and in the election of student members of the TSP Board.
Santayana was right when he said those who forget the past are condemned to repeat it. But it's also true that those who study the past of institutions like TSP can often find models of when things worked well, and improve upon those models.
That's what the founders of the United States did when improved on Greek and Roman models of democracy to build the Republic. And that's what students, alums and UT administrators could do if we took our inspiration from Texas Student Publications' distinguished history.
Andy Yemma was 1970-71 Daily Texan editor and the last editor under TSP Inc. Mike Godwin was 1988-89 Daily Texan editor and the author of a 1987 history of TSP published in UTmost magazine. Michael Hoffman was 2002-03 president of the TSP Board of Operating Trustees, and it was during his term on the board that the current review of TSP's structure and operating procedures began
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