Legislator: Regent Behavior "Inconsistent" With Statute

The Texas Education Code lays out the state's expectations for regents of public university systems, and a member of the Senate Higher Education Committee is questioning if the University of Texas System board is living up to them.

UT regents have been in the spotlight recently for, among other things, making massive records requests of the University of at Austin, asking pointed questions about the structure of the university's fundraising staff and ordering the university's administrators to refrain from deleting any emails.

The responsibilities of higher education governing boards are addressed in Section 51.352 of the code, which begins by saying, "It is the policy of this state that the governing boards of institutions of higher education, being composed of lay members, shall exercise the traditional and time-honored role for such boards as their role has evolved in the United States and shall constitute the keystone of the governance structure."

To that end, the code issues a few directives, including that regents "shall enhance the public image of each institution under its governance" and "shall nurture each institution under its governance to the end that each institution achieves its full potential within its role and mission." It also notes that they are "expected to preserve institutional independence."

Regarding some of the UT regents, state Sen. Judith Zaffirini, D-Laredo, told The Texas Tribune, "Their behavior is definitely inconsistent with that directive. It seems to me that the behavior flies in the face of that mandate."

A University of Texas System spokeswoman declined to comment.

Following a tense meeting and an extremely rare 4-3 split vote on March 20, the board commissioned an external review of the compensation practices at the University of Texas School of Law. It will be the latest in a string of examinations of a now-defunct forgivable loan program run by the University of Texas Law School Foundation to supplement the salaries of some faculty members. An earlier internal review concluding that the program was "not appropriate" was blessed by the attorney general's office, only to be set aside by the regents. The matter is also the subject of an ongoing internal audit.

"I really am convinced that some of the regents have decided that [UT-Austin President Bill Powers] should go. And they are really harassing him, making his life miserable, hoping he will resign," Zaffirini said.

And she's not alone.

Regent Steve Hicks questioned the motivations of his colleagues for continuing with the investigation, indicating that he believed it was part of an effort by some of his colleagues to find a way to lay blame at the feet of Powers, who has been cleared of wrongdoing by previous internal reports. "I just don’t trust the intention of where this process is going," Hicks said at the tense March 20 meeting.

The meeting, and the regent activity leading up to it, has certainly generated significant media coverage. It could be argued that it does not fit in with the board's responsibility to "enhance the public image" of UT-Austin or the UT System, as the state's education code mandates. Others may question the extent to which the ongoing tension helps to "nurture" the flagship university, and recurring accusations of "micromanagement" could call into question the regents' commitment to "preserve institutional independence."

But the statute is highly subjective. What some view as an attack, others frame as an effort to preserve the good standing of the flagship university and the system.

"There is no price that can be put on the integrity and trust that is associated with the governance mechanisms with which we are entrusted with donor and taxpayer money," Regent Alex Cranberg, who voted in favor of the further review, said at the meeting.

Regent Wallace Hall said: "This is not easy. It has not been fun at times. But I love the University of Texas. To suggest otherwise or to insinuate that there is something else going on I think is misplaced."

Hall spearheaded the  effort to gather UT-Austin's records and commission the external review of the law school. At the meeting, he publicly insinuated that Powers had not been truthful about his knowledge of certain aspects of the law school's forgivable loan program under former Dean Larry Sager. After the meeting, Powers said any hint that he had not been fully forthcoming and transparent in previous discussions regarding the law school was "simply false."

To explain his actions, Hall cited the revelation of documents he called "so informative and so surprising that we are convinced the Board must direct a further look into these issues." The system has declined to provide those specific documents.

Even if one's subjective read of the education code is that this sort of activity is indeed not consistent with its directives, it is not clear what, if anything, there is to be done about it. To paraphrase a line from Pirates of the Caribbean, the code may be more what you'd call "guidelines" than actual rules.

"Unless there’s a penalty attached, what are they going to do?" said former Texas Education Commissioner Robert Scott, who knows a thing or two about the workings of the Texas Education Code. "I’m not familiar with any sanctions other than just not confirming [the regents]."

With regard to the confirmation process, Zaffirini also faulted the Texas Senate for failing to live up to the portion of the  code that instructs senators and the governor to "ensure that the appointee [to a board of regents] has the background and experience suitable for performing the statutory responsibility of a member of the governing board."

The Texas Constitution and Texas Government Code lays out the processes by which a sitting regent may be impeached or recalled, but it is an untested and highly involved process, especially if the process is not initiated by the governor, in which case it must begin in the Texas House. Zaffirini offered that Gov. Rick Perry, who appointed every current regent, could simply "remind" his appointees about the provisions in Section 51.352.

Perry spokesman Josh Havens cited another portion of the same section of code, which says the governing board shall "appoint the president or other chief executive officer of each institution under the board's control and management and evaluate the chief executive officer of each component institution and assist the officer in the achievement of performance goals."

"The governor expects the board of regents to live under these governing principals and ensure safe and responsible environments on their campuses," Havens said, adding that the governor leaves personnel decisions up to the board.

But Zaffirini said the issue at hand is bigger than just Powers' position. She said it could have ramifications for the state's eight "emerging research" universities, which are vying for tier-one status. The ultimate imprimatur of that elite level is membership in the Association of American Universities, a group made up of prestigious universities that Powers will chair next year.

"If the AAU realizes that something like this could happen at UT, they will realize that this or worse could happen at an emerging research university, so why would they consider them?" Zaffirini said. "With this kind of controversy getting national and even international attention, the leading scholars, researchers, students and teachers might think twice about coming to Texas. That is the shameful consequence of this negativity."