1998 Letter To UT Austin President Regarding Access Policies To The Texas Tower Observation Deck

Sunday, August 02, 1998

Dr. Larry R. Faulkner
President
The University of Texas at Austin
Campus Mail Code: G3400
Austin, Texas 78712

RE: Access Policies to the University of Texas Tower’s observation deck, et cetera

Dear Dr. Faulkner:

I have read with interest that you have before you a new student proposal to reopen the observation deck of the Tower. As a UT graduate with a special interest in issues related to the Tower, I would like to offer a few comments without regard to the specifics of the new proposal.

As you know, the Tower’s observation deck was closed to the public in 1975 after a string of suicides. The University’s darkest hour, of course, was on the first day of August in 1966, when sniper Charles Joseph Whitman gunned down 45 people from his perch in the Tower.

Most undergraduates had not yet been born when the observation deck was closed by the Board of Regents. In the past, students have overwhelmingly supported the reopening of the observation deck. Ten years ago, a non-binding student referendum found that 88 percent of students would be willing to pay additional fees to offset the costs of reopening the Tower. In 1992, the Students Association (now the Student Government) authored a proposal to convert the 27th floor into a privately run coffee shoppe. More recently, representatives of the ad hoc group Students for an Open Tower collected 3,200 signatures in support of reopening of the deck. The most recent proposal, put forth by several undergraduates, would allow the public (with an affirmative action of sorts benefitting alumni and graduating seniors) to visit the Tower by paying admittance fees, which would be used to fund salaried security guards who would deter reckless behavior.

Each student proposal had its flaws, but the fundamental question of whether the observation deck should be reopened remains unaddressed. Some students make the mistake of arguing that it is their right to visit the observation deck. As you well know, the University is perfectly within its rights to deny them access, which it does to most requests for exceptions. Regardless of the fate of the latest student proposal, however, you should at least consider enacting a uniform access policy.

When interviewed on the subject last year, Assistant Vice President for Business Affairs Marla Martinez candidly admitted that there is “no uniform policy” governing access to the observation deck. Dr. William Livingston, the University’s Senior Vice President, concedes that “selected individuals” are granted access to the deck at the discretion of administrators.

The absence of a uniform policy has transformed the observation deck into a “perk” offered by administrators seeking to ingratiate themselves to favorable athletic or academic recruits or celebrities. In “The Tainted Timekeeper,” a 1996 history of the Tower, Matthew Mabry reports that while students are perennially denied admission to the observation deck, celebrities such as Regis Philbin are escorted there without reservation.

Journalists are traditionally allowed access to the observation deck, although I suspect this is done because of the University’s preoccupation with media relations. Author and historian Gary M. Lavergne, who recently published the work Sniper in the Tower: The Charles Whitman Murders, received permission to visit while requests from other scholars have been rejected outright.

Administrators have even shown an unwillingness to grant requests that meet their own exception guidelines. Vice President for Business Affairs G. Charles Franklin, who determines what if any access will be granted to those who request to visit the observation deck, wrote in a 1992 memorandum that in addition to professional journalists, “students with classroom writing assignments” may visit the deck, but only after providing “verification of such assignments from their professors.”

Yet students from the Fall 1996 and Spring 1997 sections of Dr. Rosa Eberly’s “UT Tower and Public Memory” course saw their requests denied even after meeting all of the bureaucratic prerequisites. Perhaps administrators were uncomfortable with the subject matter of this course, but is administrative discomfort enough to reject an academic request? Another recent example: Two architecture classes requested permission to visit the deck to enhance their study of the campus’ Mediterranean design. Only one of the classes received permission for a special tour.

Whenever they are confronted with the issue of reopening the observation deck, administrators purport that reopening the observation deck would be too unwieldy an enterprise.

To comply with the Americans with Disabilities Act, they claim the University would be forced to make costly renovations to the deck that would make the effort too difficult. However, one could argue quite convincingly that the Act’s “undue hardship”provision would exempt the University from extensive repairs or renovations. Again, the Act may be a convenient excuse offered by those who feel that the observation deck may be more trouble than it is worth.

Another argument they use is the cost of employing security. Quite simply, the University of Texas spends millions upon millions of dollars on frivolous enterprises that are not directly germane to higher education.

The University’s obsession with “student services” has resulted in skyrocketing fee bills for students, who are often puzzled why they must pay for a student child care center when most undergraduates are not parents. Arguments that security costs would cripple the University are rather unconvincing.

Obviously, any decision regarding the future of the observation deck would be a political one. The Board of Regents, who would ultimately make the decision, would be unlikely to address the issue without the support of at least several high level administrators. Students might do better to lobby the Regents directly, or even attend the Texas Senate confirmation hearings of future Regents.

Considering the past rhetoric of high level administrators, it is unlikely that a maverick will appear to counter their conventional wisdom. Former UT president Peter T. Flawn has described the Tower as a “compelling symbol for the mentally disturbed.” Dr. Livingston, who seems uncomfortable even discussing the issue, has called it a “seductive nuisance.” Dr. Livingston was even displeased with a recent radio broadcast (hosted by me and featuring Mr. Lavergne and Dr. Eberly) which offered a scholarly look at the Whitman massacre as well as the University’s response to the tragedy over the years. Affecting Dr. Livingston’s judgment may be the fact that he witnessed the 1966 tragedy and lost a classmate to Whitman’s reign of terror.

Dr. Eberly, an assistant professor in the University’s Division of Rhetoric and Composition, recently wrote in an Austin American Statesman op-ed piece that you, by simply acknowledging the new request to reopen the deck, have instigated a public discourse on the Tower itself. Such a dialogue might establish some sense of closure to the Whitman incident, which may not have directly prompted the closing of the Tower but certainly looms over any discussion of reopening it.

The administration should not offer stalwart resistance to any attempt to reopen the Tower and then turn around and offer admittance to “select individuals.” However you decide to address the latest proposal, you can accomplish a great deal by simply establishing a uniform access policy.

Either the observation deck is closed to the public or it is not. It should not be used by administrators as a “perk,” even if it lures outstanding students to the University or impresses celebrities. Regardless of whether the administration is within its rights to use the Tower in this way, it is inappropriate.

Ordinarily, I would not have written a letter such as this, but you do seem more receptive to input than most administrators I have encountered at the University.

Thank you for your time and consideration. I look forward to hearing from you soon.

Sincerely,

Jim Dedman

cc: Mr. Arthur Dilly, Executive Secretary to the University of Texas System Board of Regents
Dr. William Livingston, UT Senior Vice President
Mr. G. Charles Franklin, UT Vice President for Business Affairs
Dr. Rosa Eberly, Assistant Professor in the Division of Rhetoric and Composition
Ms. Anna Lisa Holand, President of the UT-Austin Student Government
Mr. Spencer Prou, Students for an Open Tower
Ms. Martha Shelton, UT student

Songs About The Senses

As you may know, although I often write about the law at the Abnormal Use blog, I occasionally stray into other topics, including popular (and obscure music). In so doing, I’ve become acquainted with a number of lawyer bloggers who fancy themselves music aficionados (or vice versa). This, sometimes, results in unusual contests of musical knowledge. This week is no different. In a recent post about a Florida appellate court’s new opinion interpreting Daubert, attorney Steve McConnell of the Drug and Device Law blog recently dared me to name more songs about the sense of smell than he could. (Apparently, the case at issue had something to do with a Plaintiff losing that sense.).

McConnell and I have a long history of such exchanges. Back in 2010, he quipped that “any rock band with four letters in its name will produce wretched music” (a troubling remark to which I felt compelled to respond here). He redeemed himself, though, with a fine post about the work of The Beatles and the Sixth Circuit. In 2011, our law blogs created dueling lists of songs about lawyers, judges, and attorneys (and our blog’s list, of course, included Don Henley’s fateful tune about expert witnesses). He doesn’t limit himself to music, either. Six years ago, McConnell wrote about one of our favorite topics: Star Wars. Later, in another post,, he compared a qui tam action to a scene from The Godfather Part II.

You get the idea.

So, I can’t say I was surprised when I received an email from him this week directing me to his latest post. His challenge to me can be found at the end of this two paragraph excerpt:

In his poem “To Summer,” Blake begs the season to “curb thy fierce steeds, allay the heat/That flames from their large nostrils!” That is typical Blake; he takes our favorite time of the year and turns it into a satanic beast. We’d prefer to consider the delightful aromas that Summer brings to our nostrils: beach, fresh cut grass, BBQ, citronella, funnel cakes, empty courtrooms, etc. Plus, if we believe the Seals and Crofts song “Summer Breeze,” the scent of jasmine is out there. Summer is redolent of youth and hope.

Sometimes we get the sense that the sense of smell does not get its due. We are taught that seeing is believing. McCartney sang, “Listen, do you want to know a secret?” Morrison insisted, “C’mon, c’mon, c’mon and touch me, babe.” It took us a moment to think of any olfactory songs, but there are more than you might suspect. Primus inter pares, of course, is Nirvana’s “Smells Like Teen Spirit.” A mellow Mac Davis asked his fans to “Stop and Smell the Roses.” Lynyrd Skynyrd rocked out to “That Smell.” Todd Rundgren might have been floating in that ocean of cash he got from producing Bat Out of Hell when he wrote “The Smell of Money.” And what was the reason for the great guitarist Buddy Guy’s fixation on all things nosey? His huge catalog of classics includes “I Smell Trouble,” “I Smell a Rat,” and “Smell the Funk.” Does all that Chicago blues stinkiness have anything to do with the fact that the name “Chicago” comes from an Indian word for a malodorous onion? [Meanwhile, expect the Abnormal Use blog to issue a challenge about which roster of legal geeks can come up with more smelly songs. Hey, Dedman, we’re waiting.]

Of course, McConnell named several songs which we all know, including Nirvana’s’s “Smells Like Teen Spirit Spirit” and Lynyrd Skynyrd’s’s “That Smell.” (Fun fact: This is not the first time McConnell has written about Nirvana’s epic anthem). He referenced “Summer Breeze” by Seals and Croft but not the 1993 cover by Type O Negative. But what other songs about the sense of smell leap to mind besides those he mentioned?

Scouring my memories, I can conjure up a number of punk anthems, but I suspect it may be best not to quote the subversive lyrics in this post. The White Stripes released “I Think I Smell A Rat” on 2001’s White Blood Cells, while R.E.M. raised eyebrows with its “Mine Smell Like Honey” from 2011’s Collapse Into Now. As Weezer began its inevitable slide into irrelevance, it released “Dope Nose” on 2002’s Maladroit. Green Day offered us “Geek Stink Breath” on 1995’s insufferable Insomniac, while Nirvana gave the world “Scentless Apprentice” on 1993’s In Utero. The Stinky Puffs, a band composed of the children of some early 1990’s alt-rockers, released a 1995 album called A Little Tiny Smelly Bit Of . . . . which included a tribute to the recently deceased Kurt Cobain called “I’ll Love You Anyway.”

But none of those selections serve as a perfect response to McConnell.

For the past few days, I’ve dwelled on the issue, hoping that my mind would direct me to an appropriate solution. Then it hit me: the perfect response to McConnell’s inquiry.

Never suspecting that the effort might aid a lawyer blogger 34 years later, The Replacements released a fifteen minute EP in 1982. It is the perfect answer.

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Stink by The Replacements. I win.

What’s Brewing with Regional Alcohol Laws?

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If you find yourself in Charlotte, North Carolina in early June, please join us for an upcoming brewery law CLE. As you might know, I serve on the Mecklenburg County Bar’s Continuing Legal Education Committee. As such, I propose and plan CLE programs for members of the local bar. In the past, I’ve organized presentations on the Salem witch trials (featuring colonial historian and novelist Katherine Howe), the fascinating tort of alienation of affection (for a Halloween event at which presenters also explored the legal implications of the Ashley Madison hack), and of course, the regulation of breweries.

My next program is the Mecklenburg County Bar’s “What’s Brewing with Regional Alcohol Laws?” event, which takes place in a few weeks here in Charlotte. The roster of speakers is impressive; it includes lawyer and South Carolina Brewers Guild executive director Brook Bristow of Bristow Beverage Law, Raleigh beverage industry attorney Laura Collier of Strike & Techel Beverage Law Group LLP, and Carrboro trademark law guru Ed Timberlake of Timberlake Law, PLLC. Both Laura and Ed have spoken at past events I’ve planned, and they are not to be missed. For two years, I’ve attempted to plan a program featuring Brook, and now it has finally come to be. The event will take place on the afternoon of Thursday, June 9, 2016 at the Birdsong Brewing Company on North Davidson Street in Charlotte. Known for its famed Jalapeño Pale Ale, Birdsong also brews a seasonal wheat ale called Fake Plastic Trees, named for the sublime 1995 Radiohead single. (The image above of the cans of Fake Plastic Trees is courtesy of Birdsong’s Tara Goulet.).

If you’re an attorney desiring CLE credit, it can be yours, but if you’re not and/or you don’t, there are other pricing options. Registration information can be found here.

By the way, if you find this subject matter appealing, you might also be interested in “Free The Brews: The Perils of Craft Beer Regulation,” an upcoming program sponsored by The Bastiat Society’s Charlotte chapter (of which I am the chapter director). Featuring the Civitas Institute’s Greg Pulscher, host of the “Free To Brew” podcast, the event takes place at Kickstand Charlotte on the evening of Thursday, June 30, 2016. (The podcast’s tagline is: “Without beer there can be no liberty, and without liberty there can be no beer.”). Additional information about this event can be found here. The best part: It’s free.

For posterity, I’ve compiled a list of the past alcoholic beverage regulation programs I’ve planned. You can find it below along with links to the program information for each event.

PAST ALCOHOLIC BEVERAGE REGULATION PROGRAMS

Blogging for Lawyers and Related Ethical Issues

If you find yourself in Columbia, South Carolina this coming Friday, May 13, 2016, please join us at the The South Carolina Bar Employment & Labor Law Midyear Meeting, at which I’ll be speaking. I’ve been asked to present on the issue of “Blogging For Lawyers and Related Ethical Issues,” which is a broad enough topic to permit me to stray into some new opinions that have been released this year which may affect lawyers’ work online.

In addition to reviewing the daily challenges faced by lawyer bloggers, I also hope to discuss the recent “Ruling Rejecting Jury Questionnaire” and “Order Re Internet and Social Media Searches of Jurors” by U.S. District Judge William Allsup in Oracle America, Inc. v. Google, Inc. (No. C 10-03561-WHA) currently pending in the U.S. District Court for the Northern District of California. I also plan to address John J. Robertelli v. The New Jersey Office of Attorney EthicsA-62-14, 075584 (N.J. April 19, 2016), in which the New Jersey Supreme Court found that two lawyers could, in fact, be prosecuted for ethical violations arising from improper usage of Facebook. If time permits, I may also share my thoughts on the State Bar of California Standing Committee on Professional Responsibility and Conduct’s recent proposed opinion on lawyer blogging and advertising.

The program will be held at the South Carolina Bar Conference Center on Park Street in Columbia, South Carolina. Scheduled to last an hour, my presentation begins at 3:45 p.m. Registration information can be found here.

Many thanks to Greenville attorney Matt Johnson of Ogletree Deakins for the invitation to speak at the seminar. In addition to being an employment lawyer, Matt is also a fan of fine music. In fact, in late 1985, he saw The Minutemen and Jason and The Scorchers open for R.E.M. on the second night of a two-night stint at Atlanta’s Fox Theatre. How about that?

The Postponed Concert Blues

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Matt Wake, an entertainment reporter for AL.com, recently interviewed yours truly for “The Postponed Concert Blues,” a piece in which he chronicles the perils of concert cancellations and their effect on ticket purchasers. In our brief but lively conversation, we addressed Bruce Springsteen’s recent cancellation of his Greensboro, North Carolina show (to which I had tickets, which are depicted in the image above). Any discussion of artist cancellations must necessarily include Morrissey, who I once beheld in concert in 2007. However, on several subsequent occasions, the former lead singer of The Smiths thwarted my attempts to see him perform again by axing shows to which I held tickets. Of course, I lamented those fateful experiences to Matt, as well.

Here’s an excerpt of the piece which features some of my quotations:

Dedman was living in Greenville, S.C. when he saw Morrissey, the moody crooner formerly of ’80 British band The Smiths, perform there in 2007. “And he was great,” Dedman says. “He played (The Smiths’) ‘Death of a Disco Dancer,’ which was the one song I wanted to hear most of all. When you lose yourself in the moment like that and the songs that have transfixed you for so long are being played by the original performer, it’s just magic.” A couple years later, Morrissey was touring again and Dedman purchased tickets to see back to back shows in Atlanta and Asheville, N.C.  He booked a hotel room and drove from Greenville to Atlanta to meet up with a friend there for the concert. The afternoon of the show Dedman and his friend went to that city’s High Museum of Art beforehand.

“So we’re just walking around the art museum and I get a text or a call from Ticketmaster saying that the show is cancelled,” Dedman, now 40, says. “And of course Morrissey has a reputation for cancelling. And I’m already there. I’ve already got the hotel room.” A message on the singer’s website indicated the show had been cancelled due to “illness.” The Asheville show was also cancelled. “So I’m out a hotel that night too,” Dedman recalls.

You can read the full article, which offers a handful of other anecdotes, here. If you’re feeling nostalgic for news of Morrissey, you can revisit the original Slicing Up Eyeballs coverage of his March 2009 tour woes here.

Many thanks to Matt for allowing me to share these memories with his readers. I first became aware of him five or so years ago when he worked as a writer for the Greenville News. I’ve followed him on Twitter for a number of years, and if you’re interested, you can do so as well at @MatthewBWake. By the way, he also owns Echo Records, a vinyl shop in Huntsville, Alabama, which I hope someday to visit.

Prince (1958 – 2016)

Prince_logo.svgPrince, the resplendent, bizarre, and extraordinarily talented musician, died this past Thursday of as of yet unconfirmed causes. The cruelest of recent years, 2016 continues to rob us of our most beloved artists and performers. What words are left for us to express our bewilderment and grief when we’ve been forced to use them so many times before in just the past few months? In the past several days, we’ve seen multitudes of eulogies and tributes, and I too feel compelled to write about this devastating loss to popular culture.

As a child in the early 1980’s, when MTV first introduced him to me, Prince seemed to be some type of phantasmagorical oddity. He, along with Michael Jackson, Madonna, Bruce Springsteen, Cyndi Lauper, and Boy George, defined the popular culture of that era. Taken together, that curious coterie of artists reigned over MTV in its early days. His singles permeated the airwaves, and I have vivid memories of listening to them in the car as my parents drove me to and fro in suburban Houston all those years ago. Then came the summer of 1989. Thirteen years old that year, I greatly anticipated Tim Burton’s Batman for which, of course, Prince authored the vibrant and daring soundtrack. My favorite moment of the film remains that electric sequence during which The Joker vandalizes the priceless works of art in the Gotham City museum as Prince’s “Partyman” echoes throughout the building. It was as if the song became its own character in the film.

His music served as the soundtrack to countless moments of my life. Each time I hear the mad genius of “Let’s Go Crazy,” a song released more than thirty years ago, it’s as if I’m experiencing it again for the very first time. In the early 1990’s, as a high school student, I often drove around Houston listening to the anthemic “7” (after spending the entirety of an afternoon searching for its compact disc single at various local record stores). Music fans of all stripes once quested for the mysterious, unreleased Black Album, which for many years existed only as an elusive bootleg. I never found it, although the album ultimately saw its commercial release in late 1994. In December of 1998, and of course, at the end of the following year, Prince’s “1999” was inescapable, despite the fact that the song had been released more than a decade and a half beforehand. In 2004, the cast and crew of Pleadings, the independent film I wrote and produced, joined together to sing “Purple Rain” at a Houston karaoke bar to celebrate the end of principal photography.

Culturally omnipotent, he worked with or otherwise influenced throngs of other musicians, and references to Prince’s work would often crop up in the work of other artists. He wrote “Manic Monday,” which became a hit for The Bangles in 1986. Sinead O’Connor’s 1990 cover of Prince’s “Nothing Compares 2 U” still haunts listeners 26 years later. Known for their catchy 1990 single “Pure,” the members of The Lightning Seeds chose their name after mishearing the lyrics to “Raspberry Beret.” In 1996, a group of Austin bands, including Spoon, contributed tracks to Do Me Baby! Austin Does Prince, a tribute compilation. In 2002’s “The Real Slim Shady,” Eminem revealed that he had “been suspenseful with a pencil ever since Prince turned himself into a symbol.” In 2009, The Fruit Bats released “Singing Joy To The World,” a wonderfully melancholy song which tells the story of a love which germinated, in part, due to Prince’s “I Could Never Take The Place Of Your Man.” His influence abounds, and without a doubt, it will continue to do so.

In early 1978, when Prince released his first album, I was a mere toddler, meaning that until this week the only world I knew was one which included him. Upon hearing the news of his death, my mind leapt again to the sense of loss we communally felt upon the passing of another great, David Bowie. In January, just a week after Bowie’s death, I wrote:

Now we find ourselves a part of a popular culture absent David Bowie, once its ubiquitous fixture. For many, including myself, there was never until this week a cultural landscape that existed without Bowie thriving therein. As Jemaine Clement, a member of New Zealand’s Flight of the Conchords musical duo, remarked on behalf of that group, “Both born in the ’70s, we hadn’t witnessed a world without Bowie.” To fans and followers of popular music, Bowie remained omnipresent in both his output and influence, and we always anticipated that he would soon release something intriguing and new.

We are, as one Twitter user recently observed, “losing the unloseable.” Like intrepid concert photographer Ben Stas, I now marvel at “the degree to which the man has been omnipresent in my life since I first took a serious interest in music.”

The same is true of Prince, the cool and cryptic crooner, the guitarist, the producer, the actor, the enigma. Unlike so many makers of music in those halcyon days of the early 1980’s, he endured, becoming one of the artists whose work nearly all of us knew. He continued to experiment with both his art and its delivery to his fans. To toy with his listeners, he once released a 45 minute album featuring nine songs combined into a single track on the compact disc. When fans purchased a ticket to a Prince concert, they would often discover that they had also bought a copy of his latest album as a part of the transaction. However, his notorious hostility to the streaming services made it rather difficult to revisit his oeuvre in our bereavement. As one writer noted, “[i]t was a strange mourning, to be at work and wanting to listen to the songs that we all knew but knowing that they wouldn’t be available to illustrate the shared grief.” Despite his reluctance to embrace the Internet, he remained omnipresent in the culture, prompting the great manifestation of adoration we beheld on that sad, sad day.

Requiescat in pace, Prince (June 7, 1958 – April 21, 2016).

Batman v Superman: Dawn of Lawyers

Recently, Josh Gilliland of The Legal Geeks kindly invited me to appear on his podcast to discuss the great woe wrought by Batman v Superman: Dawn of Justice. The episode in question is titled “Batman v. Superman: Dawn of Lawyers.” As you might imagine, spoilers abound, so listen at your peril if you’ve not yet seen the film.

During the episode, we discuss Zack Snyder’s troubling new blockbuster, John Byrne’s Man of Steel comic book series, and the moral compass of characters like Superman and Captain America. Of course, we also spoke extensively of Batman and the surprising fact that Ben Affleck fared mostly well in his first outing as the Dark Knight.

Many thanks to Josh both for extending the invitation and offering his advice on which microphone headset to purchase in order to best participate in the enterprise.

You can listen to the episode in question here.