Who better than We the People to decide Hastings’ future?

The Los Angeles County Bar Association's recent virtual program, "Hastings Name Change: The Good, Bad and the Ugly," featured chancellor and dean of Hastings College of the Law, David Faigman and retired Contra Costa County Superior Court Judge Richard S. Flier, a 1971 Hastings graduate. It was moderated by Brant H. Dveirin, a partner in Lewis Brisbois and a 1987 Hastings graduate.

The proposed name change came about because of media reports spotlighting the participation of the college's founder, Serranus Clinton Hastings, in the genocide visited on California's native inhabitants in the early days of statehood. Some college and state leaders have decided that changing the college's name will make amends for Hastings' conduct and have combined to make that happen. However, and although the issue was not mentioned during the program, it is likely that the state Constitution would have to be amended to change the college's name. That would require approval from the voters.

Faigman candidly explained the history of the name change issue. He also talked about the college's restorative justice efforts that he recently implemented and championed, and in whose design both the college and tribal representatives participated; his initial recommendation that the college's name remain unchanged; and the college's board of directors' recent direction that he work with the Legislature and governor to change the name. He also urged interested parties to attend the legislative hearings that will be part of any name change process so they can be heard, and said he expects legislation to be introduced soon.

Judge Flier recounted Hastings' life and the times, noting that the brutal way native people were treated at that time was encouraged and paid for by federal and state governments, talked about the media writing about Hastings and some of those who are pushing for the name change, and the many alumni who are at least saddened by the prospect of a name change. He also cited examples of despicable conduct by other former California leaders, asking if we are now going to remove their names from public display based upon 21st century standards.

Both presenters addressed questions from the audience that were asked by Dveirin, including one Faigman answered by saying he does not believe the state will have to pay to Hastings' heirs the $100,000 the founder put up to start the college, and that there is no "unexpended accumulated interest" to repay because the state has annually provided the college with more annual financial support than the annual interest on $100,000. See Cal. Ed. Code Section 92212.

In his 1978, "Hastings College of the Law, The First Centurmy," published for the college's centennial, Thomas Garden Barnes recounts that after the college was established, Hastings came to differ with his autonomous and self-perpetuating board of directors. Litigation over who was authorized fill the college's registrar position arose after legislation had passed transferring control of the college to the regents of the University of California. Then another bill passed making another transfer of authority, resulting in the California Supreme Court opinion in People ex rel. Hastings v. Kewen, 69 Cal. 215 (1886). The court determined that since the college's founding in 1878, the state Constitution of 1879 (Cal. Const., Art. IX, Section 9) had granted the University of California autonomy from legislative interference with its core functions. Thus, the legislative attempts at reorganizing the college were ineffective. ("If it was intended by the constitution to prohibit such changes as to the university; and if the college is a portion of the university, such prohibition would extend to it."). That opinion cited Foltz v. Hoge, 54 Cal. 28 (1879), where the court affirmed that the college is affiliated with the University of California and held that, because of that, it could not enact an entrance requirement excluding women because the university did not did not have such a ban.

In this current dispute about the Hastings' name being attached to the college, it appears unlikely that the Legislature and governor could on their own change the name of the University of California, so it seems they would need voter approval to change the college's name.

This 1879 change in the California Constitution came about to protect the university from political interference. See Caitlin M. Scully, "Note: Autonomy and Accountability: The University of California and the State Constitution," 38 Hastings L. J. 927 (1987). "This grant [of autonomy] has enabled the Regents to exercise virtually complete independent control over University operations. California courts have regularly confirmed this broad authority, solicitously guarding the independence granted the University in the state constitution." Id.

Tafoya v. Hastings College of the Law, 191 Cal. App. 3d 437, 442-47 (1987), held that the college's faculty meetings were not covered by the Bagley-Keene Open Meeting Act because the university's faculty meetings are not subject to that act, concluding: "Article IX, section 9 of the Constitution of 1879 raises the status of the University [of California] to that of a constitutional department or function of state government. That section provided that the organization and government of the University should be perpetually continued in the form and character prescribed by the 1868 act which created it. ... Thus, in the only two cases concerning the status of Hastings to reach our highest court, it has affirmed that Hastings is an affiliate of and governed by the same laws as the University."

In the matter of the college's name change, there are political interests at work that run afoul of the constitutional provision guaranteeing that: "[t[he university shall be entirely independent of all political or sectarian influences and kept free therefrom in the appointment of its regents and in the administration of its affairs." Cal. Const., Art IX, Section 9 (a), (f). That provision also renders suspect 1980 Education Code amendments, which were not submitted to the voters, and which increased the number of directors on the college's board and gave the governor the power to fill vacancies with state Senate approval. See Tafoya, n.9.

Rather than self-interested public figures, who better than "We, the People of the State of California" (Cal. Const. Preamble) to decide, after a full and frank discussion, how to reconcile Hastings' pre-Hastings College of the Law past with the current college's future?

Maybe Gov. Gavin Newsom's Truth and Healing Council can help? See Cal. Exec. Ord. N-15-19 (2019). See also Agua Caliente Band of Cahuilla Indians v. Superior Court, 40 Cal. 4th 239, 247 (2006) ("The [U.S. Supreme Court] explained that since the arrival of the colonists on American soil, the [Native American] tribes were treated as dependant sovereign nations, with distinct political communities under the protection and dominion of the United States.," citing, Worcester v. Georgia, 31 U.S. 515, 549-61 (1832) (Marshall, C.J.).