Legislature cannot constitutionally remove 'Hastings' name

Following an October 28, 2021, front-page New York Times article that erroneously called out Serranus Hastings, the founder of Hastings College of the Law, as a perpetrator of Native American killings in California, the college's board of directors voted to ask the Legislature to change the college's name. Undaunted, on March 17, 2022, the Times' "California Today" section again blames Serranus Hastings for involvement in Native American massacres, without even mentioning any of the considerable evidence to the contrary which it has been provided. Instead, assuming that the state Legislature is going to change the name, the Times reports on the conflict over what the new name should be, and the political maneuvering going on in San Francisco, Sacramento and among the Indian Tribes about that issue.

However, as my February 7 article in the Daily Journal argues, Article IX, Section 9 of the California Constitution prevents the Legislature and governor alone from changing the name of Hastings College of the Law. See People ex rel. Hastings v. Kewen, 69 Cal. 215 (1886); Foltz v. Hoge, 54 Cal. 28 (1879); Tafoya v. Hastings College of the Law, 191 Cal. App. 3d 437 (1987).

In response, a February 10 article quotes the college's chancellor and dean, David Faigman: "We think this issue -- which is a state concern -- is something that the Legislature has the authority to do, and if not, then the [college's] board has the authority. ... I think that the board has already acted, so we expect legislation will be introduced, passed and will receive the governor's signature." When asked "what's next if that doesn't happen," he said: "I have consulted with University of California President Michael Drake, and President Drake has consulted and conferred with the Board of Regents, and I believe there is an alternative pathway."

But, in addition to Article IX, Section 9, both the California and the U. S. Constitutions have "contract clauses" which will likely prevent the Legislature from changing the name, because Serranus Hastings and the state of California made a contract in 1878. That contract provides that upon payment of $100,000 to the state: "The law college founded and established by S.C. Hastings shall forever be known and designated as the Hastings College of the Law." Cal. Ed. Code Section 92200. The contract clauses prevent state legislation from "impairing" a contract.

In Alameda County Deputy Sheriff's Assn. v. Alameda County Employees' Retirement Ass., 9 Cal. 5th 1032 (2020), the California Supreme Court cited the U.S. Supreme Court's two-step test: (1) "whether the state law has, in fact, operated as a substantial impairment of a contractual relationship. [Citations.] The severity of the impairment is said to increase the level of scrutiny to which the legislation will be subjected. [Citation] In making this determination, 'the Court has to consider the extent to which the law undermines the contractual bargain, interferes with a party's reasonable expectations, and prevents the party from safeguarding or reinstating his rights,'" and (2) "does the state have a significant and legitimate public purpose behind the regulation, [citation], such as remedying of a broad and general social or economic problem. [citation.] ... The requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests." "If the legislation survives that scrutiny, 'the next inquiry is whether the adjustment of the rights and responsibilities of the contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation's] adoption.'" And, when the contract is the government's, a more searching analysis occurs.

In Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), the U.S. Supreme Court determined that legislation enacted by the state of New Hampshire which amended the charter of Dartmouth College, giving the state effective control of the college, violated the U.S. Constitution's contract clause. See Richard N. Current, "The Dartmouth College Case, in Quarrels That Have Shaped the Constitution" 21, 22 (1987, J.A. Garraty ed.) ("The trouble arose from the sinister scheming of a few men -- if a certain anonymous pamphlet, going the rounds in Concord that June, was to be believed. ... [I]t appeared that the wicked trustees were interfering with the virtuous president. Worse, they were misapplying college funds. Worse still, they were plotting somehow to extend their tyranny to the entire state.").

Finding that the college's charter was a contract covered by the contract clause, the court determined: "large contributions have been made [to the 'religious and literary institution'], which will be conferred on the corporation, as soon as it shall be created. The charter is granted and on its faith the property is conveyed. Surely in this transaction every ingredient of a complete and legitimate contract is to be found."

The court's extensive analysis included addressing the intent of donors to the educational institution: "It is probable, that no man ever was, and that no man ever will be, the founder of a college, believing at the time, that an act of incorporation constitutes no security for the institution;" and finding that the framers of the constitution wanted to give "permanence and security" to such contracts.

Serranus Hastings was chief justice of the California Supreme Court and state attorney general in the mid-1800s, and doubtless knew of the Dartmouth College case. When he set about creating Hastings College of the Law, he likely considered that decision in structuring his contract with the state of California. See United States Trust Co. v. New Jersey, 431 U.S. 1, 18 (1977) (acknowledging that, "the obligation was itself created by a statute [and] the purpose of the covenant was to invoke the constitutional protection of the Contract Clause as security against repeal."). See generally, L. Tribe, "American Constitutional Law" 1366 (3d ed. 2000) ("[The] rejection of legislation not designed to advance the general public good has been [] particularly persistent [and] underlie[s] the Court's impulse to review the impairment of public obligations more rigorously ... when dealing with alleged impairments of contract by state legislatures."); Cal. Teachers Assn. v. Cory, 155 Cal. App. 3d 494, 507 (1984) ("[T]he view of a subsequent Legislature of the meaning of a prior legislative enactment is not controlling.")

In Foltz v. Hoge, 54 Cal. 28, Serranus Hastings had argued against taking the trial court's ruling in favor of Foltz up on appeal because "the law was with the ladies." (T. G. Barnes, "Hastings College of the Law: The First Century" 52 (1978)). There, the college's counsel at the time described Serranus Hastings' founding of Hastings College of the Law as "a complete contract between Hastings and the State; ... a private eleemosynary perpetual trust," citing "Dartmouth College Case, 4 Wheat. 673-6." In that case, the court interpreted the contract to prevent the college's board of directors from barring women from admission.

In People ex rel. Hastings v. Kewen, the court held that, in light of Article IX, Section 9 of the California Constitution, the college's board of directors and the California Legislature could not make changes to the relationship between the college and the university because the 1879 amendments to the state constitution had granted the university autonomy from most Legislative control: "The university shall be entirely independent of all political or sectarian influences and kept free thereform in the appointment of its regents and the administration of its affairs."

More recently in Tafoya v. Hastings College of the Law, 191 Cal. App. 3d 437 (1987), the Court of Appeal held that Article IX, Section 9 "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 the 1868 act which created it. ... Thus, in the only two cases concerning the status of Hastings [College of the Law] to reach our highest court, it has affirmed that Hastings is an affiliate of and governed by the same laws as the University."

There is no doubt that Serranus Hastings' contract with the state calls for the college to be "named and designated as the Hastings College of the Law," unless and until it "ceases to exist," in which case the state must pay his heirs $100,000, plus accrued interest. Cal. Ed. Code Section 92212.

Under Article IX, section 9, the Legislature has no authority to rename the college, and that constitutional provision more broadly expresses a requirement that the college be kept free from the politics that prompt the current rush to rename it.

The proposed name change would "undermine[] the contractual bargain (that the name "shall forever be known and designated as the Hastings College of the Law"), interfere[] with a party's reasonable expectations, and his heirs would have no realistic hope of reinstating the name. Alameda County Deputy Sheriff's Assn., 9 Cal. 5th at 1075. See Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 245 (1978) ("Contracts enable individuals to order their personal and business affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under law, and the parties are entitled to rely on them.").

The college has prospered, but Serranus Hastings' legacy is now under siege by ill-founded ad hominem attacks by historians, the media, and government and college officials. He is accused of despicable acts without substantial evidence.

By 21st century standards, the culture and laws of mid-19th century California may to some seem barbaric. But the evidence indicates that Serranus Hastings followed those laws, and for better or worse, they are the blocks upon which California as we know it was built.

At the Assembly's Select Committee on Native Affairs hearing on March 2, 2022, in Sacramento, a letter from two Yuki families was read, citing the spirit of forgiveness and redemption, truth, and healing as their reasons for requesting that the college's name remain as it is.

Under our law the state cannot impair its contracts. Thus, the Legislature cannot constitutionally remove the "Hastings" name from the college. 