In the spirit of amends: An argument to change from one Hastings to another

The April 6 hearing on SB 1288 before the state Senate Education Committee highlighted the political nature of the effort to change the name of UC-Hastings College of the Law; whose affairs, according to the California Constitution, are supposed to “be entirely independent of all political or sectarian influences and kept free therefrom…” Cal. Const., Art. IX, §9 (a), (f).

The three senators who sponsor the bill started off by each addressing their senate colleagues on the committee at some length. Then two witnesses who had signed up in advance as in favor of the bill and two who were opposed, spoke for two minutes each. Others who were present in-person and on the phone were also allowed only to state whether they were in favor or opposed to the bill.

As it turned out, Willie Brown and Jackie Speier were not, as previously advertised, the witnesses in favor of the bill. Instead, we heard from UC Hastings Professors Jo Carrillo and Virginia Elizondo. Retired Contra Costa County Superior Court Judge Richard Flier and I spoke in opposition to the bill.

But the senators controlled things. Witnesses were cut off by the chair in mid-sentence when our two minutes were up, but one of those who was cut off was rescued by Senator Mike McGuire (D-Healdsburg), whose time to speak was not limited. With the chair’s permission, he was allowed to ask James Russ, President of the Round Valley Indian Tribes, questions after all the other witnesses had spoken. After he had asked his leading questions of Mr. Russ, McGuire then allowed him to “close” his remarks with any additional comments he wanted to make.

After the Committee members had made their closing comments, the bill’s senate sponsors assured Mr. Russ, the other native witnesses, and those who spoke in favor of the bill that the concerns some of them had expressed would be addressed by amendments to the bill as it goes forward toward a vote of the whole senate.

The lone senator who did not vote to advance the Bill was Brian Dahle (R-Bieber), who has many Native American constituents in the First Senate District. He expressed frustration with the lack of time allowed for witnesses opposing the Bill to speak, when the Senators who are sponsoring the Bill “get to talk as long as they want.” He said: “we’re going to make a decision on something that happened literally over 140 years ago” and “we weren’t there.” “There needs to be a lot more discussion,” he added, it is “premature to move the bill forward.” After his statement, Dahle was scolded by the chair who told him that if he wants to change the committee’s process, he should take it up with the Rules Committee.

When Senator McGuire spoke, he first addressed the issue: “if this is fake news or not?” He then referred to the current combat in Ukraine, saying: “I think in a hundred years from now we’re going to look back at what’s happening in Ukraine, and there will be some folks who will say that there wasn’t a massacre in Ukraine.” Obviously referring to those of us who oppose the name change, he then said: “I am embarrassed to hear folks come in and try to defend the name of this institution,” then stating as “fact” that the Yuki people were massacred and “it was our government that did it.” From those “facts” he assumes it follows that Serranus Hastings is also guilty of massacring the Yuki people.

It is true that the federal and state governments are significantly responsible for what happened to the native peoples, not Serranus Hastings, who used the laws of the land to protect the settlers and their (including his) property!

Hastings’ alleged guilt does not automatically follow, as McGuire seems to think, from the state’s. At best, it is an argument, not fact. In court, an objection that such a statement from a witness “assumes facts not in evidence” would be sustained, and the jury instructed to disregard it. But that erroneous narrative keeps driving this fast-moving process toward a statutory name change for Hastings College of the Law.

The College’s Chancellor and Dean, David Faigman, has referred to Serranus Hastings as an accomplice in genocide. But that is not true either. See, People v. McKinzie, 54 Cal.4th 1302, 1353 (2012) [“an accomplice is one who aids or promotes the perpetrator’s crime with knowledge of the perpetrator’s unlawful purpose and an intent to assist in the commission of the target crime.”].

The crime being charged here is genocide: “the deliberate and systematic destruction of a racial, political, or cultural group.” <merrian-webster.com> The evidence collected by the Legislature in 1860 shows that individual and groups of settlers committed horrific acts by killing and wounding native people. Some of those despicable events were carried out by a local militia that was commissioned and governed by California’s governor, who had instructed its leaders to confine their activities to restraining “those known to have engaged in killing the stock and destroying the property of our citizens.” But those governor’s instructions were ignored.

What Serranus Hastings actually did was follow existing state law and submit a petition to the governor requesting that he authorize the formation of that militia, to protect settlers and their property from the violence that was being perpetrated on them by Native Americans. The unrefuted, written testimony under oath from that time shows that Hastings intended to “subdue” the native people by feeding them and putting them to work and knew nothing of the settlers’ rogue intentions before those dastardly events occurred. Neither the majority nor minority reports resulting from the legislature’s investigation blamed Hastings for what others had done.

As the whitepaper on Serranus Hastings commissioned by the College concludes: “Hastings, then, was not exceptional in his call for action, only unique in his level of influence supporting such demands at the state level. And in their positive responses to constituents’ demands, governors were not unique, either. The state legislature played a role as well.”

At the hearing, Senator Umberg said that Serranus Hastings’ name “never should have been placed on the school.” But if the Hastings name had not been placed on the school, the state wouldn’t have gotten the $100,000 (about $3 million at the time), and California would not have the prestigious law school from which Senator Umberg, I and thousands of others have graduated.

In 1878, the legislature contracted with Serranus Hastings to establish the college, and one of the terms was that its name “shall forever be known and designated as the Hastings College of the Law” (Cal. Ed. Code Section 92200)

State legislatures are barred by Article I, section 10 of the U.S. Constitution from “impairing the Obligations of Contracts,” and California’s Constitution has a similar provision. See Alameda County Deputy Sherriff’s Assn. v. Alameda County Employees’ Ret. Assn., 9 Cal. 5th 1032 (2020). See also Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100 (1938) (“The principal function of a legislative body is not to make contracts but to make laws which declare the policy of the state and are subject to repeal when a subsequent legislature shall determine to alter policy. Nevertheless, it is established that a legislative enactment may contain provisions which, when accepted as the basis of action by individuals, become contracts between them and the state or its subdivisions within the protection of Art. I, § 10.”)

The framers of the U.S. Constitution guaranteed its “Republican Form of government” to the states (U.S. Const. Art IV, section 4). Thus, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and the personal motives, to resist encroachment of the others. The provision for defence in this must be commensurate to the danger of attack. Ambition must be made to counteract ambition.”]. .” (“The Federalist,” No.51 (James Madison, supra) (Jacob E. Cooke, ed. 1961) at p. 349. The Legislature does not have the last word.

But, contrary to Senator Umberg’s suggestion, the contract between the state and Serranus Hastings only requires that the “Hastings” name be on the college. As I suggested in my March 8 article in the Daily Journal, suppose we “rename” U.C. Hastings for the founder’s son, Robert P. Hastings, one of the College’s first graduates and an early successor to his father as dean and as a director. He voted against his father’s “unconstitutional” efforts to have the University of California essentially assimilate the college (see, People ex rel. Hastings v. Kewen, 69 Cal. 215 (1886); Cal. Const., Art. IX, Section 9), and was one of the two Board members who dissented from the vote to deny Clara Shortridge Foltz an LL.B.(the first professional law degree in the United States) because, even though she was finally admitted to the college after litigating her right to a seat all the way to the California Supreme Court, and was by then admitted to practice, she had not completed the college’s full course. See generally Foltz v. Hoge, 54 Cal. 28 (1879); Thomas Garden Barnes, Hastings College of the Law, The First Century 43-87 (1978). Growing up with the founder, but acting according to his own convictions, in today’s vernacular we might consider him an early “progressive.”

This modest solution would ceremonially preserve the reality of what happened by prominently substituting Robert Hastings as the name and image of the College, in place of his father’s. It would also avoid considerable attendant cost and damage to the state and college, many alumni, faculty, staff and others. We would then be able to move forward more unified, in continuing to implement and expand the restorative justice efforts in a mutually beneficial way that our new progressive namesake would have likely endorsed; all in the spirit of living amends: transparency and integrity, forgiveness, healing and accurate truth telling.

Worth a thought?