Constitutionality of proposed Hastings’ name change by California legislators questioned under contract theory

As recounted in several Daily Journal articles, in July of 2017 public media began claiming that Serranus Hastings, founder of University of California, Hastings College of the Law, participated in “genocide” perpetrated on native people. The College investigated and in July of 2020 produced a report that recommended action by the College, but that its name not be changed.

Thus, programs were implemented to provide “restorative justice” for the affected native people. The College’s Chancellor and Dean David Faigman and James Russ, president of the Round Valley Indian Tribes, co-authored a July 3, 2021 Op-Ed piece in the Sacramento Bee outlining how their constituencies: “came to realize that a proactive and respectful partnership between the law school and the descendants of those its founder had so grievously harmed was the best form of remembrance and redress.” They also concluded: “Changing the name of the school would be of little benefit to the living descendants of Serranus Hastings’ crimes. These atrocities should not be erased – instead it should be a societal goal to never forget this sordid chapter of American history and the challenges that Native Americans continue to face.”

Then on Oct. 28, 2021, a sensational front-page article in the New York Times reported that the San Francisco Chronicle was calling for the College to change its name, called Serranus Hastings a “promoter and financier of Indian-hunting expeditions,” and quoted a UCLA professor’s 2016 book “An American Genocide” that states: “both [Leland] Stanford and [Serranus] Hastings had ‘helped to facilitate genocide.’”

The Times’ article also referred to “the massacres of Indians carried out by Mr. Hastings’s militias . . .” saying that the militias “shocked contemporaries and prompted an investigation in the Legislature.” However, the voluminous sworn testimony and other information gleaned by that 1860 legislative investigation was not mentioned by the Times.

In fact, that investigation produced sworn testimony that Serranus Hastings took no part in or intended the killing of any native Californians. What it reveals is that he used his knowledge and experience to prepare and circulate a petition to the Governor according to state law, asking that the Governor authorize the formation of a local “militia” to enforce the law, impose order and keep the peace. That is hardly “help[ing] to facilitate genocide.”

With the publication of the sensational New York Times article, the College’s administration concluded that the issue had “gone national,” and at a meeting called with inadequate notice its Board of Directors directed Dean Faigman to work with the Legislature to change the College’s name. That effort has resulted in conflicting Senate and Assembly bills.

In 1878 Serranus Hastings, the State of California and the newly chartered University of California entered into a contract in which it was agreed, inter alia, that upon Hastings’ payment of $100,000 to the state, a law college would be founded that would be affiliated with the University but be governed by a separate Board of Directors, and that “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 §92200.

Given these contract terms, it appears that the College’s Board of Directors acted unconstitutionally by asking the Legislature to change the College’s name.

First, a bit of California history. The University of California was created in 1868 by an act of the Legislature, but in 1879 the new California Constitution declared the university “a public trust” with autonomy from the Legislature and Governor (who became an ex-officio member of the University’s Board of Regents), and the statement that: “The university shall be entirely independent of all political or sectarian influences and kept free therefrom in the appointment of its regents and the administration of its affairs . . . .” Cal. Const. art. IX, §9 (f). See also San Francisco Labor Council v. Regents of the Univ. of Cal., 26 Cal. 3d 785, 789 (1980) (“It is true that the university is not completely free from legislative regulation. In addition to the specific provisions set forth in article IX, section 9, there are three areas of legislative regulation. First, the Legislature is vested with the power of appropriation, preventing the regents from compelling appropriations for salaries. (citations.) Second, it is settled that general police power regulations governing private persons and corporations may be applied to the university. (citations.) . . . Third, legislation regulating public agency activity not generally applicable to the public may be made applicable to the university when the legislation regulates matters of statewide concern not involving internal university affairs.”)

The California Supreme Court has interpreted how this constitutional change affects the College. In People ex rel. Hastings v. Kewen, 69 Cal. 215 (1886), the Court held that the 1878 act creating the College provided for a board of directors. “Article IX, section 9” declared that the university should be “subject to legislative control for certain specified purposes only. . . It is not competent for the legislature . . . to change the form of the government of the university, or of any college therefore then existing.” Id. at p. 216. Therefore, the Legislature is “not competent” to pass legislation transferring control of the College to the University.

More recently in Tafoya v. Hastings College of the Law, 191 Cal. App. 3d 437, 442-43 (1987), the Court of Appeal held that Article IX, section 9 “raises the status of the University 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, the University is intended to operate as independently of the state as possible.”); Id. at p. 447 (“Thus , . . . [our Supreme Court] has affirmed that Hastings is an affiliate of and governed by the same laws as the University.”) 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.

The other unconstitutional aspect of the Board of Directors’ decision involves the “contract clauses” in our state and federal constitutions. U.S. Const. art. I, §10; Cal. Const. art. I, §9. Both contract clauses prevent state legislation from “impairing” a contract. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819) (finding that the agreement for the issuing of the college’s charter was a contract covered by the contract clause, which was based on the promise of large contributions, which were made by the founder and others. “Surely in this transaction every ingredient of a complete and legitimate contract is to be found. Id. at p. 627); 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.”); 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.”); Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Ass., 9 Cal. 5th 1032 (2020); (following the U.S. Supreme Court’s “two-step test”); 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 fact, in Foltz v. Hoge, 54 Cal. 28 (1879), the College’s counsel 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, because the University did not have a similar ban: “An affiliation imports a subjection to the same general laws and rules that are applicable to the parent institution, with such special exceptions as may be expressly made, and such as arise from the very nature and purpose of the affiliated institution.” Id. at p. 34.

The proposed name change would run afoul of the contract clauses’ “two-step test” by “undermine[ing] the contractual bargain,” “interfere[ing] with a party’s reasonable expectations,” and Hastings’ heirs would have no hope of “reinstating” the name. Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Ass., supra, 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.”).

By asking the Legislature to change the College’s name, its Board of Directors is attempting to impair the contract that created the College. Also, the College is not following procedures required by the University to name, or change the name of, institutions and buildings, and the current legislative name-change effort has become an active part of political activity within the Legislature, which is prohibited by the state Constitution.