Hastings Law, Forever or Refund?

Like many names associated with colleges for generations, if not centuries, the University of Califorinia’s public law school, Hastings College of Law, bore the name of Califorinia’s first Chief Justice of its Supreme Court, who gave the state $100,000 in gold coins to found the school. In return, the law school was to be named after its benefactor, who would be its first dean, and his heirs would have a seat on the school’s board “forever.”

The University of California, Hastings College of the Law (“College”)—often referred to simply as “Hastings” by the legal community—has operated successfully in its current form since it was founded in 1878. Among the oldest law schools west of the Mississippi River, the College was founded by the first Chief Justice of the California Supreme Court, Serranus Clinton Hastings (“S.C. Hastings”), pursuant to his written agreement with the State of California, enshrined by State law (the “Act”). (Cal. Educ. Code, § 92200, et seq.)

Specifically, S.C. Hastings agreed to pay into the State Treasury $100,000 and to establish the College with S.C. Hastings to serve as its first Dean. The State of California, in turn, agreed to fund the College a minimum amount in perpetuity; that the College “shall forever be known and designated as the Hastings College of the Law;” and that an heir or representative of S.C. Hastings would at all times have a seat on the College’s Board of Directors (the “Board”), the College’s governing body, which is independent from the Regents of the University of California.

And so it remained Hastings College of Law until long dead historical figures became the subject of scrutiny for their wrongs.

For the past four years, the University of California, Hastings College of the Law has been investigating the role of its founder, Serranus Hastings, in one of the darkest, yet least discussed, chapters of the state’s history. Mr. Hastings, one of the wealthiest men in California in that era and the state’s first chief justice, masterminded one set of massacres.

What happened is one thing. What Hastings had to do with it is another.

“It’s not an exaggeration to say that California state legislators established a state-sponsored killing machine,” Benjamin Madley, a history professor at the University of California, Los Angeles, said.

By Dr. Madley’s calculation, expeditions carried out at Mr. Hastings’s behest killed at least 283 men, women and children, the most deadly of 24 known California state militia campaigns.

Is this accurate? Benjamin Madley says so, and the law school agreed that Hastings “bears significant responsibility” for the massacres, as was reflected in an extremely damning New York Times expose of Hastings, short of evidence but long in damnation.

Critics’ initial accusation that S.C. Hastings financially-backed the State’s militia (of which there is no direct proof), quickly turned into accusations that S.C. Hastings, himself,  committed acts of genocide, and eventually culminated in the New York Times publishing a “hit-piece” written by Thomas Fuller on October 27, 2021, which wrongly, maliciously, and baselessly claimed that S.C. Hastings “masterminded” the killings of hundreds of Native Americans, including the Yuki people Despite the College’s success as the State’s first public law school and its long history of educating lawyers and encouraging public service, modern-day cancel-culturalists set their sights on the College’s name. Beginning in 2017, critics claimed in a couple of poorly sourced opinion pieces that S.C. Hastings fomented and financed raids by State-run militia on Native Americans in the late 1850’s and early 1860’s and that the College should therefore consider changing its name. Although there is no known evidence that S.C. Hastings desired, requested, or knowingly encouraged any atrocities against Native Americans, the accusations against S.C. Hastings soon snowballed.

And that public shaming was sufficient to push the law school over the edge.

On November 2, 2021, mere days after Fuller’s hit piece was published, the College’s Board held an “emergency” meeting to discuss changing the College’s name. It did so without providing any advanced notice to the public, as required by the Board’s bylaws and State law. At the “emergency” meeting, the Board voted unanimously to direct the College’s Chancellor and Dean, David Faigman, to work with the California Legislature and Governor to remove “Hastings” from the College’s name—a move that the Yuki people and Native Americans did not request and that Dean Faigman previously opposed.

The State of California then passed another law, this time blaming Hastings for genocide and stripping his name from the college of law, together with the seat for his heirs. Now, a group of alumni whose diplomas bear the name “Hastings” together with his heirs are suing for specific performance or, in the alternative, restitution.

The current value of $100,000 gold coins in 1878 is about $3 million, not a huge sum for a public law school these days, although restitution of the present value of the funding seems to ignore the opportunity cost of donating the money to California. Then again, the law school bore the Hastings name all those years.

But the primary question is whether the state’s acceptance of the funds to create a law school with conditions, established in law, that it be named “Hastings” and have a hereditary seat in perpetuity means anything. Or can the state reneg, whether justified or not, on a deal struck “forever”?

The State subsequently enacted AB 1936 to punitively remove the “Hastings” name from the College and the Hastings’ hereditary seat from the Board, in the name of “restorative justice.” In support of AB 1936’s punitive measures against S.C. Hastings and his descendants, AB 1936 states that “the Legislature finds and declares” that, inter alia, S.C. Hastings committed “genocidal acts” against Native Americans, despite neither S.C. Hastings nor his heirs having had any opportunity for a judicial trial as to these horrific allegations, and an unmistakable lack of evidence to support such defamatory findings.

Is the evidence that Hastings was connected, no less masterminded, the murder of Native Americans sound, strong enough to carry such “moral suasion” as to demand that his name be stricken from public life at all costs? As noted in the complaint, there has been no trial, no testing of the evidence against S.C. Hastings, and yet the legislature found him guilty of committing “genocidal acts.”

Granted, it’s not as if Hastings can be imprisoned for these acts as seen through the eyes of people almost 150 years later, where accusations have taken on a condemning life of their own, more than sufficient to declare a person guilty then of what is horrific now. But does that mean that perpetuity lasts only as long as the school, the state, the unduly passionate, find it agreeable?

The State’s decision to erase “Hastings” from the College’s name and remove the family’s Board seat constitutes an unconstitutional impairment of the State’s contractual obligations to S.C. Hastings and his descendants. The State’s retroactively-applied punitive measures against S.C. Hastings and his descendants further violate constitutional prohibitions against bills of attainder and ex post facto laws, as well as the California Constitution’s requirement that the College remain in its existing “form and character,” free from sectarian or political influence.

Maybe S.C. Hastings was as bad as the New York Times says he is. But once a state accepts funding for a law school with a promise enshrined in law to name the school after its benefactor “forever,” can they decide that “forever” ends whenever they want it to?