Metropolitan News-Enterprise


Monday, June 12, 2023


Page 8


In My Opinion

Neither UC Nor Legislature May Defy Terms of Hastings’s Trust


By Kristian Whitten


(The writer is a retired California deputy attorney general, a member of UC Hastings’ Class of 1973 and a member of the Hastings College Conservation Committee, one of the plaintiffs challenging legislation changing the law school’s name.)


Ever since California’s first chief justice, Serranus Clinton Hastings, founded Hastings College of the Law as the Law Department of the University of California (see Education Code §92201), the law school and university have had an awkward relationship. On the one hand, UC Hastings wants the multitude of benefits that come with its being “affiliated” with and being the Law Department of the University, and on the other, its Board of Directors wants to operate as autonomously as possible.

After discussing the early California Supreme Court decisions in Foltz v. Hoge (1879) 54 Cal. 28 and People ex.rel. S.C. Hastings v. Kewen (1886) 69 Cal. 215, in Hastings College of the Law: The First Century, (1978), the late U.C. Berkeley Professor Thomas Garden Barnes concluded:

“What might have been a real ‘marriage’ was doomed to be a ‘common law marriage’ (almost literally)! Yet, for almost a century, despite some dreadful rows, the odd couple has lived together in relatively mutual sustainment. Not bad as such relationships go.”

The recent legislative changing of the law school’s name and removal of the Hastings family’s ancestral seat on its Board of Directors required by AB 1936 is the current “dreadful row,” which has once again resulted in litigation, this time being brought by a group of Hastings family members and some of the law school’s alumni.

In Foltz v. Hoge, the law school’s Board of Directors had banned women students, but the California Supreme Court ruled that, because it is an affiliated college of the University, which admits women, UC Hastings must also do so. In that case the college’s counsel described S.C. Hastings’ agreement with the state to found the law school as: “a complete contract between Hastings and the State; ...a private eleemosynary perpetual trust....” 54 Cal. 28 (argument of counsel, T.B. Bishop). In its opinion the court said:

“It was, in our opinion, the intent of the Legislature, that the College, when established, should affiliate with the University, and be governed by the laws applicable to the University, except as otherwise provided, either in the Act of 1868 or the Act of 1878; that the University and the affiliated College should constitute one institution and be governed by the same laws, with only such special provisions as might be required for the harmonious operation of its different branches. That would seem to be the necessary result of the affiliation of a College with the University. . . . 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 expressly be made, and such as arise from the very nature and purpose of the affiliated institution.” 54 Cal. at pp 33-34. See also Tafoya v. Hastings College of the Law (1987)191 Cal. App. 3d 437, 446-447.

In People ex rel. Hastings v. Kewen, the court held that the California Legislature could not make changes to the relationship between the law school and the University because the 1879 amendments to the state constitution—“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”—had granted the university autonomy from most Legislative control:

“[T]he law college had affiliated with the university, and had become an integral part thereof, subject to the same general provisions of the law as were applicable to the university. The constitution of 1879 (art. 9, sec. 9) declared that the university should be continued in the form and character prescribed in the acts then in force, subject to legislative control for certain specified purposes only. Such being the case, it was not competent for the legislature, by the act of March 3, 1883, or that of March 18, 1885, or by any other act, to change the form of the government of the university, or of any college thereof then existing.” 69 Cal. at p. 216.

After UC Berkeley established a Department of Jurisprudence in 1894, another UC law school began to evolve on the Berkeley Campus. In 1910, in the face of arguments that UC Hastings was not affiliated with UC and was not the law department thereof, the Court of Appeal in In re Students of Hastings College of the Law (1910) 110 P. 341 declined to rule on affiliation “as a matter of law.” However, it presumed such affiliation had taken place, because the Legislature’s “many appropriations for suitable buildings for the law department of said college, ha[ve] time and time again recognized the Hastings College of the Law as a department of the university.” See Barnes at pp. 154-56.

More recently in Tafoya v. Hastings College of the Law (1987) 191 Cal. App. 3d 437, 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 [Foltz and Kewen], it has affirmed that Hastings is an affiliate of and governed by the same laws as the University.”

In Coutin v. Lucas (1990) 220 Cal.App.3d 1016,  a taxpayer filed suit claiming that legislation eliminating the ex officio position of the chief justice of California as chair of the UC Hastings Board of Directors was unconstitutional because Article IX, section 9 guarantees UC Hastings’ autonomy from legislative control. Neither the law school nor the University objected to that legislative change.

The Court of Appeal based its ruling upon “the continuing effect of the terms of the private trust of Serranus C. Hastings which appear as provisions of the 1878 act originally establishing Hastings College of the Law,” but affirmed the trial court’s ruling that the challenged legislative change did not violate Article IX, section 9 because the matter of limiting the chief justice’s outside responsibilities was of statewide concern.

In essence, Coutin confirmed the college’s counsels’ description in Foltz of the basis upon which S.C. Hastings founded the law school as “a complete contract between Hastings and the State;…a private eleemosynary perpetual trust....”

In its opinion, the court noted that “the university is not completely free from legislative regulation,” and that in addition to the specific provisions set forth in article IX, section 9, cases have recognized three general areas in which the Legislature’s own extensive powers may limit University autonomy: authority over the appropriation of state monies; exercise of the general police power to provide for the public health, safety, and welfare; and legislation on matters of general statewide concern. See generally, Note, Autonomy and Accountability: The University of California and the State Constitution 38 Hastings L.J. 927, 933 (1987). It is the third of these areas upon which the Coutin court based its decision.

However, notwithstanding the fact that neither UC Hastings nor the UC Regents objected to the challenged legislation, the Coutin court conducted a thorough constitutional analysis, which also concluded that the Legislature could not have altered the size of the UC Hastings Board of Directors or added a student to it.

Thus, the acquiescence of the UC Hastings Board of Directors and the UC Regents in the alteration of the terms of Serranus Hastings’ 1878 agreement with the State is not dispositive; they cannot waive the requirements of university autonomy from unconstitutional legislative control nor unilaterally alter the terms of the “private trust of Serranus C. Hastings which appear as provisions of the 1878 act originally establishing Hastings College of the Law.”

Stakeholders as well as citizens and taxpayers have the ability to insist that the UC Regents and UC Hastings Directors be true to their oaths of office to “support and defend the Constitution of the United States and the Constitution of the State of California.” California Constitution, art. XX, §3.

But S.C. Hastings’ private eleemosynary trust and the law applicable to it do not permit the law school’s Board of Directors to legislatively eliminate the Hastings name and the Hastings family seat on the Board of Directors, and it is clear from Foltz and Kewen that UC Hastings is affiliated with the University. See, Education Code §92201.

In fact, UC Hastings’ name-change process did not comply with UC’s system-wide naming and name changing policies. Those policies have been in place since 2002, and “must be consistent with the University’s role as a public trust.” They are to assure “that Chancellors seek the widest possible counsel when considering proposals for naming or renaming in order to take advantage of the intuition’s collective memory,” and require, inter alia, a thorough consultative process “that represents broad institutional interests,” and at least “make all reasonable efforts to inform in advance the original donors or honorees and their immediate family members.”

At UC Berkeley, the policies for “un-naming” provide for the convening of a sub-committee “responsible for requesting honorific naming proposals from the campus community,...[and] review[ing] all proposals, contemplat[ing] and submit[ing] a written report....with a prioritized list of recommended honorific names with a rationale for each....” The chancellor is responsible for the final decision, that must receive approval from the UC president. Nothing like that occurred at UC Hastings in advance of the Board of Directors’ sudden name-change decision.

The U.C. Regents removed the “Boalt” name from U.C. Berkeley’s primary law school building in 2020 after extensively vetting the issue. Their process revealed that Mr. Boalt’s name on the building was “honorary,” not “philanthropic,” and thus did not require consultation with the California Attorney General’s Office. Indeed, UC Berkeley Law’s dean noted that changing the names on two endowed professorships specified in Elizabeth Josselyn Boalt’s will “would require a request to the Attorney General of California to go to court.” They were not included as part of the requested name-change.

In contrast, S.C. Hastings’ name on the law school was definitely “philanthropic,” and after years of study, the UC Hastings Board of Directors adopted the recommendation of the Hastings Legacy Review Committee not to change the name, only to suddenly reverse itself with little notice to or consultation with more than a few. That sudden change resulted from a New York Times front-page article that erroneously claimed S.C. Hastings masterminded Indian hunting expeditions in the 1850s, which prompted a few wealthy and politically powerful alumni to threatened withdrawing their support for the school if the name weren’t changed.

Complying with U.C.’s name-change policies would have allowed all UC Hastings stakeholders to be heard before a decision was made, and would have allowed us all to review the record of the California Legislature’s 1860 investigation into the Mendocino Indian Wars, in which Serranus Hastings and many others testified, and which did not find Judge Hastings culpable in any of the atrocities AB 1936 now charges him with.


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