Lawyers will know that U.C. Berkeley’s law school has long been known as Boalt Hall, named for John Boalt, a prominent 19th century California lawyer whose estate donated the money for Berkeley to start a law school way back in 1906. But there’s a problem: it seems Mr. Boalt harbored some racist views, in particular against the Chinese. You can read a paper Boalt delivered in 1877 entitled “The Chinese Question,” in which he argues that Chinese assimilation is simply impossible.
You know what is coming next: a campus controversy about whether formally to drop Boalt’s name from the law school. (It’s already kinda, sorta happened. A lot of people are already just saying “Berkeley Law” instead of Boalt Hall.) There has been set in motion a “Berkeley Law Committee on the Use of the Boalt Name.” The committee is soliciting comments from faculty and students, so perhaps against my better judgment, I have submitted the following comment:
There deserves to be a sober discussion about what to do in the numerous cases where important historic figures fall woefully short of our current understandings of justice and equity. The case against John Boalt could just as easily be applied to Woodrow Wilson, and the attachment of his name to the School of Public Affairs at Princeton. (In fact some Princeton students have so argued that his name should be formally dropped.) What standard should be applied?
I often draw the attention of students to a passage in Justice John Marshall Harlan’s famous and celebrated dissent in Plessy vs. Ferguson [the infamous “separate but equal” decision] that is strangely omitted from the presentation of the case in nearly every con law casebook, which runs thus: “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” But from here Harlan complicates the judgment we might draw from this fragment by noting that it constitutes yet another weakness in the majority argument in Plessy, namely, that we do not segregate Chinese in our streetcars–only blacks. What then is our final judgment on Harlan? (And should we also strike Harlan’s name from any honor roll or building that may exist?)
As repugnant as John Boalt’s views read today, Harlan’s comment reminds us that it was a well nigh universal view. I’m hard pressed to think of many examples of a serious contest of that view from that time. How did we come to change that view? Might it be better to keep the unvarnished truth of figures like Boalt, Harlan, and Wilson rather than airbrushing them out of sight, and thereby contribute to a forgetfulness of the path of change over the decades?
Stay tuned. I’ll let you know if I have triggered anyone.
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