BY HANK REICHMAN

The California Supreme Court declined this week to stay an injunction that requires the University of California at Berkeley to freeze enrollment at Fall 2020 levels while a lawsuit against the university filed by a resident group proceeds.  The suit, filed under the California Environmental Quality Act (CEQA), charges that the university has not adequately considered how its recent enrollment growth has affected housing prices, traffic congestion, crime, and noise in surrounding neighborhoods.

The decision comes at a time of record-breaking applications to both the UC system as a whole and its Berkeley campus.  Berkeley has already sent out many freshman offers of admission, with the remainder to be sent March 24. Offers to transfer students will go out April 2.  In response to the order, the university said it may ask new incoming students to delay enrolling until January, and increase online enrollment to accommodate more students.

UC Berkeley currently enrolls 45,057 students at all academic levels.  In August, Superior Court Judge Brad Seligman ordered the campus to cap enrollment at 42,237 — the fall 2020 number — and to halt construction of its Upper Hearst Project, two buildings intended to house about 150 professors and add classrooms for the Goldman School of Public Policy.  Neighbors had argued that the university failed to properly plan for the increased noise, traffic and other quality-of-life problems increased enrollment would bring.

Previously, when the project was first proposed, Berkeley’s Academic Senate also lodged objections, allegedly because it would involve demolishing a convenient parking garage but in fact, as I wrote at the time, because mandated shared governance procedures were not followed and details about financing were sketchy.  The neighborhood group, Save Berkeley’s Neighborhoods (SBN), was not really concerned about the project itself either.  The group’s suit isn’t trying to stop the project, the SBN president told the San Francisco Chronicle.  It’s “to make UC (Berkeley) do an adequate enrollment analysis.”  So they seized on the project environmental impact report’s discussion of the university’s growing enrollment to argue that the university, which years earlier had projected that it would have a student population of 33,450, not over 45,000, by 2020, was in violation of CEQA, regardless of the Hearst Project’s immediate impacts.  It is worth noting that the Hearst Project itself, ostensibly the focus of the legal battle, is not predicated on increased enrollment, beyond a possible increase of some 30 graduate students within the Goldman School.

That the critical issue of rising student population was embedded in the project’s environmental impact report also bothered Berkeley City Council members who also sued in 2019 to force the university to pay the city more to offset the impact of its rising enrollment on local services.  The sides settled in June, with UC Berkeley agreeing to pay $82.64 million over 16 years, and Mayor Jesse Arreguin agreeing to withdraw the city’s objections to the Upper Hearst project.  Now, Arreguin and the city are supporting the university’s efforts to lift the admissions cap.

This week’s decision was not about the merits of the suit, which will continue at the lower court level, but on whether that court’s mandated freeze on enrollment growth while the suit proceeds can stand.  The Supreme Court voted 4-2 that it can, with no majority opinion.  However, dissenting Justice Goodwin Liu, one of the court’s leading progressives, joined by Justice Josh Groban, wrote the following in dissent:

As things stand today, approximately 3,050 students may lose the opportunity to attend one of our state’s premier universities this fall. Because of a court order capping its enrollment in the context of an environmental lawsuit, the University of California at Berkeley (hereafter UC Berkeley or the university) appears on the brink of enrolling nearly one-third fewer undergraduates this fall compared to last fall. In addition to the acute loss to each of these prospective students, the City of Berkeley would also be denied the social and economic benefits of accommodating a full student population, while the university’s potential loss of $57 million in tuition would undermine California’s interests in expanding access to education. This is not even to mention the contributions of leadership, innovation, and service that our state and broader society may lose if thousands of students have to defer or forgo attending UC Berkeley this fall. Even if those students enroll elsewhere, the reshuffling will cause other displacements, and the effects of the enrollment cap will reverberate up and down the state. . . .

Because of the statewide importance of the issues presented, I would grant the university’s petition for review and its request for a stay of the enrollment cap during the pendency of our review. But this court’s denial of review need not be the end of the road for the several thousand students affected by this matter. The university may renew its request for a stay in the Court of Appeal, or the parties may engage in good faith negotiations or mediation to expeditiously settle this dispute. Indeed, given the stakes on all sides, it is hard to think of a case where a negotiated settlement seems more imperative for the good of the local community and our state.

[Note: according to a report in the Chronicle of Higher Education, UC revised its figures this week after determining how many students wouldn’t be counted if they weren’t physically on campus.  As a result, they are now planning for a reduction of 2,500 in-person students, rather than a bit over 3,000. UPDATE: It now appears that UCB will meet the mandate by directing 1,000 new undergraduates to study entirely online, another 600 to defer admission until January 2023, and reduce admission to grad programs in engineering, business and law that had yet to send out admission notices.]

Citing cases that “suggest that third party interests properly inform courts’ exercise of their inherent power to protect the status quo pending appeal,” Liu’s dissent argued that in this case “the third party interests here are apparent and overwhelming.”  He continued,

If the trial court’s injunction capping enrollment at the level for the 2020-2021 academic year remains in place, UC Berkeley will be forced to issue approximately 5,000 fewer letters of admission and to enroll 3,050 fewer students than planned.  These aggregate numbers should not obscure the particular loss to each of these individuals.  The benefits of an education at a prestigious university are substantial, especially for students from less privileged backgrounds, and can have lasting impacts on a student’s future employment, income level, and personal and social development. . . .  Notably, the injunction requires UC Berkeley to dramatically decrease the size of its student body as opposed to merely pausing future growth.  The injunction ties the level of any future enrollment to the level in the 2020-2021 academic year, when enrollment was somewhat depressed due to the global pandemic.  To comply, UC Berkeley would have to reduce its undergraduate enrollment well below the level for the present 2021-2022 academic year.  (The university says graduate student enrollment cannot absorb the reduction.)  A reduction of 3,050 new undergraduate students would mean about 32% fewer students in the 2022 fall class compared to the prior year. . . .  Even for the new students who are fortunate enough to enroll this fall, the overall reduction will likely mean reduced resources, emptier classrooms, and a relatively anemic class of peers.  For these students, their quality of education will be fundamentally altered.

Moreover, the potential third party harms go beyond the university campus.  The City of Berkeley, once a party adverse to the university in this very suit, now avers that the injunction will negatively affect the broader Berkeley community and local economy through decreased taxes, depressed patronage of local businesses, and a reduction of the labor pool within the community.  In addition, the lowered enrollment numbers would result in approximately $57 million less in tuition than anticipated, a loss that Governor Gavin Newsom asserts would undermine the foundations of his proposed state budget and statewide plans to promote access to quality education.  Furthermore, California and our broader society stand to lose the contributions of leadership, innovation, and service that would otherwise accrue if several thousand students did not have to defer or forgo the benefit of a UC Berkeley education this fall.  Those students might go elsewhere, but that would simply distribute the effects of the enrollment cap to other institutions throughout the state and perhaps beyond.

Against these potential losses must be weighed the threatened harms to the community from the environmental impacts of UC Berkeley’s enrollment if the enrollment cap is stayed.  Plaintiff Save Berkeley’s Neighborhoods (SBN) says the local community will “suffer environmental and quality of life impacts” that include “housing displacement, homelessness, and excessive noise . . . . Indeed, gentrification and displacement of low-income residents in Berkeley and Oakland is an ongoing adverse effect of UC Berkeley’s enrollment increases . . . .”  These concerns should not be minimized, but they should be put in perspective.  According to SBN’s own allegations in its separate “student enrollment” lawsuit, UC Berkeley exceeded its student enrollment projections for more than a decade before SBN took any action.  According to SBN, the university first began exceeding its enrollment projections set forth in its 2005 long range development plan environmental impact report fifteen years ago, back in 2007.  SBN did not challenge this practice until it filed the related action in 2018.  Since the university has been exceeding its projected enrollment numbers for nearly 15 years now, it is hard to understand how the harm resulting to SBN by staying the injunction for a 16th year outweighs the harm to the university and its students and prospective students if the injunction is kept in place.

The court’s majority that left the freeze in place consisted of Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Leondra Kruger and Martin Jenkins.

Let me be clear.  Whether or not Liu is correct on the legal issues involved in the appeal, his dissent makes the argument well.  It echoes much of what UC itself has been saying (see this February 14 detailed public statement of the university’s legal argument).  But for a more pointed and colorful comment on the issue let’s turn to Darrell Owens, a policy analyst at California YIMBY, a pro-housing development advocacy group.  Here’s some of what Owens has to say about who is to blame in this case in a post to his “The Discourse Lounge” substack entitled “The Malthusian Enrollment Cap“:

The University of California bears partial responsibility from an administrative perspective.  The UC has used precious public dollars on adding more administrative positions rather than more faculty for the classes.  They built a brand new office complex on a downtown parking lot rather than prioritizing more dorms and classrooms there.  Plenty of UC owned parking lots should’ve been redeveloped into classrooms and housing decades ago.  The other half of the blame lies with the state legislature.  California’s population growth continued massively these last five decades and people have demanded that UC expand enrollment.  Yet California built 23 prisons since the 1960s and only 1 new UC and 3 new California State Universities (CSU).

But the group who so far is successfully obstructing UC Berkeley’s enrollment is not called “Build More Classrooms and Housing.”  They’re called Save Berkeley Neighborhoods because their issue is that student growth is annoying to affluent homeowners who chose to buy their houses right beside a college campus.  Considering the UC predates the city of Berkeley and the plaintiffs themselves are UC alumni, you’d think they’d know better about seeing students when they chose to buy a home within blocks of the campus districts but evidently not.

The lawsuit alleges that UC didn’t do an environmental impact report on increasing student enrollment before they did, and the most recent ruling from a superior court judge is that UC must now rollback admissions.  Depriving thousands of an education at UC Berkeley.  The motivation behind this suit is that pervasive belief among older, anti-change residents that Berkeley has enough people and should cap its population — even though Berkeley’s population in 2020 is just 10,000 people more than what it was in 1950.  For the anti-student crowd, the town for which they bought their home in decades ago must always be the same no matter how much society changes and no matter how much they age.  It’s Peter Pan syndrome. . . .

The homeowner groups are increasingly aware of the apparent perception that they’re just merely  NIMBYs who are selfish.  So they obfuscate by noting that the housing shortage (which is decades old and largely unrelated to students) is amplified by an ever growing influx of students without sufficient dorms.  But the very same plaintiffs of this lawsuit against UC Berkeley fought against UC Berkeley housing projects and against upzoning for more housing.

To quote one city council member who had enough of this willful hypocrisy: “how stupid do you think we are?”

Now, I heartily endorse Owens’ post but with one small caveat.  Please, don’t tar all older Berkeley homeowners with the NIMBY brush.  I’m a 75-year-old retiree whose home in neighboring Albany (just three houses from the Berkeley city line) has increased dramatically in value since we purchased it 30 years ago.  But like many in my situation I despair at what the housing crisis has meant to my community.  I also want to see the university where I earned my PhD and where I still feel a part of the scholarly community to thrive and grow, even when I am frequently critical of some of its leaders and actions (see lots of my posts on this blog).  I support building housing at North Berkeley BART (this is for the locals; google it) and, although I arrived in Berkeley in 1969 just weeks after the armed confrontation over People’s Park, I think it’s high time for UC to use that land to build not only student housing but also housing and facilities for some hundred homeless people, as the university has proposed.  Yet these are projects that the NIMBYs in SBN are fighting.  And these are projects that many, many older homeowners like me welcome.

So, I’m more than happy to join Mr. Owens and his YIMBY group in boldly declaring,

If you can’t handle living right beside students in a college town, cash out your $2 million home you’re paying nothing in property taxes for and under Prop 19 you can transfer anywhere, and move to another neighborhood.  If you cannot handle seeing tall buildings to accommodate student population growth then take a dart and throw it at a map of the Bay Area which is 85% zoned for banning multifamily housing (including 50% of Berkeley) and move there.  Stop ruining the 15% of neighborhoods that are diverse, walkable and moderately dense.

Those supporting the decision to deny public education to 3,500 future students are telling the homeless student, the overcrowded student, the crammed student that they should’ve never been admitted here. I tell that student that there’s more than enough homes and classrooms here if we want it.  These conservatives masquerading as progressives that have dominated Berkeley for decades are fading and a new generation is promoting inclusivity.

This post is getting longer than I planned, but there’s still one more topic that needs mentioning.  In his post Owens notes, “The environmental law used to stop enrollment, CEQA, a historically well abused law by NIMBYs, may cease to exist thanks to NIMBYs over-abuse.”  Already, in response to this case, there are proposals in the legislature to exempt universities from CEQA.  State Senator Scott Weiner introduced a new bill in late February to exempt housing developments at public universities from an environmental review process.  California Republicans have long blamed CEQA for many of the state’s ills, from the housing crisis to the impact of drought on agriculture.  Earlier this week the conservative Pacific Research Institute published a report accusing CEQA of hindering housing, school, infrastructure and climate projects.  Now Democrats are taking a look at the law too.

CEQA was signed into law by Gov. Ronald Reagan in 1970 as the state’s response to federal environmental protection legislation and the burgeoning ecology movement of the time.  The law requires all state and local agencies to follow a protocol of analysis and public disclosure of environmental impacts of proposed projects and adopt all feasible measures to mitigate those impacts.  CEQA makes environmental protection a mandatory part of every California state and local (public) agency’s decision making process.  But the definition of what constitutes the environment in CEQA was, perhaps necessarily, somewhat fuzzy.  No reasonable person would argue that things like sewage, water supply, and air pollution need regulation, but are concerns about “crowding” (compared to where, Nevada or Manhattan?), obstructed views, or building shadows (really!) equally valid?  Because the Democratic legislature at the time did not fully trust the conservative Reagan administration to vigorously enforce CEQA’s provisions, the law granted significant power to private actions.  It has thus become the basis for numerous lawsuits concerning public and private projects.  Often these suits are nearly frivolous, designed sometimes largely to impose delays and increase costs.  One study found that 85% of CEQA lawsuits were filed by organizations with no record of environmental advocacy and 80% of CEQA lawsuits targeted infill development.

Carol Galante, a professor of Affordable Housing and Urban Policy at the Terner Center for Housing Innovation at UC Berkeley, who served in the Obama Administration as the Assistant Secretary at the US Department of Housing and Urban Development (HUD), has argued that CEQA “has been abused in this state for 30 years by people who use it when it has nothing to do with an environmental reason, … NIMBY-ism is connected to the fact that for everyone who owns their little piece of the dream, there’s no reason to want development next door to them, CEQA gives them a tool to effectuate their interest … We need to fundamentally rethink how the CEQA process works in this state.”

When I first heard about this case and learned that it was judge Seligman who made the ruling, I was puzzled, because although I don’t know him personally I do know that Seligman is highly respected in progressive legal circles on the basis of a long career in public advocacy.  I wondered, “is this a bad decision or a bad law.”  It appears it may well be the latter.

Contributing editor Hank Reichman is professor emeritus of history at California State University, East Bay; former AAUP vice-president and president of the AAUP Foundation; and from 2012-2021 Chair of AAUP’s Committee A on Academic Freedom and Tenure. His book, The Future of Academic Freedom, based in part on posts to this blog, was published in 2019.  His Understanding Academic Freedom has recently been published.