Listen to this post

On March 3, 2022 the California Supreme Court denied UC Berkeley’s (UC’s) request to stay enforcement of a trial court order capping its enrollment for the upcoming year. The denial is the latest development in ongoing CEQA litigation filed by Save Berkeley’s Neighborhoods (SBN) over the UC’s enrollment levels (see TLG’s coverage of related cases here).

In October 2021 the UC appealed the trial court’s judgment, which caps the UC’s enrollment at 2020-2021 levels. Before the briefing on appeal, in January 2022, the UC filed a petition for writ of supersedeas in the Court of Appeal, seeking to stay enforcement of the enrollment cap. The Court denied the request, and the UC quickly filed a petition for review, seeking a stay from the Supreme Court.

Without a written opinion, the Supreme Court’s majority also denied the UC’s petition and request. However, Justice Liu issued a dissenting statement, joined by Justice Groban, explaining why he would have granted the UC’s request. Justice Liu explained that the enrollment cap, if left to stand, would cause wide-ranging harms.

The statement first noted that the case would be an especially appropriate vehicle for deciding the open legal question of whether a writ of supersedeas may account for third party harms. It then continued to explain the magnitude of those harms in this case. It observed the sheer number of students who would be denied entry to Berkeley under the cap – approximately 5,000 fewer offer letters and 3,050 fewer students than planned. Further, the cap at 2020-2021 levels would not merely pause future growth, it would require the UC to decrease its enrollment size from the present, 2021-2022 year by approximately 32%. Additionally, the statement noted that those denied admission would also be denied the myriad benefits that graduation from a prestigious university provides, particularly for students of less privileged backgrounds. It would also mean reduced resources and a fundamentally altered quality of education for the admitted students. Even the City of Berkeley, which had once sided against the UC in this lawsuit, had by this point averred that the cap would negatively affect the larger community and local economy. The cap would also result in approximately $57 million less in tuition than anticipated, a deficit the Governor asserted would undermine his proposed state budget and education policy goals. And the denials would have ripple effects across the state, including the losses in leadership, innovation, and service that would otherwise accrue from the thousands of students slated to be denied enrollment.

Justice Liu’s dissenting statement acknowledged the concerns of SBN, but noted that, according to that organization, the UC had been exceeding its enrollment projections since 2005 – a practice SBN had not challenged until 15 years later. It found the harm from staying the cap for the 16th year to be unlikely to outweigh the harms to the UC, its students, and its prospective students.

Justice Liu’s dissenting statement concluded by describing still-available avenues to allow the enrollment. It noted that the UC could again seek a stay from the Court of Appeal once the case is returned. Emphasizing that vindicating the goals of environmental protection through CEQA was not a “zero-sum” game, the dissent encouraged the parties to seek a durable settlement to allow for the enrollment, observing that staunch opposition by SBN to the enrollment regardless of mitigation proposed would be at odds with CEQA’s mitigative and informational goals. Lastly, the statement noted a pending bill that would exempt the project from CEQA, while, at the same time, withholding any view on its wisdom.

Thus, for now, the CEQA suit will require one of the world’s most prestigious public universities to deny admission to a third of those who would otherwise be receiving offer letters this spring.