Commentary: Cal Supreme Upholds Enrollment Freeze at Berkeley – But Be Careful What You Wish For

By David M. Greenwald
Executive Editor

San Francisco, CA – It was a huge blow to those concerned with access to higher education.  In just one sentence, on a 4-2 vote, the Supreme Court refused to lift the enrollment freeze ordered by an Alameda County judge and denied review of an appellate ruling that freezes enrollment while mandating the university conduct further environmental review on housing projects.

Justice Goodwin Liu dissented, joined by Justice Joshua Groban.

“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,” said Liu.

Berkeley Chancellor Carol Christ, among others, expressed disappointment in the ruling.

“This is devastating news for the students who have worked so hard for and have earned an offer of a seat in our fall 2022 class. Our fight on behalf of every one of these students continues,” they said.  “We know that providing access and opportunity for prospective UC students remains a priority, not just for the university, but also the state’s policymakers, as reflected in the recent state budget proposal to grow enrollment at UC.”

They noted, “This ruling is disheartening; however, our resolve is unwavering. We will do whatever we can to mitigate the harm to prospective students and to continue to serve our students.”

Senator Scott Wiener who just introduced legislation to reduce CEQA review of student housing projects said on Thursday, “It’s tragic that California allows courts and environmental laws to determine how many students UC Berkeley and other public colleges can educate. This ruling directly harms thousands of young people and robs them of so many opportunities. We must never allow this to happen again. We must change the law. And we will.”

While some slow growth advocates celebrated, it may end up being a Pyrrhic victory.

As NY Times reporter Ezra Klein noted in a tweet, “Just an insane decision. And note that this lawsuit is being brought under the California Environmental Quality Act, though everyone, on all sides, knows the issues here aren’t environmental.”

He said, “So please, stop telling me how CEQA has already been fixed.”

It’s worse than that, Klein elaborated, “The kinds of housing politics winning here do huge damage to the environment by pushing people further into car-dependent sprawl, by pushing people out of the state, and, long-term, by undermining actual environmentalists.”

In fact, as UC Davis Law Professor Chris Elmendorf pointed out, the Supreme Court decision to not intervene could be and perhaps “should be” a win for CEQA reformers.

For the first time, “this will light a fire under Legislature.”

For years housing advocates have been talking about CEQA reform, but now leaders like Governor Newsom who are in position to do something about it have suddenly found the motivation.

“We can’t let a lawsuit get in the way of the education and dreams of thousands of students who are our future leaders and innovators,” Governor Newsom said in a statement yesterday.

Elmendorf argued, “Ordinary, local byproducts of (population) growth in urban areas should not be treated as ‘environmental impacts’ under CEQA.”

Moreover, while previously efforts were talked about but dead in the water, now all of a sudden there is motivation from those who have often hesitated to touch the landmark legislation.

“Such a reform would have been a long shot prior to the Berkeley CEQA fiasco. NIMBY, labor, & nonprofit interests who butter their bread with CEQA litigation would have massed their forces against it,” Elmendorf argued.  “That they’ll still do, but now they’ll be met with an irate mass of organized, upper middle class parents, each of whom is sure their 18-year-old would have gotten into Berkeley if not for the NIMBYs’ lawsuit. The parents’ voices will be heard, loudly.”

I think that’s spot on—the politics have changed.  CEQA is a vital legislation and protection of the environment is a must, but stopping housing doesn’t protect the environment, it simply shifts where the impact goes.  That’s been one of my biggest complaints about CEQA, it doesn’t do a good job of understanding let alone evaluating the tradeoffs—if not there, then it will be somewhere else.

Moreover, Elmendorf believes that Justice Liu’s dissent “opens the door to larger changes in how courts think about CEQA remedies.”

Liu wrote, for example, “The petition by the Regents of the University of California presents significant questions regarding whether and how courts should account for harm to third parties when exercising their discretion to grant a temporary stay of a trial court injunction pending appeal.

“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,” he argued.

“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’ Liu wrote noting, “UC Berkeley is an engine for social mobility by producing many more low-income graduates than our private peers.”

Liu argued then, as Elmendorf put it, “when the interests of third parties are strong enough, a court that finds a CEQA violation should not put the agency action on hold.”

Will this lead to a renewed push for CEQA reform and give a boost to Wiener’s bill that we discussed earlier this week?  It seems likely. It even seems possible, maybe even probable, that this will lead to even stronger legislation to reform CEQA.  For the first time, perhaps, this is an actual possibility.