Lawmakers work around court's Berkeley student cap

Calling a recent state Supreme Court decision to deny a petition for review and application for stay "misguided," two Democrat legislators introduced a bill that could circumvent a student enrollment cap at Berkeley in a move that appears to have bipartisan support.

"We would like to see this problem fixed. There are 3,000 students who are expecting to go to a premier university and they are being prohibited from doing that because of bad law and policy," said state Assembly Minority Leader James Gallagher, R-Yuba City.

On Friday, Assembly Speaker Anthony Rendon, D-Lakewood, and Assembly Budget Chair Phil Ting, D-San Francisco, introduced SB 118. The bill gives higher education leaders 18 months to address California Environmental Quality Act issues before decisions impacting enrollment growth can be issued.

The Senate introduced the same bill, AB 168, on Friday. The full budget committee scheduled an information hearing for Monday.

"When our legislation passes and allows the law to be applied retroactively, UC Berkeley will be able to resume its enrollment plan, which was disrupted by a misguided court order," they said in a joint statement on Friday.

"The California Supreme Court issued a one-sentence order denying review of the lower court order," said Richard M. Frank, director of the California Environmental Law and Policy Center at UC Davis on Friday.

"So it seems to me a bit excessive to excoriate that court for the actions of the superior court and Court of Appeal below," Frank said.

Frank added that he agrees with critics who disagree with the scope of remedy imposed by the lower courts: capping student enrollments at UC Berkeley.

"While it seems reasonable to require the university to redo the environmental analysis for the project - expansion of the Goldman Center at U.C. Berkeley - the trial court's imposition of the hard cap on new U.C. Berkeley student enrollments seems to me the equivalent of launching a missile to destroy a mouse," he said.

The Judicial Council of California declined to comment about allegations of the Supreme Court's decision being misguided, citing an appeal that's pending before the 1st District Court of Appeal: Alameda Superior Court Case, RG19022887, and Save Berkeley's Neighborhoods et al. v. the Regents of the University of California, A163810.

On March 3, the Supreme Court rejected on procedural grounds the University of California's bid for a stay of a lower-court ruling that limited the number of students UC Berkeley can enroll this fall. Justices Goodwin H. Liu and Joshua P. Groban dissented. Save Berkeley's Neighborhoods v. The Regents of the University of California (American Campus Communities), S273160.

On March 5, Save Berkeley's Neighborhoods offered to engage in settlement talks "to mitigate harm to California high school seniors."

The group offered to provide partial relief to UC Berkeley, stating that it would agree to increasing enrollment in 2022-2023 from the current court ordered level of 42,347 to 43,347, provided that 90% or more of the new undergraduate students are California residents. The increased number would have been about the same as the university's fall 2019 pre-pandemic level.

The group said UC would need to agree to not exceed total enrollment of 43,347 for the 2022-2023 academic year through further legal action in the courts or Legislature.

Phil Bokovoy, president of Save Berkeley's Neighborhoods, said the offer received no response. "Clearly they were working on SB 118 and saw no reason to respond," he wrote by email on Friday.

In a statement after SB 118 was announced, Bokovoy said: "While politicians have been saying that CEQA views students as 'pollutants,' the real issue is that population growth, students or otherwise, causes environmental impacts that need to be analyzed and mitigated."

Bokovoy said that increased population density -- for any development -- results in environmental impacts that must be analyzed.

"This misguided bill gives the UC a unique free pass to avoid analyzing impacts associated with its own enrollment decisions directly impacting population density on campus and in the surrounding communities," Bokovoy said.

Ting and Rendon said their trailer bill strikes a balance.

"It aims to make sure that environmental analysis of campus development plans continues to consider campus population impacts, while also giving higher education leaders a chance to remedy deficiencies before enrollment reduction mandates are issued," they stated.

According to Gallagher, a UC Berkeley graduate, both parties have viewed CEQA as an obstacle to fixing California's housing crisis. "The way CEQA is currently written, it stops much needed housing from moving forward and I want to solve this issue by reforming CEQA at a greater level," he said.

In a bill co-written by Gallagher and Timothy Grayson, D-Concord, future challenges to housing development could come at a price.

In February, they introduced AB 2445, which would require a person seeking judicial review of the decision of a lead agency made pursuant to CEQA to carry out or approve an affordable housing project to post a bond of $500,000. The bond would be used to cover costs and damages to the affordable housing project incurred by the respondent or real party in interest.

The bill stipulates that the court could waive or adjust the bond requirement, however, upon a finding of good cause.

On March 3, the bill was referred to the Assembly Natural Resources and Judiciary Committee.