It once sued Cal over rising enrollment. Now the Berkeley City Council will go to court to defend the university.

The City Council voted Friday morning to file a legal brief opposing a court ruling that would cap UC Berkeley student enrollment.

UC Berkeley with Wheeler Hall and the Campanile.
Wheeler Hall and the Campanile. Credit: UC Berkeley

The Berkeley City Council will vote Friday morning on whether to file an amicus brief with the California Supreme Court asking it to overturn a lower court’s ruling that UC Berkeley must cap its enrollment at 2020-21 levels.

The cap, originally ordered by Alameda County Superior Court Judge Brad Seligman, means that unless the Supreme Court intervenes, Cal will admit about 5,100 fewer students for the fall than originally planned, which will ultimately reduce the incoming class by about 3,000 students. That will not only harm hard-working seniors and transfer students, but Berkeley’s tax base, said Mayor Jesse Arreguín. UC Berkeley has estimated that the enrollment dip would mean a loss of $57 million in revenues.

Not too long ago, the city of Berkeley had filed a lawsuit very similar to the one that resulted in the courts ordering an enrollment cap. In June 2019, Berkeley challenged the environmental impact report of a project known as the Upper Hearst Development. Berkeley filed the lawsuit because it was dismayed that Cal had evaluated a 30% jump in student enrollment as part of the EIR of the Upper Hearst project instead of examining it separately. The neighborhood group Save Berkeley’s Neighborhoods also filed a complaint, and for a time the two actions were considered together. Save Berkeley’s Neighborhoods is the organization that won the ruling that resulted in the enrollment cap.

The fact that Berkeley has switched sides in the dispute reflects how much its relationship with Cal has changed since July. That’s when the two parties signed an agreement that guaranteed the university would pay Berkeley $82.6 million over 16 years to mitigate its impacts and the use of city services. As part of the settlement, Berkeley agreed to withdraw from the lawsuit it filed against the Upper Hearst Project as well as one against a plan to build a beach volleyball complex at the Clark Kerr campus. (Save Berkeley’s Neighborhoods and other groups are still pursuing that suit.) Berkeley also promised not to sue over Cal’s new long-range development plan, which it had once criticized as flawed and inadequate.

The July settlement also established a process for Berkeley and the university to work together to address longstanding issues, including the dire need for student housing, encouraging Cal to build on its own, rather than city property, and to commit funds to improve the physical landscape for neighborhoods within a half mile radius of the main and Clark Kerr campuses, among other proposals.

Arreguín said the city has come to understand that it needs to work with Cal, instead of against it, to mitigate the impacts of its growth. “We have been working with the university over the past several years to strengthen our relationship … to ensure that town and gown can work together because it’s one city.”

While Berkeley once felt that Cal’s EIR on the Upper Hearst Project was flawed, and supports a redo, it never advocated for an enrollment cap, he said.

“The campus will need to grow because the state is growing,” said Arreguín. “The question is how will they grow and how will we work with them to grow, how we will shape that growth? I do think there needs to be checks and balances on development. While the university needs to be a good neighbor, I think, in this ruling, the court used a hammer instead of a scalpel.”

UC Berkeley has asked the California Supreme Court to overturn a Feb. 10 ruling by the First Court of Appeal upholding a lower court ruling setting an enrollment cap. Cal is hoping the high court will act fast as it must mail out fall 2022 admissions by March 24. Almost 150,000 students have applied.

The high court has not yet indicated if it will take up the issue but it did ask for briefs to be filed in the case by Friday, according to Phil Bokovoy, the president of Save Berkeley’s Neighborhoods.

Sather Gate on Sept. 23, 2020. File photo: Pete Rosos

The enrollment cap ruling has been widely criticized ever since UC Berkeley sent out briefings on the situation on Monday. Arreguín and City Council members Lori Droste and Rigel Robinson wrote an op-ed for the Los Angeles Times against it. It has also garnered national media attention, with stories in the New York Times, Los Angeles Times, the Guardian, the National Review, Politico and elsewhere.

Many critics have called the court ruling an abuse of the California Environmental Quality Act, known as CEQA. Traditionally CEQA is used to assess the impacts of roads, buildings and complexes, not population growth.

“This lawsuit is an outrageous example of the perverse use of the California Environmental Quality Act (CEQA) to block growth and change at any cost,” East Bay for Everyone, a housing advocacy organization, wrote in a press release. “CEQA is a law that historically was intended to protect the environment, but more recently, it has been used to block construction of all types, including bike lanes, public transit, and affordable housing. In fact, 64% of petitioners filing CEQA lawsuits are either individuals or local “associations” that often have no prior track record of environmental advocacy. That CEQA has been used extensively outside of its intended purposes has been well-documented.”

Many Berkeley students are disturbed by the enrollment cap, said Brandon Yung, the chair of the ASUC Housing Committee.

“As a child of a single mom and an immigrant able to attend UC Berkeley, [I got] to open the golden doors,” Yung said. “To shut the doors for a diverse generation of Californians because a small group of homeowners with too much time on their hands is a blow to every value this community stands for.”

Abby U., a 17-year-old senior at Maybeck High, said she got the letter UC Berkeley mailed out on Valentine’s Day to applicants and is disappointed that her chances of getting into Cal have decreased. She often goes to campus during her lunch hour and walks around and talks to students. While she has applied to other UCs as well as private colleges, she “loves the idea of going to school at UC Berkeley.”

“It’s easier on my brain,” said Abby, who asked to use a last initial rather than her last name. “I know where everything is. It would be an easy transition for me that would be very appealing.”

Save Berkeley’s Neighborhoods has also been criticized, with people saying it is a NIMBY group made up of wealthy white homeowners who want to pull the ladder up behind them. Critics have pointed out that Save Berkeley’s Neighborhoods has complained that the lack of housing has pushed students into mini-dorms with 12 to 18 people per house creating noise and litter problems. At the same time, they say, the group has fought the construction of more dense projects that would increase student housing, such as the Upper Hearst Development, which would offer apartments to about 150 junior faculty and graduate students.

Yung said that the premise of Save Berkeley’s Neighborhoods argument — that enrollment increases have led to a surge of students in the Southside — is wrong. He said he looked at census data to track the student composition in neighborhoods south of campus and found that the rate had stayed steady, at about 70%, for decades.

Bokovoy disputes Yung’s assertion. He says Cal’s unrestrained growth has created the problem, and it must be addressed — a viewpoint the courts have agreed with.

“UCB wants to admit 3,050 additional students with no provision for them to be housed, adding to the more than 30,000 students who are currently not housed by UC,” Save Berkeley Neighborhoods said in a statement on Thursday. He says Cal had added 14,000 students since 2005 but only 1,600 beds. “In SBN’s suit against UC under the California Environmental Quality Act (CEQA), Judge Brad Seligman of the Alameda County Superior Court agreed with SBN’s position that UC must stop increasing enrollment in Berkeley until it complies with laws requiring that it analyze and mitigate the housing impacts of its enrollment increases.  For example, in a recent three year period, the number of low income households in the south campus area fell by more than 11% as they were displaced by students. SBN has submitted extensive evidence on displacement in its filing today.”

There are other groups besides Save Berkeley Neighborhoods fighting against the university’s growth. A number have filed lawsuits against the city and the university to stop the construction of student housing in People’s Park.

The Berkeley Architectural Heritage Association is holding an event Thursday night featuring Davarian L. Baldwin, author of In the Shadow of the Ivory Tower, How Universities are Plundering Our Cities.

“Ever-higher property taxes. Loss of affordable housing. Destruction of historic fabric. What do they have in common?” reads the invite on BAHA’s website. “They’re all associated with the presence of a large university in your town. The ‘gown swallows town’ phenomenon is not unique to Berkeley. As universities are transforming themselves into billion-dollar hedge funds with schools attached, multiple cities nationwide face trials similar to ours.”

Update, Feb. 18: 10:50 a.m. The council voted unanimously to file the amicus brief. City Councilmember Ben Bartlett was not at the meeting.

Frances Dinkelspiel is co-founder and executive editor of Cityside. Email: frances@citysidejournalism.org.