Unless the California Supreme Court or Legislature throws UC Berkeley a lifeline, the university will have to turn away 3,050 students the campus would otherwise enroll this fall.

That’s the result of Alameda Superior Court Judge Brad Seligman’s decision last year to cap enrollment at 2020-21 levels, after Berkeley citizens had sued the university, challenging the toll that its enrollment growth would take on city services, scarce local housing and noise. A Court of Appeals rejected UC Berkeley’s request Feb. 10 to undo that enrollment cap. Now the university is counting on the state’s highest court to intervene.

As if picking the best and brightest weren’t hard enough, the elite public university may now need to decide who to turn away from a rarefied group of 9,500 students — the number of high schoolers and community college transfer students UC Berkeley would newly enroll in a normal year.

At least one lawmaker with a say on higher-education finance matters has a preference: UC Berkeley should really just admit new Californians and deny entry to out-of-state students.

“If we did have to decrease the number of new admits, first-time freshmen or transfer students, at Berkeley because of this decision, we would absolutely prioritize California residents,” said Kevin McCarty, a Democrat from Sacramento who heads the Assembly’s budget subcommittee on education.

Prioritizing resident students isn’t McCarty’s first solution to the problem — he called Seligman’s ruling “a devastating decision” and “an overreach.”

If the state Supreme Court doesn’t halt Seligman’s order, lawmakers may scramble for a fix that could exempt public university enrollment growth from the 1970 California Environmental Quality Act — the state law at the center of the university’s legal showdown with community activists.

If California residents get priority

But another remedy appeals to legislators who have pushed the more exclusive UC campuses to better serve California taxpayers. Rather than have UC Berkeley make cuts that, under existing admission ratios, would deny some 2,400 residents admission, state lawmakers could opt to prioritize in-state applicants and turn away out-of-state newcomers entirely.

The upshot: Only about 1,000 Californians would lose a spot in Berkeley incoming fall 2022 class.

Here’s the math: Without Seligman’s order, UC Berkeley’s incoming class of 9,500 students would include 2,000 out-of-state students, said UC Berkeley spokesperson Dan Mogulof. If 21% of the incoming class was slated to be from out-of-state and that percentage applied as well to the 3,050 students UC Berkeley has to cut under Seligman’s order, then the university would have to turn away about 2,400 resident students.

If the Legislature and Gov. Gavin Newsom agree, they could insist all the cuts be from non-Californian applicants.

The UC system and UC Berkeley argue there’s social, academic and economic value in having a geographically diverse student body. But lawmakers for years have bristled at the surge of out-of-state students enrolled at UC’s campuses, especially the three most sought-after in the system — UC Berkeley, UCLA and UC San Diego — where non-resident students make up between a fifth and a quarter of undergraduate enrollment.

The systemwide average is around 17%. Before the Great Recession, just 5% of UC students were out-of-state. After lawmakers slashed state support for the UC, the system recovered revenue with steep tuition hikes and a greater reliance on non-resident students, who pay three times as much tuition as in-state students do. State support for the UCs has been slowly bouncing back. In return, legislative leaders have pressured the UC to make room for more Californians.

McCarty said that he’d support a move by the Legislature and governor to buy-out the non-resident students UC Berkeley would forgo to make room for more Californians if Seligman’s ruling stands.

There’s precedent for that. Lawmakers and the governor agreed in last year’s budget that they will pay the UC to enroll fewer non-resident students and bring in more in-state students. The money for that plan, which Newsom proposed in January, is slated to appear in the state budget that’ll be finalized this summer.

It’s unclear whether a majority of lawmakers would follow McCarty’s lead. Asked whether they would be prepared to spare California students from potential UC Berkeley enrollment cuts, neither Assembly Budget Committee chair Phil Ting, a San Francisco Democrat, nor McCarty’s Senate counterpart John Laird, a Monterey Democrat, would address the question directly.

Different remedies, tight window

Time is of the essence. The university must send out admissions decisions to students by March 24, after already sending out a round of admissions offers Feb. 11. Now, how many students they admit is up in the air.

Also on the line: gobs of money. Cutting enrollment by 3,050 students leads to a loss of $57 million in annual tuition for at least four years, the university wrote in its appeal to the state Supreme Court. Because of a shortage of classroom space and available housing, UC Berkeley argues it cannot enroll an extra 3,000 students in a future incoming class to make up the revenue hit.

Lawmakers seeking a solution on UC Berkeley’s behalf have some wiggle room. A likely path, McCarty said, is through a budget “trailer” bill, which can be introduced at any time during the legislative session and get expedited treatment.

Meanwhile, there are early signs the state Supreme Court may take on UC Berkeley’s appeal. The high court on Tuesday asked the litigants in the case for legal material, said Mogulof, the UC Berkeley spokesperson.

But even if the university prevails, it still may lose once the whole case eventually goes before the Court of Appeals.

How did we get here?

At issue is whether a new academic and housing development UC Berkeley wants to build comports with the 1970 environmental law. Critics say the university hasn’t developed enough housing for its students. That leads to more students living off-campus, which drives up rents, displaces lower-income residents and increases homelessness.Despite its size, UC Berkeley has housing space for only about 10,000 students. Though UC Berkeley wrote in 2005 that its enrollment wouldn’t expand beyond 33,000 students in 2020, in actuality the campus now enrolls more than 45,000 students — including 32,000 undergraduates.

Students walk down Telegraph Avenue with the Den student apartments and Maximino Martinez Commons visible in the background on Feb. 3, 2022. Thalia Juarez for CalMatters

Phil Bokovoy, president of Save Berkeley’s Neighborhoods, which sued UC Berkeley, told the news outlet Berkeleyside in August 2021 that this “is how UC is behaving in lots of different places — forcing its impact on communities and not doing anything about it.”

Seligman’s order is the first time the state’s environmental law has been used to cap university enrollment at the UC, wrote UC Berkeley spokesperson Janet Gilmore. Some legal scholars and lawmakers have said that if left unturned, Seligman’s ruling could be used by other groups to challenge any public college or university’s enrollment growth plans.

But if the hold-up over UC Berkeley’s expansion is insufficient student housing, the campus’s plans to build those are also in legal limbo. Two other UC Berkeley student housing projects have been challenged by community groups on environmental grounds. Those lawsuits are still pending, said Rebecca Davis, a partner with the law firm representing one of those groups suing, the American Federation of State, County and Municipal Employees Local 3299.

In the past year lawmakers have proposed or approved $7 billion in grants and interest-free loans for colleges to develop campus housing. It’s a pivot for the Legislature, which until recently didn’t take up student housing matters head on.

The environmental quality act has a “baffling consistency” in that “new population is regarded as pollution, anywhere,” said Christopher Elmendorf, a UC Davis law professor. He argues placing more people in the city of Berkeley is ultimately good for the environment: The city has a dynamic public transit system and keeps people from living in areas with sensitive habitats or that are prone to fires.

Supporters of the environmental act say it protects communities from pollution and is used as a boogeyman by public agencies and developers who want to build housing.

Prioritizing students if lower court decisions stands

At least one member of the governing body overseeing the UC system agrees that UC Berkeley should prioritize Californians if the campus is forced to pare enrollment.

“Because of the pressure from the state of California on us to try to increase the resident number, it would hurt us in that goal to take away a lot of resident spots,” said Alexis Atsilvsgi Zaragoza, a member of the UC Regents and a Berkeley undergraduate herself. She’d still want some non-resident students enrolled, however, such as low-income students and those who are the first in their families to attend college.

UC Berkeley doesn’t yet know how it will prioritize which students who’d otherwise be admitted would be denied entry, Mogulof said Tuesday. The campus also is considering having more students take classes entirely online, and paying for students close to graduation to finish over the summer.

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