With two recorded dissents, the Supreme Court today refused to consider staying pending appeal a superior court order that caps enrollment at UC Berkeley. The court, in Save Berkeley’s Neighborhoods v. The Regents of the University of California, denied review of a First District, Division One, Court of Appeal decision that in turn denied the university’s supersedeas petition. The capping order came after the superior court found the university had violated the California Environmental Quality Act (CEQA).
In denying a stay, the Court of Appeal said “it appears far more probable that the fruits of the judgment will be lost if a stay is issued than that the fruits of reversal will be lost if it does not.” That court also cited the university’s more than three-month wait before seeking a stay: “Other than to claim that either they or their counsel did not understand the nature of the judgment from which the appeal is taken, they offer no explanation for this lengthy delay.”
Justice Goodwin Liu filed a dissenting statement, which Justice Joshua Groban joined. He writes that without a stay, Berkeley “appears on the brink of enrolling nearly one-third fewer undergraduates this fall compared to last fall.”
Citing the negative effects an enrollment cap would have on, among others, prospective students (who will be denied admission), the university (which stands to lose $57,000,000 in tuition), current students (who might face “reduced resources, emptier classrooms, and a relatively anemic class of peers”), prospective students at other UC campuses (who could be denied admission because denied Berkeley applicants will enroll elsewhere), and the City of Berkeley’s community and economy (which could suffer “decreased taxes, depressed patronage of local businesses, and a reduction of the labor pool within the community”), Justice Liu says the matter “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.”
Governor Gavin Newsom filed an amicus letter supporting the university’s stay request, claiming “[t]he enrollment restriction at issue in this case will negatively affect the Governor’s proposed budget.”
Given the Supreme Court’s denial, Justice Liu’s statement additionally encourages the parties to resolve the matter themselves, saying, “given the stakes on all sides, it is hard to think of a case where a negotiated settlement seems more imperative for the good of the local community and our state.” “It is not too late to find a solution that mitigates the local community’s environmental concerns without leaving 3,050 of our young people behind,” he says. Justice Liu also suggests that Berkeley file a renewed request in the Court of Appeal for supersedeas or some lesser relief.
Justice Liu was a professor and associate dean at Berkeley’s law school. Justice Groban taught at UCLA’s law school and in the past has regularly recused himself from cases in which the UC Regents are a party.
In 2015, Justice Liu revived a long-dormant practice of issuing separate statements upon the court’s denial of review, and he has done so on a number of occasions since then. (See recently here.)
Today’s separate statement will have limited lasting visibility, because it will not be published in the court’s official reports nor can it be appended to a filed Court of Appeal opinion, which is the standard practice for separate statements when, unlike in this case, there is an opinion. (See here.)
[March 15 update: “Gov. Newsom signs law to stop UC Berkeley enrollment cuts.” The legislation is Senate Bill 118.]
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