Restrictions on Cuba-based Study Abroad Are Constitutional:

On Tuesday, while the rest of us were focused on the election, the U.S. Court of Appeals for the D.C. Circuit issued a fascinating opinion. In Emergency Coalition to Defend Educational Travel v. U.S. Department of the Treasury, the Court unanimously rejected constitutional and statutory challenges to federal regulations limiting academic study abroad programs held in Cuba. In the process, the Court offered an extended analysis of the plaintiffs' standing to challenge the regulations, and two of the judges -- Senior Circuit Judges Harry Edwards and Laurence Silberman -- authored concurring opinions on the question of whether the U.S. Constitution protects academic freedom.

In 2004, the Treasury Department tightened its regulations governing educational travel to Cuba. Concerned that some individuals took advantage of educational programs to engage in otherwise-illegal tourism or business activities, the Department decided to restrict authorized educational programs to those that consist of at least one full academic term of ten-weeks or longer and limiting participation in such programs to students enrolled full-time and faculty "regularly employed" at the offering institution. A practical effect of this rule was to eliminate shorter educational programs and prevent students studying at one school from participating in a Cuba study-abroad program offered by another school.

The Emergency Coalition to Defend Educational Travel (ECDET), was formed to challenge the "savage" 2004 revisions and "to defend the freedom of U.S. professors and students to design, teach, and attend courses in Cuba free of U.S. Government diktat." ECDET argued that the 2004 revisions were unconstitutional insofar as they violated its members' right to "academic freedom" under the First and Fifth Amendments and their right to travel internationally.

After concluding that ECDET had standing to challenge the regulations, the Court rather easily dispatched the coalition's constitutional claims. As understood by the court, the coalition's academic freedom claims were essentially claims that regulations imposed unconstitutional burdens on coalition members' free speech rights. The regulations at issue impose no content-based restriction on the speech or expression of any of the coalition's participants and, the Court concluded, furthered an important governmental interest in restricting travel to Cuba and support for the Cuban regime, such as by restricting the regime's access to hard currency. Even though the regulations had the practical effect of virtually eliminating certain types of academic programs in Cuba -- and therefore eliminated academic content unavailable elsewhere -- they are still content neutral. The Court gave even less credence to ECDET's right to travel argument, found little basis to question neutral travel restrictions imposed across-the-board on all American citizens due to foreign policy concerns.

Senior Judges Edwards and Silberman both wrote concurrences addressing the broader question of whether there is a constitutionally protected right to academic freedom beyond the express protections afforded by the Bill of Rights. As Judge Edwards noted, in this case, ECDET's members relevant First Amendment rights wee "coterminous with any applicable rights to academic freedom." As a consequence, he noted, there was no need for the Court to consider the scope or contours of any broader right to academic freedom, such as the extent to which an educational institution or professors have a right to govern their institution free from government interference.

Academic freedom is not an easy concept to grasp, and its breadth is far from clear. It has generally been understood to protect and foster the independent and uninhibited exchange of ideas among teachers and students and the serious pursuit of scholarship among members of the academy. However, as Professor [Judith] Areen notes in her article [Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, 97 GEO. L.J. ____ (forthcoming Apr.2009)], academic freedom as a First Amendment concept may extend beyond writing and teaching and include concepts of “shared governance.”
Edwards further noted that several justices have suggested that there may be constitutional protection for academic expression that is more expansive than might otherwise be suggested by the Court's approach to employee-speech. Nonetheless, Judge Edwards noted, ECDET's claims did "not raise any serious questions about the contours of academic freedom," so there was no need for the court to leave such questions unresolved.

Judge Silberman, who also wrote the opinion for the Court, wrote a concurring opinion of his own. According to Judge Silberman, "the very notion of academic freedom–as a concept distinct from the actual textual provisions of the First Amendment–is elusive." He found little basis for concluding that academic freedom, understood as "shared governance" within the university, was entitled to constitutional protection. After all, he wondered, why would universities be entitled to such special treatment?

With great respect for my colleague, Judge Edwards (and Professor Judith Areen), I do not perceive any principled reason why the First Amendment should be thought to protect internal governance of certain academic institutions (are “think tanks” included?) but not other eleemosynary bodies or, for that matter, trade unions or corporations.
It is hard to question the importance of universities, and other institutions of higher learning, to the maintenance of a free and orderly society. Yet this does not mean that such institutions, as such, are entitled to special constitutional protections above and beyond those provided by other recognized rights.