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.

Absent clear and present danger, I cannot see any justification for denying American citizens the right to travel wherever in the world they desire to go.

The restrictions on travel to Cuba are nothing more than pandering to a right-wing Cuban exiles.
11.7.2008 6:27pm
Dilan Esper (mail) (www):
Several observations:

1. Under the relevant Supreme Court precedents, there is no right to travel to Cuba.

2. Academic freedom is protected as an aspect of free speech, but the state interests identified in the "no right to travel to Cuba" cases (i.e., the power of the political branches to impose uniform policies on issues of economic sanctions and similar foreign relations issues) render valid, under current doctrine, travel restrictions that extend to academics.

3. This doesn't mean that the travel ban is good policy. It isn't. It's stupid and counterproductive.

4. I would also be sympathetic to recognition of a more robust right to international travel, but I understand that it would create practical problems not only involving economic sanctions / foreign policy but also travel to war zones and enemy territory and travel to escape the American justice system.

5. Just an observation, but my experience is that the "educational travel to Cuba" was an actual loophole in the travel ban, and that many tourism-related excursions were packaged as educational, journalistic, scientific, etc., in order to get around the ban.
11.7.2008 6:44pm
Bill McGonigle (www):
Eh, go for the gusto next time. The Constitution only allows Congress to regulate Commerce with other countries, not restrict the travel of citizens.
11.7.2008 7:43pm
byomtov (mail):
my experience is that the "educational travel to Cuba" was an actual loophole in the travel ban, and that many tourism-related excursions were packaged as educational, journalistic, scientific, etc., in order to get around the ban..

I think this is true, but I also think the travel ban is idiotic (as Dilan Esper does) so I approve of ploys to evade it.

Can we get rational about Cuba, folks?

Where are the libertarians when we need them?
11.7.2008 9:45pm
Beyond the matters of assessing our Cuba policy and debating the "right to visit any country I want," there is the assertion here of the positive obligation of the government to protect "academic freedom."

What an odd invention. It doesn't help the cause that the concept is either: (a) very specific, in its original meaning, and hence irrelevant to this case; or (b) so vague that such a right could not possibly be protected; any more than could a right to "the integrity of an individual thoughts."

But if an academic /wants/ it, there must be a /right/ to it--I guess.
11.7.2008 9:59pm
Stipulate: Given the chance to travel to Cuba to do research, I would go in a heartbeat. If someone else pays.

But I have no /right/ to go to Cuba to do research, and so I'll have to write my next book on something else. I can't imagine anyone's life will be impoverished as a result. Not even mine.
11.7.2008 10:01pm
false assumptions:
Actually, I think it is very easy to question the importance of universities to the maintenance of a free society. After all, Germany was the "nation of universities" in the period preceding the rise of the Nazis and was the birthplace of communism as well. As university education has spread in the U.S., all sorts of freedoms, economic freedom being the most significant, have been reduced.
11.7.2008 11:36pm
This is interesting. I was participating in one of the now-prohibited short-term educational trips to Cuba in the summer of 2004. My program ended about a week before the U.S. government changed the rule. I was there with NYU's summer program, which involved a 4-week stay in Havana while taking 2 courses with NYU and University of Havana faculty. Everyone in my program was either a full-time NYU student or a full-time student of another college. It was a fantastic opportunity, but I don't think the current restrictions are that bad. If you're a full-time student, you can still go to Cuba as long as you spend a full semester there.
11.8.2008 12:09am
The Constitution gives Congress, not the U.S. Treasury, the power to make laws. How is a travel ban imposed by the U.S. Treasury binding on anyone? What's next? What if the U.S. Treasury were headed by a Muslim or an Orthodox Jew who declared that it was prohibited to eat pork?
11.8.2008 1:29pm
The basis for the series of "First Amendment penumbra" cases starting with Society of Sisters v. Pierce, including Sweenee v. New Hampshire, and cumlnating with Griswold v. Connecticut, is that freedom of speech and political thought does not occur in a vacuum but requires the existence of traditional institutions that have some independence from the government. Under the theory, government cannot completely outlaw or totally regulate private schools, universities, and parenting because these traditional institutions have a direct relationship with preserving and transmitting alternative viewpoints.

Griswold was the last case to attempt to make an argument that there was a relationship between the conduct it held protect and the First Amendment. Eisenstadt explicitly abandoned this reasoning, holding that its concept of liberty applied to individuals independently not only of any institution, but of any claim of relationship to the First Amendment or any other specifically enumerated constitutional value. The Court abandoned any pretense of relation to the written Constitution, holding only that substantive due process granted it a bare power to veto laws that interfered with individual decisions that it thought important.

Whereas as late as Griswold there at least a claim of textual basis, today the only reason why substantive due process applies to marriage and not work is that the Justices think people's vocations unimportant. (Why don't the Justices think people's vcational decisions are important? Why don't they like work, Dr. Fell? The reason why I cannot tell. Perhaps the Justice's current preference for sexual as opposed to vocational decisions is a simple matter of class-based animosity against people with different priorities. Whatever the basis, it has no connection to anything in the Constitution. It floats in the air, living only as long as a majority of the court of the day happens to believe it.

So it's not surprising that courts are getting rid of the old institutionally based protections. When liberties depend only on judge's day-to-day whims, no liberty is secure. Whims change from day to day. There's an arbitrariness to these sorts of caprices.

I think Sweeney was soundly decided, and the concept of special protection for institutions historically closely connected to the First Amendment -- schools, universities, marriages, newspapers, and the like -- and can be logically extended to novel institutions having a similar effect as they arise. However, any protection has to have an actual, demonstrable relationship to the First Amendment itself. The institutions don't get a blanket free pass from generally applicable laws, they have to make a showing that a law will obstruct their first amendment function for the protection to apply.

Since the first amendment doesn't address foreign travel and the U.S. has plenary power over foreign commerce, I don't think this concept of academic freedom prevents restrictions on travel to Cuba.
11.8.2008 8:06pm
Visitor Again:
my experience is that the "educational travel to Cuba" was an actual loophole in the travel ban, and that many tourism-related excursions were packaged as educational, journalistic, scientific, etc., in order to get around the ban

Loophole, schmoophole. This ridiculous effort to categorize travel as either educational or tourist or scientific merely underlines the stupidity of the ban.

It would be quite difficult to travel to a foreign country without obtaining some educational benefit, even if the traveller is bent on seeking pleasure. Even activities that give pleasure are educational.

The Venceremos Brigade people went to Cuba to show solidarity with the Cuban Revolution. But they also learned a lot and got great pleasure from the experience. For most of them, it was one of the most educational experiences of their lives.

Our new President-Elect recognizes that putting countries that offend us into an isolation chamber is counter-productive. May we restore free travel to and full relations with Cuba. The ban was unjustified before the Iron Curtain fell. Now it's mere stupidity.
11.8.2008 11:24pm
ReaderY: "Since the first amendment doesn't address foreign travel and the U.S. has plenary power over foreign commerce, I don't think this concept of academic freedom prevents restrictions on travel to Cuba."

Foreign commerce is usually thought of as import and export of goods and services. I get the idea that the U.S. government might regulate imports from Cuba or exports to Cuba. I don't get that there is a Constitutional basis for Treasury to say that American citizens can't visit Cuba.
11.8.2008 11:38pm
"Commerce" has referred to the movement of people as part of its "plain meaning" at least since the Mann Act was upheld almost a century ago. But "foreign commerce" is a slightly different animal from "interstate commerce." In my view , as a general matter, Due Process of Law simply does not include the right to travel to other countries.

The government's powers are at their apogee and individual rights at their perigree in matters involving foreign relations outside of U.S. territory.
11.9.2008 3:57pm
Clarification: I'm not offering a policy judgment on the travel ban to Cuba. It's merits are certzinly questionable. I'm simply saying that it is within the power of the politicsl brsnches of government to ensct it. Foreign policy is an area where proceeding solely on the basis of ideological theories, such as theories of rights, is particularly likely to founder. One has to deal with the world as it is, right or wrong.

It would be absolutely horrifying to me if courts managed to get us into a war on a path paved with judicial orders. Any attempt by the courts to micromanage foreign policy runs that risk. Actions that can get us into wars need to be accountable to the people.

If current foreign policy is bad, the proper remedy lies in legislation, and if the current political cast of characters is unreasonable, the remedy for that lies in the voting booth, not the courts. People appear capable of using that resort when they really want change.
11.9.2008 4:07pm
I obtained a Treasury Department license and traveled to Cuba for a medical conference about 15 years ago. Never went to any of the scientific sessions, but did look about for a week. Highly educational, leaving no doubt in my mind what a disaster the advent of Castro and communism had been for the country. Hopefully, he will dies before much longer and change will then become possible.
11.12.2008 12:27am