Posted by Jonathan Adler:
Restrictions on Cuba-based Study Abroad Are Constitutional:
http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1226091375
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 [1]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 [2]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 [[3]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.
References
1.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200811/07-5317-1147415.pdf
2. http://www.ecdet.org/
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1291922
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