Seeking to re-open doors for U.S. universities that want to hold study programs in Cuba, a lawyer for an academic coalition argued this week in the U.S. Court of Appeals for the D.C. Circuit that government restrictions on education programs in Cuba infringe on professors’ constitutional rights to free speech and travel.
A three-judge panel of the D.C. Circuit heard argument from Robert Muse, representing professors from Johns Hopkins University and Howard University who say government foreign policy regulations have shut down U.S. university programs in Cuba. Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia rejected the constitutional arguments last year in granting a government motion to dismiss.
The amendments adopted in 2004 by the Office of Foreign Assets Control of the Treasury Department set a minimum duration of at least 10 weeks for educational travel to Cuba. There was no durational requirement before the amendments took effect. A professor must be a full-time faculty member. The amendments were implemented to cut down on apparent abuse of study-tour programs—where some travelers, according to the government, were engaged in “disguised tourism” under the umbrella of a university.
Muse, of Muse & Associates in the District, represented the Emergency Coalition to Defend Educational Travel; Wayne Smith, an adjunct professor of Latin American Studies at Johns Hopkins; and John Cotman, a Howard University associate professor of political science. Douglas Letter of the Department of Justice argued for the government. Circuit Judges Harry Edwards, Laurence Silberman, and Janice Rogers Brown made up the panel.
Silberman and Edwards questioned the extent to which the doctrine of academic freedom applies to individual professors rather than to the universities for which they work. Johns Hopkins and Howard were not part of the litigation. “A university makes its own determinations. Individuals don’t decide that,” Edwards said. A university, for instance, may decide to forego funding an academic program in Cuba irrespective of government regulations.
To the extent individual professors are shielded by academic freedom, Letter said, the First Amendment protects what a professor speaks about—content—rather than where the professor teaches. Letter said in court the government has no interest in regulating content. Huvelle noted that argument in her opinion.
The judges, and the attorneys, agreed that the doctrine of academic freedom has not been extensively explored in the courts. “It’s not a secret that the doctrine of academic freedom is under-explicated,” Muse said in court. “Its scope and outline is far from clear."
Challenges to government-imposed travel restrictions to Cuba and other countries have routinely been denied in U.S. courts in the face of Fifth Amendment arguments, Huvelle said in dismissing that component of the challenge.