Emergency Coalition to Defend Educational Travel v. United States Department of Treasury

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2008 Decided November 4, 2008

No. 07-5317

EMERGENCY COALITION TO DEFEND EDUCATIONAL TRAVEL,

ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF THE TREASURY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 06cv01215)

Robert L. Muse argued the cause and filed the briefs for

appellants.

Douglas N. Letter, Litigation Counsel, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

was Gregory G. Katsas, Acting Assistant Attorney General. R.

Craig Lawrence, Assistant U.S. Attorney, entered an

appearance.

Before: BROWN, Circuit Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.

2

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

Concurring opinions filed by Senior Circuit Judges

EDWARDS and SILBERMAN.

SILBERMAN, Senior Circuit Judge: Appellants include an

association of academics–the Emergency Coalition to Defend

Educational Travel (the “Coalition”)–two college professors,

and three undergraduate students. They sued the Secretary of

Treasury and the Office of Foreign Assets Control within

Treasury (the “Office”) asserting that the 2004 amendments to

the Office’s regulations governing the Cuba trade embargo,

which tightened restrictions on Cuba-based study programs,

violated the First and Fifth Amendments of the Constitution, as

well as the APA. The district court, in a thoughtful opinion,

granted the Government’s motions to dismiss. We affirm.

I

In 1963, President Kennedy exercised his broad authority

under the Trading with the Enemy Act, 50 U.S.C. App. § 5(b)

(the “Act”), to impose a comprehensive trade embargo against

Cuba. Pursuant to a presidential designation under the Act,

Treasury is the agency responsible for administering the

embargo regime, and Treasury has in turn delegated the

promulgation and implementation of the regulations thereunder

to the Office. Cuban Assets Control Regulations, 31 C.F.R. Part

515. While the regulations were initially issued in order to

combat subversive activities undertaken by the Castro regime

throughout Latin America, over the years, their scope and

stringency have waxed and waned in response to the shifting

foreign policies of succeeding presidential administrations. The

essential objective of the embargo, however, has remained the

3

same: to isolate the Cuban government by depriving the island’s

economy of the benefit of U.S. dollars.

Under the present regulations, the Office authorizes travel

to Cuba via the issuance of either a general or a specific license.

A general license is made available for travel related to official

government business and, in certain defined circumstances, for

journalistic or professional research activities. Specific licenses

are dispensed on a “case-by-case basis” for all other purposes,

including, inter alia, travel connected with familial obligations,

religious activities, humanitarian projects, and cultural

performances or exhibitions. Under the regulations, accredited

U.S. undergraduate or graduate degree-granting academic

institutions are eligible to obtain a specific license so as to allow

qualified individuals to engage in an enumerated list of

activities, including “participation in a structured educational

program in Cuba.” This limited exemption for selected

educational activities has been in effect since 1999.

At immediate issue in this suit are certain 2004 amendments

to the Cuba travel restrictions that resulted in a diminution of

this exemption. These amendments were inspired by the

recommendations of the interagency Commission for Assistance

to a Free Cuba, established in 2003 by President George W.

Bush. Secretary of State Colin Powell chaired the Commission,

which was composed of high-level representatives from a

variety of executive agencies, including the Secretaries of

Treasury, Housing and Urban Development, Commerce, and

Homeland Security, as well as the President’s National Security

Advisor. President Bush directed the Commission to report to

him on how the U.S. Government might best induce the peaceful

fall of the Castro dictatorship. Among the stated objectives of

the Commission was to strengthen enforcement of travel

restrictions in response to a perception that travel licenses had

4

been abused as a covert means to undertake illegal business or

tourist travel.

In May 2004, the Commission submitted its Report.1 The

Commission noted that the Castro regime has aggressively

promoted tourism as an integral part of its strategy for retaining

its grip on power. The Commission observed that while some

participants had used the specific licenses in accordance with

their intended academic objective, less scrupulous travelers and

universities had circumvented the embargo by using the licenses

for improper tourist purposes. And the Report was particularly

dubious of certain study-abroad programs of short duration that

allowed for minimal cross-cultural interaction with Cuban

citizens and provided for excessive unstructured time during

which participants might pursue purely tourist activities.

Concern was expressed that such programs were often cynically

manipulated by the Cuban regime to coat the repressive

Communist state with a patina of reasonability, openness, and

legitimacy. The Report concluded that a requirement that

specific licenses for educational activities be granted solely to

semester-length (i.e., ten weeks or more) programs would retain

the benefits of promoting the study of Cuba and of diffusing

American values throughout the island nation while curtailing

abuses.

The 2004 amendments to the regulations resulted. First, a

durational requirement for educational programs conducted in

Cuba by U.S. academic institutions was added to the travel

restrictions whereby any such program must last for at least one

full academic term of no fewer than ten weeks. Second, the

1

Commission for Assistance to a Free Cuba, Report to the

President (2004).

5

amendments require that any student traveling to Cuba under the

specific license of an academic institution must be enrolled in

either an undergraduate or graduate degree program at such

institution–i.e., cross-registration in a course offered by another

university would no longer be permitted. Finally, the amended

regulations plainly state that any faculty teaching under the

auspices of an academic institution’s license must be “full-time

permanent employees” “regularly employed in a teaching

capacity at the licensed institution.” The Coalition claims that

this final requirement is new as of the 2004 amendments; the

Government disputes this and asserts that the amendments

merely clarified requirements contained in the existing

regulations.

The Coalition is an organization of over four hundred

academic professionals employed by accredited U.S. colleges

and universities, both state and private. The group was formed

in response to the 2004 amendments, and its sole purpose is to

seek rescission of the amendments, or, in the Coalition’s more

colorful language, “to defend the freedom of U.S. professors and

students to design, teach, and attend courses in Cuba free of U.S.

Government diktat.”

Appellant Dr. Wayne S. Smith, Ph.D., is the Chairman of

the Coalition and an Adjunct Professor of Latin American

Studies at Johns Hopkins University. He also serves as Director

of Johns Hopkins’ Cuba Exchange Program, and between 1997

and 2004, Smith taught annual inter-session courses to

American students enrolled in the program. He asserts that the

2004 amendments not only resulted in the cancellation of the

exchange program but also bar him personally from teaching in

Cuba due to his status as an adjunct professor. Appellant Dr.

John Walton Cotman, Ph.D., is an Associate Professor of

Political Science at Howard University and specializes in the

6

study of international relations and comparative politics in the

Caribbean region. Cotman claims that the 2004 amendments

prohibit him from teaching courses offered in Cuba by other

universities. Appellant Abby Wakefield was a Johns Hopkins

sophomore when this suit was filed. She has been informed by

Smith, speaking in his capacity as head of the Cuban Exchange

Program, that the university’s inter-session courses will resume

immediately should the challenged rulemaking be rescinded and

that she will be accepted into the first such program.

Appellants argue that the 2004 amendments caused the

cancellation of virtually all of the courses offered in Cuba by

U.S. universities. They claim that the ban on the prior practice

of aggregating students from a variety of universities into one

course offered by a single institution has made it economically

infeasible for most universities to continue to offer courses in

Cuba, given the limited resources available and the relatively

small number of students interested in Cuba study at any one

university. It is also asserted that the requirement that teachers

of Cuba courses be “full-time permanent employees” “regularly

employed in a teaching capacity at the licensed institution” has

drastically reduced the pool of professors eligible to teach such

courses. For example, this restriction, appellants argue, has

precluded Smith (qua adjunct professor) and Cotman (qua guest

professor) from teaching in Cuba. Finally, appellants argue that

the minimum duration requirement prevents most interested

students from studying in Cuba, since the standard graduation

schedule cannot accommodate a ten-week semester devoted

solely to the pursuit of one course.

The Coalition brought a mix of constitutional and statutory

claims in the district court. They claimed that the amendments’

“savage” restrictions on U.S. academic programs in Cuba

unconstitutionally violate their rights to academic freedom under

7

the First Amendment and the Fifth Amendment’s “substantive

due process clause” [sic] and their rights to travel internationally

for First Amendment purposes under the Fifth Amendment.

Appellants claimed, moreover, that the amendments violate the

Act and the APA.

The Government responded that each of the appellants lacks

standing to bring the asserted challenges, arguing that appellants

had not sustained an injury-in-fact of sufficient concreteness or

imminence and that appellants had failed to demonstrate that a

favorable decision would redress the alleged injury, because any

such relief depends on the independent action of non-party

universities. On the merits, the Government argued (i) that the

2004 amendments are a reasonable interpretation of the Act and

moreover fall squarely within the Executive Branch’s inherent

foreign policy powers and (ii) that the amendments did not

deprive appellants of any constitutional right.

The district court rejected the Government’s standing

challenge as to Smith and Wakefield as individuals, as well to

the Coalition as an association. Emergency Coalition to Defend

Educational Travel v. Dep’t of Treasury, 498 F. Supp. 2d 150,

161 (D.D.C. 2007), but described the issue as “close.” Id. at

158. Cotman was held to lack standing on the grounds that he

had failed to demonstrate sufficiently concrete plans or

opportunities for educational travel to Cuba. Id.2

2

The district court further observed that the claims of appellants

Jessica Kamen and Adnan Ahmad would be moot if, as anticipated,

these two students in fact graduated from Johns Hopkins in 2007. The

court declined to address this issue at length, however, given its

conclusion that the two lacked standing on the basis that they lacked

concrete travel plans. 498 F. Supp. 2d at 158 n.3.

8

The court also held that even assuming, arguendo, that

appellants possess a right to academic freedom, no violation of

any such right occurred as a result of the 2004 amendments,

since the regulations in question are content-neutral and

supported by an important and substantial governmental interest.

Id. at 161. Appellants’ Fifth Amendment arguments were

rejected as “simply wrong.” Id. at 163. Finally, the court held

that both of appellants’ statutory arguments–that the 2004

restrictions are not rationally related to the purposes of the Act

and that the amendments contravene the will of

Congress–lacked merit. Id. at 164.

This appeal followed.

II

The Government reiterates its contention that none of the

appellants has standing and that we therefore lack jurisdiction

over the case. Of course, if any one of appellants has standing,

we have jurisdiction. The Government claims that Dr. Smith is

the linchpin of the appellants’ standing case: the standing of

both the Coalition and Wakefield is dependent on him. We

therefore address Smith’s claim first.

Smith asserts that in each year from 1997 until the 2004

regulations were promulgated, he had taken fifteen to twenty

students for three-week January study programs in Cuba. He

also frequently took groups of six to eight students for a similar

three-week course in June. Smith claims to have been injured

by each of the three amendments at issue. The full-time faculty

requirement most directly affects Smith, as he neither holds a

full-time position at Johns Hopkins nor intends to do so in the

future. The non-aggregation and minimum duration

requirements allegedly injure Smith by drying up the funds

9

necessary to support the Cuba program at Johns Hopkins and by

driving away the program’s student clientele, respectively, thus

denying Smith the opportunity to teach in Cuba. Despite the

success of the Cuba courses to date at a university known for its

study abroad offerings, the 2004 amendments are alleged to

have forced Johns Hopkins to cancel the inter-session programs.

Smith states that he and Professor Eduardo González had

already made concrete plans for the January 2005 course and

were intent upon continuing the program into the indefinite

future. He further indicates that the two professors “doubtless”

would have “accompanied the group to Havana and shared in

teaching the course.” The district court thought that appellants

had “the better argument [in] that their concrete and definite

statements of future plans elevate their claims beyond the realm

of hypothetical intentions and suffice to support a finding of

injury-in-fact.” 498 F. Supp. 2d at 158.

We agree. Although the Supreme Court has said that

“‘some day’ intentions–without any description of concrete

plans, or indeed even any specification of when the some day

will be–do not support a finding of the ‘actual or imminent’

injury that our cases require,” Lujan v. Defenders of Wildlife,

504 U.S. 555, 564 (1992) (emphasis in original), the consistent

annual repetition of the January program over several years

culminating in concrete plans for the content and focus of the

2005 program are plainly far more concrete and specific than

mere “some day” intentions.

Notwithstanding, the Government insists Smith cannot

establish injury-in-fact because it reads the pre-amendment

regulations as barring part-time faculty from teaching in Cuba.

Thus, according to the Government, even were the 2004

amendments to be rescinded, he would be ineligible to teach in

Cuba. The prior regulations were, however, ambiguous:

10

The organization of and preparation for transactions

and activities described in paragraphs (a)(2)(i) through

(a)(2)(vi) of this section by a full-time employee of a

U.S. academic institution. An individual engaging in

such transactions must carry a written letter from the

individual’s U.S. academic institution, citing the

number of that institution’s specific license and stating

that the individual is regularly employed there.3

It is not clear whether this provision meant that those who

“organize and prepare” teaching activities include the faculty

who do the teaching. It is evident that the Office must have

thought the prior regulations did not clearly reach someone like

Smith, for otherwise the relevant amendment would not have

been introduced. In any event, the Government is mixing a

merits question into the standing analysis, which is improper.

In considering standing, we must assume the merits in favor of

the party invoking our jurisdiction. See Warth v. Seldin, 422

U.S. 490, 500 (1975); see also Parker v. District of Columbia,

478 F.3d 370, 377 (D.C. Cir. 2007), aff’d on other grounds sub

nom. District of Columbia v. Heller, 128 S. Ct. 2783 (2008);

City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003);

Am. Fed’n of Gov’t Employees, AFL-CIO v. Pierce, 697 F.2d

303, 305 (D.C. Cir. 1982). Therefore, we must assume that the

2004 amendments have the legal significance appellants assert.

Moreover, as the Coalition observes, even if the Government

were correct, Smith would still satisfy the injury-in-fact element

because he would then be asserting that the pre-2004

regulations–as newly applied–had caused his injury.

3

Id. at 515.565(a)(2)(vii) (2003) (emphasis added).

11

Alternatively, the Government challenges redressability,

arguing that even if the 2004 amendments were voided, it is

unlikely that Johns Hopkins would resume the program. It is

clear that the program was discontinued because of the 2004

amendments. Indeed, the Government has conceded causation.4

Yet the Government insists that Smith has provided insufficient

indication that the program would be revived by Johns Hopkins

were we to grant relief. To be sure, Johns Hopkins is not a

party–a point emphasized by the Government–and no

unequivocal statement from the university has been produced

indicating an intent to resume the program if appellants prevail.

We do, however, have a letter from the Provost and Senior Vice

President for Academic Affairs at Johns Hopkins requesting

reconsideration of the regulations so that the university may

“continue offering” the program. And Smith has evidently

continued as Director of the Cuba program during the four years

that it has remained inactive, which is indicative of the

university’s desire to continue the program.

Normally, causation and redressability are overlapping

inquiries in standing cases: there is generally no real analytic

difference between the two concepts. Here, however, they do

not quite overlap; although causation is obvious and conceded,

if there were an indication that Johns Hopkins’ view had altered,

redressability would be doubtful. But the Provost’s letter, which

establishes causation, and Smith’s present title strongly suggest

a continuing intention on the part of Johns Hopkins to resume

the program once the regulatory obstacles are removed. In fact,

we think it is not merely more probable than not that Johns

Hopkins would do so, it is extremely likely that the university

4

Emergency Coalition to Defend Educational Travel, 498 F.

Supp. 2d at 156.

12

would resume the program. We can imagine no reason, given

the record before us, why the university would choose not to do

so.

To be sure, the Government asserts in a bootstrap argument

that once Johns Hopkins learns, as it has through this litigation,

that the government now believes that the pre-2004 regulation

prevented Smith from participation in the program, it will likely

acknowledge the Government’s authority and refrain from

employing Smith in his prior capacity as program director.

However, if we were to conclude that the 2004 amendments did

in fact make the change asserted by appellants and were also

unconstitutional, perforce we would conclude the pre-2004

amendments were no bar. Or, if we were alternatively to agree

with appellants’ argument that if the pre-2004 amendments were

the bar, they were unconstitutional, it could not be expected that

Johns Hopkins would be deterred by a rejected government legal

position.

This case, then, is quite distinguishable from our recent

decisions in National Wrestling Coaches Association v.

Department of Education, 366 F.3d 930 (D.C. Cir. 2004), and

Renal Physicians Association v. HHS, 489 F.3d 1267 (D.C. Cir.

2007). In Wrestling Coaches, there was reason to believe that

universities might well independently implement the Title IX

policy of equalizing male and female athletic resources by

eliminating or restricting wrestling teams of their own accord,

even if the court held that the government regulations at issue

were illegal. Similarly in Renal Physicians, the disputed

government regulations, which set forth a voluntary “safe

harbor” method for calculating statutorily-required fair market

value for payments to physicians from clinical laboratories,

would not control the laboratories’ conclusions as to what was

fair market value even if declared ultra vires. And the

13

laboratories might well voluntarily adopt the safe harbor

method, which the government had concluded to be a reflection

of fair value.

Finally, in a last gasp, the Government essentially argues

that appellants lack prudential standing, because, insofar as

academic freedom is a constitutional component of the First

Amendment, it is a right pertaining to universities and not to

individual professors. To be sure, when considering prudential

standing under the APA, we do peek at the merits, at least

insofar as is necessary to determine whether the petitioner has

an arguable claim that falls within the zone-of-interests

protected or regulated by the substantive statute. See Muir v.

Navy Fed. Credit Union, 529 F.3d 1100, 1106-07 (D.C. Cir.

2008). Under a similar analysis, even assuming that academic

freedom is a constitutionally-protected right held by universities

alone, Smith would still be within the zone-of-interests of that

constitutional protection for standing purposes.

In sum, we agree with the district court that Smith has

standing, and we need go no further to satisfy our jurisdiction.5

5

We note that even were we to agree with the Government’s

arguments as to injury-in-fact or redressability in regards to Smith,

Wakefield might still have standing to bring her claim. Nothing in the

record indicates that Johns Hopkins or its Cuba Exchange Program

would revoke Wakefield’s acceptance to the program or that such

acceptance was uniquely contingent upon Smith’s retaining his

position as Director. Indeed, the opposite is likely to be true.

14

III

Appellants assert that the regulations violate their individual

First Amendment rights to “academic freedom” by restricting

who may teach and what may be taught in American

universities. Appellants concede–as they must–that the federal

government may, under certain circumstances, regulate Cuban

study programs. Nevertheless, they argue that the Supreme

Court case that recognized this government authority, Regan v.

Wald, 468 U.S. 222, 242 (1984), required a showing of

“weighty”–which term appellants understand to mean

“compelling”–considerations of national security.

The Government responds that even if there is a component

of the First Amendment that protects academic

freedom–separate and apart from the Amendment’s coverage of

free speech–it is a right that inheres in universities, not

individual professors. Again, it is emphasized that no university

has joined this action. Be that as it may, the Government claims

that if any institution or person holds such a right, it is not

transgressed by regulations that are content-neutral and

supported by an important governmental interest.

Any substantive governmental restriction on Smith’s

academic lectures would obviously violate the First

Amendment. Assuming that the right to academic freedom

exists and that it can be asserted by an individual professor, its

contours in this case are certainly similar to those of the right of

free speech. Namely, the right can be invoked only to prevent

a governmental effort to regulate the content of a professor’s

academic speech. See Univ. of Pennsylvania v. EEOC, 493 U.S.

182, 197 (1990). “Government regulation of expressive activity

is content neutral so long as it is ‘justified without reference to

the content of the regulated speech.’” Ward v. Rock Against

15

Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community

for Creative Non-Violence, 468 U.S. 288, 293 (1984)). This

inquiry into content-neutrality centers on the purpose of the

government regulation, that is, “whether the government has

adopted a regulation of speech because of disagreement with the

message it conveys.” Id. Where a regulation is held to be

content-neutral, we apply the so-called “intermediate scrutiny”

test set forth by the Supreme Court in United States v. O’Brien,

391 U.S. 367 (1968). “[W]e think it clear that a government

regulation is sufficiently justified if it is within the constitutional

power of the Government; if it furthers an important or

substantial government interest; if the governmental interest is

unrelated to the suppression of free expression; and if the

incidental restriction on alleged First Amendment freedoms is

no greater than is essential to the furtherance of that interest.”

Id. at 377. In sum, “content-neutral regulations that have an

incidental effect on First Amendment rights will be upheld if

they further ‘an important or substantial government interest.’”

Walsh v. Brady, 927 F.2d 1229, 1235 (D.C. Cir. 1991).

The Office’s Director has stated that the purpose of the

Cuban embargo, and therefore also of the Office’s regulations,

is to deny currency to the government of Cuba. Our government

has long deemed this policy instrumental to the ultimate goal of

nudging Cuba toward a peaceful transition from the oppressive

policies of the Castro regime to a free and democratic society.

The 2004 amendments were specifically designed to curtail

tourism, a critical and much-exploited revenue source for the

Cuban government. The purpose of the 2004 amendments, thus,

is content-neutral. See Capital Cities/ABC, Inc. v. Brady, 740 F.

Supp. 1007, 1013-14 (S.D.N.Y. 1990). None of this is remotely

related to the suppression of free expression, nor is any

restriction whatsoever placed on the subject matter or editorial

16

slant a professor may choose to incorporate into his teaching on

Cuba.

Appellants attempt to show that the 2004 amendments

eliminate academic content that is exclusively available in situ

in Cuba, for example, field trips and cultural excursions. We

think this notion of “content” stretches the term beyond all

recognition. Professors and students of the law may arguably

benefit academically from visiting a maximum-security

penitentiary or witnessing an execution; that regulations and

prison codes may restrict free access to our penal institutions

does not, in our view, render them content-based regulations.

Contrary to appellants’ implication, there is not the slightest

showing that the Government sought to suppress the message

that Cuba “warrant[s] study.” Indeed, even under the new

regulations, professors remain free to teach in Cuba so long as

they and their institutional employers establish programs in

accordance with the regulations. Nothing–at least nothing under

American law–prevents or ever has prevented Professor Smith

from lecturing on his favored topics. See, e.g., Wayne S. Smith,

“A Trap in Angola,” Foreign Policy, No. 62 (Spring, 1986), 61-

74; Wayne S. Smith, “Lies About Nicaragua,” Foreign Policy,

No. 67 (Summer, 1987), 87-103; Wayne S. Smith, ed., The

Russians Aren’t Coming: New Soviet Policy in Latin America

(1992).

Appellants contend that we are bound by precedent to apply

a particularly exacting form of strict scrutiny to the 2004

amendments. They would require a specific demonstration that

the amendments are justified by national security concerns. We

agree with the district court that strict scrutiny is inappropriate.

As noted supra, the O’Brien intermediate scrutiny test applies

to content-neutral regulations, and so long as the federal

government’s interest in promulgating the regulations at

17

issue–here, the denial of currency to the Castro regime–is

deemed “important” or “substantial,” the regulations must be

upheld.

The Supreme Court has stated that the denial of hard

currency to Cuba is “justified by weighty concerns of foreign

policy.” Regan, 468 U.S. at 242. In Walsh, a case involving a

First Amendment challenge to the application of the Cuba travel

restrictions to the news-gathering activities of an importer of

political posters, we held that denial of hard currency to Cuba

meets the intermediate scrutiny standard. 927 F.2d at 1235. Our

sister circuits have uniformly reached similar conclusions.

Denial of hard currency to hostile regimes, including Cuba, has

been described as “vital,” Teague v. Regional Comm’r of

Customs, 404 F.2d 441, 445 (2d Cir. 1968), and as

“compelling,” Veterans & Reservists for Peace in Vietnam v.

Regional Comm’r of Customs, 459 F.2d 676, 682 (3d Cir. 1972).

Further, on numerous occasions, content-neutral restrictions on

travel to Cuba and other hostile nations have been upheld in the

face of similar First Amendment challenges. See, e.g., Zemel v.

Rusk, 381 U.S. 1, 16-17 (1965) (passport validation); Freedom

to Travel Campaign v. Newcomb, 82 F.3d 1431, 1441 (9th Cir.

1996) (educational travel); Clancy v. OFAC, No. 05-C-580,

2007 U.S. Dist. LEXIS 29232, 2007 WL 1051767, at *16 (E.D.

Wis. March 31, 2007) (travel to Iraq as “human shield”).

Even weaker is appellants’ claim that their right to travel

under the Fifth Amendment has been infringed by the

regulations. Although Kent v. Dulles, 357 U.S. 116, 127 (1958),

did recognize the right to international travel as part of a liberty

interest, subsequent cases have distinguished the right to travel

within the United States–which carries greater protection–from

international travel. See, e.g., Haig v. Agee, 453 U.S. 280, 306

(1981). In Regan, the Court disapproved of Kent’s broad

18

protection of international travel and upheld the very same

regulations at issue here in a prior form. 468 U.S. at 241 n.25.

The Court emphasized that the plaintiffs there, unlike in Kent,

were not denied passports to travel to Cuba on the basis of

personal characteristics. (Kent was a member of the Communist

Party.) Instead, the regulations applied equally to all citizens

and were rooted in foreign policy concerns. Id. at 241.

Appellants insist that Regan limited the government’s ability to

enact travel restrictions to those situations in which it can point

to “weighty” (that is, on appellants’ view, “compelling”)

considerations of national security. To be sure, as we noted, the

Regan Court did describe the government’s considerations as

“weighty,” but there is not the slightest suggestion in the opinion

that the Court was arrogating to the federal judiciary the

authority to make determinations as to the importance of

competing foreign policy options. Indeed, the Court made clear

that the federal judiciary was obliged to defer to the political

branches on such questions. Id. at 242.

We therefore agree with the district court’s dismissal of

appellants’ Fifth Amendment challenge.6

6

Appellants also assert a bevy of statutory claims, although their

briefs are rather imprecise. Those issues (addressed by the district

court) no longer appear to be the target of appellants’ argument. They

concede that the precatory language of the Free Trade in Information

Act upon which they rely was “of course . . . non-binding,” but argue

that the language remains relevant. They urge us to hold that the

“sense of Congress” language shows that the rulemaking was

undertaken in “defiance” of the will of Congress. The short answer to

appellants’ argument is that a sense of Congress resolution is not law.

Appellants also argue that the amendments were promulgated

19

The district court’s grant of appellees’ motions to dismiss

with prejudice is affirmed.

So ordered.

without factual support and therefore violate the APA. We take it that

they are challenging the supposed factual premises of the Commission

Report, but these factual issues are intertwined with policy judgments

that we have no basis to question.

EDWARDS, Senior Circuit Judge, concurring: The disputed

regulations in this case, tightening restrictions on educational

travel to Cuba, are content neutral and supported by an

important governmental interest. Therefore, I agree that the

regulations do not infringe appellants’ First Amendment rights.

Appellants have not invoked any right to “academic freedom”

that trumps the government’s right to promulgate the

regulations. We therefore assume that, in this case, the First

Amendment rights implicated by appellants’ claims are

coterminous with any applicable rights to academic freedom.

The disposition of the First Amendment issue in this case

on grounds other than academic freedom is relatively

straightforward and uncomplicated. Therefore, it is unnecessary

for us to parse the many difficult issues relating to the concept

and scope of “academic freedom,” including, inter alia:

whether academic freedom is a constitutional right at all; the

breadth of academic freedom; whether academic freedom

implicates additional constitutional interests that are not fully

accounted for by the Supreme Court’s customary

employee-speech jurisprudence; whether a professor may assert

an individual constitutional right of academic freedom against

a university employer; how academic freedom should be

enforced in public versus private universities; whether and how

we distinguish between the university-as-a-speaker and the

university-as-an-employer in assessing the contours of academic

freedom; and the extent to which professors have rights of

academic freedom in university governance. For an excellent

discussion of the complex issues surrounding academic freedom,

see Judith Areen, Government as Educator: A New

Understanding of First Amendment Protection of Academic

Freedom and Governance, 97 GEO. L.J. ____ (forthcoming Apr.

2009).

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

2

scholarship among members of the academy. However, as

Professor Areen notes in her article, academic freedom as a First

Amendment concept may extend beyond writing and teaching

and include concepts of “shared governance.” The Supreme

Court’s decision in Regents of the University of Michigan v.

Ewing, 474 U.S. 214, 225 n.11 (1985) – noting that “University

faculties must have the widest range of discretion in making

judgments as to the academic performance of students and their

entitlement to promotion or graduation” – gives some life to this

idea. In upholding the faculty’s decision to dismiss a student

without permitting a reexamination, the Ewing Court said:

Added to our concern for lack of standards is a

reluctance to trench on the prerogatives of state and local

educational institutions and our responsibility to safeguard

their academic freedom, “a special concern of the First

Amendment.” Keyishian v. Board of Regents, 385 U.S.

589, 603 (1967).12 If a “federal court is not the appropriate

forum in which to review the multitude of personnel

decisions that are made daily by public agencies,” Bishop

v. Wood, 426 U.S. 341, 349 (1976), far less is it suited to

evaluate the substance of the multitude of academic

decisions that are made daily by faculty members of public

educational institutions – decisions that require “an expert

evaluation of cumulative information and [are] not readily

adapted to the procedural tools of judicial or administrative

decisionmaking.” Board of Curators, Univ. of Mo. v.

Horowitz, 435 U.S. [78, 89-90 (1978)].

12

Academic freedom thrives not only on the

independent and uninhibited exchange of ideas among

teachers and students, see Keyishian v. Board of

Regents, 385 U.S., at 603; Sweezy v. New Hampshire,

354 U.S. 234, 250 (1957) (opinion of Warren, C.J.),

but also, and somewhat inconsistently, on autonomous

decisionmaking by the academy itself, see University

3

of California Regents v. Bakke, 438 U.S. 265, 312

(1978) (opinion of Powell, J.); Sweezy v. New

Hampshire, 354 U.S., at 263 (Frankfurter, J.,

concurring in result). Discretion to determine, on

academic grounds, who may be admitted to study, has

been described as one of “the four essential freedoms”

of a university. University of California Regents v.

Bakke, 438 U.S., at 312 (opinion of Powell, J.)

(quoting Sweezy v. New Hampshire, supra, at 263

(Frankfurter, J., concurring in result)) (internal

quotations omitted).

474 U.S. at 226 & n.12.

In other words, the “four essential freedoms” of a university

– first enunciated by Justice Frankfurter in Sweezy and cited

favorably by the Court in a number of decisions since – have

loosely come to include notions of shared governance. In

Grutter v. Bollinger, 539 U.S. 306 (2003), Justice O’Connor,

like Justice Stevens in Ewing, pointed to the role of the faculty

in shared governance. See id. at 314-15, 328-29; see also NLRB

v. Yeshiva Univ., 444 U.S. 672, 688-90 (1980) (discussing the

value of giving faculty members the principal responsibility for

academic matters). But see Minn. State Bd. for Cmty. Colls. v.

Knight, 465 U.S. 271, 287-88 (1984) (holding that faculty

members do not have a constitutional right to participate in

academic governance at public colleges and universities); Univ.

of Pa. v. EEOC, 493 U.S. 182, 198-99 (1990) (distinguishing

between direct and indirect infringements of academic freedom).

In discussing the current state of the law on academic

freedom, Professor Areen notes the evolution of the case law

addressing shared governance:

The Court in its later decisions [has] embraced [Justice]

Frankfurter’s position in his Sweezy concurrence and

extended constitutional protection to a number of academic

4

governance matters including admissions policy (Bakke and

Grutter), student academic standards (Ewing), and the

tenure process (University of Pennsylvania v. EEOC).

****

The constitutional standard, unlike the professional

standard, applies only to public colleges and universities.

Faculty at public institutions may not have a constitutional

right to participate in academic governance but their speech

on academic matters such as student academic standards

has been granted constitutional protection by the Supreme

Court. Lower federal courts have extended constitutional

protection to an even broader range of academic

governance speech including criticism of a department’s

unsound teaching and administrative practices, discussion

of admissions policy and size of the student body, and

criticism of the administration at a meeting of the faculty

senate. [Citations omitted.]

The protection granted to faculty governance speech has

been limited, however, by the increasing application by

courts of [the] public-employee speech doctrine to faculty

claims. Both the Pickering balancing test and the Connick

public concern test in particular have been used to deny

constitutional protection to faculty governance speech.

[Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd.

of Educ., 391 U.S. 563 (1968).]

The Supreme Court’s latest words on academic freedom

appear in Garcetti v. Ceballos, 547 U.S. 410 (2006). In that

case, a deputy district attorney filed a 42 U.S.C. § 1983

complaint against officials in a district attorney’s office, alleging

that he was subject to adverse employment actions in retaliation

for engaging in protected speech, that is, for writing a

memorandum in which he recommended dismissal of a case on

the basis of purported governmental misconduct. The Court

5

held that when public employees make statements pursuant to

their official duties, they are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate

their communications from employer discipline. The Court

concluded that the deputy district attorney did not speak as a

citizen when he wrote his memorandum and, thus, his speech

was not protected by the First Amendment. Garcetti, 547 U.S.

at 421-22.

In a dissent joined by Justice Stevens and Justice Ginsburg,

Justice Souter raised the specter of academic freedom in

expressing concern about the potential reach of the majority

opinion in Garcetti:

Consider the breadth of the [majority’s formulation of the

public-employee speech doctrine]:

“Restricting speech that owes its existence to a public

employee’s professional responsibilities does not

infringe any liberties the employee might have enjoyed

as a private citizen. It simply reflects the exercise of

employer control over what the employer itself has

commissioned or created.” [Maj. op., 547 U.S. at 421-

22.]

This ostensible domain beyond the pale of the First

Amendment is spacious enough to include even the

teaching of a public university professor, and I have to hope

that today’s majority does not mean to imperil First

Amendment protection of academic freedom in public

colleges and universities, whose teachers necessarily speak

and write “pursuant to . . . official duties.” See Grutter v.

Bollinger, 539 U.S. 306, 329 (2003) (“We have long

recognized that, given the important purpose of public

education and the expansive freedoms of speech and

thought associated with the university environment,

universities occupy a special niche in our constitutional

6

tradition”); Keyishian v. Board of Regents of Univ. of State

of N.Y., 385 U.S. 589, 603 (1967) (“Our Nation is deeply

committed to safeguarding academic freedom, which is of

transcendent value to all of us and not merely to the

teachers concerned. That freedom is therefore a special

concern of the First Amendment, which does not tolerate

laws that cast a pall of orthodoxy over the classroom. ‘The

vigilant protection of constitutional freedoms is nowhere

more vital than in the community of American schools’”

(quoting Shelton v. Tucker, 364 U.S. 479, 487 (1960)));

Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (a

governmental enquiry into the contents of a scholar’s

lectures at a state university “unquestionably was an

invasion of [his] liberties in the areas of academic freedom

and political expression – areas in which government

should be extremely reticent to tread”).

Garcetti, 547 U.S. at 438-39 (Souter, J., dissenting).

The majority opinion in Garcetti responds directly to the

possible “important ramifications for academic freedom,” id. at

425, raised by the dissenting Justices:

Justice Souter suggests today’s decision may have

important ramifications for academic freedom, at least as a

constitutional value. There is some argument that

expression related to academic scholarship or classroom

instruction implicates additional constitutional interests that

are not fully accounted for by this Court’s customary

employee-speech jurisprudence. We need not, and for that

reason do not, decide whether the analysis we conduct

today would apply in the same manner to a case involving

speech related to scholarship or teaching.

Id.

The Court in Garcetti neither refutes the existence of

academic freedom as a part of the First Amendment, nor rejects

7

the suggestion that academic freedom may extend beyond the

Court’s “customary employee-speech jurisprudence.” Rather,

the Court simply leaves undecided the many questions relating

to the concept and breadth of academic freedom. Prudence

commands that we do the same, for the dispute in this case does

not raise any serious questions about the contours of academic

freedom.

SILBERMAN, Senior Circuit Judge, concurring: The very

notion of academic freedom–as a concept distinct from the

actual textual provisions of the First Amendment–is elusive. To

be sure, Supreme Court cases have on occasion referred to

academic freedom. See Sweezy v. New Hampshire, 354 U.S.

234 (1957); Keyishian v. Bd. of Regents, 385 U.S. 589 (1967);

Univ. of Pennsylvania v. EEOC, 493 U.S. 182 (1990). In

Sweezy, a plurality of the Court said that a state investigation

directed against a professor who refused to answer questions

concerning his allegedly subversive lectures and political

associations had violated due process, because the Attorney

General of New Hampshire had lacked the necessary statutory

authority to pursue his investigation of Sweezy. 345 U.S. at

254-55. The Court also stated that there “unquestionably [had

been] an invasion of [Sweezy’s] liberties in the areas of

academic freedom and political expression.” Id. at 250. Yet it

is unclear what of substance, if anything, the phrase “academic

freedom” added to Sweezy’s protections under the First

Amendment.1 And it is doubtful that a professor could assert an

1

Even Justice Frankfurter, who explicitly relied on academic

freedom principles in his concurrence, did not recognize an individual

right of academic freedom. Rather, in Justice Frankfurter’s view, the

right of “academic freedom” belonged to the university: “When

weighed against the grave harm resulting from intrusion into the

intellectual life of a university, [the] justification for compelling a

witness to discuss the contents of his lecture appears grossly

inadequate.” Sweezy, 354 U.S. at 261 (Frankfurter, J., concurring in

result). I agree with the Fourth Circuit’s analysis: “In light of . . . the

actual holding and rationale in Sweezy, it is difficult to understand how

that case can be viewed as clearly ‘adopting’ any academic freedom

right, much less a right of the type claimed by [appellants]. At best,

it can be said that six justices agreed that the First Amendment

protects values of academic freedom. However, the justices were

plainly of very different minds as to the nature of this ‘right.’” Urofsky

v. Gilmore, 216 F.3d 401, 413 (4th Cir. 2000) (en banc) (upholding

state law that restricted state employees, including professors at public

universities, from accessing certain sexually explicit material on

2

individual constitutional right of academic freedom against his

university employer, whether state or private. For that matter,

it is also doubtful that a state legislature lacks authority to

oversee the content of a state university’s offerings.

Indeed, in Sweezy, the Court noted that the Supreme Court

of New Hampshire had “carefully excluded” the possibility that

the investigation had been based on the state’s interest in the

state university, id. at 249, thereby implying that a state interest

in the content of Sweezy’s lectures might stand on different

footing. This same concern was raised by the Supreme Court in

University of Pennsylvania, in which the Court distinguished

between government attempts to direct the content of teaching

at a private university, where the state acts only as a regulator,

and similar efforts directed at state schools, where the state acts

as a “speaker” through its faculty employees. 493 U.S. at 198

n.6.

In Keyishian, another Cold War era case, the Court held that

the First Amendment rights of employees of the State University

of New York were violated when it was demanded that the

employees certify, pursuant to a state statute, that they were not

Communists. The Court stated that “our Nation is deeply

committed to safeguarding academic freedom, which is of

transcendent value to all of us and not merely to the teachers

concerned. That freedom is, therefore, a special concern of the

First Amendment, which does not tolerate laws that cast a pall

of orthodoxy over the classroom.” 385 U.S. at 603. But the

Court based its holding on the fact that the statute used the terms

“treasonable” and “seditious” in a manner that the Court found

to be unconstitutionally vague. Id. at 604. While Keyishian

comes closer than Sweezy to articulating a separate right of

“academic freedom,” the case nevertheless was decided on

computers owned or leased by the state).

3

grounds that might very well appear in any standard First

Amendment challenge, even absent the academic context. The

Court’s holding, which did not focus on the actual content of the

appellant professors’ lectures but rather on their speech and

associations as private individuals, could as well be applied to

any state employee–not just professors. See Urofsky, 216 F.3d

at 414.

As the Court implied in University of Pennsylvania, a state

university may well have a right–perhaps even an obligation–to

regulate the substance of professors’ classroom lectures. 493

U.S. at 198 n.6. For example, were a professor of history to

adopt in his lectures bizarre theories of Holocaust denial or a

professor of sociology to claim the inferiority of certain races or

ethnic groups, surely a university would not be powerless to

prevent such pedagogical perversions. After all, the state can be

said to “speak” through its employees.2 This certainly suggests

that the Government may well be correct in asserting that

academic freedom–if indeed it is a First Amendment concept

warranting separate protection–inheres in the university, not in

individual professors. It is, furthermore, difficult to see why, if

the university has a right to control at least the outer limits of its

professors’ lectures, a state legislature may not assert the same

degree of control. I therefore share the doubts of our Fourth

Circuit colleagues as to the notion that “academic freedom” is

a constitutional right at all and that, should it exist, it inheres in

2

Since the only professor with standing is Smith (an employee of

a private university), the government is clearly not acting as a speaker,

only as a regulator. Under these circumstances, it is particularly

difficult to perceive any distinction between the concept of academic

freedom and free speech. Any substantive governmental restriction on

Smith’s academic lectures would obviously violate the First

Amendment. (The Coalition, which includes public university

professors, cannot have broader standing than Smith.)

4

individual professors. Urofsky, 216 F.3d at 410. (I note that the

dissent in Urofsky never mentions academic freedom.) And I

further join Urofsky in noting that the Supreme Court has never

once invalidated a state regulation on the grounds that it violated

a right to academic freedom. Id. at 412.

Some have thought that academic freedom would add to the

First Amendment protection for academic governance. See, e.g.,

Garcetti v. Ceballos, 547 U.S. 410, 436-37, 438-439 (2006)

(Souter, J., dissenting); see also Judge Edwards’ concurrence.

But recently, the Supreme Court rather dismissively referred to

that notion, stating that there is “some argument” to support it.

Id. at 425. And in University of Pennsylvania, the Court treated

that concept as a ground for deference akin to Chevron rather

than as a constitutional right. 493 U.S. at 199. 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.