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Study abroad in Cuba flunks court test

By Douglas Lee
Special to the First Amendment Center Online

As a concept, academic freedom is generally understood and supported: We want our college campuses to be places where forceful debate, uninhibited exchange and independent thought are protected and encouraged.

As a constitutional right, however, academic freedom lacks a common meaning and is itself the subject of much debate. This lack of consensus surfaced last week in Emergency Coalition to Defend Educational Travel v. U.S. Department of the Treasury, in which each of the three appellate judges hearing the case offered a different opinion as to the existence and extent of this freedom.

In Emergency Coalition, an association of academics challenged regulations that made it considerably more difficult for U.S. universities to offer courses in Cuba. Before the regulations were issued, study-abroad programs on the island typically were three-week programs offered outside the normal college year, open to students from all universities and taught by adjunct professors with special interest in Cuba.

In 2003, the Bush administration established the Commission for Assistance to Free Cuba to determine how the U.S. might best induce the peaceful fall of the Castro regime. In its report, the commission found that some of the study-abroad programs offered little study and instead were being used to circumvent the government’s ban on tourist travel to Cuba.

The commission therefore recommended that study-abroad programs in Cuba be allowed only if they lasted at least 10 weeks, were limited to students enrolled in the sponsoring institution and were taught by a full-time permanent employee of that school. These recommendations were adopted by the Treasury Department’s Office of Foreign Assets Control and implemented by regulation in 2004.

More than 400 academic professionals formed the Emergency Coalition to Defend Educational Travel to challenge the regulations. The coalition argued that the regulations effectively ended study-abroad programs in Cuba by making them cost-prohibitive and unattractive to students and professors who could not devote an entire semester to a single course. As a result, the coalition claimed, the regulations violated the academic freedom of schools, professors and students.

The right to academic freedom is rooted in the U.S. Supreme Court’s decision in Sweezy v. New Hampshire (1957), in which Justice Felix Frankfurter in a concurring opinion suggested public universities have the constitutional right to determine for themselves, on academic grounds, who may teach, what may be taught, how it shall be taught and who may be admitted to study.

Ten years later, in Keyishian v. Board of Regents of the State of New York (1967), the high court again recognized a right to academic freedom, noting it is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

Against this legal backdrop, the U.S. District Court in Emergency Coalition rejected the coalition’s claim, holding that, even if its members possessed a right to academic freedom, the new regulations were permissible because they did not restrict speech on the basis of content and were supported by the important government interest of denying tourism dollars to Cuba.

On appeal, the U.S. Circuit Court of Appeals for the District of Columbia affirmed on Nov. 4, agreeing that, whatever the nature and extent of academic freedom, the regulations did not impermissibly infringe on it because they did not restrict the content of any lecture. The judges’ agreement on that conclusion, however, did not signal agreement about the right they were considering. To the contrary, all three judges on the panel interpreted academic freedom differently.

For example, Judge Janice Brown, who joined the lead opinion written by Judge Laurence Silberman, agreed that if the right to academic freedom exists, its “contours” are “similar to those of the right of free speech.” Therefore, the right “can be invoked only to prevent a governmental effort to regulate the content of a professor’s academic speech.”

In a concurring opinion, however, Judge Harry Edwards suggested the majority’s approach was too restrictive. Certainly, he said, academic freedom encompasses the rights to write and teach free of government interference. As Edwards reads Sweezy and Keyishian, however, academic freedom must also protect “shared governance,” the notion that academic institutions must have wide discretion in judging their students’ performance.

Edwards then wondered whether the free-speech rights of professors that had been thought to be the core of academic freedom were threatened by the public employee-speech doctrine created by the U.S. Supreme Court in Pickering v. Board of Education (1968) and Connick v. Myers (1983). Under this doctrine, the government can suppress employee speech if the government’s interest in efficiency outweighs the employee’s interest in speaking out about a matter of public concern.

Hoping to answer his own question, Edwards pointed to the Supreme Court’s most recent mention of academic freedom, in Garcetti v. Ceballos (2006), in which the Court noted there “is some argument that expression related to academic scholarship or classroom instruction implicates the additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.” The Court’s recognition of this argument, Edwards said, suggested that “many questions relating to the concept and breadth of academic freedom” remain unanswered, even considering the employee-speech doctrine.

In response, Silberman wrote his own concurrence, stating that “The very notion of academic freedom — as a concept distinct from the actual textual provisions of the First Amendment — is elusive.” In Sweezy, Silberman said, the Court recognized only an institution’s right to academic freedom, not an individual’s right. University employees, Silberman maintained, have no greater First Amendment rights than other public employees and indeed may have their classroom speech regulated by college administrators.

Citing the 4th U.S. Circuit Court of Appeals decision in Urofsky v. Gilmore (2000), Silberman wrote that, “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 individual professors.”

“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?),” Silberman concluded, “but not other eleemosynary bodies or, for that matter, trade unions or corporations.”

As the judges’ exchange demonstrates, all we really know after Emergency Coalition is that academic freedom does not include the right to travel to Cuba. Beyond that, the nature and extent of academic freedom as a constitutional right remain as uncertain as ever.


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