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 appel*234lants’ 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 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, 106 S.Ct. 507, 88 L.Ed.2d 523 (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 them academic freedom, “a special concern of the First Amendment.” Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (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, 96 S.Ct. 2074, 48 L.Ed.2d 684 (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, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978)].
*235474 U.S. at 226 & n. 12 [106 S.Ct. 507].
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, 123 S.Ct. 2325, 156 L.Ed.2d 304 (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, 123 S.Ct. 2325; see also NLRB v. Yeshiva Univ., 444 U.S. 672, 688-90, 100 S.Ct. 856, 63 L.Ed.2d 115 (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, 104 S.Ct. 1058, 79 L.Ed.2d 299 (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, 110 S.Ct. 577, 107 L.Ed.2d 571 (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 ease 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 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 them 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, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).]
The Supreme Court’s latest words on academic freedom appear in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (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 *236to 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 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, 126 S.Ct. 1951.
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, 126 S.Ct. 1951.]
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 [123 S.Ct. 2325, 156 L.Ed.2d 304] (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 tradition”); Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S. 589, 603 [87 S.Ct. 675, 17 L.Ed.2d 629] (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 [81 S.Ct. 247, 5 L.Ed.2d 231] (I960))); Sweezy v. New Hampshire, 354 U.S. 234, 250 [77 S.Ct. 1203, 1 L.Ed.2d 1311] (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, 126 S.Ct. 1951 (Souter, J., dissenting).
The majority opinion in Garcetti responds directly to the possible “important ramifications for academic freedom,” id. at 425, 126 S.Ct. 1951, 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 inter*237ests 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 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.
. 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 [87 S.Ct. 675, 17 L.Ed.2d 629]; Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (opinion of Warren, C.J.), but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself, see University of California Regents v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 57 *235L.Ed.2d 750 (1978) (opinion of Powell, J.); Sweezy v. New Hampshire, 354 U.S., at 263 [77 S.Ct. 1203, 1 L.Ed.2d 1311] (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 [98 S.Ct. 2733, 57 L.Ed.2d 750] (opinion of Powell, J.) (quoting Sweezy v. New Hampshire, supra, at 263 [77 S.Ct. 1203] (Frankfurter, J., concurring in result)) (internal quotations omitted).