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.