Meeting of the Emergency Coalition to Defend Educational Travel ("ECDET")
Carnegie Endowment
Washington D.C.
April 26, 2005

Robert L. Muse, D.C. Bar
ECDET's Coordinator of Legal Strategies

"A Court Challenge to the OFAC Regulations Restricting Travel to Cuba Undertaken for Educational Purposes"

I. The Context of the Proposed Litigation

Cuba occupies a larger place in U.S. policy formulations than its size would suggest appropriate. Therefore it is not surprising that the Administration has put Cuba at the center of a number of policies that seek to lessen the government's duty to abide by both the Bill of Rights and the international law of human rights.

For example, in the past three years we have seen the U.S. base at Guantanamo Bay used as a means of circumventing both international conventions prohibiting torture, as well as the cornerstone right of the Bill of Rights, habeas corpus.

We have also seen U.S. policy toward Cuba used as a means of attacking two elemental First Amendment rights; freedom of speech and academic freedom. The assault on freedom of speech took the form last year of a set of OFAC "interpretations" that restricted tremendously publication in the U.S. of books and articles written by authors in embargoed countries.

The attack on academic freedoms came in June, 2004 in a set of OFAC rule changes that intruded fundamentally into U.S. academic institutions' freedom to determine the nature and scope of the courses they would offer in Cuba, as well as who was allowed to teach and attend those courses.

It is instructive how litigation was central to at least somewhat favorable resolutions of the first two Administration actions described above.

The detentions at Guantanamo Bay were challenged in several venues. The cases reached the Supreme Court last year and resulted in a decision that detainees were entitled to some kind of hearing as to the basis for their detentions.

OFAC's restrictions on freedom of speech were challenged in two lawsuits that alleged violations of the Free Trade in Ideas Act of 1994. In response to those lawsuits OFAC rescinded its recent rule changes.

OFAC's action in restricting U.S. academic programs in Cuba will face an ECDET-initiated court challenge in the very near future.

Independent of the likelihood of the litigation's success, is the question of how it would contribute to the current legislative project of eliminating the President's authority to restrict or prohibit educational travel i.e., the Academic Freedom of Travel Act. (The Act is pending introduction by Senator Larry Craig (R-ID)).

First, it's fair to assume that the architects of our current policy on travel to Cuba (e.g. Assistant Secretary Roger Noriega and his Deputy, Dan Fisk) have been surprised and alarmed by the number of Republican co-sponsors of Senator Larry Craig's (R-ID) other bill containing a general license for travel to Cuba for TSRA-related sales activities. A litigation challenging the Administration's right to restrict educational travel would constitute a very uncomfortable second front for them to defend. In addition if they think (or more important, if State Department's lawyers think) they will lose in court, they may agree early to accept the terms of the Academic Freedom of Travel Act, thereby avoiding a protracted legislative endeavor and getting you and your colleges and universities back at work re-establishing your educational programs in Cuba.

But perhaps an even more compelling argument for litigation at this juncture is that, so far, the Administration has emerged pretty much unscathed from its destructive forays into the liberty and freedoms of the people of this country. History teaches that, unless challenged, it will continue to attack fundamental rights and each time it meets with no resistance it will go further the next time. Therefore every attempt by the Administration to diminish hitherto protected rights must be met with a court challenge.

On the agricultural trade front the Administration has been decisively challenged over Cuba in the Senate and ultimately we believe the same will be true of educational travel. But in the meantime, a successful lawsuit is the most effective way of weaning Executive Branch policymakers from their present penchant for depredations on the legal (e.g. academic travel) and moral (e.g. Cuban-American family visits) rights of everyone subject to their abusive exercises of authority.

II. International Travel for Academic Purposes as a Protected Right

For almost half a century the Supreme Court has said that academic freedom is protected under the First Amendment to the U.S. Constitution. The Court has defined that freedom as the right of educational institutions to be free from governmental interference in the performance of what it has called "core educational functions" such as deciding who may teach courses, the subjects to be taught, how they should be taught and who they may choose to have as students.

Notwithstanding the First Amendment protections accorded academic freedom, on May 6, 2004 a presidential commission issued a report containing recommendations to "hasten Cuba's transition." Among the recommended actions was the elimination of what the report called "abuses of educational travel [to Cuba]." The Commission's motive in harnessing U.S. academic programs in Cuba to its explicit objective of regime change in Cuba became clear when it recommended that educational courses in Cuba of less than a newly prescribed length of 10 weeks would only be allowed "when the program directly supports U.S. policy goals." (Emphasis added)

(i) The New OFAC Regulations

On June 16, 2004 the Treasury Department's Office of Foreign Assets Control ("OFAC") effectuated the Administration's goal of restricting educational travel to Cuba that did not serve its "policy goals" by promulgating a set of rules that curtailed dramatically the freedom of U.S. institutions of higher education to create, staff and conduct academic programs in Cuba. Among the rule changes adopted were:

1. "Employees of academic institutions" (i.e. professors, instructors, administrators, counselors, etc.) who travel to Cuba to teach U.S. educational programs there, regardless of their qualifications and area of expertise, must be "full-time permanent employees" of the OFAC-licensed institution.

2. To qualify for participation in a U.S. academic institution's OFAC-licensed Cuba program, a student must be enrolled in an undergraduate or graduate degree program at that licensed institution - even if his or her own institution would accept the licensed institution's program for credit toward the student's degree.

3. OFAC-licensed educational courses in Cuba cannot be less than 10 weeks in duration.

(ii) Summary of the New Regulations' Legal Infirmities

OFAC's June, 2004 regulations violate what Supreme Court Justice Felix Frankfurter called the "four freedoms" of a university, i.e. the freedom to determine who may teach; what may be taught; how it should be taught and who may study. A second legal infirmity of the new regulations is that they fail the rational basis test employed in judicial review of an agency's rulemaking under the Administrative Procedures Act ("APA"). Finally, the regulations violate a specific "intent of Congress" - as stated explicitly in the Free Trade in Ideas Act of 2004 - that the President should not prohibit or otherwise restrict foreign travel undertaken for educational purposes.

Each ground of the legal challenge that will be instituted to void the new regulations is addressed below.

III. Constitutional Overview

(i) No Constitutional Right to Travel Internationally

Where, in general, does freedom to travel to Cuba stand as a Constitution-based legal "right?" There is no such "right". Unlike the established "right" to travel freely among the fifty states, the courts have held that U.S. citizens possess merely a "liberty interest" in any international travel, including to Cuba.

The courts have taken this position because of the complicating effect unrestricted U.S. citizens' travel may have on this country's foreign relations. Periodic international events help to reinforce this view. For example, the Reagan Administration banned travel to Lebanon in the 1980's when Americans were being routinely kidnapped and held for ransom there. (The Iran-contra debacle was in part born of Reagan's desire to achieve the release of those captives). Similarly, there was the recent case of a young Japanese man who traveled to Baghdad on his own and ended up decapitated. Before he was killed, the Prime Minister of Japan was subjected to a wave of public opinion in favor of an official withdrawal from Iraq in order to save the young man's life.

To repeat, an unrestricted right of U.S. citizens to travel internationally presents foreign policy complexities that the courts have historically sought to avoid imposing on the Executive Branch. Therefore when confronted with the demand that freedom to travel be given high constitutional protection, the judiciary has done what it invariably does when confronted with a legal challenge that contains what it calls a "foreign relations" dimension: It has left U.S. citizens' freedom to travel abroad to what it deems the "political" branches of government - that is, Congress and the Executive Branch.

A good example of such judicial reticence occurred as recently as 1996 when the traditionally liberal 9th Circuit Court of Appeals in San Francisco reiterated, in Freedom to Travel v. Newcomb U.S., that citizens have no more than a "liberty interest recognized by the Fifth Amendment" in foreign travel.

By placing international travel on the lowest tier of constitutional protection (i.e. that of merely an "interest" rather than a right) the Court in Freedom to Travel v. Newcomb was able to hold that the government need only advance a "rational, or at most an important, reason for imposing the [Cuba travel] ban." The 9th Circuit went on to find a rational "purpose" for the ban - i.e. "restrict[ing] the flow of hard currency into Cuba." The Court rejected almost disdainfully the argument that the goal of denying hard currency to Cuba in 1996 in order "to pressure [that country] into making democratic reforms" was not as compelling as the previous justifications for the ban that were based on Cold War era grounds, such as the Cuban Missile Crisis or Cuban aid to the Sandinistas or the MPLA in Angola. In the end, the Court predictably played its "foreign relations" card and declined plaintiff's invitation to invalidate the ban based upon a judicial assessment of the wisdom of the policy decisions that underlay it. As a result, the 9th Circuit Court of Appeals explicitly held the Cuban travel ban to be constitutional.

A firm grasp of the Freedom to Travel v. Newcomb case is necessary to an understanding of the architecture of a successful litigation to restore free educational travel to Cuba. In summary, no case will succeed that merely invokes a "Constitutional right to travel." This will inevitably be so because the courts recognize no such general right. Specificity will therefore be required if the legal challenge proposed by CIP is to succeed.

IV. A First Amendment Challenge to the New Regulations Based Upon Academic Freedom

A First Amendment challenge to the new OFAC regulations can succeed because those regulations violate the "four freedoms" of universities enunciated in Sweeny v. New Hampshire, supra.

(i) Who May Teach

First, the regulations violate the freedom to determine "who may teach" by decreeing that only a "full-time employee" of a licensed college or university institution may teach a course at the institution's program in Cuba. The consequences of this new rule are as obvious as they are deleterious to academic excellence. For example, a University of California course in Cuba on that country's history cannot be taught by a pre-eminent guest authority on that subject from Harvard. Nor may U.C. use adjunct professors who posses highly specialized knowledge of an esoteric aspect of Cuba such as the Santeria religion.

(ii) Who May Study

Second, the regulations only permit students enrolled on a full-time basis in a degree program at a licensed college or university to attend a course in Cuba. The inequity of this provision is apparent. How, for example, will students attend a course in Cuba if their college or university has not established an academic program in that country? The answer is they cannot. The result will be that students at large, wealthy universities will be far likelier to find a course available to them in Cuba than students at smaller colleges that cannot afford the cost of developing and maintaining academic programs in Cuba. Hence the students of those smaller, less wealthy institutions will have been deprived of any opportunity at all to study in Cuba.

(iii) What May be Taught and How it Should be Taught

By restricting who may teach a course in Cuba, OFAC inevitably determines what may be taught and how it should be taught. As pointed out above, Santeria religion is an arcane but nevertheless indispensable subject to anyone who aspires to understand contemporary Afro-Cuban culture, but how likely is it that a U.S. college or university has a "full-time permanent employee" with expertise in that subject?

Finally, the requirement that all OFAC-licensed courses in Cuba must be of at least ten weeks duration intrudes on the freedom of an academic institution to determine how its courses are to be taught in terms of their organization and curriculum.

V. The Rationality Test Applied to the OFAC Rulemaking

The second legal infirmity of OFAC's new educational travel rules is that they fail the rationality test imposed on any federal agency rulemaking. As described above, to withstand scrutiny as a burden on U.S. citizens' "liberty interest" in traveling internationally, a restriction on such travel must be based upon a "rational…reason." The courts have long held that "restricting the flow of hard currency into Cuba" constitutes a rational reason for restriction on travel to that country.

Applying the formula adopted by the court in the Freedom to Travel v. Newcomb case, we must question whether the new restrictions on educational travel to Cuba are "rational," that is, do they advance the singular judicially-approved rationale for the embargo on Cuba, i.e. depriving Cuba of hard currency? Or put another way, can the means employed by OFAC (i.e. curtailing academic programs) be rationally said to advance the purpose of the recent rule changes (i.e. depriving Cuba of hard currency) regarding educational travel?

(i) The Rational Basis Test Applied to the New OFAC Regulation on Academic Travel

1. Courses in Cuba cannot be less than ten weeks in duration.

Arguably this will produce more hard currency flows to Cuba because the longer students are in that country the more money they will spend there.

2. Anyone teaching a course in Cuba on behalf of a licensed U.S. college or university must be a full-time employee of that institution.

This clearly fails the rationality test because anyone teaching a course in Cuba is subject to the per diem spending restrictions of OFAC's general travel regulations. Therefore restricting who may teach a course has absolutely no effect on depriving Cuba of hard currency.

3. A student must be enrolled in a degree program at the specific academic institution that holds a Treasury Department license to conduct courses in Cuba.

In the short term this may reduce the number of U.S. students in Cuba (and hence the amount of revenue to that country), but in the long run it will conceivably result in greater revenue to Cuba as more colleges and universities seek licenses to conduct courses in Cuba and subsequently aggressively market those courses to their students in order to offset administrative costs in establishing the courses.

In summary, the new regulations fail the rationality test imposed on an agency rulemaking because they do not rationally contribute to their purpose, i.e. depriving Cuba of hard currency.

VI. The Sense of Congress Regarding International Travel for Educational Purposes

In 1994 the Free Trade in Ideas Act became law. The Act provides that the President should not restrict travel undertaken for educational purposes to any country. Standing alone, a breach by the Executive Branch of a sense of Congress is not actionable, but the very fact of the existence of that sense of Congress conclusively rebuts any argument that there was a delegation of authority to the Executive Branch to restrict academic travel to Cuba as it saw fit.

ECDET seeks to end the academic travel restrictions to Cuba. The coalition works to fight against the violations of academic freedoms. Search WWW