April 26 Meeting of the Emergency Coalition to Defend Educational Travel

Co-chair Wayne Smith opened the meeting by expressing gratitude to Ti Gierke and all others associated with CIP who had worked so hard - and successfully -- to organize the meeting. And although Lisa Valanti was not there to hear his words of praise - as she was on the floor below chairing a meeting of grass-roots organizations --, he wanted to recognize that the idea behind ECDET was essentially hers. It was she who had suggested the meeting back in November at which the organization first took shape, and she who had pushed the idea ever since. ECDET probably would not exist had it not been for her.

He was optimistic about the prospects for turning back these outrageous violations of our academic freedoms embedded in the new regulations handed down this past June based on the recommendations of the Report to the President of the Commission for Assistance to a Free Cuba. He sensed a determination, and a growing unity, that had perhaps not been there in the past. And, he noted, one reflection of that was in the excellent turn-out for this meeting. All in attendance should be congratulated and thanked for making the effort to be here and then to participate in the Cuba Action Day that was to follow on the morrow.

Smith then called on the first speaker, Professor Phil Brenner of American University, who chaired the ECDET Task Force for communications with the federal government.

No Remedies Available From the Federal Government. Brenner began by announcing that American University had just agreed to be a plaintiff in the court case against the federal government which Bob Muse would tell us about in a few minutes. He then informed the meeting that the mission of his task force, essentially, was to determine whether or not the federal government might be willing to modify the current regulations so as to make them less objectionable, or perhaps remove them altogether. We had not really expected that to be the case, but it was important to make the effort so that when we go to court, it cannot be said that remedies were in fact available but that we had not thoroughly explored the possibilities.

Brenner said he had had a lengthy conversation with a ranking official in the Department of State (whose identity he would not reveal at this point) who had made it clear that the government's position is virtually inflexible. There will be no administrative remedies and no waivers for any university seeking an exception to the regulations. Further, when asked about possible reaction to the many, many complaints and suggestions for modifications which the government itself had invited, the official said they had not yet read all the correspondence on that subject (now almost a year after the new regulations were issued), but made it clear that no modifications should be expected. The case, he said, is virtually closed.

When Brenner pointed out that the new regulations had had the effect of shutting down 90% of our academic exchange programs in Cuba, the official said that was exactly what they wanted. Academic exchanges and educational travel, like tourism, put money in the Cuban government's coffers, something the Bush Administration is determined to stop. The objective is regime change, not enhanced cultural ties.

The one area, Brenner said, where the official indicated there might possibly be some change had to do with the wording of the section saying that only full-time faculty members of a given institution could teach its programs in Cuba. They had meant to restrict the category to those who had a regular relationship with a given university, and to prevent universities from hiring part-time faculty exclusively for their programs in Cuba.

Wayne Smith said he doubted that there would be any change in that area. Perhaps it was paranoia on his part, but he really suspected the "full-time" requirement to be aimed first and foremost at him. He has taught at Johns Hopkins University every semester for the past 22 years and directs the Hopkins academic exchange program with Cuba. But as he is an adjunct professor, he could not, under the new regulations, accompany Hopkins students on study programs in Cuba. He has long been in the forefront of those calling for a more sensible policy toward Cuba and has thus irritated a number of government officials. The new provision, he suspected, was a way of getting back at him.

Legislative Measures. Smith then called on Professor Cynthia McClintock of George Washington University, the chair of ECDET's legislative task force, to introduce the next speakers. She turned first to Mavis Anderson of the Latin America Working Group who has long been a leader in the effort to remove controls on travel to Cuba and who has been a key organizer of Cuba Action Day, to take place the following day.

Anderson noted that for several years now there have been bi-partisan majorities in both houses of Congress in favor of lifting travel controls, but that their efforts have been stymied by maneuvers on the part of the White House and the Republican leadership in the Congress. Indeed, in 2003, amendments to neutralize travel controls by prohibiting use of Treasury funds to enforce them had passed handily in both houses. Further, the language in both the House and the Senate versions had been identical and thus there was no need for a committee to reconcile any differences. But despite that, in blatant violation of the procedural rules, the amendments had been removed by the leadership even before going to committee, so as, it was said, not to embarrass the President by sending him a measure he might have to veto.

This year, she said, free-standing bills have just been presented in both houses to remove controls. Senator Enzi of Wyoming has sponsored the bill in the Senate. Its number is S 894. Congressman Flake has sponsored the bill in the House. Its number is HR 1814. Both will have a whole series of bi-partisan co-sponsors and there are doubtless enough votes to approve them. The problem is that as all committees are chaired by Republicans, the latter can, at the behest of the White House, prevent them from coming to the floor for a vote.

If that happens, amendments will be attached to the Treasury appropriations bill, as in 2003, to prohibit the use of Treasury funds to enforce the controls. She thought these would pass, but, as in 2003, what happened to them then was problematical.

Meanwhile, she said, it was extremely important that all support the measures in every way they can, by themselves writing letters to Congress, by calling on the officers of their universities, the governing boards, alumni associations, etc. to write letters urging passage of first the bills and then, if it comes to that, the amendments. Also, she said, they could write op-eds for local newspapers and try to get on local talk shows. If they contacted LAWG, the latter would provide them with periodic updates as to how things were proceeding in the Congress and what else they might do to move things along.

Cynthia McClintock then introduced Robert Muse, of Muse and Associates, and, in effect, ECDET's lawyer, to discuss the Academic Freedom to Travel bill shortly to be sponsored by Senator Larry Craig (Republican - Idaho). Copies, he said, were on the table in the back of the room for ECDET members to take home. This bill, Muse informed them, would remove all the new restrictions on academic exchanges and educational travel. Under the so-called Berman amendment of 1994, it was the sense of Congress that the Executive Office should not interfere with educational travel, but it did not make it illegal to do so. The Academic Freedom to Travel bill will do just that. We could not ask for a more influential or effective sponsor than Senator Craig. A companion bill will shortly be presented in the House as well.

Wayne Smith assured the audience that once we have the numbers of the bills in the Senate and House, the information will be communicated to all ECDET members so that they can go all out in supporting them.
Muse said that at least in terms of educational travel, he had relatively more confidence in the legislation he had just described than in possible amendments to the Treasury appropriations bill referred to earlier. One of the problems with the latter, he noted, was that Homeland Security, which is now partly responsible for enforcing travel controls, is no longer under the Treasury Department.

Litigation. Muse then phased over into his report as head of the Litigation Task Force. We would shortly be in the process, he said, of filing suit against the federal government in the federal district court. As Phil Brenner had reported, American University would be one plaintiff. Wayne Smith is at Johns Hopkins University and there are discussions there to bring it aboard as another plaintiff. We could go forward with only two plaintiffs, or, for that matter, only one, but it would be desirable to have more and he thought that ought not to be a problem. Once word is out and we've talked to other universities, we expect several more to come aboard.

The litigation against the new regulations restricting educational travel will deal with violations on two counts, the first constitutional, the second of the administrative procedures act.

In the Sweeney vs. New Hampshire case back in 1957 (354 U.S. 234), the Supreme Court defined the four core academic freedoms as the educational institution's right, without interference from the government, to decide who teaches the courses, what courses are to be taught, how they will be taught and who can take them, i.e., who can study. The new regulations violate all four of those academic freedoms. They decree, for example, that the courses can only be taught by full-time faculty members of the institution offering the course. Now, as we've heard, Wayne Smith is an Adjunct Professor at Johns Hopkins, and has been for 22 years. He is a specialist in Cuba and U.S.-Cuban relations and has been for years. Yet, because he is not a full-time professor at Hopkins, he could not accompany or teach the Hopkins' special courses in Cuba. And it has been a common practice for institutions offering special courses abroad to contract with outside specialists to help teach them. In the case of Cuba, they can no longer do so. In short, the new regulations deliberately interfere with the question of who is to teach the course.

In the same way, by decreeing that only students pursuing a degree at the institution offering the course can take that course, the regulations just as blatantly interfere in the determination of who is allowed to study.
The new regulation allowing only special courses in Cuba that are of at least ten weeks duration in itself interferes with the determination of how the course is to be taught. It should be up to the academic institution to determine the length of the course, not the federal government.

And, of course, placing restrictions on who can teach the courses also limits what courses can be taught and how they are taught.

The new restrictions also fail the rational basis test employed in judicial review of an agency's rulemaking under the Administrative Procedures Act. This stipulates that agency rulemaking must rationally advance its intended purpose. That, Muse suggested, is not the case here. If the purpose is to deny funds to the Cuban government, how is that purpose served by decreeing that only full-time employees of the institution offering the course be allowed to accompany the students to Cuba. Whether a full-time faculty member or someone brought in from another school, the person accompanying the students would be limited to the same per diem amount set by OFAC. The one could not spend more than the other, so how does that provision in any way deny funds to the Cuban government? And the same is true with respect to the students. Whether they are from the institution offering the course or from another, they would be limited to the same per diem, so what can be the rationale in decreeing that they must be degree candidates at the institution offering the course?

Muse said he should perhaps explain that the litigation is not based on any "constitutional freedom to travel right" because in fact none exists. Freedom to travel within the fifty states is a constitutional right. Travel abroad is not; it is a liberty interest with the lowest level of review. Cases in the past, as the one brought by Global Exchange and decided in the Ninth Circuit Appeals Court in San Francisco have failed because the courts have ruled that it is up to the Executive Power to determine its foreign policy and they cannot second guess its rationale.

And while the Free Trade in Ideas Act of 1994, as indicated earlier, only puts forward a sense of congress that the President should not prohibit or restrict travel undertaken for educational purposes, rather than making it illegal, the fact that it is on the books will prevent the government from arguing that the Congress has delegated to the Executive the regulation of educational travel to Cuba.

Finally, Muse said he was struck by just how extreme the Administration's positions on Cuba are becoming. They are clearly trying to reduce if not halt U.S. agricultural sales to Cuba, even though those sales are important to agricultural interests in the U.S. whose support is vital to the Republican Party. The Commission on Assistance to a Free Cuba's recommendations on educational travel actually stipulate that Treasury licenses should not be issued for any course to be given in Cuba of less than ten weeks duration unless that course serves the policy objectives of the United States.

To suggest that an academic undertaking had to serve U.S. policy in itself shows a misunderstanding of what academic freedoms are all about. But more than that, since the U.S. objective in Cuba is regime change, what the government seems to be saying is "if your course helps to overthrow the Cuban government, then maybe we'll give you a license."

A complete transcript of Muse's remarks can be found on the ECDET website. (http://www.ciponline.org/cuba/ECDET/legal%20strategies.htm)

Recruitment. Wayne Smith said he would make only a few remarks as the head of the recruitment task force about where we stand with that effort. We've done very well, in fact. From a handful when we started off late last year, ECDET now has some 450 members from colleges and universities all over the country, and more joining every day. That is in large part due to members who have helped tremendously in bringing in new members.
Still, it is disappointing that there are major centers of Latin American studies that have not even responded to our letters and e-mails and from which we have not a single member. There must be thousands of academics who focus on Latin America. So to have 450 as members is encouraging, but obviously we have a long way to go. We will keep trying.

He wanted to clarify that we are recruiting individuals, not institutions. The first is straight forward and simple; the latter would be extremely complicated. We leave it to the individual members to persuade their institutions, through their presidents, provosts and governing boards, to support our efforts in specific instances, such as supporting legislation or joining on as plaintiffs in the court case. That clearly makes sense. But our membership base will continue to be composed of individual academics, dozens perhaps from the same institution.
Les McCabe. Smith then turned the floor over to Les McCabe, ECDET's co-chair, from the Semester at Sea Program, for the rest of the program.

McCabe emphasized that he saw the just-implemented restrictions on travel to Cuba as just a first step - a matter of setting a precedent. Today, it is Cuba. Which country will it be tomorrow? Venezuela? Vietnam? It is unacceptable to say that we cannot have academic programs in any country - or, at least, that they can only be carried out under extremely limited conditions. The semester at sea program had taken some 8,000 people to Cuba, both students and faculty members. Now they cannot call in Cuban ports at all. They had thought they might substitute Venezuela, but now that seems to be in doubt as well. We must not let the government get away with this.

We must fight against these restrictions, and we must understand that colleges and universities are a powerful force in any state. Senators and congressmen tend to listen to boards of governors, faculty governing councils, alumni associations, etc. It is up to us to harness these forces effectively in favor of removing the new restrictions on academic travel to Cuba. But the impetus must come from us, from below. It will not come from the presidents or governing councils themselves.

He urged all to bring this issue, this precedent-setting move to end academic travel to Cuba, to the attention of all those in their universities and communities who may not realize what is going on. We must take it to associations of international educational providers, to national, regional and international conferences, and to alumni associations. He distributed a list of organizations specializing in international education and urged that members take the matter up with them, encouraging them to take a stand on these actions on the part of the federal government that not only impede study abroad but violate academic freedoms.

He also distributed a list of professional international education journals and suggested that members could perhaps publish articles in them, or urge the publications themselves to investigate the matter and call attention to this intrusion into international studies. (See attachments.)

McCabe then invited questions and comments from the floor.

Questions and Suggestions From the Floor

1. To a question from the floor as to whether it might be counterproductive to take a piecemeal approach, such as trying to have travel controls lifted rather than insisting on a totally new policy toward Cuba, Mavis Anderson, Bob Muse and Wayne Smith all voiced the opinion that going after the whole loaf would not work. We had to go a step at a time or not at all. But getting travel controls removed would be a huge step forward.

2. To a suggestion that ECDET prepare a White Paper pointing out that a number of people on the other side of the issue, i.e., those who wish to maintain controls, are in fact terrorists, or those favoring exile terrorism, living in Miami, Wayne Smith replied that the Center for International Policy would be organizing a conference this coming autumn in Miami itself on the question of exile terrorism. He invited all to participate.

3. To a request for an up-to-date ECDET membership list so that participants can see who is missing and whom they might usefully urge to join, Ti Gierke said that such a list would be e-mailed to all members within a day or two and henceforth will be carried on the ECDET website.

4. On the question of whether or not institutions ran high risks of retaliation from the federal government if they signed on as plaintiffs in the litigation against the government, Bob Muse said he thought the risks were small. OFAC was not likely to take action against universities for taking issue with the new restrictions. They are expected to defend their interests. Wayne Smith agreed, saying, however, that realistically it must be seen as a consideration. It was his understanding, for example, that Hopkins gets more federal money than any other university. Officers of the university will have that in mind as they decide whether or not to become plaintiffs. On the other hand, the university's academic freedoms have been blatantly and rather brutally violated and the university must take issue with that. If it does so in a proper way, respectfully and through the courts, it would be counterproductive on the part of the federal government to try to punish it for doing so. But be that as it may, one either stood up for one's rights or one risked losing respect. Academic freedoms are something that universities must defend.

5. There was a discussion of the use of the general license for research. Wayne Smith reported that Hopkins had used it on several occasions for medical personnel going down to perform surgeries and study Cuban surgical methods. Also for Hopkins scholars doing research for books on Cuban foreign policy. It was perfectly legal, but one wanted to read the license carefully and make certain that your project fits its parameters.

6. A number of other participants reported, however, that they had been harassed upon return to the U.S. and their use of the general license questioned - though in no case had they been taken to court, let along fined. Wayne Smith suggested that a list of such cases should be compiled and he invited anyone so harassed to report the circumstances to Ti Gierke at ECDET who would keep a record of such incidents.

7. It was noted that creative ways are being found to send students down. Universities have gone together, for example, had their students go down, accompanied by graduate students who look after administrative arrangements. The students are taught by professors from the University of Havana. The costs are less and thus a ten-week program becomes more feasible. Others felt that while this was a very inventive stop-gap measure, it was no substitute for a program organized by and staffed by the American institution itself. Still, it was something to keep in mind - especially if we do not succeed in getting the restrictions lifted.

8. Finally, to a request for simple, straight forward language that members could use to get faculty councils, alumni associations, student bodies, etc. to sign onto in support of legislation, Wayne Smith agree to provide such language to all members, as soon as we have the number of the bills in the Senate and House to remove restrictions on educational travel to Cuba.

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