Legal Commentary

On November 4, as the nation busied itself with other matters, the DC Circuit issued a very interesting opinion in a case called Emergency Coalition to Defend Educational Travel v. United States Department of the Treasury.  (Thanks to Jonathan Adler at VC for linking to the decision.)  The issue was whether amended Treasury regulations tightening restrictions on Cuba-based study programs violated the Administrative Procedure Act and the First and Fifth Amendments.  The DC Circuit panel upheld the district court's judgment in favor of the government on a motion to dismiss.

I think the basic ruling is fairly uncontroversial.  Even defenders of a robust form of institutional and individual academic freedom, like me, don't think that necessarily translates into a wide range of positive rights against viewpoint-neutral regulations.  What makes it perhaps more difficult is the argument advanced on behalf of the plaintiffs that the weighting of government interests involved in testing such regulations ought to take account of the importance of academic freedom, which should have some bearing in evaluating the government's argument that national security interests simply trump other considerations here.  I think those values should indeed be part of the mix.  But even if they are, that hardly compels a ruling against the government; it just demands a more candid and explicit incorporation of academic freedom in the weighing of interests. 

What is interesting about the DC Circuit's opinions in this case is the substantial amount of discussion of academic freedom.  As usual for academic freedom discussions by courts, it's all dicta.  In a concurring opinion, Judge Edwards notes that "[a]cademic freedom is not an easy concept to grasp, and its breadth is far from clear."  He lists a host of questions about constitutional academic freedom that he says "it is uncecessary for us to parse," but is clearing chomping at the bit to do just that.  In a separate concurrence in his own majority opinion, Judge Silberman takes a far more critical view, arguing that "[t]he very notion of academic freedom" as a First Amendment right "is elusive."  He reads the Supreme Court's statements on the issue narrowly; he says that it is "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"; he suggests that he agrees with the Fourth Circuit's notorious decision that academic freedom may not exist as a constitutional right at all, and exists if at all only as an institutional right; and he concludes that "I do not perceive any principled reason why the First Amendment should be thought to protect internal governance of certain academic institutions . . . but not other eleemosynary bodies or, for that matter, trade unions or corporations."  (So much for Boy Scouts of America v. Dale!)

This is a very interesting opinion and one for the higher education law casebooks.  Congratulations are due, too, to Professor Judith Areen, whose forthcoming paper, Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, which is discussed in both concurring opinions, jumps directly from SSRN into F.3d.