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Unnecessary Barriers
The exclusion of foreign scholars has assumed almost epidemic proportions

By Robert M. O'Neil


 
While much of the nation's attention was riveted on the immigration policy debate during the spring of 2006, the academic community worried about a quite different dimension of foreign access to the United States. The exclusion of visiting scholars from abroad, which had been a growing problem in the years immediately following the terrorist attacks of September 11, 2001, had now assumed almost epidemic proportions.

A late March letter to the Secretaries of State and Education expressed the deep concern of the major higher education groups over the potential impact of such exclusion upon the international programs of America's colleges and universities. Along with a call for increased funding of foreign language and international area studies programs, the letter urged the Bush Administration to remove "unnecessary barriers to international scholars," with special attention to burdensome visa restrictions.

Evidence of apparently mounting hostility toward foreign visitors was not hard to find. In late winter, Waskar Ari, a distinguished Bolivian historian (with a Georgetown Ph.D.) who had been recruited to a faculty position at the University of Nebraska-Lincoln for the fall of 2005, had waited eight months for the essential visa, unable to obtain any rationale for the delay that cost him a full academic year. Although Nebraska Chancellor Harvey Perlman insisted that he had "seen no evidence that Professor Ari represents a security risk," neither the visa nor any explanation for its denial was forthcoming. A very public protest by the American Historical Association also went unanswered.

About the same time, three scientists from India were inexplicably denied visas by the U.S. consulate in Madras, even though all had received invitations from U.S. universities, and at least one of them had been a frequent visitor to U.S. campuses. Professor Goverdhan Mehta, an organic chemist and former director of the Indian Institute of Science, was greeted by a consular official-during what he expected would be a routine interview-with probing questions about the potential use of his research for "chemical warfare." The official accused him of "not being honest," recalled Mehta, who said that the experience left him feeling not only "very humiliated," but baffled about the basis for his exclusion.

Latin American scholars seem to have encountered special scrutiny and official disfavor. Professor Dora Maria Tellez, who once was a leading member of the Sandinista Liberation Movement in Nicaragua, but is now well established as a university professor, was denied permission to enter the United States to accept an invitation to teach at Harvard. Meanwhile, Latin American historian Miguel Tinker-Salas, a Venezuelan-born faculty member at Pomona College, found himself the wholly unexpected target of highly intrusive questions and of manifest suspicion by Los Angeles County sheriff's deputies, who entered his office without warning as he awaited students in early March.

During that very week, the State Department inexplicably denied visas to all 55 Cuban scholars who had planned to attend an international conference in Puerto Rico of the Latin American Studies Association. This was hardly the first such affront to visitors from Cuba, though it was the most sweeping. Three years earlier, an unexplained delay in granting visas to Cuban delegates bound for the same scholarly gathering kept more than half of them from attending the meeting, held that year in Dallas.

Professor Carlos Alzuguray Treto, an expert on U.S.-Cuban relations and a frequent lecturer at American campuses (including Harvard and Johns Hopkins), was denied the visa that would have enabled him to deliver a keynote address at the Latin American Studies Association annual meeting. That same spring, a Miami University geographer who had planned the weeklong return visit of a Cuban scholar to his campus lamented the denial of a visa to his putative guest, noting that the exclusion of such colleagues represented a "disturbing sign of the many impacts of the 'war on terror.'"

Of all such exclusions, by far the most visible and contentious involves Islamic scholar Tariq Ramadan. In the summer of 2004, when he was based in Geneva, Ramadan had been offered, and had accepted, the Henry Luce Professorship in the Joan Kroc Institute at the University of Notre Dame. His furniture had already been sent to South Bend, Indiana, and his children were enrolled in school there for the fall.

Having been a frequent visitor to the United States, and a popular lecturer at Harvard, Dartmouth, Princeton and other campuses in recent years, Ramadan assumed that his permanent entry this time would be routine, and that he could plan on taking up his new academic post in the fall semester.

Barely a week before his planned departure from Geneva, however, Professor Ramadan was informed by a U.S. Embassy official that his visa had been revoked. Both he and Notre Dame sought an explanation for this extraordinary action. They were told only that the revocation reflected concerns under a section of the USA PATRIOT Act that barred foreigners who had used "a position of prominence within any country to endorse or espouse terrorist activity." Although Ramadan's grandfather had apparently been a founder of an organization that some considered to have preached terrorist rhetoric, nothing in his own academic career or his published writings or teachings could be deemed to cross the suspect line.

Protests from U.S. academic groups-notably a letter from the American Association of University Professors to the Secretaries of State and Homeland Security-were consistently ignored. Persistent and probing inquiries by the Chicago Tribune-which had taken up Ramadan's cause-also produced no satisfaction. Editorially, the Tribune observed that the Henry Luce chair at Notre Dame was hardly a place where one would expect to find a dangerous terrorist.

By mid-December 2004, Ramadan and the university had essentially abandoned hope for any redress. As soon as Ramadan resigned the position he had planned to assume, Homeland Security responded with unaccustomed alacrity, declaring the matter to be moot by reason of the resignation. As a far less appealing alternative, he instead took a nontenured teaching post at Oxford. Meanwhile, many U.S. institutions and academic organizations invited him to speak and, hoping he might be able to accept, he renewed the visa application in the fall of 2005.

When no action or official response followed, the American Civil Liberties Union filed suit in January 2006 on behalf of Professor Ramadan and several organizations that had sought Ramadan's presence as a speaker or visiting lecturer. The American Academy of Religion, AAUP, and the PEN American Center now claimed not only that they had a valid legal interest in Ramadan's visa status, but that the "ideological exclusion provision" of the PATRIOT Act which had apparently triggered his exclusion was in clear violation of the First Amendment's protection for freedom of speech.

This lawsuit was as novel as it was potentially significant in the challenge to U.S. treatment of scholarly visitors. Yet there were possible precedents, and the case drew the attention not only of the media but of federal Judge Paul Crotty, to whom it had been assigned in the Southern District of New York.

During a hearing before the judge in mid April, the government insisted that it had never really barred Ramadan's access, since he had resigned his Notre Dame faculty position before any final action had been taken on the initial visa issue. His renewed application was still under review, the Justice Department said, adding that subsequent inquiries and interviews had raised new and "serious questions" about his eligibility to obtain a visa. Specifically, the government noted that during one recent interview Ramadan had openly expressed his opposition to the American presence in Iraq.

At the hearing, Judge Crotty seemed strongly disposed to press the government to process the later visa application, remarking from the bench that the plaintiff's "First Amendment rights can't wait forever." On June 23, Crotty issued an opinion that could only be termed a blistering indictment of the government's case. The judge found "no hint of what or who prompted the 'prudential revocation.'" Nor had the government given so much as a "clue as to why it is suspicious of Ramadan, or what potential threats it is investigating or contemplating." Late in the opinion Crotty reiterated that the government had "not provided any reason for excluding Ramadan from the United States."

With due acknowledgment of the essential balance between free speech and national security, Judge Crotty rejected out of hand the government's claim that it was still unable to expedite Ramadan's petition. Noting that "the government has more than adequate information at hand to decide this matter," he gave the United States a maximum of 90 days within which to do precisely that. There may well be appeals, even to the Supreme Court, but the vital components of Ramadan's case have clearly received judicial vindication.

The Ramadan suit is not the only pending court test of the government's treatment of visiting scholars. The ACLU also filed suit in federal court, under the Freedom of Information Act, seeking detailed information about the broader grounds on which various applicants, mostly foreign scholars, have been denied U.S. visas. The "espousing terrorism" provision has been used as a subterfuge for the exclusion of invited (and otherwise welcome) academic visitors who have simply criticized or publicly attacked U.S. policy in the Middle East or elsewhere, the suit contends. However, it remains to be seen how far national security concerns may blunt or limit the scope of such a request.

One other suit, filed in June 2006, focuses on the outgoing rather than the incoming side of foreign academic exchange. A group of U.S.-based Latin American scholars brought suit against the Treasury Department to challenge regulations, substantially modified in 2004, that have severely inhibited travel to, and study in, Cuba. The plaintiffs claim that such constraints abridge free speech and academic freedom, in that they effectively prevent American scholars and teachers from accompanying their students who take part in the handful of surviving Cuban study-abroad programs (a tiny residue of what were once more than 200 such academic exchanges).

If Florida lawmakers have their way, things might even get worse. In mid April both houses of the Florida legislature approved a bill that would bar the state's colleges and universities from using public or private funds to pay for student or faculty trips to Iran, Libya, Sudan, North Korea or Cuba.

Meanwhile, an even more ominous Florida proposal would "redirect" some $8 million in state funds originally committed to support incoming foreign students into need-based student aid for Floridians. That bill's sponsor insists that "we're not saying anything nasty to foreign students," but rather declaring that "we want to take care of our own kids first." Not surprisingly, both measures have evoked strong opposition from Florida's public universities and their faculties, and from international students and scholars.

While the focus of such concerns has centered mostly on specific foreign nations, and on those visiting scholars whose disciplines have obvious national security import, the effects of this apparent hostility have been felt more broadly. In April 2006, the eminent cellist Yo-Yo Ma testified before a U.S. House committee on the issue of cultural exchange. Official fears about admitting terrorists, he lamented, have also managed to bar many musicians and artists from coming to the United States. Government policy has created "extraordinarily high" barriers to bringing foreign artists to this country, Ma said. "Many of our friends still come, [but] there certainly are many people who decide they don't want to."

The latest news in this field is not, however, entirely bleak. There are at least two encouraging signs of rapprochement between the academic community and the Bush Administration. After several years of worrisome declines in applications from, and enrollment at, U.S. universities by foreign graduate students, 2005-06 surveys revealed an encouraging reversal of these trends.

The Council of Graduate Schools reported that applications from international students had risen a healthy 11 percent, year over year—a trend which the Council's president attributed to "sustained efforts by both the federal government and graduate schools." Though the application rate is still 23 percent below that for 2003, the recovery is expected to continue to increase. Major credit on the government side goes to vigorous efforts by the Departments of State and Homeland Security to expedite the processing of visa applications for foreign students and visitors. Many universities have also intensified their own recruitment programs and have added new incentives for foreign graduate students.

Confirming these trends, but also warning that more remains to be done, NAFSA: Association of International Educators issued a major report in June 2006. While the report praised the ameliorative government efforts, it noted with alarm that, in an increasingly competitive world environment, the U.S. is losing its long dominant role as the nation of choice for foreign students and scholars, and urged the framing of a new national strategy to address this challenge. Especially heartening in this regard are such initiatives as a pending Senate bill that would increase the time during which a foreign student may continue to work in the U.S. after receiving a degree, and that would also exempt such students from current limits on the number of green cards issued in particular fields.

The other piece of good news comes from a very different sector. Early in the summer of 2005, the Commerce Department shocked university scientists by threatening an expanded view of the "deemed export" doctrine that would effectively compel research institutions to obtain export licenses simply to employ many foreign graduate students and visiting scholars to work on certain sensitive projects in U.S. laboratories. The licensing requirement would be tied not to a scholar's current nation of residence, as it had been in the past, but rather to the nation of birth.

The outcry from the academic research community was immediate and intense. Higher education groups protested that any such burden would not only compound already intrusive record-keeping and data-gathering tasks, but would also deter many foreign scholars from ever seeking places in U.S. laboratories.

Early in 2006 the worst features of the proposal were withdrawn, and late in the spring, Commerce officials announced a one-year postponement of what remained of the feared policy, along with the creation of a study group to reassess the need to apply the "deemed export" policy in so draconian a fashion.

Then in mid June the Commerce Department announced the cancellation of the "deemed export" concept as applied to laboratory scientists. For once, in an extremely sensitive matter of academic research and scholarship, there were clear signs that the Federal Government seemed to have recognized the urgent needs of academic science, as well as the national security implications of barring or discouraging foreign scholars from U.S. laboratories.


Robert M. O'Neil is a professor of law at the University of Virginia School of Law and director of the Thomas Jefferson Center for the Protection of Free Expression. He is also chair of the AAUP Committee on Academic Freedom and National Security in Time of Crisis.

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National CrossTalk Summer 2006

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