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Guest Dispatch: Cigars and Law Schools in Havana

By Keith Fernandez

 “A large number of [‘study-tour’] programs are for a short duration, allow for limited interaction with the Cuban people, and include lengthy unscheduled time periods to permit largely tourist activities to be accomplished.  Such travel does not promote a genuinely free exchange of ideas between Cubans and American students.” – Commission for Assistance to a Free Cuba, Report to the President, May 2004

This year, Hofstra Law School will be sponsoring a week-long spring break study abroad for participating law students in Havana, Cuba. Sponsored activities include a walking tour of Havana, a bus tour of the Havana suburbs, a tour of the Hemingway museum and museum of the Cuban Revolution in addition to several receptions surely designed to make the participants feel at ease in their novel and exotic surroundings. While there, they will take in presentations on Cuba’s current constitution and Cuban trade law (more on that later) and learn about American trade law, focusing on the Export Administration Regulations and the Trading with the Enemy Act among others.

Although it is curious as to why American law students are being encouraged to study American trade law in Cuba, one of the least economically free countries in the world, instead of in New York City, London, Hong Kong or other hubs of trade, it is certainly true that every person or institution has the right to determine their course of study as long as it falls within current statutory and regulatory schemes. Admittedly, the regulations are content-neutral on what can be taught on academic trips to Cuba as long as something is taught so the specific learning is still the province of the professor teaching the class and the institution sponsoring the trip. See Emergency Coal. to Defend Educ. Travel v. U.S. Dept. of the Treasury, 545 F.3d 4, 13 (D.C. Cir. 2008).

However, this brings us to the question of whether this particular trip falls within the justified intent of current regulations and ideals of true academic exchange. In addition to taking courses on American trade law, which presumably could be done at any institution in the United States, including Hofstra Law, the participants will engage in planned tourist activities and presentations from unidentified individuals – likely Cuban government-paid professors – on the current Cuban constitution and other aspects of Cuban law. Additionally, participants will have a substantial amount of free time in which they will likely go to the beach, enjoy restaurants open to tourists and shop for exotic knick-knacks. These activities are not intended to be promoted when traveling to Cuba on an educational visa.

Participant’s program sponsored and independent tourist activities are just that – tourist activities. While Americans generally cannot travel to Cuba, Hofstra is allowing students to play tourist in the streets of old Havana under the guise of studying law. Additionally, those activities prohibited to most Americans, that is, travelling to Cuba to smoke a cigar, drink a mojito, and see the Malecon, are being enjoyed with impunity by program participants through this backdoor travel hatch. La Bodeguita del Medio may be an icon, but it has little jurisprudential value.

In what may nominally be called academic exchange, participants will see presentations on the Cuban constitution from presenters who, although unidentified, seem to be Cuban academics. Although they will hear about free health care, an “equitable” society for all and the “abolition of racism in Cuba”, they will likely not hear how Cuba has at times and currently and consistently violated its own constitution, particularly Articles 8 (freedom of religion), 43 (be served at all public establishments and enjoy the same beaches, resorts and centers of rest) and 122 (independent judges).

They will also not hear of the undue restriction of rights placed on Cuban citizens by its constitution through Articles 29 (d) (circumscribed artistic freedom), 53 (circumscribed freedom of speech), 54 (establishing “necessary means” already exist for freedom of assembly), 57 (unreasonable search and seizure re: mail and other communications), 60 (allowing for confiscation of property with no redress), and, finally, Article 62 (no “freedoms” may be exercised contrary to the “objectives of the socialist state”).  Additionally, participants will likely not hear of the notorious Articles 74 – 84 of the Cuban penal code which grant the state almost unlimited authority in imprisoning its own people. Sadly, their “exchange” about the Cuban constitution will likely amount to no more than sun-burnt law students feverishly taking notes or napping while not questioning a presenter.

In the final analysis, this trip is a missed opportunity to implement the intent of the current statutory scheme: true academic exchange. Participants could have met with Laritza Diversent, a young attorney who graduated from the University of Havana who became an independent journalist/blogger in order to show the effects of the regime’s repressive laws on ordinary Cubans. Participants could also have met with dissidents such as Marta Beatriz Roque, whose free speech rights have been curtailed but who bravely published a pamphlet on freedom titled La Patria es de Todos. Even if in a non-political context, participants could have met with fellow law students from the University of Havana. Hofstra Law’s trip to Cuba under their current program shows true exchange was not a priority.

Even today, the sad reality is any of those activities can land Americans in a Cuban jail with no hope or time table on release in similar circumstances as American contractor Alan Gross. The fact that an institution can’t promote true academic freedom and has to abide by a circumscribed set of rules leads one to question the utility of a license that can be used to contravene the intention behind its creation.

However, by choosing to take students to Cuba instead of other, more open environments, Hofstra Law squandered an opportunity for academic and professional development in favor of what is, essentially, a Potemkin village tour for their students. As law students, we have the opportunity to question, to analyze and to seek input from diverse sources in order to arrive at the correct legal conclusion. It is, at best, sad and ironic that Hofstra Law would not choose to afford their students those same opportunities when it scheduled a trip to one of the world’s least free countries.

Keith Fernandez, an American of Cuban descent, is a second-year law student at the University of Florida Levin College of Law.

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