《中国宪法学 Chinese Constitutional Law》课程教学资源（学术文献）“Courageous Explorers”?：Education Litigation and Judicial Innovation in China

"Courageous Explorers"?:Education Litigation and Judicial Innovation in China Thomas E.Kellogg' INTRODUCTION In the spring of 1998,Tian Yong,a senior at the University of Science and Technology in Beijing,received an unpleasant surprise:despite the fact that he was one of the top students in his class and had met all of the academic requirements for his degree,he would not graduate.!In fact,he learned that he was no longer a registered student at the university,and had not been for more than two years-despite the fact that he had been going to class,receiving high marks,fulfilling the requirements for his physical chemistry major,and paying tuition. The controversy dated back to an incident during Tian's sophomore year when school officials proctoring an exam found a piece of paper with notes on it on the floor near Tian's desk after he had excused himself to go to the restroom.On the basis of this incident,the university decided to expel Tian,but failed to inform him or any of his professors.As a result,Tian continued to take classes toward his degree.Tian's expulsion became known to him and the members of the physical chemistry faculty only a few months before he was scheduled to graduate. *Senior Fellow,the China Law Center;Lecturer in Law,Yale Law School.The author is grateful to the many people who have offered advice and assistance on this Article,including the participants in the Yale Law School China Law Colluquim and the Harvard Law School East Asian Law workshop Special thanks for their comments and assitance to Cheng Jinhua,Alison Conner,Mike Dowdle,Du Ying,Ruth Hayhoe,He Haibo,Ben Liebman,Naz Modirzadeh,Peng Yanan,Eva Pils,Shen Kui, Wang Qinghua,Xu Guangming,Zhan Zhongle,and Zhang Ran.I am also indebted to Jennifer Wang and the staff of the Harvard Hman Rigbts Journal for their excellent work on this Article,and to Aaron Halegua and Jenny Lah for research assistance. All translations in this Article are by the author unless otherwise noted.This Article is based on a combination of written sources and interviews with approximately twenty-five academics,lawyers,and judges,all of whom were promised anonymity.Many of the reforms discussed in this Article are nas- cent,and some interviewees did not want to be publicly associated with reforms that may be reversed in the future.Also,some of the cases discussed in this Article involved direct political intervention by the government,and remain somewhat sensitive as a result.All interviews were conducted in Beijing at different times in 2006.Interviewees are not identified by name due to the confidential nature of many of the interviews.All interviews are on file with the author. 1.For an extended account of the facts of the Tiam Yong case,see Tian Hao,Wo yao wen ping: zbongguo sbouli daxuesbeng su xuexiao jn fa 'liangzbeng'xingzbeng susong an I Want My Degre:The First Administrative Litigation Case of a Student Suing His University for Refuing to Issue tbe Two Certificates. PEOPLE'S CT.NEWS,June 8,1999,reprinted in GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDUCATION AND ADMINISTRATIVE LITIGATION]424 (2002)

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 1 12-JUN-07 16:27 “Courageous Explorers”?: Education Litigation and Judicial Innovation in China Thomas E. Kellogg* INTRODUCTION In the spring of 1998, Tian Yong, a senior at the University of Science and Technology in Beijing, received an unpleasant surprise: despite the fact that he was one of the top students in his class and had met all of the academic requirements for his degree, he would not graduate.1 In fact, he learned that he was no longer a registered student at the university, and had not been for more than two years—despite the fact that he had been going to class, receiving high marks, fulfilling the requirements for his physical chemistry major, and paying tuition. The controversy dated back to an incident during Tian’s sophomore year when school officials proctoring an exam found a piece of paper with notes on it on the floor near Tian’s desk after he had excused himself to go to the restroom. On the basis of this incident, the university decided to expel Tian, but failed to inform him or any of his professors. As a result, Tian continued to take classes toward his degree. Tian’s expulsion became known to him and the members of the physical chemistry faculty only a few months before he was scheduled to graduate. * Senior Fellow, the China Law Center; Lecturer in Law, Yale Law School. The author is grateful to the many people who have offered advice and assistance on this Article, including the participants in the Yale Law School China Law Colluquim and the Harvard Law School East Asian Law workshop. Special thanks for their comments and assitance to Cheng Jinhua, Alison Conner, Mike Dowdle, Du Ying, Ruth Hayhoe, He Haibo, Ben Liebman, Naz Modirzadeh, Peng Yanan, Eva Pils, Shen Kui, Wang Qinghua, Xu Guangming, Zhan Zhongle, and Zhang Ran. I am also indebted to Jennifer Wang and the staff of the Harvard Human Rights Journal for their excellent work on this Article, and to Aaron Halegua and Jenny Lah for research assistance. All translations in this Article are by the author unless otherwise noted. This Article is based on a combination of written sources and interviews with approximately twenty-five academics, lawyers, and judges, all of whom were promised anonymity. Many of the reforms discussed in this Article are nas￾cent, and some interviewees did not want to be publicly associated with reforms that may be reversed in the future. Also, some of the cases discussed in this Article involved direct political intervention by the government, and remain somewhat sensitive as a result. All interviews were conducted in Beijing at different times in 2006. Interviewees are not identified by name due to the confidential nature of many of the interviews. All interviews are on file with the author. 1. For an extended account of the facts of the Tian Yong case, see Tian Hao, Wo yao wen ping: zhongguo shouli daxuesheng su xuexiao ju fa ‘liangzheng’ xingzheng susong an [I Want My Degree: The First Administrative Litigation Case of a Student Suing His University for Refusing to Issue the ‘Two Certificates’], PEOPLE’S CT. NEWS, June 8, 1999, reprinted in GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDUCATION AND ADMINISTRATIVE LITIGATION] 424 (2002)

142 Harvard Human Rights Journal Vol.20 Tian's situation was serious:he stood to lose not only all of the money that his family had paid in tuition,but more importantly,his job prospects would be severely impaired without a degree.Measuring his limited op- tions,Tian decided to take matters into his own hands and in the fall of 1998,sued the school for violating both his right to education and for failing to award him the degree that he had earned. In this Article,I argue that lawsuits by students and teachers against educational institutions have served as a key experiment for rights adjudica- tion by Chinese courts.Since the mid-1990s,a growing number of courts have adjudicated the complex rights claims raised by education cases with- out excessive outside interference.In doing so,the courts have radically revised the relationship between students,teachers,and educational institu- tions.They have also taken actions not typically associated with Chinese courts,including:expanding their own jurisdiction,striking down regula- tions that are inconsistent with national law,and creating legal require- ments that have little or no basis in relevant legislation.These education cases are crucial to understanding the development of the judiciary as an important mechanism for rights protection in China. Education cases provide an excellent opportunity for the courts to de- velop a rights-based jurisprudence for a number of reasons.First,in most cases,the defendant,a local school or university,while far from politically impotent,often has less political clout than a government defendant would, and therefore is less able to pressure the courts into ruling in its favor.2 Second,over the past decade or more,there has been a steady stream of relatively sympathetic plaintiffs,including a number of young students who,through little or no fault of their own,faced serious barriers to contin- uing their education.In education-obsessed China,such plaintiffs often won public support for their legal claims.In many of these cases,the plaintiffs have been assisted by ambitious young lawyers who have made creative legal arguments on their clients'behalf,thus increasing the chances of a favorable ruling.3 Media coverage has also generally favored the student plaintiffs and played an important role in transmitting the new legal norms being developed by the courts both to new potential plaintiffs and to judges themselves.4 2.RANDALL PEERENBOOM,CHINA'S LONG MARCH TOWARD RULE OF LAW 399 (2003)(noting that "many judges resist appointment to the administrative division [of the court system]because of the politically sensitive nature of the cases.). 3.Given the important role that plaintiffs and plaintiffs'lawyers have played in the development of law through suits against universities,education litigation is another example of how "the ways in which litigants use the legal system to pursue their own interests may be increasingly important in shaping the evolution of law in China."STANLEY B.LUBMAN,BIRD IN A CAGE:LEGAL REPORM IN CHINA AFTER MAO 287-88(1999)(quoting Note,Class Action Litigation in China,111 HARV.L.REV. 1523,1541(1998). 4.For a selection of media reports on the 1999 Tian Yong and the 2000 Lim Yamen cases in particular,see generally GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDUCATION AND ADMIN- ISTRATIVE LrGATION].supra note 1.For a discussion of the role that the media plays in litigation in

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 2 12-JUN-07 16:27 142 Harvard Human Rights Journal / Vol. 20 Tian’s situation was serious: he stood to lose not only all of the money that his family had paid in tuition, but more importantly, his job prospects would be severely impaired without a degree. Measuring his limited op￾tions, Tian decided to take matters into his own hands and in the fall of 1998, sued the school for violating both his right to education and for failing to award him the degree that he had earned. In this Article, I argue that lawsuits by students and teachers against educational institutions have served as a key experiment for rights adjudica￾tion by Chinese courts. Since the mid-1990s, a growing number of courts have adjudicated the complex rights claims raised by education cases with￾out excessive outside interference. In doing so, the courts have radically revised the relationship between students, teachers, and educational institu￾tions. They have also taken actions not typically associated with Chinese courts, including: expanding their own jurisdiction, striking down regula￾tions that are inconsistent with national law, and creating legal require￾ments that have little or no basis in relevant legislation. These education cases are crucial to understanding the development of the judiciary as an important mechanism for rights protection in China. Education cases provide an excellent opportunity for the courts to de￾velop a rights-based jurisprudence for a number of reasons. First, in most cases, the defendant, a local school or university, while far from politically impotent, often has less political clout than a government defendant would, and therefore is less able to pressure the courts into ruling in its favor.2 Second, over the past decade or more, there has been a steady stream of relatively sympathetic plaintiffs, including a number of young students who, through little or no fault of their own, faced serious barriers to contin￾uing their education. In education-obsessed China, such plaintiffs often won public support for their legal claims. In many of these cases, the plaintiffs have been assisted by ambitious young lawyers who have made creative legal arguments on their clients’ behalf, thus increasing the chances of a favorable ruling.3 Media coverage has also generally favored the student plaintiffs and played an important role in transmitting the new legal norms being developed by the courts both to new potential plaintiffs and to judges themselves.4 2. RANDALL PEERENBOOM, CHINA’S LONG MARCH TOWARD RULE OF LAW 399 (2003) (noting that “many judges resist appointment to the administrative division [of the court system] because of the politically sensitive nature of the cases.”). 3. Given the important role that plaintiffs and plaintiffs’ lawyers have played in the development of law through suits against universities, education litigation is another example of how “the ways in which litigants use the legal system to pursue their own interests may be increasingly important in shaping the evolution of law in China.” STANLEY B. LUBMAN, BIRD IN A CAGE: LEGAL REFORM IN CHINA AFTER MAO 287–88 (1999) (quoting Note, Class Action Litigation in China, 111 HARV. L. REV. 1523, 1541 (1998)). 4. For a selection of media reports on the 1999 Tian Yong and the 2000 Liu Yanwen cases in particular, see generally GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDUCATION AND ADMIN￾ISTRATIVE LITIGATION], supra note 1. For a discussion of the role that the media plays in litigation in R

2007/“Courageous Explorers” 143 Third,in many of these cases,the plaintiffs,often individual students requesting reinstatement to their school or review of a school's administra- tive decision,sought reasonable relief that judges can grant without major political ramifications from the defendant university or the government. Finally,unlike some administrative agencies,educational institutions are less able to rely on textual ambiguities as a defense.Whereas administrative agencies can issue implementing regulations that interpret national regula- tions in their favor and enhance their own powers under national laws, schools are less able to do so.While educational institutions can and do issue their own regulations on a wide range of issues,such regulations lack the force of law,and courts are not mandated to accord them the same level of deference associated with administrative regulations.3 As a result of these relatively favorable dynamics,the courts have rede- fined the legal relationship between students and educational institutions. In doing so,the courts have played a key role in enforcing the rights granted to students and teachers under the relatively new body of education law.These court decisions contain some of the most innovative jurispru- dence of the reform era,including the judicial expansion of the Administra- tive Litigation Law ("ALL")6 to cover universities,the birth of a judicially mandated due process right for university students that is enforceable against educational institutions,and one of the first instances of the direct application of a constitutional norm to a court case in People's Republic of China("PRC")legal history.7 The judicial creation of these doctrines,and their subsequent adoption and application by other courts,challenge the often-held Western view of Chinese courts as uniformly passive,unsophisti- cated,and politically weak actors.s China,see Benjamin L.Liebman,Watcbdog or Demagogue?The Media in the Chinese Legal System,105 COLUM.L.REV.1 (2005). 5.PEERENBOOM,swpra note 2,at 421.According to Peerenboom,"In practice...courts may be inclined to defer to an agency's interpretation [of a particular law]given the courts'weak stature and their dependence on local government."Courts reviewing internal university regulations would have less of a need for such deference. 6.Administrative Litigation Law of the People's Republic of China(promulgated by the Nat'l People's Cong.,Apr.1989,effective Oct.1,1990)(P.R.C.),ailble at http://www.lawyee.net/Act/Act _Display.asp?RID=27560&Key Word=. 7.Shen Kui,Is it the Beginning of tbe Era of tbe Rule of tbe Constitution?Reinterpreting China's"First Constitutional Case,"12 PAC.RIM.L.PoL'Y J.199,231 (2003). 8.Se,eg,Minxin Pei,Can Economic Growth Continue Without Political Reform?,in STRATEGIC ASA 2006-07:TRADE,INTERDEPENDENCE,AND SECURITY 303,314-16 (Ashley Tellis Michael Wills eds., 2006).Pei states: China's legal reform has lost momentum for one main reason:despite nearly three decades of institutional experiments,the Chinese legal system has not freed itself from the political dominance of the ruling CCP [Chinese Communist Party]and,consequently,is deprived of the institutional independence and authority needed to perform its functions effectively.The CCP's political dominance can be seen throughout the organizational structure and routine operations of the courts. Id.at 315

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 3 12-JUN-07 16:27 2007 / “Courageous Explorers” 143 Third, in many of these cases, the plaintiffs, often individual students requesting reinstatement to their school or review of a school’s administra￾tive decision, sought reasonable relief that judges can grant without major political ramifications from the defendant university or the government. Finally, unlike some administrative agencies, educational institutions are less able to rely on textual ambiguities as a defense. Whereas administrative agencies can issue implementing regulations that interpret national regula￾tions in their favor and enhance their own powers under national laws, schools are less able to do so. While educational institutions can and do issue their own regulations on a wide range of issues, such regulations lack the force of law, and courts are not mandated to accord them the same level of deference associated with administrative regulations.5 As a result of these relatively favorable dynamics, the courts have rede￾fined the legal relationship between students and educational institutions. In doing so, the courts have played a key role in enforcing the rights granted to students and teachers under the relatively new body of education law. These court decisions contain some of the most innovative jurispru￾dence of the reform era, including the judicial expansion of the Administra￾tive Litigation Law (“ALL”)6 to cover universities, the birth of a judicially mandated due process right for university students that is enforceable against educational institutions, and one of the first instances of the direct application of a constitutional norm to a court case in People’s Republic of China (“PRC”) legal history.7 The judicial creation of these doctrines, and their subsequent adoption and application by other courts, challenge the often-held Western view of Chinese courts as uniformly passive, unsophisti￾cated, and politically weak actors.8 China, see Benjamin L. Liebman, Watchdog or Demagogue? The Media in the Chinese Legal System, 105 COLUM. L. REV. 1 (2005). 5. PEERENBOOM, supra note 2, at 421. According to Peerenboom, “In practice . . . courts may be R inclined to defer to an agency’s interpretation [of a particular law] given the courts’ weak stature and their dependence on local government.” Courts reviewing internal university regulations would have less of a need for such deference. 6. Administrative Litigation Law of the People’s Republic of China (promulgated by the Nat’l People’s Cong., Apr. 1989, effective Oct. 1, 1990) (P.R.C.), available at http://www.lawyee.net/Act/Act _Display.asp?RID=27560&KeyWord=. 7. Shen Kui, Is it the Beginning of the Era of the Rule of the Constitution? Reinterpreting China’s “First Constitutional Case,” 12 PAC. RIM. L. & POL’Y J. 199, 231 (2003). 8. See, e.g., Minxin Pei, Can Economic Growth Continue Without Political Reform?, in STRATEGIC ASIA 2006–07: TRADE, INTERDEPENDENCE, AND SECURITY 303, 314–16 (Ashley Tellis & Michael Wills eds., 2006). Pei states: China’s legal reform has lost momentum for one main reason: despite nearly three decades of institutional experiments, the Chinese legal system has not freed itself from the political dominance of the ruling CCP [Chinese Communist Party] and, consequently, is deprived of the institutional independence and authority needed to perform its functions effectively. The CCP’s political dominance can be seen throughout the organizational structure and routine operations of the courts. Id. at 315

144 Harvard Human Rights Journal Vol.20 This Article is the first full-length analysis in English of education liti- gation in China and one of the first studies of judicial innovation by Chi- nese courts.In Part I,I map the development of education law in China, delineating the shift from an emphasis on ideology at the end of the Cul- tural Revolution to the creation of a system based on legal rules and statu- tory rights. In Part II,I analyze the series of cases in which the courts began to take a more active role in adjudicating rights claims based on the new legal frame- work,despite the lack of a clear legal mandate to do so.These court deci- sions-including the 1999 Tian Yong case,9 the 2000 Lin Yanwen case,0 and the 2001 Oi Yuling case1-show the courts developing new legal doc- trines to better respond to the needs of individual citizens. In conclusion,I argue that the Chinese government should encourage the greater use of innovative legal techniques by Chinese courts,particularly through measures that strengthen judicial autonomy.Courts with greater institutional authority and autonomy will be able to expand their use of innovative approaches to adjudication and resolve the legal disputes of liti- gants who formerly would not have had access to the judicial system.As such,in the words of one Chinese judge,some courts might be poised to become "courageous explorers"12 of a more dynamic and innovative ap- proach to the development of the rule of law in China. 9.The Tian Yong case was the first administrative litigation case in which a university was brought to court as a defendant.See infra Part II(B).As will be discussed in more detail below,the extension of jurisdiction in administrative litigation cases was controversial because schools were generally consid- ered to be "social service organizations,"and therefore not eligible to be sued under the ALL.The case was also noteworthy in that it marked the first time that a Chinese court asserted a due process right for an individual litigant-specifically,the right to notice and a hearing-in the absence of a clear legisla- tive basis for doing so.For an English-language translation of the Supreme Poople's Court Gazette version of the Tian Yong decision,see Case 1.Administrative Proceeding:Tian Yong v.University of Science and Technology,Beijing for Refusing to Issue Certificate of Graduation and Degree,CHINESE EDuC.Soc'Y, May/June 2006,at 65. 10.The Lim Yawwen case followed on the heels of the Tian Yong case,and was initially tried by the same Beijing court that issued the decision in the Tian Yong case.Se infra Part II(C).In Li Yamen,the court once again asserted jurisdiction over a university in an administrative litigation dispute,and also relied on the individual's due process rights in reaching a decision.The court's decision in favor of the plaintiff was later vacated on the grounds that the plaintiff's claim had expired,raising concerns of political interference.For the full text of all eight court documents issued in the Li Yamen case,see GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDUCATION AND ADMINISTRATIVE LITIGATION], supra note 1,at 499-540. 11.For an English translation of the opinion in the Qi Yuling case,see Qi Yuling v.Chen Xiaoqi et al.:Opinion by the Higber People's Court of Shandong Province,CHINESE EDUC.SoC'Y,July/Aug.2006,at 60-74. 12.Liu Yuenan Ju Xiaoxiong.Chaoyue lilun zbengyi be xianxing zhidu juxian de sbijian:Guangzbou shi liangji fayuan caipan xuesheng su gaoxiao xingzbeng anjian de sbizbeng yanjin [Transcending Tbeoretical Debates and Curvent Practice Within Institutional Limits:Researcb on Concrete Evidence from Adjudication of Administrative Lat Cases of Students Suing Universities in Guangzhou City Courts],in DAXUE ZvZH,ZuLu YU TALU [UNIVERSITY AUTONOMY,SELF-REGULATION AND EXTERNAL DISCIPLINE]206,217 (Zhan Zhongle ed.,2006).Liu and Ju,who are identified as the Chief Judge in the Administrative Division of the Guangzhou City Intermediate People's Court and a Guangzhou City Panyu District People's Court research office official,respectively,make a strong case for a more active approach to judicial decision making:

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 4 12-JUN-07 16:27 144 Harvard Human Rights Journal / Vol. 20 This Article is the first full-length analysis in English of education liti￾gation in China and one of the first studies of judicial innovation by Chi￾nese courts. In Part I, I map the development of education law in China, delineating the shift from an emphasis on ideology at the end of the Cul￾tural Revolution to the creation of a system based on legal rules and statu￾tory rights. In Part II, I analyze the series of cases in which the courts began to take a more active role in adjudicating rights claims based on the new legal frame￾work, despite the lack of a clear legal mandate to do so. These court deci￾sions—including the 1999 Tian Yong case,9 the 2000 Liu Yanwen case,10 and the 2001 Qi Yuling case11—show the courts developing new legal doc￾trines to better respond to the needs of individual citizens. In conclusion, I argue that the Chinese government should encourage the greater use of innovative legal techniques by Chinese courts, particularly through measures that strengthen judicial autonomy. Courts with greater institutional authority and autonomy will be able to expand their use of innovative approaches to adjudication and resolve the legal disputes of liti￾gants who formerly would not have had access to the judicial system. As such, in the words of one Chinese judge, some courts might be poised to become “courageous explorers”12 of a more dynamic and innovative ap￾proach to the development of the rule of law in China. 9. The Tian Yong case was the first administrative litigation case in which a university was brought to court as a defendant. See infra Part II(B). As will be discussed in more detail below, the extension of jurisdiction in administrative litigation cases was controversial because schools were generally consid￾ered to be “social service organizations,” and therefore not eligible to be sued under the ALL. The case was also noteworthy in that it marked the first time that a Chinese court asserted a due process right for an individual litigant—specifically, the right to notice and a hearing—in the absence of a clear legisla￾tive basis for doing so. For an English-language translation of the Supreme People’s Court Gazette version of the Tian Yong decision, see Case 1. Administrative Proceeding: Tian Yong v. University of Science and Technology, Beijing for Refusing to Issue Certificate of Graduation and Degree, CHINESE EDUC. & SOC’Y, May/June 2006, at 65. 10. The Liu Yanwen case followed on the heels of the Tian Yong case, and was initially tried by the same Beijing court that issued the decision in the Tian Yong case. See infra Part II(C). In Liu Yanwen, the court once again asserted jurisdiction over a university in an administrative litigation dispute, and also relied on the individual’s due process rights in reaching a decision. The court’s decision in favor of the plaintiff was later vacated on the grounds that the plaintiff’s claim had expired, raising concerns of political interference. For the full text of all eight court documents issued in the Liu Yanwen case, see GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDUCATION AND ADMINISTRATIVE LITIGATION], supra note 1, at 499–540. R 11. For an English translation of the opinion in the Qi Yuling case, see Qi Yuling v. Chen Xiaoqi et al.: Opinion by the Higher People’s Court of Shandong Province, CHINESE EDUC. & SOC’Y, July/Aug. 2006, at 60–74. 12. Liu Yuenan & Ju Xiaoxiong, Chaoyue lilun zhengyi he xianxing zhidu juxian de shijian: Guangzhou shi liangji fayuan caipan xuesheng su gaoxiao xingzheng anjian de shizheng yanjiu [Transcending Theoretical Debates and Current Practice Within Institutional Limits: Research on Concrete Evidence from Adjudication of Administrative Law Cases of Students Suing Universities in Guangzhou City Courts], in DAXUE ZIZHI, ZILU YU TALU [UNIVERSITY AUTONOMY, SELF-REGULATION AND EXTERNAL DISCIPLINE] 206, 217 (Zhan Zhongle ed., 2006). Liu and Ju, who are identified as the Chief Judge in the Administrative Division of the Guangzhou City Intermediate People’s Court and a Guangzhou City Panyu District People’s Court research office official, respectively, make a strong case for a more active approach to judicial decision making:

2007/“Courageous Explorers” 145 I.REGULATING THE UNIVERSITY SYSTEM IN CHINA: INCREASING AUTONOMY WITHIN LIMITS Since the end of the Cultural Revolution,the government has increas- ingly stressed that government policy would be articulated through law.A key goal of both law and policy has been to increase,within limits,the institutional autonomy of educational institutions,and to create a system of educational administration governed by law.Both of these trends have con- tributed to the development of education litigation:the new body of educa- tion law creates a number of legal rights for all parties,including teachers, students,and academic institutions,which provide the basis for lawsuits by parties who feel that their newly created legal rights have been infringed. The delegation of autonomy has meant that while schools are able to exer- cise a vastly greater degree of authority over a number of key areas,they are also potentially liable for the misuse or even abuse of that authority.3 This section describes the development of education law and policy over the past three decades,and how the government's goal of rapidly develop- ing the higher education system has led to a greater degree of autonomy in a number of key areas,including enrollment,curriculum development,and allocation of budgetary funds.It shows how education law-a virtually non-existent field before the onset of the reform era-has created a set of legal rights for all parties.In general,the government has created a legal framework that,while granting considerable authority to individual insti- tutions,still leaves significant authority in the hands of the state.This hy- brid authority structure has led to a situation in which education institutions are arguably exercising government functions,a key issue of dispute in the Tian Yong and Lin Yanwen cases. Although the law currently in effect does not have a clear prohibition,it also lacks a clear basis for empowering our courts to decide cases on the basis of the constitution or the spirit of the law,or on the position and use of precedent in deciding individual cases.However,since we have firmly established the goal of constructing a country ruled by law,the courts should first move away from long-held mistaken conceptual approaches,and instead become the courageous explorers of a dynamic rule-of-law doctrine. Id. 13.Another reason for the steady stream of education cases over the past decade has been the massive expansion of the higher education system.After years of massive and escalating investment, China's university system has become one of the largest in the world.In 2004,the Chinese government counted roughly 1700 institutions of higher education nationwide,up from a mere 600 in 1978 Yitzhak Shichor,China's Revolution in Higber Education,CHINA BRIEE,Mar.2,2006,at 6-7,available at http://www.jamestown.org/images/pdf/cb_006_005.pdf.These 1700 universities are responsible for more than thirteen million undergraduate students and more than 800,000 post-grads.Id.As the stu- dent population has expanded,Chinese faculties have grown in an attempt to keep pace.In 2004,China had 858,000 full-time university faculty members nationwide,more than four times the number in 1978.Id.Much of the faculty growth took place after the government's 1998 decision to massively increase government funding for higher education:between 2000 and 2004,close to 100,000 new faculty positions were added each year.Id

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 5 12-JUN-07 16:27 2007 / “Courageous Explorers” 145 I. REGULATING THE UNIVERSITY SYSTEM IN CHINA: INCREASING AUTONOMY WITHIN LIMITS Since the end of the Cultural Revolution, the government has increas￾ingly stressed that government policy would be articulated through law. A key goal of both law and policy has been to increase, within limits, the institutional autonomy of educational institutions, and to create a system of educational administration governed by law. Both of these trends have con￾tributed to the development of education litigation: the new body of educa￾tion law creates a number of legal rights for all parties, including teachers, students, and academic institutions, which provide the basis for lawsuits by parties who feel that their newly created legal rights have been infringed. The delegation of autonomy has meant that while schools are able to exer￾cise a vastly greater degree of authority over a number of key areas, they are also potentially liable for the misuse or even abuse of that authority.13 This section describes the development of education law and policy over the past three decades, and how the government’s goal of rapidly develop￾ing the higher education system has led to a greater degree of autonomy in a number of key areas, including enrollment, curriculum development, and allocation of budgetary funds. It shows how education law—a virtually non-existent field before the onset of the reform era—has created a set of legal rights for all parties. In general, the government has created a legal framework that, while granting considerable authority to individual insti￾tutions, still leaves significant authority in the hands of the state. This hy￾brid authority structure has led to a situation in which education institutions are arguably exercising government functions, a key issue of dispute in the Tian Yong and Liu Yanwen cases. Although the law currently in effect does not have a clear prohibition, it also lacks a clear basis for empowering our courts to decide cases on the basis of the constitution or the spirit of the law, or on the position and use of precedent in deciding individual cases. However, since we have firmly established the goal of constructing a country ruled by law, the courts should first move away from long-held mistaken conceptual approaches, and instead become the courageous explorers of a dynamic rule-of-law doctrine. Id. 13. Another reason for the steady stream of education cases over the past decade has been the massive expansion of the higher education system. After years of massive and escalating investment, China’s university system has become one of the largest in the world. In 2004, the Chinese government counted roughly 1700 institutions of higher education nationwide, up from a mere 600 in 1978. Yitzhak Shichor, China’s Revolution in Higher Education, CHINA BRIEF, Mar. 2, 2006, at 6–7, available at http://www.jamestown.org/images/pdf/cb_006_005.pdf. These 1700 universities are responsible for more than thirteen million undergraduate students and more than 800,000 post-grads. Id. As the stu￾dent population has expanded, Chinese faculties have grown in an attempt to keep pace. In 2004, China had 858,000 full-time university faculty members nationwide, more than four times the number in 1978. Id. Much of the faculty growth took place after the government’s 1998 decision to massively increase government funding for higher education: between 2000 and 2004, close to 100,000 new faculty positions were added each year. Id

146 Harvard Human Rights Journal Vol.20 A.Historical Background:Universities in Post-1949 China When the Communist government came to power in 1949,it fully ab- sorbed all educational institutions into the state-run framework and dra- matically reorganized the entire education sector based on the Soviet model.14 The education system was consciously redesigned to serve the na- tional economic plan.5 The Ministry of Education standardized university curricula for all subjects and strictly enforced its requirement that schools use the government-created curricula.16 Over the ensuing decades,the education system was decimated by politi- cal purges of faculty and administrators caught on the wrong side of rapidly shifting political winds and the elimination of entire disciplines considered inconsistent with Party ideology.The Cultural Revolution virtually shut down the university system,as students donned Red Guard armbands,and the Gang of Four encouraged campus radicals to attack their professors as symbols of Western bourgeois expertise.17 In the late 1970s,the Chinese government began picking up the pieces of its shattered higher education system.The government returned author- ity over the university system to the Ministry of Education,which had itself been closed down for part of the Cultural Revolution.'s Universities re- opened departments that had been closed for decades for ideological reasons, including sociology and anthropology,19 and the pursuit of technical and scientific knowledge became a key part of central government policy under the banner of the so-called "four modernizations."University admissions tests were once again instituted,and ideological factors such as an appli- cant's class background,which had been given pride of place during the Cultural Revolution,were largely discarded as part of the admissions process.20 The year 1979 saw the reform era's first calls for academic autonomy.In June of that year,four prominent university presidents published a public appeal in the pages of the People's Daily calling for more academic autonomy for all institutions of higher education.21 This appeal was followed by an 14.SUZANNE PEPPER,RADICALISM AND EDUCATION REFORM IN 20TH-CENTURY CHINA 157-58 (1996). 15.Broader geographical distribution of educational institutions was also emphasized:each prov- ince would have its own medical,agricultural,and teacher-training schools,and the comprehensive universities that were set up were also geographically dispersed.Id.at 177. 16.1d.at187. 17.For a detailed account of the damage done to the education system during the Cultural Revolu- tion,see ld.at 259-352. 18.Id.at480. 19.RUTH HAYHOE,CHINA's UNIVERSITIES 1895-1995:A CENTURY OF CULTURAL CONFLICT 123 (1996). 20.PEPPER,supra note 14,at 479. 21.Li Xiaoping,University Autonomy in Chind:History,Present Situation,and Perspective,in ORGAN- ZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT,CURRENT ISSUES IN CHINESE HIGHER EDU- CATION 38 (2001),avilable at http://eric.ed.gov/ERICDocs/data/ericdocs2/content_storage_01/0000 000b/80/27/aclh.pdf

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 6 12-JUN-07 16:27 146 Harvard Human Rights Journal / Vol. 20 A. Historical Background: Universities in Post-1949 China When the Communist government came to power in 1949, it fully ab￾sorbed all educational institutions into the state-run framework and dra￾matically reorganized the entire education sector based on the Soviet model.14 The education system was consciously redesigned to serve the na￾tional economic plan.15 The Ministry of Education standardized university curricula for all subjects and strictly enforced its requirement that schools use the government-created curricula.16 Over the ensuing decades, the education system was decimated by politi￾cal purges of faculty and administrators caught on the wrong side of rapidly shifting political winds and the elimination of entire disciplines considered inconsistent with Party ideology. The Cultural Revolution virtually shut down the university system, as students donned Red Guard armbands, and the Gang of Four encouraged campus radicals to attack their professors as symbols of Western bourgeois expertise.17 In the late 1970s, the Chinese government began picking up the pieces of its shattered higher education system. The government returned author￾ity over the university system to the Ministry of Education, which had itself been closed down for part of the Cultural Revolution.18 Universities re￾opened departments that had been closed for decades for ideological reasons, including sociology and anthropology,19 and the pursuit of technical and scientific knowledge became a key part of central government policy under the banner of the so-called “four modernizations.” University admissions tests were once again instituted, and ideological factors such as an appli￾cant’s class background, which had been given pride of place during the Cultural Revolution, were largely discarded as part of the admissions process.20 The year 1979 saw the reform era’s first calls for academic autonomy. In June of that year, four prominent university presidents published a public appeal in the pages of the People’s Daily calling for more academic autonomy for all institutions of higher education.21 This appeal was followed by an 14. SUZANNE PEPPER, RADICALISM AND EDUCATION REFORM IN 20TH-CENTURY CHINA 157–58 (1996). 15. Broader geographical distribution of educational institutions was also emphasized: each prov￾ince would have its own medical, agricultural, and teacher-training schools, and the comprehensive universities that were set up were also geographically dispersed. Id. at 177. 16. Id. at 187. 17. For a detailed account of the damage done to the education system during the Cultural Revolu￾tion, see Id. at 259–352. 18. Id. at 480. 19. RUTH HAYHOE, CHINA’S UNIVERSITIES 1895–1995: A CENTURY OF CULTURAL CONFLICT 123 (1996). 20. PEPPER, supra note 14, at 479. R 21. Li Xiaoping, University Autonomy in China: History, Present Situation, and Perspective, in ORGANI￾ZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT, CURRENT ISSUES IN CHINESE HIGHER EDU￾CATION 38 (2001), available at http://eric.ed.gov/ERICDocs/data/ericdocs2/content_storage_01/0000 000b/80/27/ac/fa.pdf

2007/“Courageous Explorers” 147 editorial arguing that university autonomy was "a problem that needed to be discussed thoroughly,"and that new ideas should be encouraged.2 In 1985,the Party's Central Committee issued the Decision on Reform of the Education System,which emphasized the need for greater institutional autonomy and called for an end to excessive government intervention in the education sector.23 The decision also called for greater coordination between universities and entities engaged in material production,so that institu- tions of higher learning could play a more useful role in economic develop- ment.24 Under the decision,the government delegated some authority over academic programs,personnel,and finance to the universities themselves.25 That document was soon followed by State Council regulations that sought to give universities greater authority over certain functions,includ- ing admissions,financial administration,hiring and firing decisions,and international academic exchanges.These regulations empowered universi- ties themselves to choose several senior school officials,including the vice president,other senior administrative officers,and professors,rather than passively accepting Party or Ministry of Education appointments.26 The power to appoint university presidents,however,remained with the govern- ment,usually the Ministry of Education.27 The impact of these reforms was significant.For example,universities could now experiment in the area of curriculum development.Many of them did,seeking to develop materials that would be more likely to attract students,some of whom were paying for the privilege of education for the first time since 1949.While the Ministry of Education still issued curricu- lum documents,universities could now view the documents as "reference materials"that could be disregarded in favor of other approaches.28 The increasing dependence of universities on self-generated funds further enhanced autonomy.In many cases,the government gave universities only enough cash to meet their basic needs,leaving universities responsible for generating funding for any additional requirements.The drive to find and create moneymaking programs created a hierarchy of academic departments not dissimilar to the dynamic found at some Western institutions:those faculties and schools that could generate funds,such as engineering,fi- nance,and foreign languages,leapt ahead of many of those that could not, 22.1d. 23.Ka-ho Mok,Globalization and Edncational Restructuring:University Merging and Changing Govern- ame in Cbind,50 HIGHER EDUC.57,65 (2005). 24.1d. 25.Ningsha Zhong Ruth Hayhoe,University Automomy in Ticentieth-Century China,in EDUCA. TION,CULTURE,AND IDENTITY IN TWENTIETH-CENTURY CHINA 265,276(Glen Peterson et al.eds., 2001). 26.1d. 27.RUIQING DU,CHINESE HIGHER EDUCATION 23(1992). 28.1d

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 7 12-JUN-07 16:27 2007 / “Courageous Explorers” 147 editorial arguing that university autonomy was “a problem that needed to be discussed thoroughly,” and that new ideas should be encouraged.22 In 1985, the Party’s Central Committee issued the Decision on Reform of the Education System, which emphasized the need for greater institutional autonomy and called for an end to excessive government intervention in the education sector.23 The decision also called for greater coordination between universities and entities engaged in material production, so that institu￾tions of higher learning could play a more useful role in economic develop￾ment.24 Under the decision, the government delegated some authority over academic programs, personnel, and finance to the universities themselves.25 That document was soon followed by State Council regulations that sought to give universities greater authority over certain functions, includ￾ing admissions, financial administration, hiring and firing decisions, and international academic exchanges. These regulations empowered universi￾ties themselves to choose several senior school officials, including the vice president, other senior administrative officers, and professors, rather than passively accepting Party or Ministry of Education appointments.26 The power to appoint university presidents, however, remained with the govern￾ment, usually the Ministry of Education.27 The impact of these reforms was significant. For example, universities could now experiment in the area of curriculum development. Many of them did, seeking to develop materials that would be more likely to attract students, some of whom were paying for the privilege of education for the first time since 1949. While the Ministry of Education still issued curricu￾lum documents, universities could now view the documents as “reference materials” that could be disregarded in favor of other approaches.28 The increasing dependence of universities on self-generated funds further enhanced autonomy. In many cases, the government gave universities only enough cash to meet their basic needs, leaving universities responsible for generating funding for any additional requirements. The drive to find and create moneymaking programs created a hierarchy of academic departments not dissimilar to the dynamic found at some Western institutions: those faculties and schools that could generate funds, such as engineering, fi￾nance, and foreign languages, leapt ahead of many of those that could not, 22. Id. 23. Ka-ho Mok, Globalization and Educational Restructuring: University Merging and Changing Govern￾ance in China, 50 HIGHER EDUC. 57, 65 (2005). 24. Id. 25. Ningsha Zhong & Ruth Hayhoe, University Autonomy in Twentieth-Century China, in EDUCA￾TION, CULTURE, AND IDENTITY IN TWENTIETH-CENTURY CHINA 265, 276 (Glen Peterson et al. eds., 2001). 26. Id. 27. RUIQING DU, CHINESE HIGHER EDUCATION 23 (1992). 28. Id

148 Harvard Human Rights Journal Vol.20 including agricultural schools and other institutions that specialized in less seemingly“modern”subject areas.29 The 1989 student protests brought to a standstill the trend toward greater autonomy.After the government intervened with military force to end the protests in June 1989,it dramatically reasserted authority over the university system as a whole.30 Over the next three years,the number of Party members appointed to senior positions within Chinese universities rose dramatically,and ideological study requirements for both students and professors were increased.31 At Peking University and certain other institu- tions more directly tied to the 1989 unrest,year-long military-ideological training courses were required for all new students.32 These new require- ments led to a precipitous drop in enrollments as students sought out schools that did not require a year of indoctrination before setting foot on campus.33 The Party's retrenchment was relatively short-lived.In 1992,the State Education Council issued a policy document that reiterated the need for university autonomy,and in 1993,the State Council followed suit,recom- mending that university authority be expanded in several key areas.34 B.University Autonomy in the Contemporary Context:From Policy to Law Beginning in the mid-1980s,the Chinese government began to codify its policy pronouncements in a system of laws,which ranged from the rela- tively broad provisions of the national-level legislation to the more detailed regulations issued by the Ministry of Education and other government agencies to the rules and regulations of the schools themselves.35 Between 1985 and 2000,the government issued more than one thousand laws,rules, 29.HAYHOE,supra note 19,at 121 30.Luo Xu,Farewell to Idealism:Mapping China's University Students of the 1990s,13 J.CONTEMP. CHNA779,782(2004). 31.Id.For a more recent description of propaganda campaigns on Chinese campuses,see Paul Mooney,Campu Life Prover Difficult for China's Little Emperors:Pampered at Home,Students Rebel against Squalid Dorms and Limits on Their Freedom,CHRON.OF HIGHER EDUC.,Nov.25,2005,available at http:/ /chronicle.com/weekly/v52/i14/14a04601.htm. 32.Chengzhi Wang,From Manpouer Supply to Economic Revival Governance and Financing of Chinese Higber Education,EDUC.PoL'Y ANALYSIS ARCHIVES,June 5,2000,available at http://epaa.asu.cdu/epaal v8n26.html;se also Wei Feng,Facets of the Crisis in Institutions of Higher Learning,CHINESE EDUC.AND SoC'Y,Nov.-Dec.1996,at 10. 33.For an argument that the drop in enrollments at Peking University was more closely related to market forces than military requirements,see Wei Feng,swpra note 32. 34.Li Xiaoping,supra note 21. 35.One Chinese scholar estimated that,between the founding of the People's Republic of China in 1949 and 1985,the government issued roughly five hundred education laws,regulations,and other related documents,the vast majority of which had either expired or were abolished by 1987.In con- trast,in the fifteen years from 1985 to 2000,the government issued more than one thousand rules, regulations,and other documents related to education,more than twice the output of the prior thirty- five years.At present,pre-1985 regulations are believed to constitute less than 5 percent of the total regulatory framework.Shen Kui,Rule of Law and Public Higher Edmcation Institutions,CHINESE EDUC. Soc'Y,July-Aug.2006,at 11,52 n.10

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 8 12-JUN-07 16:27 148 Harvard Human Rights Journal / Vol. 20 including agricultural schools and other institutions that specialized in less seemingly “modern” subject areas.29 The 1989 student protests brought to a standstill the trend toward greater autonomy. After the government intervened with military force to end the protests in June 1989, it dramatically reasserted authority over the university system as a whole.30 Over the next three years, the number of Party members appointed to senior positions within Chinese universities rose dramatically, and ideological study requirements for both students and professors were increased.31 At Peking University and certain other institu￾tions more directly tied to the 1989 unrest, year-long military-ideological training courses were required for all new students.32 These new require￾ments led to a precipitous drop in enrollments as students sought out schools that did not require a year of indoctrination before setting foot on campus.33 The Party’s retrenchment was relatively short-lived. In 1992, the State Education Council issued a policy document that reiterated the need for university autonomy, and in 1993, the State Council followed suit, recom￾mending that university authority be expanded in several key areas.34 B. University Autonomy in the Contemporary Context: From Policy to Law Beginning in the mid-1980s, the Chinese government began to codify its policy pronouncements in a system of laws, which ranged from the rela￾tively broad provisions of the national-level legislation to the more detailed regulations issued by the Ministry of Education and other government agencies to the rules and regulations of the schools themselves.35 Between 1985 and 2000, the government issued more than one thousand laws, rules, 29. HAYHOE, supra note 19, at 121. R 30. Luo Xu, Farewell to Idealism: Mapping China’s University Students of the 1990s, 13 J. CONTEMP. CHINA 779, 782 (2004). 31. Id. For a more recent description of propaganda campaigns on Chinese campuses, see Paul Mooney, Campus Life Proves Difficult for China’s Little Emperors: Pampered at Home, Students Rebel against Squalid Dorms and Limits on Their Freedom, CHRON. OF HIGHER EDUC., Nov. 25, 2005, available at http:/ /chronicle.com/weekly/v52/i14/14a04601.htm. 32. Chengzhi Wang, From Manpower Supply to Economic Revival Governance and Financing of Chinese Higher Education, EDUC. POL’Y ANALYSIS ARCHIVES, June 5, 2000, available at http://epaa.asu.edu/epaa/ v8n26.html; see also Wei Feng, Facets of the Crisis in Institutions of Higher Learning, CHINESE EDUC. AND SOC’Y, Nov.–Dec. 1996, at 10. 33. For an argument that the drop in enrollments at Peking University was more closely related to market forces than military requirements, see Wei Feng, supra note 32. R 34. Li Xiaoping, supra note 21. R 35. One Chinese scholar estimated that, between the founding of the People’s Republic of China in 1949 and 1985, the government issued roughly five hundred education laws, regulations, and other related documents, the vast majority of which had either expired or were abolished by 1987. In con￾trast, in the fifteen years from 1985 to 2000, the government issued more than one thousand rules, regulations, and other documents related to education, more than twice the output of the prior thirty￾five years. At present, pre-1985 regulations are believed to constitute less than 5 percent of the total regulatory framework. Shen Kui, Rule of Law and Public Higher Education Institutions, CHINESE EDUC. & SOC’Y, July–Aug. 2006, at 11, 52 n.10

2007/“Courageous Explorers” 149 regulations,and other documents related to education.36 In general,the law sought to give substance to the government's policy pronouncements of greater autonomy for schools,while at the same time preserving significant government oversight.37 The result in many cases is a system of split au- thority in which schools have significant latitude to make important deci- sions,but must have these decisions approved by the government. The various policy statements on increased academic autonomy were adopted into law for the first time in 1995 with the passage of the Educa- tion Law.38 Under Article 28 of the Education Law,educational institutions have the right to "autonomous management according to the [school's] constitution."39 Article 30 guarantees educational institutions the right to form their own management structure in accordance with government reg- ulations.40 Article 31 makes clear that schools that meet certain criteria are independent legal persons,and that all schools "enjoy civil rights and inter- ests and bear civil liabilities in civil activities according to law."4 The Higher Education Law,passed in 1998,contains similar language.42 That law empowers universities to "run [their]schools on their own,"and gives them explicit,though by no means complete,authority over budgets; the hiring,firing,and evaluation of personnel;curriculum;and enrollment.43 Unfortunately,these provisions are undermined-at least rhetorically,if not legally-by other provisions in the same laws that mandate educational content.Under Article 6 of the Education Law,the government takes a 36.1d. 37.Despite the continued experimentation with private and quasi-private schooling,the vast ma- jority of China's universities are state-run,and receive most of their funding,outside of student tuition, from the government.Both the Communist Party and the government are intensely involved in the appointment of many university presidents,especially at elite universities in Beijing,Shanghai,and elsewhere.Indeed,the presidents of top Chinese universities have a governmental rank of vice minister, and are chosen by the State Council.The selection of presidents of other schools is usually handled by the Ministry of Education.RuQING Du,supra note 27,at 23.Although the government has recently allowed for the creation of quasi-private universities,these institutions are relatively few in number,and are subject to strict government oversight.The creation and administration of private education institu- tions is governed by the Non-Governmental Education Promotion Law of the People's Republic of China (adopted by the Standing Comm.of the Nat'I People's Cong.on Dec.28,2002,effective Sept.1, 2003)(P.R.C.),ailble at http://www.moe.edu.cn/edoas/website18/info1433.htm. 38.Education Law of the People's Republic of China (promulgated by the Nat'l People's Cong.on Mar.18,1995,effective Sept.1,1995)(P.R.C.),ailable at http://www.moc.edu.cn/english/laws_e. htm. 39.1d.art.28. 40.1d.art.30 41.Id.art.31 42.Higher Education Law of the People's Republic of China (adopted by the Standing Comm.of the Nat'l People's Cong.on Aug.29,1988,promulgated by Order No.7 of the President of the PRC, Aug.29,1988,effective Jan.1,1999)(P.R.C.),aailable at http://www.moc.edu.cn/english/laws_h. htm. 43.Id.The State's overall authority was also clearly delineated in this 1998 law.Article 13 of the law states that"the State Council shall provide unified guidance and administration for higher educa- tion,"and that provincial governments also have responsibility over the universities in their jurisdic- tion.Id.art.13

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 9 12-JUN-07 16:27 2007 / “Courageous Explorers” 149 regulations, and other documents related to education.36 In general, the law sought to give substance to the government’s policy pronouncements of greater autonomy for schools, while at the same time preserving significant government oversight.37 The result in many cases is a system of split au￾thority in which schools have significant latitude to make important deci￾sions, but must have these decisions approved by the government. The various policy statements on increased academic autonomy were adopted into law for the first time in 1995 with the passage of the Educa￾tion Law.38 Under Article 28 of the Education Law, educational institutions have the right to “autonomous management according to the [school’s] constitution.”39 Article 30 guarantees educational institutions the right to form their own management structure in accordance with government reg￾ulations.40 Article 31 makes clear that schools that meet certain criteria are independent legal persons, and that all schools “enjoy civil rights and inter￾ests and bear civil liabilities in civil activities according to law.”41 The Higher Education Law, passed in 1998, contains similar language.42 That law empowers universities to “run [their] schools on their own,” and gives them explicit, though by no means complete, authority over budgets; the hiring, firing, and evaluation of personnel; curriculum; and enrollment.43 Unfortunately, these provisions are undermined—at least rhetorically, if not legally—by other provisions in the same laws that mandate educational content. Under Article 6 of the Education Law, the government takes a 36. Id. 37. Despite the continued experimentation with private and quasi-private schooling, the vast ma￾jority of China’s universities are state-run, and receive most of their funding, outside of student tuition, from the government. Both the Communist Party and the government are intensely involved in the appointment of many university presidents, especially at elite universities in Beijing, Shanghai, and elsewhere. Indeed, the presidents of top Chinese universities have a governmental rank of vice minister, and are chosen by the State Council. The selection of presidents of other schools is usually handled by the Ministry of Education. RUIQING DU, supra note 27, at 23. Although the government has recently R allowed for the creation of quasi-private universities, these institutions are relatively few in number, and are subject to strict government oversight. The creation and administration of private education institu￾tions is governed by the Non-Governmental Education Promotion Law of the People’s Republic of China (adopted by the Standing Comm. of the Nat’l People’s Cong. on Dec. 28, 2002, effective Sept. 1, 2003) (P.R.C.), available at http://www.moe.edu.cn/edoas/website18/info1433.htm. 38. Education Law of the People’s Republic of China (promulgated by the Nat’l People’s Cong. on Mar. 18, 1995, effective Sept. 1, 1995) (P.R.C.), available at http://www.moe.edu.cn/english/laws_e. htm. 39. Id. art. 28. 40. Id. art. 30. 41. Id. art. 31. 42. Higher Education Law of the People’s Republic of China (adopted by the Standing Comm. of the Nat’l People’s Cong. on Aug. 29, 1988, promulgated by Order No. 7 of the President of the PRC, Aug. 29, 1988, effective Jan. 1, 1999) (P.R.C.), available at http://www.moe.edu.cn/english/laws_h. htm. 43. Id. The State’s overall authority was also clearly delineated in this 1998 law. Article 13 of the law states that “the State Council shall provide unified guidance and administration for higher educa￾tion,” and that provincial governments also have responsibility over the universities in their jurisdic￾tion. Id. art. 13

150 Harvard Human Rights Journal Vol.20 “patriotic,"“collectivist,”and“socialist”approach to education.44 In addi-- tion,"Marxism,Leninism,and Mao Zedong Thought"are explicitly placed at the center of the educational "cause."45 More important than the provisions on Marxism and socialism are those provisions that divide authority between universities and the state,the lat- ter usually represented by the Ministry of Education.Often,the legal divi- sion of authority creates a somewhat complicated structure in which universities make decisions according to government rules,and then submit those decisions for government approval.46 Just as education law in China delegates authority to educational institu- tions,it also creates legal rights for educators,students,and institutions of higher learning.Article 33 of the Education Law,for example,creates an obligation on the state to "protect the legitimate rights and interests of teachers,"and states that employment issues related to teachers,such as remuneration,will be handled by law.47 Under Article 42 of the Education Law,students have the right to bring a complaint against a school if they disagree with disciplinary action taken by that school.4s Under the same 44.Education Law of the People's Republic of China,supra note 38,art.6.It is unclear what,if any,legal effect such language has.Nonetheless,Article 6 and other similar provisions do reflect the deep involvement of the Communist Party in education policy in China. 45.Education Law of the People's Republic of China,spra note 38,art.3.The Higher Education Law repeats these strictures.Article 3 of the Higher Education Law is virtually identical to Article 3 of the Education Law.Article 4 of the Higher Education Law requires that"[hjigher education shall be conducted in adherence to the educational principles of the State,in the service of the socialist moderni- zation drive....in order that the educatees shall become builders and successors for the socialist cause."Higher Education Law of the People's Republic of China,supra note 42,arts.3,4. 46.The conferral of academic degrees is one example of this hybrid approach.Both the Education Law and the Higher Education Law make clear that the state is responsible for the conferral of academic degrees.Education Law of the People's Republic of China,supra note 38,art.22;Higher Education Law of the People's Republic of China,supra note 42,art.22.The state exercises its authority to grant degrees through the Regulations of the People's Republic of China on Academic Degrees,under which it delegates degree-granting authority to approved universities.Regulations of the People's Republic of China on Academic Degrees (adopted at the 13th meeting of the Standing Comm.of the 5th Nat'l People's Cong.and promulgated by Order No.5 of the Standing Comm.of the Nat'l People's Cong.on Feb.12,1980,effective Jan.1,1981)(P.R.C.),arailable at http://www.novexcn.com/academic_degrees. html.Under Article 8 of the Academic Degree Regulations,the State Council must approve all schools wishing to issue degrees.All schools issuing degrees are required to set up a two-tiered system for conferring master's and doctorate degrees.The system consists of a dissertation committee based in each department,and an academic degree evaluation committee,based in each degree-granting unit within a university.Id.arts.9,10. The process itself passes through both entities:First,a dissertation committee evaluates and either approves or rejects an individual student's master's or doctorate thesis (bachelor's degrees are approved by the university's academic degree evaluation committee).If the departmental dissertation committee approves the student's thesis,it then sends a resolution recommending the candidate for receipt of a degree.The academic degree evaluation committee then votes on each individual resolution;those it accepts are granted a degree by the university.Id.arts.10,11.If the thesis is rejected by the disserta- tion committee,then the student can be issued a certificate of completion by the university.Schools must submit a list of persons to whom they are awarding master's or doctorate degrees to the govern- ment "for the record."Id.art.10(2). 47.Education Law of the People's Republic of China,supra note 38,art.33. 48.1d.art.42

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 10 12-JUN-07 16:27 150 Harvard Human Rights Journal / Vol. 20 “patriotic,” “collectivist,” and “socialist” approach to education.44 In addi￾tion, “Marxism, Leninism, and Mao Zedong Thought” are explicitly placed at the center of the educational “cause.”45 More important than the provisions on Marxism and socialism are those provisions that divide authority between universities and the state, the lat￾ter usually represented by the Ministry of Education. Often, the legal divi￾sion of authority creates a somewhat complicated structure in which universities make decisions according to government rules, and then submit those decisions for government approval.46 Just as education law in China delegates authority to educational institu￾tions, it also creates legal rights for educators, students, and institutions of higher learning. Article 33 of the Education Law, for example, creates an obligation on the state to “protect the legitimate rights and interests of teachers,” and states that employment issues related to teachers, such as remuneration, will be handled by law.47 Under Article 42 of the Education Law, students have the right to bring a complaint against a school if they disagree with disciplinary action taken by that school.48 Under the same 44. Education Law of the People’s Republic of China, supra note 38, art. 6. It is unclear what, if R any, legal effect such language has. Nonetheless, Article 6 and other similar provisions do reflect the deep involvement of the Communist Party in education policy in China. 45. Education Law of the People’s Republic of China, supra note 38, art. 3. The Higher Education R Law repeats these strictures. Article 3 of the Higher Education Law is virtually identical to Article 3 of the Education Law. Article 4 of the Higher Education Law requires that “[h]igher education shall be conducted in adherence to the educational principles of the State, in the service of the socialist moderni￾zation drive . . . . in order that the educatees shall become builders and successors for the socialist cause.” Higher Education Law of the People’s Republic of China, supra note 42, arts. 3, 4. R 46. The conferral of academic degrees is one example of this hybrid approach. Both the Education Law and the Higher Education Law make clear that the state is responsible for the conferral of academic degrees. Education Law of the People’s Republic of China, supra note 38, art. 22; Higher Education Law R of the People’s Republic of China, supra note 42, art. 22. The state exercises its authority to grant R degrees through the Regulations of the People’s Republic of China on Academic Degrees, under which it delegates degree-granting authority to approved universities. Regulations of the People’s Republic of China on Academic Degrees (adopted at the 13th meeting of the Standing Comm. of the 5th Nat’l People’s Cong. and promulgated by Order No. 5 of the Standing Comm. of the Nat’l People’s Cong. on Feb. 12, 1980, effective Jan. 1, 1981) (P.R.C.), available at http://www.novexcn.com/academic_degrees. html. Under Article 8 of the Academic Degree Regulations, the State Council must approve all schools wishing to issue degrees. All schools issuing degrees are required to set up a two-tiered system for conferring master’s and doctorate degrees. The system consists of a dissertation committee based in each department, and an academic degree evaluation committee, based in each degree-granting unit within a university. Id. arts. 9, 10. The process itself passes through both entities: First, a dissertation committee evaluates and either approves or rejects an individual student’s master’s or doctorate thesis (bachelor’s degrees are approved by the university’s academic degree evaluation committee). If the departmental dissertation committee approves the student’s thesis, it then sends a resolution recommending the candidate for receipt of a degree. The academic degree evaluation committee then votes on each individual resolution; those it accepts are granted a degree by the university. Id. arts. 10, 11. If the thesis is rejected by the disserta￾tion committee, then the student can be issued a certificate of completion by the university. Schools must submit a list of persons to whom they are awarding master’s or doctorate degrees to the govern￾ment “for the record.” Id. art. 10(2). 47. Education Law of the People’s Republic of China, supra note 38, art. 33. R 48. Id. art. 42