"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)