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