《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