《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

2007/“Courageous Explorers” 151 article,students have the right to bring civil suits if their personal safety or property has been harmed by the school.49 The Higher Education Law takes a similar approach:Article 45 of the Higher Education Law states that university educators "have rights pre- scribed by law,"50 and Article 53 states that students'rights and interests are protected by law.s Both national law and Ministry of Education imple- menting regulations,including the 1993 Teachers Law of the People's Re- public of Chinas2 and the 2005 Ministry of Education Regulations on Student Management in Regular Higher Education Institutions,33 lay out the specific legal rights of teachers and students. Although the new education laws created a raft of new rights,the law was unclear as to how these rights could be protected and what means were available for redress if an academic institution failed to honor them.Neither the Education Law nor the Higher Education Law included any guidance as to how the rights enunciated in those laws should be protected and did not obligate education institutions to set up any sort of grievance or appeal mechanism to handle claims by students or teachers.The relevant Ministry of Education regulations lacked clear mechanisms for dispute resolution and appeal.Judges looking to adjudicate disputes between universities and stu- dents had to deal not only with the unclear procedure for dispute resolu- tion,but also with the express legal grant of autonomy to universities by the state.As will be discussed in more detail below,these questions would become a central element of education litigation during the 1990s. II.UNIVERSITY AUTONOMY AND THE COURTS: THE TIAN YONG AND LIU YANWEN CASES A.Background:The Birth of Education Litigation The 1990s saw a virtual explosion-one Chinese scholar referred to it as a "tidal wave"-of cases brought by students or,less often,teachers suing an educational institution over alleged violations of their legal rights.34 The government's policy,discussed above,helped make these cases possible by 49.1d. 50.Higher Education Law of the People's Republic of China,supra note 42,art.45. 51.1d.art.53. 52.Teachers Law of the People's Republic of China (adopted at the 4th meeting of the Standing Comm.of the 8th Nat'l People's Cong.on Oct.31.1993,effective on Jan.1,1994)(P.R.C.),ailable at http://english.sepa.gov.cn/zffg/fl/19931031_49735.htm. 53.Regulations on Student Management in Regular Higher Education Institutions(adopted at the Ministry of Educ.ministerial office meeting,Feb.4,2005,effective Sept.9,2005)(P.R.C.),lbe http://www.moe.edu.cn/edoas/website18/info9818.htm.A translation of the Student Management Reg- ulations was published in 39 CHINESE EDUC.Soc'Y 87(2006).Many saw these regulations,which lay out detailed and mandatory due process rights for students,as the government's response to the deci- sions in the Tin Yong and Lim Yamen cases,both of which judicially mandated that schools protect students'due process rights.The regulations are discussed in more detail below. 54.Shen Kui,supra note 35,at 11

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 11 12-JUN-07 16:27 2007 / “Courageous Explorers” 151 article, students have the right to bring civil suits if their personal safety or property has been harmed by the school.49 The Higher Education Law takes a similar approach: Article 45 of the Higher Education Law states that university educators “have rights pre￾scribed by law,”50 and Article 53 states that students’ rights and interests are protected by law.51 Both national law and Ministry of Education imple￾menting regulations, including the 1993 Teachers Law of the People’s Re￾public of China52 and the 2005 Ministry of Education Regulations on Student Management in Regular Higher Education Institutions,53 lay out the specific legal rights of teachers and students. Although the new education laws created a raft of new rights, the law was unclear as to how these rights could be protected and what means were available for redress if an academic institution failed to honor them. Neither the Education Law nor the Higher Education Law included any guidance as to how the rights enunciated in those laws should be protected and did not obligate education institutions to set up any sort of grievance or appeal mechanism to handle claims by students or teachers. The relevant Ministry of Education regulations lacked clear mechanisms for dispute resolution and appeal. Judges looking to adjudicate disputes between universities and stu￾dents had to deal not only with the unclear procedure for dispute resolu￾tion, but also with the express legal grant of autonomy to universities by the state. As will be discussed in more detail below, these questions would become a central element of education litigation during the 1990s. II. UNIVERSITY AUTONOMY AND THE COURTS: THE Tian Yong AND Liu Yanwen CASES A. Background: The Birth of Education Litigation The 1990s saw a virtual explosion—one Chinese scholar referred to it as a “tidal wave”—of cases brought by students or, less often, teachers suing an educational institution over alleged violations of their legal rights.54 The government’s policy, discussed above, helped make these cases possible by 49. Id. 50. Higher Education Law of the People’s Republic of China, supra note 42, art. 45. R 51. Id. art. 53. 52. Teachers Law of the People’s Republic of China (adopted at the 4th meeting of the Standing Comm. of the 8th Nat’l People’s Cong. on Oct. 31, 1993, effective on Jan. 1, 1994) (P.R.C.), available at http://english.sepa.gov.cn/zffg/fl/19931031_49735.htm. 53. Regulations on Student Management in Regular Higher Education Institutions (adopted at the Ministry of Educ. ministerial office meeting, Feb. 4, 2005, effective Sept. 9, 2005) (P.R.C.), available at http://www.moe.edu.cn/edoas/website18/info9818.htm. A translation of the Student Management Reg￾ulations was published in 39 CHINESE EDUC. & SOC’Y 87 (2006). Many saw these regulations, which lay out detailed and mandatory due process rights for students, as the government’s response to the deci￾sions in the Tian Yong and Liu Yanwen cases, both of which judicially mandated that schools protect students’ due process rights. The regulations are discussed in more detail below. 54. Shen Kui, supra note 35, at 11. R

152 Harvard Human Rights Journal Vol.20 "codifying"university administration and creating rights for students within the new body of law.As law became the primary means of defining the relationship between both the university and the state and the univer- sity and the individual student,it made sense to turn to the courts to re- solve disputes between universities and students.Under this model, students viewed education as a legal "right"that schools were obligated to provide.55 The marketization of the economy and of the educational sector in partic- ular also played a key role in that many families now had to pay significant sums in tuition for the first time since 1949.Most families were willing to do this because education was seen as even more important to individual success in post-reform China.Because the government no longer guaranteed lifetime employment,young people and their families increasingly valued education as a means to finding a good job in a competitive marketplace. These massive changes encouraged both students and their families to view access to schools less as a privilege and more as a crucial,paid-for service.36 This view of the school as a service provider also encouraged litigation as a strategy for resolving disputes:just as one would sue other service providers over a failure to deliver services as promised,an individual could sue a university for failing to live up to its paid-for service obligations. Many of the early cases would raise similar issues as the Tian Yong and Lin Yanwen cases,including basic questions of jurisdiction,particularly under the ALL.Debates over an apparent lack of a legal remedy for an alleged violation of an individual's legal rights were also a crucial element in many of these cases.Although many of these early lawsuits were largely unsuccessful,they nonetheless served as part of the legal backdrop for the judges in the Tian Yong and Lit Yanwen cases and helped inform the judges of the gaps in existing law which they then sought to address.37 55.Perhaps somewhat ironically,the rise of student lawsuits may also have been encouraged by decades-long propaganda education efforts by the Communist Party to inculcate in Chinese youth a "socialist legal consciousness"that bolsters the Party's own legitimacy by teaching Chinese students that China is a country governed by law.Gregory Fairbrother,Demonstrating Legality:Legal Education for Chinese Youtb,1979-2006 (forthcoming)(manuscript at 7,on file with author).A key element of such education efforts is the concept that dispute resolution and rights protection are the domain of the courts.Id.at 6. 56.A 1995 case illustrated the changing dynamic between students and educational institutions. See Shen Kui,supra note 35,at 15-16(describing the facts of this case).Cheng Ken,a student at a junior high school in Wuhan,sued his school after it unilaterally and without his knowledge changed his listed preferences for high schools to keep him enrolled at the same school.Id.Cheng transferred anyway,but the school refused to release his student records.The court ruled in Cheng's favor,holding that the school's actions violated relevant regulations and infringed Cheng's right to a choice of educa- tion.The fact that the school would unilaterally change his listed preferences indicated the extent to which schools viewed students as subjects under their nearly complete authority;the fact that Cheng was willing to sue his school-over the protests of teachers and others who viewed him as "ungrate- ful"-indicated the extent to which many students no longer were willing to accept the old paradigm. Author interview. 57.See Rao Yadong,Protecting the Right to Education and Responsibility of the Judge from the Judicial Stamdpoint,CHINESE EDuC.AND SOC'Y,May-June 2006,at 41

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 12 12-JUN-07 16:27 152 Harvard Human Rights Journal / Vol. 20 “codifying” university administration and creating rights for students within the new body of law. As law became the primary means of defining the relationship between both the university and the state and the univer￾sity and the individual student, it made sense to turn to the courts to re￾solve disputes between universities and students. Under this model, students viewed education as a legal “right” that schools were obligated to provide.55 The marketization of the economy and of the educational sector in partic￾ular also played a key role in that many families now had to pay significant sums in tuition for the first time since 1949. Most families were willing to do this because education was seen as even more important to individual success in post-reform China. Because the government no longer guaranteed lifetime employment, young people and their families increasingly valued education as a means to finding a good job in a competitive marketplace. These massive changes encouraged both students and their families to view access to schools less as a privilege and more as a crucial, paid-for service.56 This view of the school as a service provider also encouraged litigation as a strategy for resolving disputes: just as one would sue other service providers over a failure to deliver services as promised, an individual could sue a university for failing to live up to its paid-for service obligations. Many of the early cases would raise similar issues as the Tian Yong and Liu Yanwen cases, including basic questions of jurisdiction, particularly under the ALL. Debates over an apparent lack of a legal remedy for an alleged violation of an individual’s legal rights were also a crucial element in many of these cases. Although many of these early lawsuits were largely unsuccessful, they nonetheless served as part of the legal backdrop for the judges in the Tian Yong and Liu Yanwen cases and helped inform the judges of the gaps in existing law which they then sought to address.57 55. Perhaps somewhat ironically, the rise of student lawsuits may also have been encouraged by decades-long propaganda education efforts by the Communist Party to inculcate in Chinese youth a “socialist legal consciousness” that bolsters the Party’s own legitimacy by teaching Chinese students that China is a country governed by law. Gregory Fairbrother, Demonstrating Legality: Legal Education for Chinese Youth, 1979–2006 (forthcoming) (manuscript at 7, on file with author). A key element of such education efforts is the concept that dispute resolution and rights protection are the domain of the courts. Id. at 6. 56. A 1995 case illustrated the changing dynamic between students and educational institutions. See Shen Kui, supra note 35, at 15–16 (describing the facts of this case). Cheng Ken, a student at a R junior high school in Wuhan, sued his school after it unilaterally and without his knowledge changed his listed preferences for high schools to keep him enrolled at the same school. Id. Cheng transferred anyway, but the school refused to release his student records. The court ruled in Cheng’s favor, holding that the school’s actions violated relevant regulations and infringed Cheng’s right to a choice of educa￾tion. The fact that the school would unilaterally change his listed preferences indicated the extent to which schools viewed students as subjects under their nearly complete authority; the fact that Cheng was willing to sue his school—over the protests of teachers and others who viewed him as “ungrate￾ful”—indicated the extent to which many students no longer were willing to accept the old paradigm. Author interview. 57. See Rao Yadong, Protecting the Right to Education and Responsibility of the Judge from the Judicial Standpoint, CHINESE EDUC. AND SOC’Y, May–June 2006, at 41

2007/“Courageous Explorers” 153 A major early barrier to education litigation was the courts'narrow read- ing of the ALL.Passed in 1989,the historic law allowed Chinese citizens to sue the government over administrative actions in certain circumstances.38 But the ALL explicitly limited jurisdiction to cases of"specific administra- tive act[s]"by either "administrative organ[s]"59 or "organization[s]au- thorized by the law or regulations."60 Though the state runs virtually all schools in China,it was nonetheless assumed that the law did not apply to education institutions,which are generally classified as "social service orga- nizations"61 under Chinese law.62 A key element in the development of education litigation was the willingness of Chinese courts to take a creative approach to the interpretation and implementation of the ALL,such that in some situations universities could be considered "organizations authorized by the law or regulations,"and therefore subject to the jurisdiction of the courts.63 The assertion of jurisdiction under the ALL was especially important be- cause generally speaking the courts refused to certify such cases as civil suits,leaving would-be plaintiffs without any access to the courts whatso- ever.64 Many Chinese judges viewed the relationship that exists between schools and students as a "vertical"one,dissimilar to the "horizontal"rela- tionship that would exist between parties in a civil dispute,and therefore saw such cases as inappropriate for trial in civil court.65 58.For more on the ALL,sce LIN FENG,ADMINISTRATIVE LAW PROCEDURES AND REMEDIES IN CHINA 113-268 (1996).For an early assessment of the ALL that notes the early trend of judicial expansion of the scope of the ALL,see Minxin Pei,Citizens v.Mandarins:Administrative Litigation in Chind,THE CHINA Q.,Dec.1997,at 832. 59.Administrative Litigation Law of the People's Republic of China,supra note 6,art.25. 60.1d. 61."Service institutions"are defined as entities that are "social service organizationfs]engaged in activities related to education,science and technology,culture,and health.[They are]created by the state or other organizations with state-owned assets solely for the purpose of social well-being."Shen Kui,swpra note 35,at 18. 62.Some Western scholarship continued to reflect this assumption even after the Tin Yowg case changed the legal standing of educational institutions in some cases.One of the leading scholarly works on legal reform in China describes the limits of the ALL as follows: [T]he CCP,the Procuracy,state-owned enterprises,and quasi-administrative units (shiye danwei-such as state universities and various departments of agencies that do not have independent accounting)are not considered administrative entities under the ALL and hence are not subject to administrative litigation. PEERENBOOM,smpra note 2,at 420. 63.For an analysis of the expansion of court jurisdiction under the ALL,including a detailed analysis of the 2000 Supreme People's Court Judicial Interpretation of the ALL,see He Haibo, Xingzbeng susong shou'an famei:yi ye sifa quan de sbijian sbi(1990-2000)[Tbe Category of Aceptable Caser Under the Administrative Litigation Law:A History of the Practice of Judicial Power (1990-2000)],4 BEIDA FALU PINGLUN [PEKING U.L.REV.]569 (2001). 64.Author interview. 65.Author interview.This reasoning-that the parties to a civil suit should be in a "horizontal" relationship with each other-persists,and continues to influence judicial decision making.In one case from May 2005,a group of four students sued the Hebei University of Economics and Business over the school's decision to suspend them and fifty-one others for one year because of their hepatitis B status. The court held that,since the two parties were"unequal,"and since their relationship was that of "the administrator and those who are subject to administration,"the case was inappropriate for adjudication

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 13 12-JUN-07 16:27 2007 / “Courageous Explorers” 153 A major early barrier to education litigation was the courts’ narrow read￾ing of the ALL. Passed in 1989, the historic law allowed Chinese citizens to sue the government over administrative actions in certain circumstances.58 But the ALL explicitly limited jurisdiction to cases of “specific administra￾tive act[s]” by either “administrative organ[s]”59 or “organization[s] au￾thorized by the law or regulations.”60 Though the state runs virtually all schools in China, it was nonetheless assumed that the law did not apply to education institutions, which are generally classified as “social service orga￾nizations”61 under Chinese law.62 A key element in the development of education litigation was the willingness of Chinese courts to take a creative approach to the interpretation and implementation of the ALL, such that in some situations universities could be considered “organizations authorized by the law or regulations,” and therefore subject to the jurisdiction of the courts.63 The assertion of jurisdiction under the ALL was especially important be￾cause generally speaking the courts refused to certify such cases as civil suits, leaving would-be plaintiffs without any access to the courts whatso￾ever.64 Many Chinese judges viewed the relationship that exists between schools and students as a “vertical” one, dissimilar to the “horizontal” rela￾tionship that would exist between parties in a civil dispute, and therefore saw such cases as inappropriate for trial in civil court.65 58. For more on the ALL, see LIN FENG, ADMINISTRATIVE LAW PROCEDURES AND REMEDIES IN CHINA 113–268 (1996). For an early assessment of the ALL that notes the early trend of judicial expansion of the scope of the ALL, see Minxin Pei, Citizens v. Mandarins: Administrative Litigation in China, THE CHINA Q., Dec. 1997, at 832. 59. Administrative Litigation Law of the People’s Republic of China, supra note 6, art. 25. R 60. Id. 61. “Service institutions” are defined as entities that are “social service organization[s] engaged in activities related to education, science and technology, culture, and health. [They are] created by the state or other organizations with state-owned assets solely for the purpose of social well-being.” Shen Kui, supra note 35, at 18. R 62. Some Western scholarship continued to reflect this assumption even after the Tian Yong case changed the legal standing of educational institutions in some cases. One of the leading scholarly works on legal reform in China describes the limits of the ALL as follows: [T]he CCP, the Procuracy, state-owned enterprises, and quasi-administrative units (shiye danwei—such as state universities and various departments of agencies that do not have independent accounting) are not considered administrative entities under the ALL and hence are not subject to administrative litigation. PEERENBOOM, supra note 2, at 420. R 63. For an analysis of the expansion of court jurisdiction under the ALL, including a detailed analysis of the 2000 Supreme People’s Court Judicial Interpretation of the ALL, see He Haibo, Xingzheng susong shou’an fanwei: yi ye sifa quan de shijian shi (1990–2000) [The Category of Acceptable Cases Under the Administrative Litigation Law: A History of the Practice of Judicial Power (1990–2000)], 4 BEIDA FALU PINGLUN [PEKING U. L. REV.] 569 (2001). 64. Author interview. 65. Author interview. This reasoning—that the parties to a civil suit should be in a “horizontal” relationship with each other—persists, and continues to influence judicial decision making. In one case from May 2005, a group of four students sued the Hebei University of Economics and Business over the school’s decision to suspend them and fifty-one others for one year because of their hepatitis B status. The court held that, since the two parties were “unequal,” and since their relationship was that of “the administrator and those who are subject to administration,” the case was inappropriate for adjudication

154 Harvard Human Rights Journal Vol.20 In one 1995 case that would prove influential,Ms.Lu,a high school teacher,was fired by her school after attempting to return to work follow- ing a long layoff due to a back injury.66 She filed complaints with the edu- cation bureau,but received no response despite a legal requirement that the bureau respond to such complaints within thirty days.67 Left with no other choice,Ms.Lu filed a complaint under the ALL.In a decision that foreshad- owed the expansion of the ALL in the Tian Yong case,the judge,who would later preside over the Tian Yong case,granted Ms.Lu her day in court.68 The case turned on the court's analysis of Article 39 of the Teachers Law, which gives teachers the right to petition the education bureau if they be- lieve that their rights and interests have been infringed.69 In the court's view,while contract law governed the relationship between the teacher and the school,the relationship between the petitioning teacher and the educa- tion bureau was governed by administrative law and met all of the require- ments for judicial review under the ALL.Therefore,while disputes between teachers and schools could generally not be litigated under the ALL,dis- putes over the petition process mandated by Article 39 of the Teachers Law could.70 In many ways,the Ly case foreshadowed later education litigation under the ALL:although the text of the Teachers Law did not create a right to sue under the ALL,the court nonetheless engaged in a long and somewhat complex analysis to assert jurisdiction.The case resembled later cases in that,as with the Tian Yong and Lin Yanwen cases discussed below,the judge in the Ly case did not allow potential technical barriers to block the court from reaching the merits of the dispute.For example,while some judges had argued that the education bureau's silence could be taken as a lack of concrete administrative action necessary for the court to assert jurisdiction as a civil law tort case.55 ming xinsbeng gamran yigan bei xiuxue:lianming qisn xuexiao bei bobui [Fifty-Five New Students Infected with Hepatitis B are Suspended:Joint Lawsuit Against School Rejected],BElING YOUTH DAILY,June 15,2005,aailable at http://news.xinhuanet.com/legal/2005-06/15/content_3087092.htm. This does not mean that universities could never be brought to court in a civil suit,only that they could not be brought to court in a civil suit for actions that were administrative in nature.On the other hand, legal claims that involved the university as a legal entity in which the university was not exercising its administrative authority over a student could be heard.If,for example,a student was injured on cam- pus,and wanted to bring a negligence claim against the university,she or he could do so.Rao Yadong, supra note 57,at 46. 66.The following description of the case is taken from Rao Yadong,Shilun jiaoshi shensu xingwei de kesu xing [Regarding the Suability of Petitions Made by Teachers],Research on Trial Rulings.High People's Court of Beijing,10 (on file with author). 67.Teachers Law of the People's Republic of China,supra note 52,art.39. 68.Rao Yadong,spra note 57,at 43-44. 69.Teachers Law of the People's Republic of China,supra note 52,art.39. 70.Rao Yadong,Shilun jiaoshi shensu xingwei de kesu xing [Regarding the Suability of Petitions Made by Teachers],sr note 66.In general,the court's decision turned on an analysis of the nature of the petition filed by teachers and by the nature of the petition system set up by Article 39.Id.at 9. Because government organs with administrative authority review petitions filed by teachers,and be- cause the review is a specific administrative act with legal effect,the system should be subject to ALL review,in the view of the court.Id.at 9-10

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 14 12-JUN-07 16:27 154 Harvard Human Rights Journal / Vol. 20 In one 1995 case that would prove influential, Ms. Lu, a high school teacher, was fired by her school after attempting to return to work follow￾ing a long layoff due to a back injury.66 She filed complaints with the edu￾cation bureau, but received no response despite a legal requirement that the bureau respond to such complaints within thirty days.67 Left with no other choice, Ms. Lu filed a complaint under the ALL. In a decision that foreshad￾owed the expansion of the ALL in the Tian Yong case, the judge, who would later preside over the Tian Yong case, granted Ms. Lu her day in court.68 The case turned on the court’s analysis of Article 39 of the Teachers Law, which gives teachers the right to petition the education bureau if they be￾lieve that their rights and interests have been infringed.69 In the court’s view, while contract law governed the relationship between the teacher and the school, the relationship between the petitioning teacher and the educa￾tion bureau was governed by administrative law and met all of the require￾ments for judicial review under the ALL. Therefore, while disputes between teachers and schools could generally not be litigated under the ALL, dis￾putes over the petition process mandated by Article 39 of the Teachers Law could.70 In many ways, the Lu case foreshadowed later education litigation under the ALL: although the text of the Teachers Law did not create a right to sue under the ALL, the court nonetheless engaged in a long and somewhat complex analysis to assert jurisdiction. The case resembled later cases in that, as with the Tian Yong and Liu Yanwen cases discussed below, the judge in the Lu case did not allow potential technical barriers to block the court from reaching the merits of the dispute. For example, while some judges had argued that the education bureau’s silence could be taken as a lack of concrete administrative action necessary for the court to assert jurisdiction as a civil law tort case. 55 ming xinsheng ganran yigan bei xiuxue; lianming qisu xuexiao bei bohui [Fifty-Five New Students Infected with Hepatitis B are Suspended; Joint Lawsuit Against School Rejected], BEIJING YOUTH DAILY, June 15, 2005, available at http://news.xinhuanet.com/legal/2005-06/15/content_3087092.htm. This does not mean that universities could never be brought to court in a civil suit, only that they could not be brought to court in a civil suit for actions that were administrative in nature. On the other hand, legal claims that involved the university as a legal entity in which the university was not exercising its administrative authority over a student could be heard. If, for example, a student was injured on cam￾pus, and wanted to bring a negligence claim against the university, she or he could do so. Rao Yadong, supra note 57, at 46. R 66. The following description of the case is taken from Rao Yadong, Shilun jiaoshi shensu xingwei de kesu xing [Regarding the Suability of Petitions Made by Teachers], Research on Trial Rulings, High People’s Court of Beijing, 10 (on file with author). 67. Teachers Law of the People’s Republic of China, supra note 52, art. 39. R 68. Rao Yadong, supra note 57, at 43–44. R 69. Teachers Law of the People’s Republic of China, supra note 52, art. 39. R 70. Rao Yadong, Shilun jiaoshi shensu xingwei de kesu xing [Regarding the Suability of Petitions Made by Teachers], supra note 66. In general, the court’s decision turned on an analysis of the nature of R the petition filed by teachers and by the nature of the petition system set up by Article 39. Id. at 9. Because government organs with administrative authority review petitions filed by teachers, and be￾cause the review is a specific administrative act with legal effect, the system should be subject to ALL review, in the view of the court. Id. at 9–10

2007/“Courageous Explorers” 155 under Article 2 of the ALL,this argument was brushed aside.71 The court asserted jurisdiction,citing Article 11(1)(5)of the ALL,which allows courts to review cases in which the administrative entity has "refused to perform [a]duty or failed to make a reply [to a request for action]."72 While the court in the Lu case did not assert jurisdiction over the school, the case nonetheless raised important questions about what to do in situa- tions in which the law creates rights in the education context,but does not create mechanisms for review.Citing the "spirit"of the ALL as a law en- acted to protect the rights of citizens,the court found that allowing the case to go forward as an administrative litigation suit both met the formal re- quirements of the law and allowed for judicial review where before there was only a right without a remedy.73 Similar dynamics would come into play in the later cases handled by the same court. The first case in which the courts asserted ALL jurisdiction over a dispute between a student and a university was the 1996 Pingdingshan case.74 After being caught cheating on an exam,four students at the Pingdingshan Insti- tute of Coal Mining Technology in Henan Province were immediately ex- pelled,despite regulations which prescribe lighter penalties,such as warnings or probation,for first-time offenders and others whose infractions are less serious.The students brought an administrative suit against the institute.Because the court found that the plaintiffs had "showed remorse and admitted their misconduct,"the court ruled that it was not appropriate under the regulations to immediately expel them.The court also held that the school had ignored various processes under the law,including the re- quirement that an expulsion be approved by the government administrative agency responsible for overseeing the school.Finally,the court held that it was appropriate for the students to bring suit under the ALL,as Article 25(4)of the ALL authorized the school to take administrative actions on behalf of the state.As a result,the court held the expulsion order invalid, and ordered the school to reinstate the students. These early cases served as the backdrop for the 1999 Tian Yong case and the 2000 Lit Yanwen case,each of which involved the key question of whether or not disputes between students and educational institutions could in fact be litigated under the ALL.Although the Tian Yong and Lit Yanwen cases came after the Lu and Pingdingshan cases,they nonetheless generated much more public attention and sparked intense debate among legal scholars. 71.Id.at 9-10.The lack of a written decision from the education bureau was also raised as a potential barrier.Id. 72.Administrative Litigation Law of the People's Republic of China,spra note 6,art.11. 73.Rao Yadong,supra note 66,at 9-10. 74.The following description of the Pingdingshan case is taken from Rao Yadong,supra note 66

\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 15 12-JUN-07 16:27 2007 / “Courageous Explorers” 155 under Article 2 of the ALL, this argument was brushed aside.71 The court asserted jurisdiction, citing Article 11(1)(5) of the ALL, which allows courts to review cases in which the administrative entity has “refused to perform [a] duty or failed to make a reply [to a request for action].”72 While the court in the Lu case did not assert jurisdiction over the school, the case nonetheless raised important questions about what to do in situa￾tions in which the law creates rights in the education context, but does not create mechanisms for review. Citing the “spirit” of the ALL as a law en￾acted to protect the rights of citizens, the court found that allowing the case to go forward as an administrative litigation suit both met the formal re￾quirements of the law and allowed for judicial review where before there was only a right without a remedy.73 Similar dynamics would come into play in the later cases handled by the same court. The first case in which the courts asserted ALL jurisdiction over a dispute between a student and a university was the 1996 Pingdingshan case.74 After being caught cheating on an exam, four students at the Pingdingshan Insti￾tute of Coal Mining Technology in Henan Province were immediately ex￾pelled, despite regulations which prescribe lighter penalties, such as warnings or probation, for first-time offenders and others whose infractions are less serious. The students brought an administrative suit against the institute. Because the court found that the plaintiffs had “showed remorse and admitted their misconduct,” the court ruled that it was not appropriate under the regulations to immediately expel them. The court also held that the school had ignored various processes under the law, including the re￾quirement that an expulsion be approved by the government administrative agency responsible for overseeing the school. Finally, the court held that it was appropriate for the students to bring suit under the ALL, as Article 25(4) of the ALL authorized the school to take administrative actions on behalf of the state. As a result, the court held the expulsion order invalid, and ordered the school to reinstate the students. These early cases served as the backdrop for the 1999 Tian Yong case and the 2000 Liu Yanwen case, each of which involved the key question of whether or not disputes between students and educational institutions could in fact be litigated under the ALL. Although the Tian Yong and Liu Yanwen cases came after the Lu and Pingdingshan cases, they nonetheless generated much more public attention and sparked intense debate among legal scholars. 71. Id. at 9–10. The lack of a written decision from the education bureau was also raised as a potential barrier. Id. 72. Administrative Litigation Law of the People’s Republic of China, supra note 6, art. 11. R 73. Rao Yadong, supra note 66, at 9–10. R 74. The following description of the Pingdingshan case is taken from Rao Yadong, supra note 66. R