156 Harvard Human Rights Journal Vol.20 B.Due Process and the Right to Education:The Tian Yong Case The 1999 Tian Yong case was the first prominent case in which a univer- sity was a defendant in an administrative litigation case.75 In part because the Supreme People's Court("SPC")would later publish the decision in its gazette,Tian Yong would become the paradigm case for the extension of the ALL to disputes between universities and students. Tian was a sympathetic plaintiff;the son of a poor family from Henan province,Tian got good grades throughout his career in university and was well liked by his classmates.76 The case began when Tian,then a student in the physical chemistry department of Beijing University of Technology and Science,was accused of cheating on an electromagnetism test in February 1996.After Tian left for the bathroom during the test,the proctor noticed a piece of paper on the floor,apparently dropped by Tian on his way out. The professor picked it up and saw that the paper contained various electro- magnetic formulas.When Tian returned,the professor asked Tian if the paper was his.Tian admitted that it was,but denied having used it during the test.Instead,he claimed that he had inadvertently brought the paper in with him.The professor immediately dismissed Tian from the testing room and reported the incident. Although the proctor had found the piece of paper,he had not seen Tian look at it during the exam.Moreover,according to the school's investiga- tion,the formulas found on the paper were not relevant to any of the exam questions,making the question of cheating somewhat moot.77 Though he would receive no credit for the test,Tian's partially completed exam indi- cated that he had engaged in heavy preparation and knew the material well. Nonetheless,no one disputed that Tian had violated the rules by bringing the paper into the test room.The question was what to do about it. Per university regulations,the school decided to expel Tian,and on March 5,it issued an internal order to remove his name from the school rolls.But the school neglected to inform Tian himself of its decision and did not administer the normal expulsion process.In particular,the school issued the expulsion order before receiving a report on the matter from Tian's academic department.In fact,the department recommended that Tian not be expelled and instead only be "criticized"for his actions.The school also did not give Tian written notice of the expulsion.78 Finally,the university failed to fully implement its decision,neglecting to notify other school organs of Tian's expulsion. 75.For an extended account of the facts of the Tian Yong case,see Tian Hao,supra note 1.Unless otherwise noted,the facts of the case in the following description are taken from this article. 76.Ruan Ying,Cbengji youxin que buneng biye [His Grades are Outstanding but He Can't Graduatel. GUANGZHOU DAILY,Jan.8,1999,cited in GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDU- CATION AND ADMINISTRATIVE LITIGATION],spra note 1,at 421-23. 77.1d.at422. 78.Tian Hao,supra note 1
\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 16 12-JUN-07 16:27 156 Harvard Human Rights Journal / Vol. 20 B. Due Process and the Right to Education: The Tian Yong Case The 1999 Tian Yong case was the first prominent case in which a university was a defendant in an administrative litigation case.75 In part because the Supreme People’s Court (“SPC”) would later publish the decision in its gazette, Tian Yong would become the paradigm case for the extension of the ALL to disputes between universities and students. Tian was a sympathetic plaintiff; the son of a poor family from Henan province, Tian got good grades throughout his career in university and was well liked by his classmates.76 The case began when Tian, then a student in the physical chemistry department of Beijing University of Technology and Science, was accused of cheating on an electromagnetism test in February 1996. After Tian left for the bathroom during the test, the proctor noticed a piece of paper on the floor, apparently dropped by Tian on his way out. The professor picked it up and saw that the paper contained various electromagnetic formulas. When Tian returned, the professor asked Tian if the paper was his. Tian admitted that it was, but denied having used it during the test. Instead, he claimed that he had inadvertently brought the paper in with him. The professor immediately dismissed Tian from the testing room and reported the incident. Although the proctor had found the piece of paper, he had not seen Tian look at it during the exam. Moreover, according to the school’s investigation, the formulas found on the paper were not relevant to any of the exam questions, making the question of cheating somewhat moot.77 Though he would receive no credit for the test, Tian’s partially completed exam indicated that he had engaged in heavy preparation and knew the material well. Nonetheless, no one disputed that Tian had violated the rules by bringing the paper into the test room. The question was what to do about it. Per university regulations, the school decided to expel Tian, and on March 5, it issued an internal order to remove his name from the school rolls. But the school neglected to inform Tian himself of its decision and did not administer the normal expulsion process. In particular, the school issued the expulsion order before receiving a report on the matter from Tian’s academic department. In fact, the department recommended that Tian not be expelled and instead only be “criticized” for his actions. The school also did not give Tian written notice of the expulsion.78 Finally, the university failed to fully implement its decision, neglecting to notify other school organs of Tian’s expulsion. 75. For an extended account of the facts of the Tian Yong case, see Tian Hao, supra note 1. Unless R otherwise noted, the facts of the case in the following description are taken from this article. 76. Ruan Ying, Chengji youxiu que buneng biye [His Grades are Outstanding but He Can’t Graduate], GUANGZHOU DAILY, Jan. 8, 1999, cited in GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDUCATION AND ADMINISTRATIVE LITIGATION], supra note 1, at 421–23. R 77. Id. at 422. 78. Tian Hao, supra note 1. R
2007/“Courageous Explorers” 157 As a result,Tian continued to take classes for more than two years,and the university gave Tian every indication that it still considered him a stu- dent there;it renewed his student card,even replacing it after he lost it, and accepted his tuition.Assuming that the cheating incident was behind him,Tian fulfilled all of the requirements for graduation-he completed a thesis,did an internship,and passed all of his classes.As far as Tian knew, the cheating incident was buried in the past,forgotten.Only when he was just a few months away from graduation in the spring of 1998 did the school take further action. The school belatedly moved to implement its two-year-old expulsion or- der in the spring of Tian's senior year.On March 18,1998,the school sent a notice informing the physical chemistry department that Tian should be removed from its rolls.In June,the school refused to send the relevant forms on Tian's behalf to the Education Administration Bureau so that he could be registered as a bachelor's degree holder,and refused to issue him a graduation certificate or a degree.79 Lacking other avenues to appeal the school's decision,Tian sued,bringing an administrative case in October 1998 in the Haidian District People's Court. Tian argued that the school's failure to adhere to government regulations regarding cheating invalidated its expulsion order.so In addition,Tian ar- gued that the school's failure to implement its expulsion order,and the fact that it did not extend him the proper due process by informing him of the decision and giving him a chance to defend himself also meant that the expulsion order lacked force.s!Tian asked the court to compel the univer- sity to issue both his graduation certificate and his degree.s2 He also asked for economic damages of 3000 Chinese renminbi,a public apology,and court costs.83 The case was controversial in part because Tian sued his university under the ALL,a law understood at the time to cover primarily government or- gans and not universities.If the court decided in Tian's favor,it would have to bring the university decision-making process within the ambit of the ALL.84 79.The Chinese degree system consists of two separate but linked legal documents:a graduation certificate,issued by the government after notification from the school that all requirements have been met,and the actual degree,which is issued by the granting educational institution.The only important difference between the requirements for the two documents is that the graduation certificate is issued automatically upon completion of the relevant requirements,whereas issuance of the degree requires additional approval from the university's degree committee. 80.Tian Yong v.Beijing University of Science and Technology,Admin.Decision (Haidian Dist. People's Ct.,Feb.14,1999),reprinted in GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDUCA- TION AND ADMINISTRATIVE LITIGATION],spra note 1,at 542. 81.1d. 82.ld. 83.1d. 84.In particular,the court would have to rule that the university's decision to expel Tian was a "specific administrative act"by an"administrative organ"under Article 25 of the ALL.Administrative Litigation Law of the People's Republic of China,supr note 6,art.25
\\server05\productn\H\HLH\20\HLH2001.txt unknown Seq: 17 12-JUN-07 16:27 2007 / “Courageous Explorers” 157 As a result, Tian continued to take classes for more than two years, and the university gave Tian every indication that it still considered him a student there; it renewed his student card, even replacing it after he lost it, and accepted his tuition. Assuming that the cheating incident was behind him, Tian fulfilled all of the requirements for graduation—he completed a thesis, did an internship, and passed all of his classes. As far as Tian knew, the cheating incident was buried in the past, forgotten. Only when he was just a few months away from graduation in the spring of 1998 did the school take further action. The school belatedly moved to implement its two-year-old expulsion order in the spring of Tian’s senior year. On March 18, 1998, the school sent a notice informing the physical chemistry department that Tian should be removed from its rolls. In June, the school refused to send the relevant forms on Tian’s behalf to the Education Administration Bureau so that he could be registered as a bachelor’s degree holder, and refused to issue him a graduation certificate or a degree.79 Lacking other avenues to appeal the school’s decision, Tian sued, bringing an administrative case in October 1998 in the Haidian District People’s Court. Tian argued that the school’s failure to adhere to government regulations regarding cheating invalidated its expulsion order.80 In addition, Tian argued that the school’s failure to implement its expulsion order, and the fact that it did not extend him the proper due process by informing him of the decision and giving him a chance to defend himself also meant that the expulsion order lacked force.81 Tian asked the court to compel the university to issue both his graduation certificate and his degree.82 He also asked for economic damages of 3000 Chinese renminbi, a public apology, and court costs.83 The case was controversial in part because Tian sued his university under the ALL, a law understood at the time to cover primarily government organs and not universities. If the court decided in Tian’s favor, it would have to bring the university decision-making process within the ambit of the ALL.84 79. The Chinese degree system consists of two separate but linked legal documents: a graduation certificate, issued by the government after notification from the school that all requirements have been met, and the actual degree, which is issued by the granting educational institution. The only important difference between the requirements for the two documents is that the graduation certificate is issued automatically upon completion of the relevant requirements, whereas issuance of the degree requires additional approval from the university’s degree committee. 80. Tian Yong v. Beijing University of Science and Technology, Admin. Decision (Haidian Dist. People’s Ct., Feb. 14, 1999), reprinted in GAODENG JIAOYU YU XINGZHENG SUSONG [HIGHER EDUCATION AND ADMINISTRATIVE LITIGATION], supra note 1, at 542. R 81. Id. 82. Id. 83. Id. 84. In particular, the court would have to rule that the university’s decision to expel Tian was a “specific administrative act” by an “administrative organ” under Article 25 of the ALL. Administrative Litigation Law of the People’s Republic of China, supra note 6, art. 25. R