Approaches to Legalize Higher Education Administration System in China

Gong Yuehong，Xu Guodong

(Law School Nanjing University of Finance ＆ Economics，Jiangsu Nanjing 210013)

Ⅰ.Analysis of policy-based reform mode of higher education administration system

In the recent 30 years，the Party and the nation have formulated a series of policies regarding higher education administration system which have served as the basis of the policy-based reform of higher education administration system.An overview of the reform shows that it exerted positive effects on our nation’s tertiary education，but many of its defects need to be better recognized.

1.Deviation from reform goals

Before 1995，the key of our nation’s reform of higher education administration system was to“transform the function of the government and get rid of the drawbacks brought about by governmental over-control.”As to what should be treated as the key in the reform at hand，it is important to proceed from reality and distinguish between primary and secondary contradictions.From the Decision released in 1985 to the Outline released in 1993，“to rationalize the relationship between government and higher institutions”has been constantly stressed，which deals with the question of“what should be governed by the government”and is therefore reasonable.Policies after 1995 deal mainly with the question of“which level of government should govern.”The latter is the progress and supplement of the former.In fact，after“what the government should govern”is clarified，the question of“by whom”can be readily solved.However，the deviation from reform goals made most of the efforts futile，jeopardizing the development of China’s higher education administration system.Nevertheless，the Outline released in 2010 reestablished the importance of“rationalizing the relationship between government and higher institutions”and“demarcating border of governmental power，”guiding the reform into a normal path.

2.Absence of reform participants

If government authorities should be the first reform target，then who to initiate and implement the reform is an issue that cannot be avoided.However，almost none of the policy documents mentioned anything with regard to reform participants.In consideration of the nature of reform，the restriction of existing power of governments should，in theory，be conducted by an organ higher than the government.Whereas in fact，due to the lack of specific reform participants，the reform in question is undertaken by the administrative department for education itself，which constitutes the socalled“self-renovating.”“Within the existing systemic frame，educational authorities have no motive or reason to reform itself.The reform measures conducted in the latter half of the 1990s can be deemed as a‘mutated product’of the educational authorities and the evidence of their failure to carry out the reform.”〔1〕

3.Vagueness of reform approaches

An overview of documents concerning the reform of the higher education administration system would reveal the lack of description of detailed approaches to reform.A number of problems are left unsolved:Where to start?How to hit a breakthrough?Who to initiate the reform?When should it start or end?How much would it cost?What are its phased goals?Which state organs provide guarantee?Who shoulder the responsibilities?In Enforcement Advice of“China’s Educational Reform and Development Plan(1994)and Several Opinions(1995)，approaches to the reform in question remained on the description of principles.Without detailed approaches，one can hardly succeed even with the clearest direction.

Ⅱ.Managing the university by law—the best option for the reform mode of higher education administration system

In the next reform stage of the higher education administration system，ruling by law should play a leading role.

1.Managing the university by law

“Managing the university by law，namely，the legalization of higher education refers to the management of universities by the education administration authority and higher learning institutions under the guidance of party committees and governments and in accordance with the Constitution，laws and regulations.Its core is to construct an entire legal system of higher education，balance the rights and relationship of both sides，as well as cultivate the awareness of managing school affairs in strict accordance with the law.”〔2〕We believe that“managing the university by law”has twofold implications:the education administration authority can exercise management power within the scope of their statutory functions and in accordance with the legal procedure;higher learning institutions can exercise their self-management rights without violating laws and regulations.

(1)The education administration authority must abide by normative documents of law，namely，laws，administrative laws and regulations，local laws and regulations when exercising management power.The following principle should be complied with:If no such regulation can be found in the law，then it is prohibited.In this sense，university and the education administration authority are manager and the managed，respectively.The former can institute an administrative lawsuit due to its nature of being a legal person.

(2)There are dual attributes of the self-management of universities.On the one hand，universities can exercise their self-management rights without violating normative documents of law while complying with the principle of“If no such regulation can be found in the law，then it is allowed.”On the other hand，universities enjoy partial administrative power according to the empowerment of laws，rules and regulations，but they must obey specific authorization of normative documents of law when exercising the power.At the moment，as the concept of rule of law permeates people’s thinking，university students are gaining increasing consciousness of right.In recent years，there have been several cases where students sue their schools.For instance，Tian Yong sued University of Science and Technology Beijing for refusing to grant him graduation certificate and degree certificate，He Xiaoqiang sued Huazhong University of Science and Technology for denying him degree certificate.The different rulings of the two cases reflect the dual attributes of the self-management of universities.

2.Approaches to manage the university by law

No system will survive without basing itself on fundamental realities of the coun-try.In the next stage of reform，for the purpose of introducing changes and new ideas to the system，a legal management system with Chinese characteristics needs to be set up in universities.To ensure that such a system will survive and thrive，we’d like to point out some key aspects as follows:

(1)Ensure the guiding role of the theoretical system of socialism with Chinese characteristics

Following the theoretical system of socialism with Chinese characteristics is the basis of“managing the university by law.”To uphold and improve the rule of law in modern universities conforms to the requirements of the theoretical system of socialism with Chinese characteristics.At present，there are some theoretical questions to answer:First，what is the relationship between the rule of law in modern universities and modern university system?Why is it said that the modernization and legalization of our nation’s higher education is in sore need of promoting the rule of law in modern universities?Second，do foreign university systems match the situation of our country?What does“academic freedom”mean in their academic system，and what is the boundary of such freedom?Third，how to turn innovation and reform into impetus to steadfastly construct the rule of law in modern universities and more importantly，to make sure the rule of law conforms to the situation of our country and demands of the time so that universities can develop in a sound and fast manner?Questions like these can only be answered by upholding the guiding role of the theoretical system of socialism with Chinese characteristics which may also ensure that managing education by law and managing the university by law can play a leading and exemplary role in ruling the country by law and building a socialist country under the rule of law.

(2)Improve legislation and establish a“list of rights”

According to the National Medium—and Long—Term Plan for Education Reform and Development(2010-2020)，“a sound legal education system shall be built in accordance with requirements of the basic strategy of comprehensively implementing the rule of law in order to accelerate construction of the legal system in education.”In recent years，the normative documents regarding China’s higher education have played an essential role，but with a number of drawbacks.To begin with，educational laws and regulations are not correct and complete.Competent administrative department for education relies，in most cases，on department documents and when it comes to dispute between students and universities，few laws and regulations can be resorted to on the court.Besides，existing laws and regulations contradict with each other.For instance，Provisions on the Administration of University Students stipulates that“college students must not get married”which stands in stark contrast with the freedom of marriage advocated in the Marriage Law.Imperfection of the legal system remains a large obstacle to the reform.The first reason is that when exercising their management rights，educational authorities may act arbitrarily due to the lack of supervision and of legal remedy on the part of universities.The second one is that when exercising their administrative power，universities are not provided with laws of high levels as the basis of their action.

The range of governmental management rights and of universities’management rights cannot be analyzed from the legal perspective alone.National conditions，historical origin，and cultural deposits are some of the factors that should be taken into consideration before any conclusion is reached.However，should a conclusion be reached，it would only take effect after being included in normative documents such as the law.During the lawmaking process，it is crucial that a detailed“list of rights”should be established regarding governmental management rights and universities’management rights so that there are always laws to abide by.When it comes to law enforcement，the principle of“if no such regulation can be found in the law，then it is prohibited”must be followed.

(3)Foster the formulation of university statutes

University statutes are the“Constitution”in the legalization of modern universities，a means of achieving academic freedom，and a reflection of exercising self-management rights.Higher Education Law(1998)stipulates that universities must formulate charters and submit them to the examination and approval authorities.In 2011，the Ministry of Education introduced the 31st order The Interim Measures for Institutions of Higher Learning(referred to as Interim Measures below)which contains detailed information about university statute formulation，marking the beginning of a substantive stage.

As stipulated in Interim Measures，“university statutes are the fundamental principles for the school’s independent administration and management，as well as performance of public duties.Universities shall adhere to their statutes and formulate internal control systems and normative documents，conduct teaching，management，as well as social cooperation.”In practice，regulations of some universities go against laws and regulations.For instance，some take the liberty to add punishment for students who have violated discipline and stipulate that those who cheat in the exam shall face expulsion;some ignore the due procedures needed in internal documents，making it hard for students to enjoy their right to defend themselves and make choices.

As to university statutes，they should cover two main areas:first，under the authorization of laws and regulations，the university shall reify and clarify its administrative functions，avoid adding burden to students or teachers，avoid strict penal terms，and avoid the due procedures for punishment.Second，without violating laws and regulations，the university shall solicit opinions extensively from students and teachers and come up with self-management issues that match the personnel arrangement，plan of instruction，academic goal，and so on.

Ⅲ.Conclusion

The cause of education is the greatest public welfare establishment.Education is an important task for centuries to come.Giving priority to education，ensuring everyone’s right to education，as well as promoting educational equality is the basic state policy of our nation.The 6th Five-Year Law Popularization Plan proposes three requirements.The first is to maintain the integration of legal education and legal culture.The principle of due procedure and act by law that is characteristic of the legal culture offers the reform a breakthrough point.It is advisable that universities incorporate the legal culture into their statutes and make efforts to make the rule of law a flexible culture.The second is to maintain the integration of legal education and the construction of socialist core value system which is the inherent spirit of university legal construction.The atmosphere of studying，obeying，respecting，and supporting the law should be created in order to build“harmonious campuses that are people-oriented，comprehensively developed，stable and orderly with innovative，dynamic，honest，friendly and civilized people.”〔3〕The third is to maintain the integration of legal education and law practice.The practice of law may serve as a concrete reflection of universities’construction of the rule of law which involves such aspects as managing education and university by law.Such practice would deepen college teachers’and students’awareness of law，enhance their initiative to learn，obey，and protect the law，as well as encourage them to build a higher education administration system which is ruled by law.

〔1〕Zhou Chuan，Policy Analysis of the Reform of Higher Education Administration System in China，Journal of Higher Education，2009(8).

〔2〕Duan Ruhong，The Essence and the Highest Level of Managing the University by Law，Journal of Teaching and Management，2006(1).

〔3〕Yi Hong，Building Modern University System and Accelerating the Construction of High-level University，China’s Higher Education，2009(5).