Following China's 1999 decision to expand its higher education sector, the number of universities and colleges, including privately funded higher education institutions (minban gaoxiao 民办高校), has mushroomed.Footnote 1 Private higher education institutions (HEIs hereafter) are regarded as an important supplement to public higher education institutions in China, particularly as public institutions often have higher admission thresholds than those which are privately funded, and so private HEIs can offer higher education for students who otherwise might not be able to attend university. Private HEIs typically charge much higher tuition fees than do public institutions; however, they are often deemed to be substandard and too profit-orientated, with poor quality teaching, unreasonable fees and other charges.
In a real sense, students in such institutions can be regarded as “consumers” of educational services and products. Students who fail to receive the educational services promised in advertisements may feel deceived by the provider, as would any normal consumer. However, in the student–university relationship, students are not just consumers – they are also subject to administration and regulation by the university. In the Chinese context, therefore, student–university disputes are often regarded as administrative disputes that should be handled in-house by administrative bodies through such processes as administrative review or lawsuits in the people's courts’ administrative chambers. Most such disputes tend to concern the alleged wrongdoings of students rather than the misconduct of a university. Students’ financial interests – especially tuition fees – are not properly protected under such an administrative regime. Thus, there is an important need for a more protective approach, particularly as the fees and other charges borne by students form a crucial source of funding for private HEIs. In this context, it is important to question whether there is value in seeing students in private HEIs as consumers to be protected rather than as administrative subjects to be managed, and whether mainland China's consumer laws might better help to protect students’ rights and interests.
To answer these linked questions, this paper first examines the marketization process of higher education in China, the problems facing private HEIs, and the potential for regarding students as consumers. It then analyses three court cases brought by students against their minban 民办 (“private” universities). Finally, the paper reflects on the judicial treatment of students as “consumers” and the significance of incorporating students into the consumer-protection agenda. The approach taken in this paper is intended to complement the more institutionally focused, academic administration and teaching analyses of universities in China today.
The Ongoing Marketization of Higher Education
During the first 50 years of socialist rule, the higher education system in the People's Republic of China (PRC) evolved in ways that were very remote from any idea that the student could be characterized as a “consumer.” From the early 1950s through to the late 1970s, the state was the only body that could run schools, and all schools were public schools.Footnote 2 From 1978 onwards, the ideology and policies of the Communist Party (CCP) changed significantly, and this impacted on higher education. The pursuit of the popularization of higher education, a course which was set in the 1950s, was in effect replaced by a move to establish more “elite education,” which was needed to promote the national goals of modernization.Footnote 3 The resumption of the university entrance examination, or gaokao 高考, indicated a more selective approach to recruiting students for higher education. The adoption and implementation of a de-centralized policy in education since the mid-1980s has allowed more autonomy and flexibility for governments in relation to HEIs.Footnote 4 The central government still funds key universities; however, for many others, funding is provided by the local government (provincial or municipal), and many ordinary universities are supposed to generate some of their own funding.Footnote 5
The development of private higher education
In 1982, just a few years after the resumption of the National College Entrance Examination in 1977, the Constitution was amended to allow, for the first time, non-state bodies to become involved in the running of educational institutions.Footnote 6 The number of student places available in public universities at that time was so small that it was reported that only one in a thousand applicants would be admitted. A now-repealed regulation of the Ministry of Education (then the State Education Commission), the 1987 “Tentative regulations on the running of educational institutions with social forces” (1987 Tentative Regulations hereafter), allowed the running of certain types of non-government schools, including for short-term vocational and technical education, and tutoring schools for self-taught examinations and continuing education.Footnote 7
It was not until 1992, when the “socialist market economy” was established, that “private higher education” gained a clearer legal status with the announcement, by the Ministry of Education, that: “[we] currently need to encourage and support social forces to run vocational and technical education, basic education, continuing education, social and cultural education and higher education that assists the main teaching activities.”Footnote 8 Then, in 1993, the State Council published the important “Reform and development outline of China's education (1992–2000)” (the Outline hereafter), allowing private bodies to co-manage higher education institutions with all levels of government. Also, for the first time, the Outline permitted the co-running of higher education institutions with international organizations. Later, in 1997, the “Regulations on the running of educational institutions with social forces” replaced the 1987 Tentative Regulations and, for the first time, admitted the legality of forming a board of directors (dongshihui 董事会) in private institutions as well as a leadership system based on the board.Footnote 9 Almost at the same time (in 1999), the state shifted its policy stance of the 1980s and 1990s from promoting “elite education” to offering a “general education” – that is, education for all-round development (suzhi jiaoyu 素质教育). Access to higher education needed to be expanded, and private institutions were to play an important role in offering that access to the general public.
The rapid expansion of higher education commenced in 1999 with the establishment of many new institutions. The first law on higher education, the 1998 PRC Law on Higher Education (in force January 1999), gave higher education institutions greater autonomy in decision making and also introduced the concept of minban (privately run) enterprises in higher education – a conceptual shift that allowed private universities and other HEIs to operate.
The next stage in the development of private institutions came in 2002 with the promulgation of the Law for Promoting Minban Education (the Minban Education Promotion Law hereafter), which was to regulate non-state educational institutions and allow for the expansion of privately funded HEIs. The number of private institutions in higher education increased from 25 in 1998 to 252 in 2005, and the number of students studying in these institutions accounted for more than 15 per cent of all students in higher education by 2005.Footnote 10 In 2004, the “Regulations on the implementation of the Minban Education Promotion Law” further promoted these changes. Since 2006, the growth in the number private HEIs has continued, albeit at a slower pace.
The Minban Education Promotion Law does several things. First, it provides a clear definition of the leadership of private HEIs, the board of directors of the institution, and the duties of the principal (Articles 19 and 20). Second, it confers on private HEIs an independent legal personality that allows them to own property (Article 9). Third, it also allows a “reasonable return” (heli huibao 合理回报) to be given to the body running the institution (Article 51).
In 2016, the Minban Education Promotion Law was revised (in effect September 2017). The amendment aims to encourage the development and operation of “for-profit” private schools and to make it more likely that such schools can attract non-government investment. The most critical development is that “for-profit schools” are now officially allowed to operate in pre-kindergarten, grade 10–12 and higher education.Footnote 11 Previously, the registration of private HEIs placed them in the category of “private non-enterprise units” (minban feiqiye danwei 民办非企业单位), which meant that the primary goal of the institution had to be non-profit making.
Although all Chinese schools are considered as non-profit institutes by their registration, privately run schools are allowed to secure “reasonable returns” on their activities, which in practice blurs the boundary between “not-for-profit” and “for-profit” in the higher education field.Footnote 12 Under the revised Minban Education Promotion Law, it is made clear that private HEIs can be established as “for-profit” institutions – as a company.Footnote 13 This has given a green light to the profit-making activities of higher education providers and allows further diversification of their funding resources and, indeed, permits private institutions to be listed on the mainland stock exchanges for initial public offerings.Footnote 14
As many scholars have pointed out, in reality, almost all the private HEIs in China are profit orientated, despite the ambiguous position created in the Minban Education Promotion Law by use of the term “reasonable returns.”Footnote 15 One distinction between public and private higher education in China, as You Guo Jiang suggests, is that private education is still regarded as peripheral, with the government pouring public resources into public sector institutions while ignoring the investment and many other needs of private HEIs. Private higher education mainly serves as the “non-elite” supplement to public higher education, enabling the state to deliver on its policy of higher education expansion.Footnote 16 The mission statements of most private HEIs state that the main goal is to meet labour market demands and assure the future career success of their students.Footnote 17 This may well justify the utilitarian approach to the development of private higher education in mainland China, and shape the expectation that students should receive the standard of education that they pay for. Unfortunately, it seems also to have discouraged the government from effectively regulating the activities of private universities and other HEIs.
Yet, there has also been a gradual shift from a “private peripheral” to a “private-complementary” environment in which public and private higher education seem to co-exist more effectively.Footnote 18 The most obvious example of this shift is the further privatization process of establishing “independent colleges” (duli xueyuan 独立学院) – a unique type of private HEI in mainland China which “borrows” the name and resources of branded public universities in order to facilitate their foundation and early development. The revised “Measures for the establishment and administration of independent colleges” (amended 2015) stipulates clearly that an independent college:
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– is an important component part of minban higher education (Article 3);
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– must satisfy the requirements set forth for legal persons (Article 9);
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– must, for students achieving the required scores during the learning period, issue them with graduation certificates, which shall be stamped with the name of the independent college (Article 38);
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– must manage its assets according to law, and no organization or individual may encroach upon [this asset management] (Article 42).
These articles formally give the independent colleges their own legal identity as private HEIs and ensure that their properties, diplomas and degrees, faculty members, funding, and so on, are separate from their parent public universities.
Problems facing private HEIs
Although the existing English-language literature points to some successful examples of private HEIs,Footnote 19 the reality seems to be more mixed, with news items and academic commentary from within the mainland pointing also to significant problems. Of course, there may be some degree of exaggeration in the criticisms since, politically, the system as a whole still favours mainstream state-funded HEIs. Nevertheless, the criticisms seem well-founded in many cases and are important. Private HEIs are hampered by limited authority and a shortage of public funding.Footnote 20 The financial threshold for establishing a private institution is relatively low, and some institutions simply occupy the property of other institutions.Footnote 21 In general, private HEIs in China are regarded by students as offering a substandard level of teaching and, as a result, it is primarily those who achieve low gaokao scores who choose to go to private institutions.
There are other, more specific, problems with private HEIs. First, there is the issue of false advertising. This problem, indeed, seems to be related to the shrinking numbers of students choosing private institutions, especially those in areas away from the mainland Chinese littoral. Research in Shanxi province, for example, shows that the number of students enrolled in private HEIs decreased between 2008 and 2010.Footnote 22 The student intake for the three most prominent private HEIs in Shanxi dropped by around 4,000 students annually, accounting for 15 per cent of the total number of students in each institution.Footnote 23 These universities have existed for more than two decades and have the authority to issue students with normal bachelor degrees. Even so, they are facing the challenges created by insufficient student demand – difficulties felt even more acutely by smaller and less well-known institutions. The private HEIs’ lack of credibility in areas such as teaching quality, pursuit of profits, misleading marketing, and so on, has also contributed to the difficulties in recruiting sufficient student numbers, especially for private HEIs in north-west China.Footnote 24 Some scholars suggest that there is an ongoing need to close down some private HEIs, especially those unable to attract sufficient student numbers.Footnote 25 Private schools face competition not only from mainstream state HE institutions but also from overseas institutions – wealthy students with weaker academic credentials can elect to pursue their higher education overseas, rather than continue their studies at low-ranking private institutions within mainland China.Footnote 26
Employment assurances for graduates is also a problematic issue with private HEIs. Many private HEIs make unrealistic promises about securing jobs for graduating students, promises they fail to deliver.Footnote 27 Students then find themselves in the same helpless situation as ordinary consumers when dealing with large companies from whom they have purchased a defective product or service.Footnote 28 There is a significant power imbalance in the relationship between relatively large corporatized investors in the educational institutions and their aggrieved students. Private HEIs make other spurious claims and false representations, further damaging their reputation. These can include claims to have the discretionary authority to reduce the scores required to enrol in the institution; claims to be able to provide specialist courses which will qualify students to land good jobs immediately after graduation; hiring premises in fancy buildings and offices, or in the same building or site as a famous university, so that students are misled into believing that the private HEI has meaningful links with that well-known university; and the deliberate omission of key words, such as “vocational” (zhiye 职业), in their institution names in their prospectuses and promotional material, and so on.Footnote 29
Private HEIs in mainland China do not receive direct funding from governmental departments and are often heavily reliant on student tuition fees. But any investment and management problems may put students’ educational rights and interests at risk.Footnote 30 Philanthropy is not yet sufficiently developed in mainland China's educational sector to lend any significant support to the development of private higher education – current tax policies and mechanisms do little to incentivize private donations.Footnote 31 The lack of philanthropic (and, indeed, religious organizations’) commitment means commercial profits have to be a major priority in the running of private HEIs.Footnote 32 With limited financing channels,Footnote 33 it is not surprising that over 90 per cent of private higher education revenue derives from student tuition fees.Footnote 34 Fewer student loans are available to those enrolled in private education institutions, and private HEIs charge 100 per cent of the unit cost per student in tuition, while public universities only charge about 45 per cent.Footnote 35
As tuition fees constitute the primary funding source for private HEIs, they are around two to three times higher than those in public institutions. For example, in Xi'an province private institutions charged about 10,000 yuan per annum for normal undergraduate studies in 2011. Annual fees rose to 16,000 to 19,000 yuan in 2016.Footnote 36 The annual tuition fees for public universities in Shanxi in 2016, however, were only 8,000 yuan. The fees charged by private HEIs in China are likely to increase further following the introduction of a registration system for “for-profit” private HEIs under the revised 2016 Minban Promotion Law, and many provinces have indicated that profit-making private HEIs may adjust tuition fees in line with market demand.Footnote 37 In the past, ambiguous government policies, as we have seen, allowed a “not-for-profit” status to disguise a profit-seeking orientation, so that most private universities were (and still are) in reality profit-orientated. Thus, the profit-making activities of private HEIs were not specifically regulated. Now that it is clearly more acceptable to make a profit, funding channels can be diversified and the obstacles for public initial offerings on mainland stock exchanges reduced.Footnote 38
Financially, private HEIs depend heavily on students and, as such, it might be thought that the management of private HEIs would give particular attention to the need to protect students’ rights and interests. However, the evidence does not point in that direction. An example of how the management problems of private colleges can actually infringe students’ rights and interests is provided in the work of Lü Jiexin.Footnote 39 In a case study of College C, Lü notes that the college changed its board of directors four times in seven years before being closed down. Maladministration and a lack of students were cited as the main reasons for closure. In fact, College C had fallen under the control of its funding company (Company D), and the CEO of Company D, a Mr Tang, had become the final decision maker in all matters relating to the college. Mr Tang's approach to the running of the university was very profit-orientated. Neither the founder of the college, Mr Chen, whose genuine commitment to education had been recognized by the education bureau, nor the college principal could influence matters. At the direction of Company D, College C began to engage in dubious means to recruit students. For example, one student, Ms Zhang, enrolled in the college to study “training for flight attendants” as her major but then discovered that there was no such programme. Her final degree certificate, when she was awarded it, was merely for “Business English.” Most of the information in the college admission brochure (which she claimed to have read carefully before accepting the offer from College C), and other claims made by College C – such as having employment agreements with certain companies that guaranteed jobs for graduates – were also untrue. She was also unhappy about the high fees charged for re-taking failed subjects. Ms Zhang and other students twice complained to the local education bureau about College C's misconduct, especially its fake promises and low teaching quality, seeking compensation and an apology. Eventually, she and her fellow complainants were reimbursed for the excessive charges imposed by College C; however, no action was taken against the college by the education bureau (nor indeed by any other administrative department) for its misconduct, and no apology was ordered. Instead, the complexity of College C's management structure encouraged the education bureau only to recommend the closure of College C and to urge the college to liquidate its assets.
Lü Jiexin also observes that it is not uncommon for the founders of private HEIs, usually private companies, to incorporate the funding of the institution into the company's own property portfolio. In one extreme case, one private HEI was left with less than 10 per cent of its cash reserves after operating for just one month.Footnote 40 Since there is only limited guidance and control of private HEIs by commercial practice regulators or any other supervisor, cash shortages may mean that the institution is unable to adequately compensate poorly served students. The administration and regulatory framework of private HEIs clearly have limitations. Furthermore, the profit-seeking nature of private HEIs means, in my view, that their students should be treated as consumers, especially in cases concerning fraudulent conduct, sham advertising and excessive tuition fees.
A problem generally found in all kinds of higher education institution in mainland China, but which is a particular issue for private HEIs, is the lack of student redress schemes. Unlike in some other parts of the world, there is no tuition protection scheme to protect students’ interests. The complaint (shensu 申诉) scheme offered by the institution itself often fails to protect students’ rights and interests as consumers of higher education. Article 60 of the 2005 “Regulations of the Ministry of Education on the administration of students in regular higher education” provides that HEIs need only accept student complaints about cancellation of admission, expulsion, or disciplinary action.Footnote 41 This means that it is mainly in cases in which the student is deemed to be the wrongdoer that students may complain. Misconduct by the private institution is not dealt with by these administrative schemes. State administrative staff in charge of student complaints, moreover, do not work full time on handling private institution matters. There is a private education institution office or group within the local education bureau that directly regulates the management of private HEIs. However, it is staffed by personnel from other departments or the education bureau itself; there are no separate dedicated staff members. As a result, the staff have only a limited time in which to manage the various issues involved in the operations of private education at all levels, and they are therefore reluctant to deal with complaints against these institutions. Students do have the option to go to court; however, it is hard for them to get adequate compensation for losses caused by institutional wrongdoing, as discussed below.Footnote 42
There are small signs of change. For example, the Zhejiang Wanli University (run by the Wanli Education Group)Footnote 43 has set up a Committee for the Protection of Students’ Rights and Interests (xuesheng quanyi baozhang weiyuanhui 学生权益保障委员会).Footnote 44 This committee comprises members from various student unions and legal service groups within the university and is there to answer students’ questions on their rights and interests, handle student complaints against the university and assist students in taking legal action to protect their rights and interests on other consumer issues. Thus, the university has created what on the surface appears to be a meaningful complaint mechanism for handling student grievances regarding their rights and interests as consumers of private higher education. However, as the committee is set up by the university itself and functions under the university's leadership, it is doubtful that it has sufficient autonomy to be a genuinely neutral decision maker in complaints brought by the students against the university. Also, as one news report indicates, most of the cases handled by the committee are regarding non-university related consumer issues, such as a getting refunds of introductory fees for tutoring work from agencies, issues arising from part-time jobs, and rental accommodation problems.Footnote 45
Student-consumers in China
Students pay their tuition fees and in return expect to receive educational services. From this perspective, their rights and interests as consumers of private higher education should be protected, especially, for example, when the education delivered does not meet the standard expected by the student, given the tuition and other fees charged. Moreover, by allowing more genuine “consumer choice” in the education they offer to their students, HEIs will become more market responsive and deliver an education that is more relevant to their students’ needs, particularly in the job market after graduation. In this way, the HEIs will be more attractive to prospective students.
However, the student-consumer is a very special type of social actor, as students are not the only “consumers” of the educational product. The government contributes an enormous amount of funding to higher education annually and expects to receive well-educated graduating students in return for this expenditure. This makes the government the top “consumer” of higher education.Footnote 46 Moreover, there are the known dangers of taking the “student as consumer” approach too far – there is a fear that it leads to a lowering of educational standards in various ways. For example, students may opt to take relatively easy courses in order to earn their degree, rather than choosing those that they should be studying for the sake of their future. Private HEIs in particular may well resort to lowering the standards needed for their students to successfully complete courses. Thus, a downward spiral of lowering standards ensues. The “student as consumer” has been the subject of debate by many scholars, both advocates and critics. However, to date, there has been little discussion with reference to the situation in mainland China.
In general terms, economic reform in mainland China has generated new understandings of the status of consumer and the nature of consumer rights.Footnote 47 The 1993 Consumer Protection Law was an important part of the mid-1990s legislation designed to help China move to a “socialist market economy.” Complemented by provisions in the 2010 Tort Liability Law, it was revised in 2013 and has now been extended by the E-commerce Law (in force 1 January 2019), which is very likely to impact on commercial online e-learning services.
Other factors are encouraging the emergence of new attitudes towards the relationship between students and the private universities or colleges in which they study. These include the huge leap in number of private institutions being established in mainland China and, as suggested above, the rising tuition fees paid by the students; poor teaching quality and students’ low satisfaction with their taught experience, especially among students who pay high tuition fees; a lack of transparency in the information provided by private HEIs to students before they make choices on courses; and misleading promotional material and advertisements. The problems that students face when they receive an substandard education from private providers are quite similar to those often encountered in normal consumer disputes. Because of the changing nature of higher education providers in China, and the absence of effective mechanisms for protecting students’ interests in private higher education, there is real merit in viewing private HEI students as consumers, and to apply the consumer protection regulatory framework, especially the Consumer Protection Law, to the consumer grievances of a private HEI student. Of course, this is not to say that students studying in the state institutions do not face problems, but it is in the private sector that the more serious problems appear to be located. Below, I present three HEI cases dealing with the possible development of the “student as consumer’ in mainland China. These show that such development to date has been limited.
The Student-consumer Case Studies
What might be considered to be the consumer interests and rights of the student in a private HEI are not yet defined in the PRC as being protected by the Consumer Protection Law. Instead, such complaints by students are conservatively regarded as ordinary contract cases, or as administrative cases, and the number of such cases that are actually adjudicated in court – especially with a judgment issued – is very small. It would seem that most grievances are dealt with within the institution through internal administrative processes; however, the following section describes several cases that did come before the courts.
The first compensation case on higher education
The first prominent court case in this field was a civil lawsuit tried in 2003 at the Baiyun District Court, Guangzhou.Footnote 48 In this case, the student, Mr Ou, who was studying at the Guangdong Finance and Trade Management College (Guangdong sheng caimao guanli ganbu xueyuan 广东省财贸管理干部学院), sued the college after receiving an expulsion notice. The college alleged that the student had been fighting, had missed classes and had in other ways violated school discipline during his studies there.
Mr Ou, however, accused the school of fraud on the grounds that it had hired underqualified teachers – they had only obtained a “vocational secondary school” degree (zhongzhuan xueli 中专学历) and were therefore not qualified to teach the college's students. First, he alleged that this violated his rights as a consumer according to the PRC Consumer Protection Law and asked for compensation of 8,800 yuan. This sum was for punitive damages – awardable under the Consumer Protection Law – of double the fees he had paid (including tuition and other fees, totalling 4,400 yuan). Second, he requested the court to determine that the college was obliged to issue him with a graduation certificate and to apologize to him for the expulsion. Mr Ou denied all of the college's allegations, including those of fighting and absenteeism.
The court held that the student was not a consumer in the private HEI context, and that the college was not a business operator, because of its not-for-profit nature. Accordingly, the Consumer Protection Law should not be applied. Instead, the court looked to the PRC's Contract Law and determined that the conduct of the college constituted a breach of contract, because the quality of the education it provided did not meet the contractually agreed standards. Since the two parties had failed to negotiate a settlement on liability for breach of contract, the court decided that it was within its discretion to award compensation. However, it made the award at a reduced level – the compensation awarded was 30 per cent of the tuition fees (2,200 yuan only) paid by the student (in this case, 660 yuan). The court also advised Mr Ou to bring an administrative suit (xingzheng susong 行政诉讼) concerning the alleged misconduct of the college in refusing to issue a graduation certificate. In addition, the court rejected the student's request for an apology from the college. Mr Ou later did bring a suit in a separate case to the Administrative Chamber of the Baiyun District Court, requesting the court to order a withdrawal of the college's decision to expel him, and requiring that the college offer him the degree certificate upon his graduation. However, the Administrative Chamber declined to support his claims. Thus, Mr Ou won the civil hearing in most respects but lost the administrative case.
It is my view that in this case, Mr Ou should have been characterized as a consumer and the Consumer Protection Law applied. The court likely considered the effect of identifying “students” as “consumers” in its decision making. If students were indeed so characterized, the effect would have been potentially very serious, as it would have forced private HEIs to change their administrative practices and it would put their profitability at risk. It was safer, albeit very conservative, to apply contract rules. The Consumer Protection Law, on the other hand, protects the weaker party – the consumer. The judgments in Mr Ou's cases were inappropriate for higher education, given the expansion of privately funded institutions and the fact that they are not purely “not-for-profit” and are known to take unfair advantage of their students. The judgments of the court were legally safe, but conformist in my view. There is a need for more effective regulation of private HEIs to ensure, for example, that students such as Mr Ou (clearly the weaker party in this case) are provided with factually correct information about courses and colleges.Footnote 49
Another important feature in this case is that Mr Ou claimed punitive damages, hitherto unknown in this kind of HEI case. The court rejected that claim but, given the vulnerability of students to private HEI misconduct, imposing punitive damages might deter HEI colleges from engaging in illegal practices, especially fraud. Deterrence is a key goal in the punitive damages provisions in the Consumer Protection Law. Of course, it might be argued that heavier punishments do not necessarily facilitate greater compliance with law, and that certainty of detection is more important. As such, more effective administrative supervision is needed. And, even as a deterrent, China's punitive damages are much lower than those of a number of other jurisdictions, especially the United States. However, private HEIs continue to overpromise and under-deliver as well as charge students fees that sometimes far exceed the costs of running the institutions at which they study. Accordingly, allowing punitive damages, as provided in the Consumer Protection Law, may well work to improve the treatment of students by private HEIs.
The higher education contract case
In another case, a student, Ms Han, sued Nanjing Arts College, claiming a refund of the 24,000 yuan she had paid to the college in tuition fees. She was admitted as a master's student and entered into a contract with the college as a “self-financed master's student” (zichou jingfei yanjiusheng hetong shu 自筹经费研究生合同书). Ms Han claimed that the promised course was deficient and that she received little supervision from her academic supervisor who had also failed to comment adequately on her dissertation.Footnote 50
The court explained to Ms Han that the contract she signed with the college was a lawful type of higher education contract. The implementation of a contract includes two aspects: the “completeness of the implementation” (quanmian lüxing 全面履行) of the contract, and the “appropriateness of the implementation” (shidang lüxing 适当履行) of the contract. Articles 10 and 11 of the Higher Education Law (1998) provide for university autonomy, so the court felt that while the completeness of the implementation of the higher education contract could be judicially examined, appropriateness was beyond the reach of the court. Since Ms. Han had already been awarded her degree, the college had fully implemented the higher education contract, but how it had implemented the contract was not for the court to decide. After hearing the court's explanation, Ms Han withdrew her case.
There is no doubt that contract law should apply in this case. But what about consumer protection law, given that the college had failed to deliver what Ms Han regarded as promised education services and, in particular, proper supervision and course arrangements? It seems the court took the view that Ms Han had obtained her degree and that her treatment by the college would not have a negative effect on her future. Also, in the court's view, it would be difficult to determine whether or not the course and supervision arrangements made for Ms Han were adequate because such a determination would involve subjective elements. In Mr Ou's case, employing teachers with inadequate qualifications was an obvious violation of the rules. But these considerations are not necessarily decisive. I would argue that, in the absence in China of any kind of educational ombudsman, application of the Consumer Protection Law would also benefit students in this kind of case.
An administrative case concerning deceptive conduct
A recent news item revealed that Sias University,Footnote 51 which is affiliated with Zhengzhou University, was sued by students for publishing deceptive information in its admission offers.Footnote 52 One of the students, admitted by Sias in 2016, complained that he could have gained admission to a public university with a higher ranking but chose Sias because it offered a good choice of major. His score, his father claimed, was 70 points higher than the second-tier university admission line and would have enabled his son to get into a second-tier public university. His father recalled that when he read the Sias prospectus, he gained the impression that Sias was a college of Zhengzhou University, a “211” project university. He and his son were pleased that such a good public university would take students from the second-tier admission line (rather than the first-tier line that Zhengzhou University normally requires). As a college attached to Zhengzhou University, it was not clear whether Sais could legally recruit students independently and issue the admission offer in its own name.Footnote 53
However, the offers of admission were issued in the name of Sias International College, not Zhengzhou University. And, at the end of 2018, Sias University formally separated from Zhengzhou University, changed its name and became an independent private HEI. The case ended up in the Henan Provincial Court, where the court rejected the plaintiffs’ claim that they should be sent admission notices in the name of Zhengzhou University and that the students should be classed as Zhengzhou University students. In the judgment, the Court states:
Although the conduct of Zhengzhou University, in delegating its foreign partner (Sias) the authority to make admission offers, was irregular (bu guifan 不规范), as a new type of institution emerging during the educational reform, there are no specific rules regulating the admission procedures of Sino-foreign cooperative institutions. Therefore, the practices of Zhengzhou University [were not unlawful].Footnote 54
The court also pointed out that the students understood fully that the admission offers were made by Sais, rather than Zhengzhou University, and that they had enrolled in Sais without raising the issue immediately.
As the case concerned the authority to issue admission offers to a public university, it was handled by the Administrative Chambers of the Court. The students lost their administrative case against the college, and it seems that they and their parents did genuinely feel deceived by the ambiguous wording in the marketing literature and had missed the chance to go to better universities. The inaccurate or blurred information provided in HEI promotional materials often obfuscates faculty qualifications or precise courses offered.Footnote 55 In the absence of an effective way to regulate or punish these institutions for such misconduct, the application of the Consumer Protection Law might enhance educational justice for aggrieved students in private HEIs.
Charters of Student Rights
Efforts have been made by universities in other countries to express the rights of the “student as consumer” in a “charter of student rights.” Footnote 56 Such a charter can offer important guarantees to students about the quality of education that they will receive and the way in which they can expect to be treated if in dispute with the institute in which they are studying. Such an approach has yet to gain ground in mainland China, but the beginnings of this kind of thinking can be found in the 2017 “Regulations of the Ministry of Education on the administration of students in regular higher education” (the 2017 Ministry of Education Regulations hereafter). Although these regulations are still informed by the conservative constitutional idea that rights and duties have a “mutuality,”Footnote 57 they do offer something of a charter of rights, especially at Article 6:
A student at school shall enjoy the following rights in accordance with the law:
(1) Taking part in all activities arranged within the educational and teaching planning of the school, and utilizing the educational and teaching sources as provided by the school.
(2) Taking part in social practices, volunteer services, work-study programs, recreational and sports activities, scientific and technological culture innovations and other activities, and obtaining employment and entrepreneurship guidance and services.
(3) Applying for scholarships, student subsidies and student loans.
(4) Acquiring scientific and impartial evaluation in terms of ideology, morality and academic results, among others, and obtaining the corresponding academic diploma and degree certificate after having finished studies as required by the school.
(5) Forming and attending student organizations on campus, participating in school administration in appropriate manners, and enjoying the right to know, right of participation in, right of expression on and right of supervision over the affairs related to the rights and interests of the school and students.
(6) Filing a petition with the school or the education administrative department if he or she raises any objection to the handling measure or disciplinary action taken by the school; and filing a petition or bringing an action in accordance with the law if the school or any faculty and staff member infringes upon his or her personal right, property right or other legitimate rights and interests.
(7) Other rights as prescribed by Laws, Provisions and a School Constitution.
Article 6 gives students rights of participation in a higher education institution's teaching and learning programmes as well as the extra-curricular activities of the institution, guidance and support in employment and entrepreneurship, making applications for scholarship and related funding, setting up student associations, participating in and supervising the institution's administration, and petitioning the institutions in response to disciplinary action taken against the student or infringement of personal or property rights. It ends with a traditional catch-all provision that includes other normative sources that might afford the student justiciable rights.
Article 6 also offers a small core of provisions that could amount to a charter of student “educational consumer” rights. There are also a number of important provisions giving students’ greater rights, especially procedural rights in disciplinary proceedings, including rights of appeal. However, such proceedings generally encourage dispute resolution in-house or at least within the administrative framework provided by the local branch of the Ministry of Education. In a number of important respects, university charters of student rights offer rather more protection for the student as a consumer. In general, the procedural rights offered in such charters are much more “plaintiff” supportive. Thus, defendants in disciplinary matters will likely have the rights to a full, fair and complete hearing by an impartial committee, with generous time limits on challenging a disciplinary decision made by the university against a student. There may be a clearly stated presumption of innocence in the event of any accusation of a disciplinary offence, a presumption not found in the 2017 Ministry of Education Regulations. The student's procedural rights may also be given in considerable detail. Student rights’ charters can give students a broader right to set up and to belong to any lawful association of their choice on campus, and more freedom for the activities of that student organization, including peaceful demonstrations. In addition, there may well be privacy requirements of non-disclosure of personal information to third parties. And student rights’ charters can offer full disclosure of, and open access to, the rights protected by the charter. Most importantly, they can offer basic guarantees on the quality of education to be delivered for consumption by the student: course offerings, access to teachers, adequate dissertation supervision, appeals against poor grades, and so on. These are not given consideration in the 2017 Regulations.
Conclusion
The recent revisions to the Higher Education Law have included provisions to allow a further expansion of the privatization of higher education. Alongside this expansion, it might be timely for the provisions of the Consumer Protection Law to also be extended to encourage delivery of good educational services for students, especially those in private HEIs, particularly as the judiciary has been reluctant to see students as consumers. In particular, and despite some doubts about the academic value of seeing students as consumers, punitive damages found in China's Consumer Protection Law may well have a role in deterring HEIs, especially privately funded ones, from making unrealistic promises and under-delivering on those promises.
In mainland China, given the continuing expansion of private HEIs, the limitations in the regulatory framework to oversee such institutions and the lack of redress options for aggrieved students, it would be helpful to view students more as consumers and provide them with the right to sue a university over tuition fees and other identifiable wrongdoings, such as misleading marketing. The student-consumer approach can press private HEIs into improving their business practices and their treatment of students. There are no tuition protection schemes in China, so students’ tuition payments are not safeguarded. In contrast, for example, in a recent case in the United Kingdom, a student was awarded £60,000 in compensation for false advertising by a university.Footnote 58 Students as consumers should be empowered, like ordinary consumers and in the spirit of the Consumer Protection Law, so that they can secure better justice for themselves and also assist in improving the conduct of private HEIs. Strictly speaking, Article 2 of the 2013 revised Consumer Protection Law speaks of consumers as those who consume everyday (shenghuo 生活) items; the massification of higher education could be said to redefine higher education as an everyday service.
There are limitations to characterizing the student as a “consumer”; indeed, that characterization involves a broader set of issues than applying the Consumer Protection Law when aggrieved students seek redress from their privately run universities. Tuition fees make up much of the income of a private university or HEI, and in the absence of effective compensation schemes, students who pay for private education in China would benefit from being made subjects of the Consumer Protection Law. The need is, in a sense, already clear elsewhere in the law: the revised Minban Education Promotion Law stresses that private HEIs may be registered as “for-profit” companies. Thus, many private HEIs are now commercial providers of educational services to consumers – students. The reason why the new law tries to separate “for-profit” and “non-profit” private HEIs is largely a matter of the administration convenience of the state. But such a move would also benefit the development of private HEIs, because they could investigate a diverse array of funding channels, including listing on the mainland stock exchange. Private HEIs can have many problems and, in the current climate, there may well emerge new pressures to recognize university students as consumers of educational services. The further development of university “charters of students’ rights” would also assist students in private HEIs. The establishment of the 2017 Ministry of Education Regulations at least provides some impetus for this development. It is also worth considering establishing a consumer-student ombudsman scheme for private HEIs; however, in the current context of mainland China, the necessary independence of such a figure makes this an unrealistic option.
Acknowledgements
I thank Professors Fernanda Pirie and Christopher Hodges for their guidance during my doctoral studies at Oxford University. Thanks are also owing to the Hong Kong Institute of Asia-Pacific Studies, CUHK, and especially its Chinese Law Programme headed by Professor Chao Xi, where as a research associate between 2018 and 2020 some of my time was spent preparing this essay.
Conflicts of interest
None.
Biographical note
Ling ZHOU is a research associate at the Qianhai Institute for Innovative Research (QIIR) and concurrently a post-doctoral fellow at the China Centre for Special Economic Zone Research, Shenzhen University. She is also an associate research fellow at the Institute of Advanced Legal Studies in London. Her main research interests include civil justice and dispute resolution, socio-legal studies and consumer protection. She gained her DPhil in Law from Oxford University in 2018, exploring issues in consumers’ access to justice in China. Her study was published as a monograph by Hart in 2020. At QIIR, she leads government projects concerning key issues in the harmonization of legal rules in the Greater Bay Area in China, and at SZU she works on financial consumer protection in the Greater Bay Area.
