A Distinctive Educational Culture

The Chinese party-state has shown a strong willingness to give political and financial support to higher education in the post-Mao era. Like Singapore, Taiwan, South Korea and Hong Kong, strong backing for higher education by the authorities is regarded as highly important for creating the kinds of human and institutional resources desired for successful participation in the globalized economy. In addition to this strongly utilitarian impulse for support, there has also been the significant influence of local cultures in East Asia that have long emphasized the importance of education. Moreover, in education reforms across the region, the Western-style, public, comprehensive university has been an important template for institutional development across a range of these societies. Despite these common features, however, in the PRC the participation in and promotion of higher education has been distinctive in various ways. A political environment dominated by the Chinese Communist Party (CCP) helps to explain a number of these distinctive features, including attitudes to students with disabilities.

During my six-year period of service in the university law school, I came to learn that, operating within a robust spirit of authoritarianism, university leaders were not inclined to discuss some kinds of important issues with those who had the knowledge relevant to those issues.Footnote ⁶ They eschewed a collaborative negotiating approach, involving relevant colleagues in regularly scheduled meetings, for many significant matters. The reluctance to engage in academic committee decision-making processes was (and still is) in part defended by pointing to a wider problem of commands unexpectedly imposed on them by still more senior figures, including in particular officials in the provincial bureau of education (jiaoyu ting 教育厅). The culture of imposed ad-hoc decision making also made it difficult to argue effectively within the university for the adoption of new ideas such as “sustainable educational development.”Footnote ⁷ As a result, innovative ideas often seemed to have little or no chance to become part of the university's governance policies. Sustainability seemed at best only a mirage. There was always a sense that areas of law which might be seen as sensitive were to be avoided. The educational culture of the institution was heavily politicized – political in both the macro (the CCP) and micro (lingdao 领导 and guanxi 关系) senses. The spirit of Deng Xiaoping's 邓小平 reputed advice to Jiang Zemin 江泽民 on effective governance in China seemed to be everywhere: “signal left and turn right,” or “say one thing and do another.”Footnote ⁸ I found myself administering success indicator criteria in schemes such as international student exchanges and staff appraisal where both macro and micro political considerations seem to dominate the decision-making process and outcomes.

The deanship also gave me opportunities to look at what was happening in other universities, especially when invited to serve as an external assessor. There seemed to me to be important contradictions between values of equity and equality that are meant to inform the socialist system on the one hand and the obvious inequalities in university resourcing and differentials in student access to higher education on the other. The Higher Education Law (as revised 2015)Footnote ⁹ at Article 9 states:

The generalized right to higher education referred to in the first paragraph of Article 9 fits uncomfortably with the growing problem of China's regional inequalities in educational provision, an issue exacerbated by a general policy of devolving much authority in higher education matters to provincial governments. The affluence of wealthy municipalities and prosperous provinces along the littoral enables local governments to invest in their universities in a manner with which less wealthy areas simple cannot compete. Elsewhere in this collection of essays, Qiang Zha's essay addresses regional disparities in its exploration of issues of equality and equity in Chinese higher education in the post-massification era. The issues surrounding ethnic identity and higher education are dealt with in the contribution authored by Miaoyan Yang and James Leibold.

My personal experience as a dean leads me directly to the third issue identified in Article 9, namely the position in the higher education system of students with disabilities, a problem that has been given relatively limited academic attention to date. My service in the mainland law school was at a fairly isolated campus university, and the isolation served to highlight certain matters. Perhaps one of the most striking of these was the absence on campus of students with disability. Subsequently, however, I noticed very clearly the same lack of visibility when wandering around the campuses of other mainland Chinese universities and, of course, in the cities and towns that I also visited.Footnote ¹¹ That was one of the deepest impressions in my six-year period of service, and one that continues to worry me today. For, of course, this invisibility is not a matter of chance but, rather, reflects the university culture described above. There is a policy and practice reluctance on the part of universities and other higher education institutions to embrace fully affirmative action aims. Also, government practical reasoning sees persons with disability as best segregated from, rather than incorporated into, mainstream university education. It also reflects the realities of general campus construction practices at Chinese universities, the nature of employment markets for college graduates, the general lack of awareness of international thinking on policies and good practice relating to persons with disability, and China's level of socio-economic development.Footnote ¹² This is not to say that students and staff in universities ignore the needs of students with disability, and in the law school in which I served, one young female student who had been paralysed from the waist down did graduate, receiving a good deal of kindness and support from many of those in the law school, including the Party secretary, and valiant assistance from her father who assisted her greatly in moving from classroom to classroom.Footnote ¹³

Even more generally, negative attitudes to disability are also a reflection of general party-state developmental policies in the PRC, which have included a strong commitment to population control. Policies towards persons with disabilities have been shaped by ideas of eugenics that enjoyed support in China long before 1949 and which gained a renewed prominence from the 1980s onwards as China's leaders struggled to deal with what they saw as the negative impact of population – not only in terms of size but also quality – on economic growth. The PRC's first national-level code of population control came in 1994, the Mother and Child Health Care Law, the initial version of which received much disapproval – both domestic and international – from human rights advocates and was replaced with a less robust version, albeit one which still linked together maternal healthcare, reproductive technology and eugenics notions.Footnote ¹⁴ In addition, the PRC's family size limitation policy also contained less explicit but still important eugenics assumptions. For example, the 2001 (revised 2015) Population and Birth Planning Law at Article 30 specifically provides for the possibility of pre-marital health examinations in the interests of avoiding birth defects and promoting infant health.Footnote ¹⁵

The later parts of this paper will return to these issues of disability, placing them more specifically in the context of higher education. Attention now turns to the attempt to address some of the more general problems alluded to above by means of the 2015 revisions to the Higher Education Law.

Revising the Legal Framework: The NPC's 2015 Revised Law on Higher Education

The legal framework for higher education in China was significantly adjusted in several respects in 2015. As noted above, Article 9 of the revised law continues with the legal commitment to afford citizens the right to university education, including for students with disabilities. The revised code does not offer any additional provisions specifically dealing with issues relating to, or the rights and interests of, students with disabilities. It does introduce, however, a number of other changes of a general nature, allowing for some decentralization, more varied funding and financial autonomy, and specialist external supervision. Thus, by an amendment to Article 4, the revised law encourages higher education to be “more realistic” in that it should be better integrated with social practice (shehui shijian 社会实践). A greater role for the private sector in higher education is encouraged by allowing profit making to be a legitimate institutional goal (amendment to Article 24). There is now a devolution provision allowing provincial-level authorities (rather than the Ministry of Education) to approve the establishment, separation, amalgamation and closing down of institutions of specialist higher learning by amendment to Article 29. However, universities that provide mainstream higher education at and above undergraduate level remain subject to examination and approval by the Ministry of Education within the State Council. Article 29 and Article 44 provide for the involvement of external experts (zhuanjia 专家) and third-party professional agencies (disanfang zhuanye jigou 第三方专业机构) to offer external appraisal of a proposed institution at the time of examination and approval (Article 29) and in assessment of teaching, efficiency and quality of education (Article 44).Footnote ¹⁶ Greater attention to market forces appears at several places in the revised law but in particular in Article 60, which stipulates that higher education institutions should operate within a system that aspires to the following principles: the parties running higher education institutions should shoulder the main investment burdens, students receiving higher education should bear their own costs, and higher education institutions should be able to secure funding from a variety of sources.

However, Article 60 has been subject to a significant degree of academic criticism. It is argued, for example, that it fails to make clear the extent to which a higher education institution might be financially autonomous and that firmer and more precise language is needed to prevent administrative departments or other agencies from involving themselves too closely in a university's finances. The use of external experts and specialist agencies for assessment purposes is also to be questioned in that the language of the Higher Education Law does not avoid the problems of conflict of interest just noted – it is difficult to guarantee the separation of the interests of “administrative management,” higher educational institutions and the evaluation specialists and agencies in the process of external review.Footnote ¹⁷ This critical observation is consistent with the suggestion made above that in processes of external evaluation, academic and related personal networks tend to work in favour of prestigious institutions in large cities. Finally, Article 29 is criticized for being too conservative. It should have allowed the authority for setting up and approving institutions of higher education offering an undergraduate education to be firmly and fully devolved to the provincial level. Given the requirement added to Article 4 that higher education should be delivered more in accordance with social practice, this suggested reform seems to be based on a valid criticism.Footnote ¹⁸

Disability

In addition to the Higher Education Law, the PRC is a state party to the UN Convention on the Rights of Persons with Disabilities (UN Convention hereafter). After acceding to that convention in 2008, revisions were introduced to the Law on the Protection of Persons with Disabilities so that it more closely reflected the provisions in the convention. But, as indicated above, a number of social values and government policies and practice in contemporary Chinese society make this commitment to the UN Convention and to its domestic implementation rather distinctive.

Briefly stated, the 2008 revised (further revised 2018) Law on the Protection of Persons with Disabilities is more rights-based in its ethos than its predecessor, and expresses the rights it offers in clearer and more inclusive language than did its 1990 predecessor. Its characterization of disability may also mean that more people than in the past are brought within the protective scope of the law.Footnote ¹⁹ It also, at Article 1, encourages disabled persons’ equal and full participation in social life (pingdengde chongfen canyu shehui shenghuo 平等地充分参与社会生活). Nevertheless, the law retains an approach which sees the disabled in China as persons who are to be treated differently from other groups, rather than as encouraging individual self-determination and active involvement in wider society – values which infuse the UN Convention. In addition, its language still has something of an aspirational feel, and it does not deal at all clearly with the issue of enforcement, which is a serious weakness. Cases of discrimination against disabled persons which do go to court tend to concern claims involving relatively small and specifically local issues, such as no barrier access at particular train stations, or discounted tickets for local buses or sightseeing attractions for disabled persons from out-of-town.

The conservative aspects of the legal regime for disability protection also reflect the generally paternalistic ethos of social law,Footnote ²⁰ in which (as noted above) specific categories of person – in particular, women, children, the elderly and the disabled – whose traditionally marginalized position in societyFootnote ²¹ is seen to have been worsened by the impact of the economic reform process. Such disadvantaged persons are therefore characterized as being in need of “special protection.” The state offers protection for the “rights and interests” (quanli liyi 权利利益, or quanyi 权益 in shortened form) of these persons by means of social law, this being a distinctive mix of civil, criminal and administrative law and which bears some imprint from German law. This approach to dealing with the problems of socially disadvantaged kinds of person, from a political point of view, is seen as encouraging social stability and harmony, and as facilitating social control, and has at its heart the idea that such protection is a paternalistic gift of the party-state and a demonstration of the party-state's benevolence and legitimacy.

In addition, it is important to note that not only rights but also interests are protected. “Interests” in the PRC system have a more overtly political character than rights, and their protection means that those groups that have recognized interests need special treatment in order to realize social justice in China's socialist system. These interests, unlike rights, are not burdened by correlative duties. The party-state recognizes that various kinds of social grouping have a stake in the changing social system, and that stake needs protecting and prioritizing, especially in the face of growing divisions in society that are in large part a result of the market-orientated reforms. In addition, the need for such specific legislation arises because of the distinctive non-judicable nature of the 1982 Chinese Constitution. So, although there is a clear constitutional statement in support of protection for persons with disabilities, it may not be relied on in trial proceedings even though the PRC Constitution ensures protection for individuals with disabilities.Footnote ²²

In relation to the protection of the rights and interests of students with disabilities, the revised Persons with Disabilities Law (2008 and 2018) contains one important provision: Article 25 stipulates that “ordinary educational institutions” must provide education for disabled persons “capable of receiving ordinary education” and make efforts to facilitate their study. It also requires higher education institutions to admit disabled students who meet the relevant admission requirements and may not refuse to admit them on the grounds of their disabilities. In the event of refusal, a disabled student or her or his relative or guardian may seek the assistance of the relevant authority, and that authority will order the school to admit the student.

However, the evidence is that this provision on non-discriminatory recruitment and enrolment is not as effective as might be thought. The primary and secondary education of many disabled students is mainly carried out in special education schools. The basic educational curriculum that they follow is not standardized, tends to be vocationally-orientatedFootnote ²³ and in many cases is not well integrated with subsequent stages of educational opportunity.Footnote ²⁴ Even when students with disabilities are placed in mainstream schools, they are not necessarily treated as the equals of other students.Footnote ²⁵ In special education schools, students with disabilities are likely to be segregated according to disability, so that they can receive what is considered to be appropriate education.Footnote ²⁶ It has been suggested that these factors impact so negatively on disabled school students that they are afraid or unable to choose to apply to regular universities, but instead continue to tend to select a vocationally orientated path leading to a separate examination (dankao danzhao 单考单招) which limits their subsequent choice of college.Footnote ²⁷

Moreover, there is a significant problem of the limited willingness by colleges and universities to recruit students with disabilities (gaoxiao zhaoshou yiyuan bu gao de wenti youwei tuchu 高校招收意愿不高的问题尤为突出). Although there is improvement on the more overt discrimination of the early 2000s, there are still issues that might be usefully categorized as subtle discrimination, reflecting deep-rooted social prejudices and judgements, and therefore generally considered socially acceptable. The problem is easily identified, for example, in the ideas and recommendations of “unsuitability” still to be found in the recruitment webpages of general universities, and reflected provisions in the Ministry of Education's 2001 “University student enrolment medical standards, revised” (putong gaodeng xuexiao zhaosheng tijian biaozhun, xiuding 普通高等学校招生体检标准，修订) and other documents of a similar nature subsequently issued by the Ministry of Education. The recruitment webpages list a number of diseases and other disabling conditions on the basis of which the university will not accept a student. Thus, the 2018 admission rules for applicants seeking entry as undergraduates to Peking University state at Article 19:

It is unclear from the bare wording of this provision what kind of student might be “abnormally” accepted. The undergraduate enrolment examination standards of Peking University, according to Article 21 of the Peking University rules, follow those set out in the 2007 “Guiding opinions on university enrolment medical examination work” (putong gaodeng xuexiao zhaosheng tijian zhidao yijian 普通高等学校招生体检指导意见) issued by the Ministry of Education, the Ministry of Health and the All-China Federation of Persons with Disabilities.Footnote ²⁸ Although only “guidelines,” they send a clear signal to universities (and to students with disability, their families, teachers, and to the general public) that they may discriminate in admissions on the basis of students’ physical or mental attributes or disabilities. The guidelines typically list specific forms of disability and illness and link them to areas of study that are considered to be unsuitable for the prospective student, who may therefore be denied admission or at least given advice to the effect that certain subjects are inappropriate for her or his disability. It is not clear that the disabilities are in fact always relevant to the subject. All students applying to universities must undergo a detailed physical examination and submit the test outcomes, together with their academic records, for consideration, and this medical test may therefore be a basis for rejection, as is explained further below.

Moreover, under Article 11 of the “Provisions on the administration of students in regular institutions of higher education” (2017 revision), within three months of a student's admission to a university, there is a requirement for a review of the original application in order to assess consistency with state enrolment rules. This review includes investigation into whether or not “(4) … the students’ physical and mental health complies with the physical examination requirements of the specialty or the category of specialty the student applies for and can guarantee the normal study and life of the student at school.” If the student is found to have secured admission by fraudulent means, such as submitting a false medical statement, then paragraph (5) of Article 11 of the 2017 revised “Provisions” provides that this is characterized as “failing to pass the review,” and that her or his student status be cancelled. If the circumstances are deemed serious, then a criminal investigation may ensue. This leaves students with disabilities in a very difficult situation: should they declare fully their health circumstance, as is strictly required, carrying with it as it does the risk of rejection by the universities? However, if subsequently in the course of the review they are shown to have failed truthfully to report their disabilities, they risk being subsequently rejected for making a dishonest application. Paragraph (5) also stipulates that in other cases if a student is found during the review to have physical and psychological issues that make it inappropriate for her or him to study at school, then a hospital diagnosis is to be used to determine whether or not that student should be sent home. If required to rest at home, the student's admission qualification may be retained until there is recovery (Article 10).

It seems that the proportion of students with disabilities who do reach general higher education is small. It is my impression from the literature on this issue that those who do succeed are students with relatively minor physical or mental disabilities.Footnote ²⁹ The statistics on how many students with disabilities fail to enter institutions of higher education need to be treated with caution, however. Moreover, it is imperative to know how many are discouraged from applying to their preferred universities and academic fields by the unwelcoming university recruitment webpages, the systematic pressures on them to pursue vocational education, media advice to the effect that disabled students should choose the “right” subject for their condition, and the self-fulfilling sense that any application that they make might well fail.

Teachers and Disability

As a state party to the UN Convention on the Rights of Persons with Disabilities, the government of the PRC is obligated to employ teachers, including teachers with disabilities, who are qualified in sign language and/or braille. The UN Convention also prohibits discrimination in employment and requires that employers provide reasonable accommodation in the workplace. There are teachers with disabilities employed in the special education schools and colleges but, in my experience, there is discrimination against them in the mainstream university system. In the case of one intended hire in the law school in which I served, a young scholar with a disability performed so well in her presentation for an advertised post that it was clear that she would make an outstanding appointment. The human resources department took so long to accept our recommendation, however, that by the time she was made an offer, she had accepted an appointment elsewhere. I was advised that there had been reservations against the appointment of a disabled teacher, even though there was at least one other teacher on campus with disability.

Although the Teacher's Law 1993, which applies to university academic appointees (Article 11[5]), does not specify medical testing as a pre-condition for appointment, it does encourage (at Article 15) graduates of mainstream universities to teach in mainstream universities, and graduates of non-mainstream institutions of higher education (fei shifan gaodeng xuexiao 非师范高等学校) to take up teaching appointments in primary or secondary schools or vocational schools rather than universities. Local legislation, such as the 1998 “Shanghai municipal procedures for the implementation of the Teachers Law” do, however, set standards based on provisions in the State Council's 1995 “Regulations on teacher qualifications” (jiaoshi zige tiaoli 教师资格条例) (and the associated “Implementing regulations” 2000, jiaoshi zige tiaoli shishi banfa 教师资格条例 实施办法), issued by the Ministry of Education. These allow provincial governments considerable discretion in selecting the standards to be used in physical check-ups to determine suitability as a teacher and, not surprisingly, local policies and regulations that discriminate against people with disabilities have apparently proliferated.Footnote ³⁰ Given the practical limitations on teaching human rights courses in Chinese universities, there is little space available in the law schools’ course offerings to raise these issues in the university classroom.

Further Reform? State Council 2017 Regulations on the Education of Persons with Disabilities

Given the problems facing students with disabilities that are found in particular in the relationship between pre-university special education and university and other forms of higher education, recent reforms to the 2017 revised “Regulations on the education of persons with disabilities” (replacing the regulations first introduced in 1994) are potentially very significant. Not only are there several provisions directly addressing issues facing higher education students with disability but, of course, reforms to pre-university education will likely impact on recruitment of students with disability to institutions of higher education. It is clear that the 2017 regulations are indeed moving PRC law progressively towards the standards found in the International Covenant on Persons with Disabilities, but also it is evident that they retain some old-style “special treatment” thinking and also do not deal effectively with the issue of enforcement. There is still a strong social protection imprint in the revised regulations, for example, through Article 6, which gives a leading role to the All-China Disabled Persons Federation for the promotion of the education of the disabled, and Article 8, which places a specific burden on the family of disabled persons to assist the students with disability to receive education. Article 27 continues to place strong emphasis upon vocational education and enhancement of employability of the disabled, traditional features of policies on disability. Overall, the new regulations seem unlikely to change noticeably the current situation in which mainstream institutions of higher education are prepared only to admit students with relatively minor physical disabilities or other forms of incapacity and, indeed, prevent the admission of many others. Indeed, some commentators have suggested that what is needed is a comprehensive Education Law for the Disabled that covers not only disability per se but also has a broader vision so that it addresses issues of “special needs” for all children who are different in some way from mainstream students.Footnote ³¹

In general terms, the 2017 regulations provide an inclusive view of the education arrangements that should be offered to students with disability and, as noted above, require at Article 2 the state to guarantee the right of equal access to education for students with disabilities. The same article characterizes mainstream education provision for disabled students as the preferred mode – educational institutions should develop, as far as they are able, individualized educational plans for students with disabilities. Article 3 stresses the importance of “inclusive education” (ronghe jiaoyu 融合教育) and “normal education methods” (putong jiaoyu fangshi 普通教育方式), but at the same time does also stress the importance of vocational education. Article 16 now requires people's governments at the county level to select certain mainstream schools for the provision of special education resources, especially for the creation within those schools of classrooms which meet special education needs, as well as, of course, constructing special education schools. Article 22 indicates that mainstream schools are expected to enrol disabled students in ordinary classes. Only if there are a substantial number of disabled students in a school should specialized classes be established, offering separate education to such students. The same article says that educational institutions must ensure that disabled students participate equally in the education, teaching and other relevant activities arranged by mainstream schools. Article 45 requires an education department in local people's governments at county level and above to incorporate the training for special education teachers into their training plan so as to ensure that these teachers are given adequate training. Article 46 provides for the evaluation of and rewards for specialist teaching, with good promotion prospects considered to be important. Article 52 stipulates that institutions of education should ensure that disabled students intending to take national examinations of education are given appropriate support so as to be able to participate fully in the examination process. Thus, the 2017 regulations place a clear obligation on local governments to plan for and to allocate adequate funding and resources to local programmes of education for people with disabilities. Moreover, provision for teacher training, and the evaluation of and rewards for specialist teaching, and good promotion prospects are characterized as important features of the system.

Article 20 of the 2017 regulations requires county-level education departments, in cooperation with civil affairs and health administration departments and the Disabled Persons Federation, to create committees of specialists – Expert Committees on the Education of Persons with Disabilities (canji ren jiaoyu zhuanjia weiyuanhui 残疾人教育专家委员会) – in the education of persons with disability.Footnote ³² These committees assess students’ physical state and capacity to be educated and adaptive to mainstream schools. The dispute resolution process laid out in Article 21 favours administrative resolution of disputes and it would seem that Article 20 is linked to this approach – that is, because it is the committees that make classification decisions on students’ disabilities, the education administrative department is protected from direct blame when parents are unhappy about the extent and manner in which their child's disability has been characterized and seek to bring a complaint. Articles 56 and 57 provide for where a local department of education has been deficient in dealing with issues of student disability, and identify the kinds of sanction they should expect to receive. These sanctions range from notices of criticism, to workplace discipline and, if relevant, to public security administrative penalties. Only when it seems that a crime has been committed should matters be investigated for possible criminal prosecution. One of the specific grounds identified in Article 57 for imposing a penalty is the rejection of an application for enrolment of a disabled student who actually meets the conditions laid down by law and regulations.

More directly applicable provisions, which specifically address issues of higher education, include Article 27, which stresses the overall importance of vocational education and employability; Article 34, which says schools and institutions of higher learning may not reject applications for admission from students with disabilities; Article 35, which encourages local governments to support institutions of higher education to establish special education colleges or set up relevant majors, and generally improve the degree of education of the disabled; and Article 40, which encourages qualified graduates of institutions of higher education to teach in special education schools or other special education institutions.Footnote ³³