China

2 School College students in China Had been Disciplined for Giving Out Delight Flags. Can the Regulation Assist Them?

In February, two Tsinghua University students filed a lawsuit against the Ministry of Education seeking to overturn punishments they had received for distributing rainbow flags on campus. The students, identified only as Huang and Li, had marked the International Day Against Homophobia, Biphobia, and Transphobia (IDAHOT) last May by leaving 10 rainbow flags in a campus supermarket along with a handwritten note saying “Please take ~ # PRIDE.” The university quickly identified the students using security camera footage, and dispatched staff to “educate” them “out of concern.” After the students refused to engage, the university administration launched an investigation.

Tsinghua concluded that Huang and Li violated university rules by distributing unauthorized “promotional materials” that “created a harmful influence,” and they did not “heed dissuasion.” The university gave Li a “warning” and Huang a “severe warning,” claiming the latter had used misleading and insulting language when posting about the incident on social media. The disciplinary actions prohibited the students from receiving postgraduate recommendations and scholarships for six months, and were recorded in their official dossiers.

Huang and Li spent the next several months unsuccessfully appealing the decision up the bureaucratic ladder, and now have turned to the judicial system. Below, we look at the arguments advanced by the students and Tsinghua, the administrative rulings in their case, and what prospects Huang and Li have for prevailing in court.

Case Context: Under a Fading Rainbow

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That Huang and Li’s small rainbow flags triggered such a reaction shows how restrictions on LGBTQ expression and advocacy in China have tightened in recent years. Previously, LGBTQ student groups, even without official approval from their schools, enjoyed greater leeway. For instance, in 2012, an unregistered student group at Sun Yat-sen University celebrated IDAHOT by unfurling a gigantic rainbow flag in a public square. The activity later received sympathetic coverage from the English-language version of the Global Times, a state mouthpiece.

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More recently, the authorities have been forcing LGBTQ student groups out of sight. LGBTQ student activists have been subject to lengthy interrogations, surveillance, censorship, and intimidation. One student group was even officially declared to be an illegal social organization. One of the biggest blows came in July 2021, when WeChat shuttered dozens of LGBTQ student groups’ social media accounts for unspecified violations of regulations issued by the Cyberspace Administration of China.

Also, several LGBTQ-related court cases in recent years have run into lengthy and unexplained delays. Consistent with these trends, Huang and Li’s announcement that they were suing the Ministry of Education was censored shortly after being posted. And the court, even after two months, has yet to officially accept Huang and Li’s case filing.

Huang and Li took a selfie outside the Beijing No.1 Intermediate People’s Court where they filed their lawsuit against the Ministry of Education. When posting the image to Weibo, they obscured their faces with animal internet memes.

Tsinghua: Duty to Uphold a “Peaceful and Orderly Campus”

Huang and Li sought redress with Tsinghua administrators, then the Beijing Education Commission, then the Ministry of Education, and, most recently, an Intermediate Court in Beijing. In their appeals, the students used a classic two-pronged strategy. First, they questioned the application of the university regulation, claiming that the rainbow flags were not “promotional materials,” and that even if they were, they did not cause a “harmful influence.” Second, they challenged the legality of the rule itself, arguing it was disproportionately harsh and unduly infringed on their constitutional free speech rights.

Tsinghua countered both points. It cited a dictionary that defined “promotional materials” as objects that “directly convey ideas,” and then quoted the students’ own words against them: “the rainbow flag is a symbol that represents a specific group.” Tsinghua added that the rainbow flag symbolizes “the wishes and pleas of that group.” (Only vague references to a “group” appear in the decisions, rather than any expressly LGBTQ-related terms.)

Tsinghua also asserted, without supporting evidence, that since the unauthorized flags were placed in a busy area, they “provoked public sentiment on campus, harming the daily management of campus order and created a harmful influence.”

As for the legality of the rule itself, Tsinghua said it had a duty to maintain “a peaceful and orderly campus” to fulfill its “sacred mission of education.” Tsinghua explained that “every person, in their heart, has values they wish to uphold” and that the university “fully respects and protects” those values. However, “this does not imply [that it is permissible to] wantonly promote and broadcast them in public.”

The Beijing Education Commission sided with Tsinghua, but informed Huang and Li that they had the right to challenge the decision in court or by filing for administrative reconsideration with the Ministry of Education. Huang and Li chose the latter route.

Ministry: Won’t Interfere in “University Autonomy”

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The Ministry of Education ruled that Huang and Li’s case fell outside the scope of administrative reconsideration. The ministry referred to the Administrative Reconsideration Law, which says reconsideration should only be granted when administrative organs have failed “to perform their statutory duties of protecting personal rights, property rights, and educational rights.” The ministry also noted that the law grants universities a right to manage their affairs “autonomously in accordance with law,” so “unless stipulated by law or to protect students’ major fundamental rights or in other special situations, administrative power should not interfere.”

According to the ministry, the disciplinary actions taken against Huang and Li were not severe enough to impact their educational rights, so administrative reconsideration was not warranted. Only more severe punishments, like expulsion, would merit such reconsideration. The ministry did note another regulation that allowed students to challenge a broader range of decisions by petitioning the university administration and the provincial education department. Since Tsinghua and the Beijing Education Commission had “provided an answer according to law,” Huang and Li had already exhausted that option.

This is not the first time that authorities have invoked university autonomy in an LGBTQ-related case. In 2014-15, a lesbian college student nicknamed Qiu Bai found that many university textbooks still described homosexuality as a mental disorder and/or “sexual perversion,” despite China having ostensibly depathologized homosexuality in 2001. She filed an open government information request asking the Ministry of Education to disclose its standards and procedures for approving textbooks. The ministry demurred, explaining that textbook selection fell within the scope of university autonomy.

However, the bounds of university autonomy seem to morph based on political priorities. Just months before Qiu Bai’s case, the education minister had summoned several prominent university leaders together to warn them to “by no means allow teaching materials that disseminate Western values in our classrooms.”

Students to Court: Ministry Must Review Disciplinary Actions

Huang and Li subsequently filed a lawsuit against the Ministry of Education claiming that it was legally required to review the Beijing Education Commission’s decision. In the lawsuit complaint, the students argued that their educational rights were indeed impacted. During the disciplinary period, they were prohibited from applying for postgraduate recommendations and scholarships (although the students did not mention this, the Education Law includes the right to obtain scholarships).

Also, the infamous dang’an dossier system would allow future employers to see the students’ disciplinary history, thereby affecting their employment prospects. In fact, some provincial governments, such as Zhejiang’s, have express provisions barring applicants who have received “warnings” within the past year or “severe warnings” within the past two years from taking civil service exams.

If the court hears the case and agrees with Huang and Li, it will order the Ministry of Education to conduct administrative reconsideration. Since the ministry seems to consider the disciplinary actions to be light, it will likely endorse the Beijing Education Commission’s decision. At that point, Huang and Li could request the court to reexamine the ministry’s decision – but this time on the merits.

Paper Rights vs. the Elephant in the Room

The balance between university autonomy and students’ rights in administrative law has shifted back and forth through a series of debatable court cases. Some courts have repudiated university expulsion decisions because they violated students’ due process rights, were disproportionately harsh, or exceeded the universities’ legal authority.

Huang and Li could argue that they are similarly situated to the students who won in these cases, but it will be difficult. Their claim that the university rule is invalid because it violates their constitutional free speech rights is a nonstarter. Although Chinese courts have limited power to review administrative actions, they cannot conduct constitutional review. Instead, the students would have to argue either that they did not violate the rule, or that the disciplinary action excessively harmed their educational and employment rights. A bold court could agree with them.

From time to time, Chinese courts have delivered progressive judgments in LGBTQ rights cases, including in 2020 when the Beijing No.2 Intermediate People’s Court declared that protecting a trans woman from employment discrimination “should be within the meaning of the law.” The court recently heralded the case as a model for integrating core socialist values into judgments. However, the party-state’s adoption of a more hostile stance toward LGBTQ advocacy and expression, especially on university campuses, makes a bold ruling unlikely in Huang and Li’s case. It could even mean a ruling never comes, and the students would lack legal recourse against such political pressure on the courts.

Stepping back, the case presents a striking irony that echoes Qiu Bai’s case. Tsinghua and the Ministry of Education framed the disciplinary actions as examples of university autonomy that should be free from outside interference. Yet Tsinghua’s overreaction to the rainbow flags illustrates how it, a top university in China, is increasingly driven by the party-state’s ideological agenda.

Court as Conversation

Huang says she is not optimistic about emerging victorious, but she will take the case as far as she can. She hopes it will raise public awareness and generate discussion, although censorship makes it unclear how much it can achieve this.

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Still, she is thinking of the case as a conversation with the system. She wrote, “I like this quote from Xianzi, [a woman who sued state TV star Zhu Jun for sexual harassment], ‘together, we shall demand an answer from history.’”

“What I want to learn through this case is whether students in today’s China should be disciplined for laying out rainbow flags. We will get an answer in the end.”

The authors wish to thank Jamie Horsley for helpful conversations and comments on earlier drafts. All errors and omissions are our own.

Artmotion China

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