China’s Ministry of Education has released new rules for schools’ protection of minors with an unexpected focus on ‘Rights’. China has recently made large strides towards creating a coherent body of law on children with the release of its overhauled Law on the Protection of Minors 以及 Law on the Prevention of Juvenile Delinquency (both taking effect this month), as well as the release of its Civil Code. One key section of the Protection law is the protection of Children in schools, and the new provisions further elaborate how these protections will play out in practice.
Protecting children is one of those areas that everyone agrees is important, but the consensus tends to break down when the issue is more fully explored. Although we use age as a sort of legal short-hand, minority is really defined by limited physical, mental, and legal capacity that justifies special care and protection, and not all adults will agree on the appropriate limits of minors’ autonomy, the amount of leeway minors should be given for misconduct, and by what means adults should intervene. After all, each minor is unique and rapidly evolving, and no two situations are the same, so disagreement on what content and conduct is ‘not suitable for minors is hardly surprising’. The problems are even harder when looking at schools, which need to develop rules that can be fairly and consistently applied across a wide range of kids from diverse backgrounds.
Rights? I know, right?
More interesting than many of the specific rules in the new school provisions, is the rights-based approach that they adopt. When developing special protections for vulnerable groups, China often embraces what could be called a ‘charity model’ in which the state is seen as benevolently providing benefits or opportunities for weaker parties. The new school protection provisions, however, apply a ‘rights model’ with the premise that minor students have certain rights which should only be limited to the extent necessary to successfully implement conflicting legitimate interests. This kind of balancing of rights and interests is familiar to many foreign lawyers, but is noteworthy in this context in China, particularly as it involves the balancing of individual rights against the state.
So as not to overstate the point, it’s important to note that these rights are very much the product of state laws and government grant rather than being viewed as independent or inherent rights that the law must respect and that serve to limit state power. A common phrasing in Chinese law is mention of ‘lawful rights and interests’ (合法权益) which seemingly recognizes that the rights come from the law, and can be removed by the law, a distinction lost in the phrase’s common (mis-) translation of ‘legitimate rights and interests’.
The new school protection provisions expressly mention students’ rights to participate, of expression, to receive honors, and to receive an education, in addition to their more general ‘lawful rights and interests’. Encouragingly, the ‘right to participate’ here refers not only to students’ participation in educational and extracurricular activities, but to students’ right to actively participate in school decisions that impact them, such as in the drafting of school rules and the handling of bullying and other misconduct and violations.
While not explicitly named, the provisions also address students’ rights to privacy, to be informed, and even intellectual property rights. Students’ personal writings and communications may only be accessed as authorized by law. Their own likenesses and works must only be used in school materials with their consent and their guardians, and their academic progress (or financial aid information, etc.) is not to be made public. Minors and their guardians must be informed of any collection of their personal information, and this information must also not be disclosed, sold, or deleted by the school. Students and parents must also be notified before any decisions are made that will impact the students’ rights.
The scope of these rights, and how they will be balanced against school interests, will of course be determined within the greater context of China’s laws. In areas such as speech, where China’s laws are settled and prohibitive even as to adults, the provisions are more absolute. School computers must have software installed that blocks content that is deemed inappropriate for minors. Content that is “obscene, pornographic, violent, cult, superstitious, about gambling, terrorist, separatist, or extremist”, as well as “commercial advertising, and phenomena contrary to the Core Socialist Values” cannot be brought on campus.
Despite the limits of the Chinese context, the adoption of this rights-based model matters, especially as it will shape the expectations of the rising generation. Just as importantly this introduction to asserting rights is clearly no accident as the Provisions devote an article to education on rights and obligations, aiming to foster students’ “correct conception of rights”.
Don’t be a fool, stay in school
Directly tied to students’ right to receive an education are efforts to lower dropout rates. China provides compulsory education through junior high school, but enforcement on truancy has been minimal, especially in rural areas, to the extent that it is best understood as ‘compulsory’ in the sense that the government is required to provide it rather than requiring attendance. Building on the Law on the Protection of Minors, the new provision emphasizes keeping kids in school through prohibiting expulsion of students even through indirect methods such as encouraging them to drop out, or stopping classes for long times. For severe discipline issues, specialized reform schools exist, but the original school must accept them back when they are able to reenter regular school. For those students that do drop out, stricter reporting and tracking methods are required.
The age at which minors are emotionally and mentally prepared to engage in romantic or sexual relationships is a complex psychological, social, and legal issue touching on the core of personal identity and our understanding of ‘childhood’. Most can agree that such relationships between minors and adults are inherently coercive, particularly where the adult in an authority figure such as a parent or teacher, but even still, local laws vary as to what age they consider a person to have the legal capacity to consent to sexual relations.
In China, sex with a girl under the age of 14 is now considered rape, and a separate offense was recently created for guardians, teachers, doctors, and others with special duties of care having sexual relationships with girls as old as 16. These crimes both expressly only to female victims and it was only in 2015 that boys were first recognized as potential victims of sexual assaults。
China’s law has been getting more severe in this area in response to public outrage over cases of school and government officials sexually assaulting students and the new school protection provisions are no exception. Public concern is so intense, that a draft of the new rules received significant backlash for prohibiting ‘romantic’ relationships between students and teachers- as some felt that no relationship between students and teachers should be described as ‘romantic’, but should only be considered a sexual offense. The language remains in the finalized version of the provisions, but reading it in context, it is clearly meant to increase protections by prohibiting any ‘romantic’ involvement between teachers and students, even where the students are above the age of sexual consent, or where there is no sexual contact.
The school protection provisions are actually very expansive in prohibiting inappropriate contact between students and teachers. Schools are not only required to implement zero-tolerance systems for preventing sexual violations, but also for preventing sexual harassment and discrimination. Teachers are prohibited not just from inappropriate touching and relationships, but flirting or making suggestive comments to students, showing them (or even possessing) pornography and obscene materials. Special training is to be given in these areas to relevant teachers and staff, and screening is to be conducted for incoming and existing staff for any history of sexual misconduct. The issues of harassment and sexual assaults are even to be included in students’ sex education which was in turn only just required in the newly revised Law on the Protection of Minors itself.
A final encouraging point is attention to mental health as one form of protecting children. Long stigmatized or ignored in China, mental health, including both mental illness and general psychological well-being is gradually receiving more attention. The new school protection provisions call for the availability of counseling services and treatment for students, including care for victims of bullying or sexual assault. This more holistic understanding of students’ needs, along with provisions’ respect for rights, gives hope that schools are adjusting to better serve their students.