What laws stipulate China citizens' right to education?

On the eve of the college entrance examination this year, many parents of candidates in Jiangsu province complained to the local education authorities because they disagreed with the practice that 20 16 Jiangsu would "export" 38,000 enrollment places to the central and western provinces, hoping that the authorities would make the decision-making process public and call for fair enrollment in the college entrance examination. In April of 20 16, the Ministry of Education and the National Development and Reform Commission jointly issued the Notice on Doing a Good Job in the Compilation and Management of the Enrollment Plan of Ordinary Colleges and Universities in 20 16. According to the regulation plan of inter-provincial student enrollment plan in some areas in 20 16, in order to balance educational resources, the major basic education provinces including Jiangsu and Hubei will transfer 160,000 college entrance examination places to the provinces with weak basic education in the central and western regions, including 38,000 college entrance examination places involving Jiangsu Province. In response to the above provisions, a lawyer in Jiangsu has filed a lawsuit with the court, requesting the court to decide that "the above two documents are illegal and revoked".

The original intention of the document jointly issued by the Ministry of Education and the National Development and Reform Commission is to correct the shortcomings of the provincial quota enrollment system for college entrance examination and make corresponding adjustments. However, it violated the interests of the existing beneficiary groups and inevitably caused fierce resistance from the local people. The complexity of practical problems shows that it is impossible to solve the current unfair predicament of higher education by relying only on temporary documents and single policies of the Ministry of Education and other departments. Theoretical research urgently needs a more in-depth study of the college entrance examination enrollment system. In addition, we should clearly understand whether the provincial quota system should be abolished or reformed. If the reform plan is passed, what principles should be followed and what path should be chosen? Theoretical research should have a scientific and systematic response. In my opinion, to do a good job in the top-level design of the quota system reform of the college entrance examination, we should change the long-term policy thinking and explore the theoretical basis within the framework of the Constitution and laws, so as to seek a feasible way to scientifically plan the quota system and realize the relative equality of enrollment in the college entrance examination.

First, the current provincial quota enrollment system is a policy scheme that meets the actual needs of our country.

China's college enrollment quota system has gone through three stages: quota right collection, quota in large administrative regions and quota system in provinces. Since 1959, the enrollment of colleges and universities has adopted the practice that "the number of students enrolled by schools led by the central departments in provinces, municipalities and autonomous regions, as well as the number of students transferred from provinces and municipalities with more candidates to provinces and municipalities with insufficient candidates, shall be determined by the Ministry of Education in consultation with relevant provinces, municipalities, autonomous regions and relevant schools". This is the prototype of the provincial quota system, which was basically used until the Cultural Revolution.

1977 after the resumption of the college entrance examination, the provincial quota system has continued to this day. For a long time, the provincial quota system is based on the understanding of national policies, social needs and conditions of running colleges and universities, and the system of allocating enrollment indicators by provinces (autonomous regions and municipalities directly under the central government). It is mainly based on the Outline of Education Reform and Development in China (Zhong Fa 19933), the Pilot Opinions on Further Reforming the Enrollment and Graduate Employment System in Colleges and Universities (Jiao 19943) and a series of normative documents issued by the Ministry of Education and other relevant departments. Specifically: (1) 1985, college enrollment has entered the "dual track" stage where the national task enrollment plan and the transfer enrollment plan coexist. The Central Committee's Decision on the Reform of Education System puts forward that "colleges and majors facing the whole country recruit students for the whole country, and colleges and majors facing the region recruit students for the region. At the same time, provincial colleges and universities can lower the scores of candidates in backward areas. " As a result, national universities and provincial universities have implemented two different enrollment models respectively. (2) 1994, college enrollment entered the era of "parallel system". According to the Outline of China's Education Reform and Development issued by the Central Committee and the State Council and the Pilot Opinions of the Ministry of Education on Further Reforming the Enrollment and Graduate Employment System in Colleges and Universities, "schools can adjust the enrollment scale according to social needs and school conditions, and the state regulates the total enrollment scale and professional structure". "When enrolling students, only one minimum control score line is set for the same school, and the score line is no longer determined according to the national task and adjustment plan." From then on, admission no longer distinguishes between national universities and provincial universities, and universities can adjust the enrollment scale and the number of places in each province according to their own conditions. (3) Since 2008, the Ministry of Education, together with the National Development and Reform Commission, has launched the "Support for Enrollment Cooperation Plan in the Central and Western Regions", requiring that "the enrollment quota should be borne by Tianjin, Liaoning, Shanghai, Shandong and other provinces and cities with rich higher education resources and good school conditions 1 1, and to Inner Mongolia, Anhui, Henan and Guizhou, which are expected to have low admission rates and lack higher education resources. Since 2009, the relevant departments have successively announced the "plan to increase enrollment in the central and western regions". The above-mentioned Jiangsu 20 16 swap plan belongs to this kind of plan. (4) In 2008, the Ministry of Education strengthened the guidance and standardization of the enrollment plans of subordinate colleges and universities (especially 2 1 1 985 colleges and universities), and put forward the requirement that the enrollment ratio of subordinate colleges and universities should generally not exceed 30%. (5) Since 20 14, the Ministry of Education has implemented the "Special Plan for Targeted Enrollment in Poor Rural Areas". According to "Several Opinions of the Central Committee of the State Council on Intensifying Reform and Innovation to Accelerate Agricultural Modernization" (Zhong Fa 20 15 1), "Implementation Opinions of the State Council on Deepening the Reform of Examination Enrollment System" (Guo Fa 20 1435) and "Report on the Work of the Government of the State Council" 20 15, the Ministry of Education issued.

The above-mentioned continuous reform measures fully show that the enrollment of college entrance examination quota system by province has always been hovering between the actual national conditions of uneven development of higher education and the long-term goal of achieving relatively fair enrollment among regions, in an effort to achieve a better balance between the two.

First, the provincial quota system is an institutional choice based on the reality of higher education in China. (1) The provincial quota system source plan is compiled according to the national and local demand for college graduates and the number of candidates in each province, which is in line with the specific background of the early development of higher education in China. (2) The provincial quota system takes care of the care policy of minority areas. According to the national economic and social development plan, the country has gradually increased the number of students enrolled in border areas and ethnic minority areas in recent years. (3) The provincial quota system can properly handle the relationship between citizens' right to education and the interests of national education development. China's higher education shoulders the heavy responsibility of cultivating senior professionals, developing science and technology culture and promoting modernization. Accordingly, the quality of students has also become one of the important criteria for judging the allocation of enrollment places in colleges and universities. In 2006, the conference on the compilation of enrollment source plan of colleges and universities directly under the Ministry of Education put forward: "Make decisions independently according to law, scientifically and rationally, adhere to the principle of giving priority to the quality of students and giving consideration to the balance of regions including ethnic minority regions." (4) The provincial quota system comprehensively considers practical factors such as the conditions for running a university and the ability to recruit students. According to the regulations of the Ministry of Education, colleges and universities that have been approved (or put on record) to recruit students with general higher education qualifications can make their own enrollment plans for different provinces (autonomous regions and municipalities) within the annual enrollment scale of general higher education approved by the state. According to the development of colleges and universities, colleges and universities independently decide the enrollment quota by province, which better considers the reality of different development situations of colleges and universities in China.

Second, the timely introduction of the provincial quota system adjustment program has greatly improved the long-standing unfair phenomenon of college entrance examination enrollment. For a long time, the enrollment problem of college entrance examination in China has been prominent, including the great difference in admission rate of subordinate colleges, the low admission rate of central and western provinces and the low admission rate of rural candidates. In recent years, the Ministry of Education and other departments have adopted a step-by-step strategy to adjust the funding quota of some provinces, which has greatly eased the realistic contradictions. For example, in 2008, the Ministry of Education implemented the "Supporting Collaborative Enrollment Plan for Colleges and Universities in the Midwest" and arranged 35,000 collaborative enrollment plans; In 2009, the state arranged 60,000 people to support the collaborative enrollment plan in the central and western regions; 20 10 National Enrollment Plan120,000 students (including 70,000 undergraduate students), an increase of 60,000 students over 2009. The plan is undertaken by 14 provinces with abundant higher education resources and good school conditions, and the enrollment places are allocated to Shanxi, Inner Mongolia, Henan, Anhui and other provinces with scarce higher education resources and high pressure for further studies. 20 1 1 In order to strengthen macro-control, the Ministry of Education has arranged for Beijing, Tianjin, Liaoning, etc. 15 to support provinces and cities to continue to carry out the "cooperation plan for supporting enrollment in the central and western regions" in eight central and western provinces such as Shanxi, Inner Mongolia, Anhui, Henan, Guangxi, Guizhou, Yunnan and Gansu, and the enrollment plan is * * */kloc-. In 20 15, the Ministry of Education continued to implement the special targeted enrollment plan for rural poverty-stricken areas, with an enrollment scale of 50,000 students, focusing on provinces with many rural candidates and high pressure for further studies.

Third, the provincial quota system can better adjust the disadvantages of the reform of the evaluation system of college enrollment choice. In recent years, the Ministry of Education requires the establishment and improvement of a comprehensive evaluation system for ordinary senior high school students, and gradually brings it into the evaluation system for college enrollment. The Ministry of Education has made clear the reform direction of the comprehensive, comprehensive and diversified examination evaluation system based on the national unified examination enrollment system and the diversified selection and admission system of colleges and universities. Therefore, many colleges and universities have begun the reform of independent enrollment. It should not be ignored that, because there are still great differences in the development of basic education in different provinces, the reform effect of independent enrollment may be counterproductive, which may aggravate the inequality of candidates' educational opportunities in different provinces. With the help of the quota system by province, taking into account the actual situation of each province, correct the negative effects brought by diversified enrollment.

To sum up, the provincial college entrance examination quota system is a product of history and has a positive regulatory function in maintaining the fairness of college entrance examination and regional equality in China. Through the timely implementation of reform measures by the education authorities, the gap between China's actual national conditions and the fair goal of college entrance examination enrollment has been better bridged. However, why does the provincial quota system become an important institutional factor for people to criticize the unfairness of the college entrance examination? Can the abolition of the provincial quota system solve the real problem of unfair college entrance examination once and for all? To answer these questions, it is necessary to further analyze the problems and reasons of the provincial quota system.

Second, the provincial quota system is not the internal determinant of the current unfair enrollment in the college entrance examination.

Judging from the reality of the national college entrance examination in China, the outstanding problem is that there are great differences in the admission opportunities of candidates from different places, especially the unequal admission opportunities among the candidates in the "985" and "2 1 1" subordinate colleges, which is manifested as "localization of enrollment". For a time, the public criticized the allocation model of higher education resources, and the provincial quota system was also regarded as the institutional root of unfair enrollment in the college entrance examination. Some scholars even believe that the provincial system has further spawned the phenomenon of "college entrance examination immigrants", aggravated the differences between urban and rural areas, developed areas and underdeveloped areas, reduced social competitiveness and weakened the sense of national unity. Therefore, many scholars have proposed that canceling the provincial quota system is the key to solve the current unfair and localized enrollment of college entrance examination. Professor Zhang even advocated "one volume" throughout the country. Of course, the starting point of this approach is very good and unique. However, as a national education system reform, any alternative reform plan should be cautious before it is scientifically and rigorously demonstrated to avoid bringing new social problems. If we can correctly grasp the relationship between the provincial quota enrollment system and the provincial quota allocation procedure, and realize that the internal root of the current unfair enrollment in higher education lies not in the provincial quota system itself, but in the lack of its internal quota allocation standards and procedures, then the solution to the problem may be relatively simple, and the corresponding reform suggestions will be more operational.

First, the regional differences in college entrance examination enrollment have complicated historical and social reasons, and the provincial quota system as a quota allocation method is not the internal cause of this result. The reasons for the differences in admission opportunities of high-level universities in different provinces (autonomous regions and municipalities directly under the Central Government) are complicated. On the surface, it is caused by the uneven distribution of high-quality higher education resources hidden behind the provincial college entrance examination system, the sharing of school-running models in colleges and universities, and the huge gap in the development of basic education. To a large extent, "the provincial quota, a good system implemented since ancient times, is just a scapegoat for the unfairness of the college entrance examination caused by the balanced development of political, economic, educational and other realistic factors, and it is not an evil system in itself." It is suggested to cancel the quota of provincial college entrance examination completely, without fully considering the actual situation in China. In this way, the historical differences in the college entrance examination cannot be fundamentally eliminated, and the admission opportunities of candidates in relatively backward areas may be further reduced. The author believes that the gradual reform of the provincial quota system is more practical in the current situation. With the help of national macro-control, it is expected to gradually realize the goal of fair admission opportunities for candidates in all provinces.

Second, the root of the localization of enrollment in subordinate colleges and universities is that subordinate colleges and universities give more places to local candidates. As subordinate colleges and universities occupy various resources such as school funds and land where the school is located, in return, subordinate colleges and universities will allocate more admission places to local candidates when allocating enrollment places. In view of the fact that there is no unified legislation on the college entrance examination enrollment system in China, the division of educational powers between the central and local governments is still vague or even unreasonable, which makes the allocation system of higher education enrollment places vulnerable to external environment and internal conditions. Therefore, the localization of enrollment in subordinate colleges and universities reflects that under the background that national educational resources still rely on the support of local governments, subordinate colleges and universities have to make helpless catering actions to local governments. In 2008, the Ministry of Education explicitly requested that the proportion of enrollment plans of subordinate colleges and universities in their territories should not be increased, and those exceeding 30% should be gradually adjusted back to below 30%. After several years of hard work, the implementation effect of this regulation is obvious, and the enrollment ratio of many subordinate colleges is less than 30%, which greatly alleviates the problem of localization of enrollment in subordinate colleges.

Third, the provincial quota system has great room for system improvement, and we can expect to achieve the goal of fair enrollment in the college entrance examination under the provincial quota system. As mentioned above, the formation of the provincial quota system conforms to the reality of China's higher education, and the preparation of the enrollment source plan also takes into account the national and local demand for college graduates and the differences in the number of candidates from different places. With the development of all aspects of our society, the disadvantages of the current allocation model of college entrance examination enrollment quota are gradually prominent. Therefore, in the past 20 years, the education authorities have gradually promoted various reform measures, such as the restrictions on the proportion of local candidates in subordinate colleges, the support policies for backward and remote areas in the central and western regions, and the recruitment policies for backward candidates in rural areas. Generally speaking, the current college entrance examination enrollment is developing in a fairer direction, and the allocation of college entrance examination enrollment places is becoming more and more reasonable. It can be predicted that the goal of equal regional proportion can be achieved under the provincial quota system after eliminating all kinds of factors that interfere with the provincial quota system.

To sum up, the provincial quota system is not evil, but there are many problems in the substantive standards and legal procedures of specific quota allocation in practice. Therefore, it is a more realistic countermeasure for China's provincial high-recruitment quota system. Our first task is to re-examine the allocation standards and procedures of the provincial quota system, and even re-examine and reflect on the overall top-level design scheme of the reform of high-tech recruitment from the perspective of the rule of law.

Third, the distribution reform of the provincial quota system should start with the multiple attributes of the right to education.

Under the background that the development of higher education in China is lagging behind, the regional differences of basic education in different provinces are great, and the enrollment of colleges and universities pays attention to the development of students' employment rate and scientific research strength, the quota enrollment system in different provinces has always played an important balancing function in the above multiple contradictions. However, with the development of China's education, the way to deal with these practical problems has changed, so if the provincial quota system continues to maintain the original substantive standards or reference factors of quota allocation, it will be inconsistent with the development of social reality, and the provincial quota system will inevitably become the target of public criticism. The main reasons are: (1) citizens' awareness of the right to education has awakened, and their demands for the right to education have become stronger, which has triggered citizens' higher expectations for the fairness of quota enrollment. (2) Over the past decades, China's education has made great progress, and the reference social conditions for the allocation of college entrance examination places in colleges and universities in various provinces have changed, so it is no longer justified to maintain the existing allocation pattern. For example, there are huge differences in basic education among provinces, and social problems such as employment distribution of college graduates under the planned economy have quietly changed. (3) With the improvement of discipline construction and scientific research system in colleges and universities, higher education, as an undergraduate education, has greatly reduced its relevance to national interests such as national scientific and technological development and discipline training. Therefore, there is no sufficient reason to treat the quota allocation of different provinces differently according to such factors. (4) Crucially, the quota allocation by province under the leadership of the Ministry of Education, and the notices and instructions on the adjustment plan issued one after another are essentially to suppress or sacrifice the right to education of candidates from some provinces and benefit candidates from other provinces, which is still a traditional practice under the guidance of planned economy thinking. At present, this practice has attracted more and more public opposition, and the public even claims their rights through litigation. Under the background of the current system, although citizens can't solve the problem through constitutional litigation, the fact that the plan of the education department is suspected of being unconstitutional is objective.

In a word, the social background on which the provincial quota system exists has changed greatly, and the substantive standard of the provincial quota system has been challenged. The next step should be to think about how the provincial quota system can adjust the contradictions and conflicts among the more complicated multiple interests in real life, rebuild new standard rules and standardize them with relevant procedures in the face of the new social reality. Needless to say, the Constitution and laws are the carriers to adjust the relationship between stakeholders. Defining the relationship among stakeholders through the Constitution and laws, and grasping the principle and direction of provincial quota system reform by the rule of law, that is, replacing policy thinking with rule of law thinking, is the inevitable path to comprehensively examine and reflect on provincial quota system reform.

(a) Review the constitutionality and legality of the existing basis for the allocation of quotas among provinces

First, the original distribution basis of the provincial quota system and its adjustment scheme are unconstitutional and illegal. It should be noted that the allocation of college entrance examination places by province is an appropriate way permitted by the Constitution and laws, which will be further elaborated in this paper. However, the allocation standards and procedures of the provincial quota system are unconstitutional and illegal, and eventually lead to unfair social consequences.

(1) The allocation of places by province is mainly based on the Outline of China's Education Reform and Development issued by the Central Committee and the State Council, the Pilot Opinions on Further Reforming the Enrollment and Graduate Employment System issued by the Ministry of Education, and a series of enrollment reform policies issued by the Ministry of Education and other ministries. Judging from the distribution of enrollment quotas in colleges and universities, there are obvious differences in enrollment quotas among provinces in China, and the phenomenon of localized enrollment is serious. The basis also violates the principle of equality stipulated in China's Constitution and the provisions of Article 9 of the Education Law that "citizens enjoy equal educational opportunities according to law".

(2) Other adjustment schemes are suspected to be unconstitutional and illegal. In April of 20 16, the Ministry of Education and the National Development and Reform Commission jointly issued the Notice on Doing a Good Job in the Compilation and Management of the Enrollment Plan of Ordinary Colleges and Universities in 20 16 and the attached Plan for Regulating the Inter-provincial Enrollment Plan in Some Areas in 20 16, as an adjustment plan, which seems reasonable and reasonable. First, from the perspective of legal rank, as a notice issued by two ministries, its rank belongs to normative documents. A normative document used to adjust citizens' right to education, a basic right guaranteed by the constitution, violates the principle of legal reservation stipulated in the legislative law. Second, from the normative content, article 3 of the notice stipulates that "promoting the fairness of enrollment opportunities in higher education regions and urban and rural areas. In 20 16, 2 10000 people were arranged to support the enrollment cooperation plan in the central and western regions, including undergraduate 14000 people, which were undertaken by public universities in Beijing, Tianjin, Jiangsu and other provinces (cities) and were oriented to Henan, Guangxi, Guizhou and Gansu/kloc-0. As well as the "2065438+2006 Inter-provincial Student Source Control Scheme" made on this basis, both of them lack sufficient legal basis, which has a substantial impact on the admission opportunities of candidates in Hubei, Jiangsu and other places and is suspected of violating the equal right to education established by the Constitution and the Education Law. Third, there are defects in the allocation procedure of the enrollment quota system. Generally speaking, the education department carries out the examination and approval or filing procedures for the establishment of college enrollment quotas, but from the information disclosed by the education department, we can't find clear procedural norms about the examination and approval procedures. Although the Ministry of Education has stipulated that "the proportion of local candidates should not exceed 30%", this proportion is obviously higher than that of most other provinces, which violates the principle of equal right to education. Similarly, the special adjustment plan jointly formulated by the Ministry of Education, the National Development and Reform Commission and other departments also has procedural flaws. Taking 20 16 "Supporting the Enrollment Cooperation Project in the Central and Western Regions" as an example, there is no necessary procedure such as holding a hearing in the decision-making of the education department, and some parents in Jiangsu hope that the competent authorities will make the decision-making process public. The plan involves the interests of many candidates, and the education authorities have not held hearings or made public decision-making procedures. There are obvious flaws in the procedure and it is suspected of violating the education law.

Second, when colleges and universities allocate enrollment quotas in various provinces, the standards are different, subjective and arbitrary, and there are violations of citizens' equal right to education. (1) The opportunity distribution of citizens' right to education does not belong to the autonomy of universities. As a state-run institution of higher learning, the state should uniformly allocate enrollment indicators on the premise of equality. (2) Colleges and universities have a lot of confusion in the allocation of recruitment places in various provinces and have greater autonomy. Colleges and universities refer to many irrelevant factors when allocating places. For example, there are no clear standards for increasing local candidates.

Third, the reform of independent enrollment in colleges and universities may further aggravate the regional inequality of higher education. It is necessary to diversify the college entrance examination system, but some scholars have found that independent enrollment seems to be not worth the loss, and the cost of diversified reform of college enrollment and examination questions. Undoubtedly, diversified experiments should be carried out within the framework of the Constitution and laws, especially the school-running behavior of public schools must conform to the right to education guaranteed by Articles 33 and 46 of the Constitution.

(2) The multiple rights attribute of the right to education is an important factor to be considered in the reform of the provincial quota system.

It is true that it is imperative to reform the enrollment quota system for college entrance examination. Then, in the face of multi-interest pattern, what principles should quota allocation follow? How to balance the interests of all subjects including but not limited to local candidates? Is it necessary to reduce educational administrative control to solve the current educational equity problem? The above problems are related to the multiple rights attributes of citizens' right to education, which can only be distinguished from the rights attributes of the constitutional right to education.

The nature of the constitutional right to education itself is complex and diverse, and theoretical research has always had different understandings of it. According to the summary of scholars, the academic circles have the following views on the right attributes of citizens' right to education, including civil rights, survival rights, social rights, freedom rights, comprehensive rights, development rights, cultural and educational rights, and learning rights. Most people believe that citizens' right to education has both the attributes of freedom and social rights. The free nature of the right to education means that "the right to education is a defensive right to enjoy the right to education freely without being violated by the state, and the free value of the right to education is conditional on the restriction of state power." The social right attribute of the right to education means that the state establishes and maintains the education system, prepares educational conditions and facilities, helps people with financial difficulties in learning and even provides free education. The author believes that the right to education should emphasize the equality attribute. First, protect the freedom and social rights of the right to education from the perspective of equality; Second, other theoretical viewpoints on the right to education, such as "civil rights", "survival rights", "comprehensive rights" and "development rights", all emphasize the equal protection of rights.

Based on its multiple attributes, from the perspective of state power, the state has a triple obligation to respect, protect and realize civic education. These three kinds of state obligations can be interpreted as follows: the so-called "respect" obligation mainly aims at the free attribute of the right to education and requires the state to do nothing. In a broad sense, "inaction" means that the state shall not set too high regulatory conditions for social forces to enter the field of education, which will affect citizens' freedom to choose education, nor shall it make unnecessary restrictions on citizens' freedom to choose education. The so-called "protection" obligation is mainly aimed at the social right attribute of the right to education and requires the state to act positively. In a broad sense, "as" means that the state provides inclusive financial aid to basic compulsory education according to its own level of economic development, especially for poor students, and also means that the state or local government formulates differentiated economic care policies for local students, and so on. The so-called "obligation to realize" sometimes refers to its freedom attribute, and state intervention can realize citizens' right to education; Sometimes it is aimed at its social right attribute, and the state must do something to realize this right.

The author believes that the diversity of the right to education shows that the measures taken by the state to protect citizens' right to education are inevitably varied and can be divided into three different forms. (1) From the perspective of respect, the state should respect citizens' freedom to choose higher education, mainly pointing to the nature of freedom. (2) From the perspective of protection, the state takes active measures to protect citizens' right to education, mainly pointing to the nature of social rights. For example, the state should reward citizens in terms of tuition fees in light of the actual situation. (3) From the perspective of realization, it is very important to ensure the realization of citizens' higher education by combining the multiple attributes of citizens' right to education.