What a Chinese Height Discrimination Case Says About Chinese (and American) Constitutional Law

Last week, the New York Times reported on a disturbing phenomenon in the People's Republic of China: Otherwise highly qualified applicants for government jobs are being turned down because they are too short (and often just barely so). As part of an effort to put the nation's "best face" forward in the global economy, Chinese ministries have adopted height and other aesthetics requirements.

Although the Times article appeared to be intended as an amusing human-interest story, the issue is in fact quite serious for those affected. Height requirements in China--for educational as well as employment opportunities--tend to be set at roughly the national average, and accordingly large portions of the population are excluded by them.

Moreover, the issue raises interesting trans-national questions about the nature of of equality, and the role of courts in interpreting and enforcing constitutional guarantees.

The Basic Legal Framework in China and the United States

No constitutional or national statutory provision in China specifically bars height discrimination, and as a result, legal efforts to challenge minimum height requirements have invoked Article 33 of the Chinese Constitution, which makes all citizens "equal before the law." However, with an important caveat, to which I'll return below, these efforts have been largely unsuccessful.

Before American readers start clucking over Chinese disrespect for human rights, it's worth noting that the situation is basically the same in the United States. Federal statutes bar discrimination in employment, housing, federally funded education and other areas on such bases as race, religion and sex, but not on the basis of height.

Obviously, there are some categories of employment for which height is relevant. If I, standing exactly six feet tall, apply for the position of center of the New York Knicks, clearly team president Isiah Thomas can invoke my merely average stature (along with my lack of jumping ability, lazy defense and weak jump shot) as grounds for turning me down.

But the law even permits the Knicks to deny me a job as a popcorn vendor if, on purely aesthetic grounds, the team decides that it wants all of its male salespeople to be over six foot two. (The team would be engaging in sex discrimination if it applied the same height requirement to female popcorn vendors, but no provision of federal law prohibits favoring tall men over short men, along with tall women over short women).

How about state law? New York State law goes beyond federal law in prohibiting discrimination on the basis of sexual orientation, but not height. And although California's anti-discrimination law has been interpreted by that state's supreme court to bar all arbitrary and intentional discrimination, the New York law has not been read quite so broadly.

Will the federal Constitution help me obtain a position hawking popcorn in Madison Square Garden? Fat chance. Its equal protection clause only bars discrimination by the government, and the Knicks are not a state-run enterprise.

Moreover, even if the Knicks were owned by the state, they probably could still favor tall popcorn vendors. The United States Supreme Court has interpreted the Fourteenth Amendment's equal protection clause as presumptively barring race, national origin, and sex discrimination, but most other forms of discrimination are only deemed unconstitutional if they are considered "irrational." And the Court's precedents make clear that almost any reason will count as rational: so the hypothetical New York State Knicks might well be able to defend a policy requiring tall popcorn vendors on aesthetic grounds.

Height Discrimination in China

As noted above, Chinese law does not expressly bar height discrimination, but a case brought by Jiang Tao came close. In December 2001, Jiang read an advertisement for a staff position of the Chengdu Branch of the People's Bank of China. Among the other qualifications listed, the ad required that male applicants be over 168 centimeters in height (about five feet, six inches), and that female applicants be over 155 centimeters (about five feet, one inch).

Jiang sued the bank in the People's Court of Wuhou District. To the surprise of many observers, in early 2002, the court accepted the case.

Later that same year, however, the case was dismissed on what American lawyers would call "justiciability" grounds--that is, based on mootness (meaning there is no remaining controversy), standing (meaning the wrong plaintiff has sued), and ripeness (meaning the case is not ready to be resolved now) grounds.

Why was the case nonjusticiable, in the court's eyes? Shortly after Jiang's suit was filed, the bank dropped the height requirement. Because Jiang hadn't been injured by the bank's policy, he couldn't recover; if the bank reinstated the policy, the court indicated, then someone else should sue at the appropriate time.

To be sure, the court gave another reason for its decision, one that would suggest that even a plaintiff with standing in a timely case would fail. The court said that the Chinese Administrative Litigation Law only permits review of administrative action taken within the scope of the sued entity's formal regulatory responsibilities. That law further states that it does not authorize litigation involving personnel decisions. Accordingly, the court reasoned that the height requirement was not judicially reviewable.

But this aspect of the decision, which seems less important than the justiciability question, may not establish a lasting precedent. Although the Administrative Litigation Law does not authorize litigation involving personnel decisions, arguably the Constitution itself does. Furthermore, pending legislative developments may clarify that Chinese courts can set aside unconstitutional administrative action, and quite apart from any new legislation, as I explain below, the Supreme People's Court may be prepared to assume this power on its own.

Thus, while Jiang's case must be judged a setback for the fight against height discrimination in China, it is hardly the last word. There will likely be further challenges to height requirements--along with challenges to other aesthetic requirements, and to the common requirement that prospective employees test negative for Hepatitis B, a not especially communicable disease that is very widespread in China.

The Primary Obstacle to Constitutional Litigation in China: No Judicial Review

Whether this litigation succeeds will depend in large part on whether the courts assert the power to enforce the Chinese Constitution--and if they do, whether the leadership of the Chinese Communist Party ("CCP") permits them to get away with it.

On the face of it, the Chinese Constitution does not provide for the possibility of judicial review--the power of courts to strike down laws they deem unconstitutional. Although its Article 5 declares the supremacy of the Constitution over other laws, its Articles 62 and 67 assign to the National People's Congress and its Standing Committee the powers to interpret and supervise the enforcement of the Constitution. And Article 128 specifies that "the Supreme People's Court is responsible to the National People's Congress and its Standing Committee."

Accordingly, most scholars of Chinese and comparative constitutional law have tended to classify the Chinese Constitution in the same category as the Dutch Constitution and others that expressly deny to courts the power to hold legislation unconstitutional.

China's Marbury v. Madison?

That classification was thrown into doubt, however, by a case that some observers have dubbed the Marbury v. Madison of China.

In the case, a woman named Qi Yuling was denied admission to a school in Shandong Province because, according to the school's records, she had already enrolled. It turned out, however, that a woman named Chen Xiaoqi had essentially committed identity theft and enrolled under Qi's name. When the school nonetheless refused to admit the real Qi, she sued, citing Article 46 of the Chinese Constitution, which guarantees a right to education.

The High People's Court of Shandong referred the question to the highest court in China, the Supreme People's Court, which ruled in July 2001 that Qi's rights had indeed been violated. Although that court's terse one-paragraph opinion provides no explanation of the reasons behind the ruling, it created quite a stir, because it suggested that the Chinese courts can afford direct remedies under the Constitution. And in an interview the day after the case was decided, Supreme People's Court Vice President Huang Songyou endorsed this suggestion, citing the "tremendous and far-reaching importance" of his court's decision in the Qi case.

Still, the Supreme People's Court decision in the Qi case is puzzling in two respects: First, as a formal legal matter, how can judicial enforcement of constitutional rights be squared with the Chinese Constitution's assignment of constitutional interpretation to the People's Congress, rather the courts?

And second, given the reality that the People's Republic of China is a one-party state in which the CCP in fact calls the shots regardless of the formal arrangements, will the Supreme People's Court be able to follow in our own Justice John Marshall's footsteps by strengthening the judiciary at the expense of the political organs of government?

Why Judicial Enforcement of the Constitution May Serve, Rather than Undercut, Central Authority

The respective solutions to these puzzles are closely related to one another. As to formal power, it is worth noting that neither the Qi case itself, nor the challenges to height restrictions or other arbitrary employment or education conditions, call into question any law enacted by the People's Congress. The lawsuits challenge provincial, local and administrative action on the basis of the national Constitution.

Precisely because Article 128 makes the Supreme People's Court subordinate to the People's Congress, one can understand enforcement of the Constitution by the Court as under the supervision of the Congress, as required by Article 62. Indeed, Zhou Wei, the Sichuan University law professor who has taken the lead in bringing constitutional litigation in Chinese courts, has himself argued that the courts should enforce the Constitution when the Congress has failed to act--not that the courts should act in contravention of laws enacted by the Congress or its Standing Committee.

This formal reconciliation of judicial enforcement of the Constitution and Congressional supremacy may also explain the practical puzzle. It is possible that the CCP, acting through the National People's Congress and its Standing Committee, has not yet reined in the courts because it sees constitutional litigation as a useful tool for controlling provincial and local authorities.

How so? Students of American constitutional history will see an obvious parallel with the Marshall Court: although it is true that the U.S. Supreme Court in the first half of the nineteenth century was consolidating its own power, it did so primarily as a vehicle of national power as against states' rights. Most instances of Marshall Court "activism" served a broad vision of federal power.

Likewise, in contemporary China, the CCP is not, as it is sometimes portrayed in the West, a top-down machine able to control every aspect of life in China. On the contrary, the CCP faces more or less the same challenge that faced every imperial dynasty in China over several millenia: how to rule an enormous country in which real power is dispersed and thus corruption--or at least the opportunity for pursuing divergent agendas--is rampant?

By, in effect, delegating power to the courts to stamp out unauthorized practices, such as arbitrary employment requirements, the CCP may hope to strengthen its control over the country.

A High-Stakes Gamble: Allowing Power to the Courts

The risk--and it is one that my friends in the Chinese legal academy tell me the CCP is aware of--is that in tacitly authorizing constitutional litigation, the CCP will unleash forces it cannot control.

Throughout the world today, judicial or quasi-judicial enforcement of constitutional rights is associated with constraints on all level of government in favor of universal human rights. The CCP is gambling that just as it has encouraged economic freedom with only limited political freedom, so it can authorize constitutional litigation that does not challenge CCP authority without also authorizing constitutional litigation that does challenge the CCP.

Cases against the Army or the CCP itself, the party leadership is no doubt thinking, can be readily dismissed when they arise. Indeed, one reason that the height cases have been allowed to proceed--while cases involving sex discrimination have not--may be that while height discrimination is widely unpopular, sex discrimination, which is also rampant, enjoys considerable official and public approval.

Whether China's gamble succeeds remains to be seen. In the quarter century since Deng Xiaoping began transforming China's economy into capitalism in all but name, political reforms have been slow, but they have been real. Chinese people today enjoy substantially greater political freedom than they did a generation ago, including the ability to participate in contested elections--albeit elections in which the competition is within the CCP.

Keeping a lid on constitutional litigation will present a similar challenge to the CCP. In order for lawsuits against provincial, local and administrative officials to be effective, the courts must be perceived by the public as legitimate. But that means, at a minimum, that their decrees must be seen as rooted in the law, and not just the will of the CCP.

And there's the rub: to get what it wants out of the judiciary, the CCP must make real the promise of the Chinese Constitution's Article 126, guaranteeing judicial independence.

Will the result of constitutional litigation in China eventually be to hasten the emergence of real judicially enforceable restraints on the government? As Chou En-lai said when asked what he thought the significance of the French Revolution was, it's too soon to tell.