Legal Updates

China's New National Security Law Creates Challenges For U.S. Independent Schools

The new national security law China imposed on the Hong Kong Special Administrative Region (“Hong Kong”) this summer has far-reaching implications for U.S. independent schools, particularly if a school enrolls students from mainland China or Hong Kong or engages in remote or virtual learning with students based in China or Hong Kong.

Summary Of The New Law

The new law, which became effective June 30, 2020, criminalizes conduct constituting secession, subversion, organization and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security. These offenses, which are defined in vague and extremely broad terms, incur a maximum penalty of life in prison. The law applies to permanent residents of Hong Kong, regardless of where they are located at the time of the alleged offense. The law also applies to offenses by any persons, including U.S. citizens, if the offense is committed in or has a consequence in Hong Kong, or if the offense is “against” Hong Kong.

News reporting suggests that China is seeking to enforce the law against a broad range of people in Hong Kong and in other countries, including minors and U.S. citizens. Indeed, the Hong Kong Police Force recently identified Samuel Chu, a naturalized American citizen living in Washington, D.C. who was born in Hong Kong, as being a “fugitive” whom it was seeking to prosecute under the new law. According to the U.S. Congressional Research Service, the Police Force has also arrested Hong Kong protesters as young as 15 years old for waving flags and signs with slogans and phrases supporting Hong Kong’s independence from mainland China. Such protesters have been charged with “inciting secession” in violation of the new law, and if convicted, they could be sentenced to life in prison.

Some commentators have opined on the law’s possible chilling effect on Hong Kong’s protest movement and speech at universities located in Hong Kong and elsewhere, but less attention has been paid to the practical effects of this law for independent schools in the U.S., many of which have significant student populations from Hong Kong and mainland China.

It is difficult to define the risks created for U.S. independent schools under the new law, in part because the law is so vague and broad. So far, it appears that one of the most significant risks for U.S. schools is that individual students or teachers could be targeted or prosecuted for expressing views or arguments that are deemed objectionable by the Chinese government. Although this risk applies, in theory, to any individual on the planet, the concern is greatest for individuals who are likely to be subjected to the jurisdiction of the governments of mainland China or Hong Kong. As a result, individuals who may need to travel to or through mainland China or Hong Kong for any reason, including Chinese faculty members, Chinese students returning home from U.S. schools, and students or faculty who engage in remote or virtual learning while in China or Hong Kong, are at much greater risk of actually being arrested and prosecuted under the new law.

What U.S. Schools Can Do

Short of self-censoring politically sensitive class content, U.S. schools probably cannot entirely eliminate the risks created by the law. There are some steps, however, that may reduce or mitigate risks by making it harder for a particular view or argument to be associated with a specific individual.

With that goal in mind, schools should consider making adjustments to the way they conduct, monitor, and document classes and discussions that cover sensitive material that might be of concern to the Chinese government. For example, schools might refrain from using student names on certain assignments, and instead use blind grading or a code system. Schools might also provide advance warning of any classes or assignments that might involve sensitive material, and simply permit students to excuse themselves without penalty from participating in those classes or assignments. At a minimum, schools should educate students participating in classes with sensitive subject matter about the law.

The law also creates new challenges with respect to remote or virtual learning, because it is difficult to control when and whether online discussions may be recorded or otherwise documented or monitored. In order to mitigate the risks created by the new national security law, schools should consider prohibiting students from recording virtual classes, discussions, or conversations, utilizing anonymous chat features for class discussions about sensitive topics, and taking other steps to make it more difficult to link a specific view or argument to a specific individual while students are engaged in remote learning.

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Due to the new law’s vagueness and breadth, it is difficult to predict precisely how the Chinese government will seek to enforce it outside of China and Hong Kong. Our attorneys are continuing to monitor these developments and how they may affect legal considerations for independent schools throughout the U.S.