Private schools should do more than just exist to earn their charitable status

First published in Guardian Education

Recent rows about social mobility, interns and Nick Clegg’s work experience have been heated and flushed out some important, if intractable, issues. Odd therefore that an imminent court case about the meaning of charitable status for private schools, an equally significant issue for future social mobility, has attracted so little attention.

The dispute about charitable status has been simmering for several years. The 2006 Charities Act removed the presumption that all charities providing education also automatically provide public benefit. The then government swiftly off loaded the task of explaining what that meant in practice to the Charity Commission, which was required to issue statutory guidance.

The Commission’s new public benefit test ruled that people in poverty should not be excluded from these ‘charities’  services, that their benefits should be made available to a ‘sufficient’ section of the population, be quantifiable and reported on annually. The days of sharing the swimming pool and requiring pupils to undertake the odd charitable run appeared to be over.

Since then a slow war of attrition has  been grinding on  between the private charity school sector and the Commission. Many schools assumed that increasing the number of bursaries would tick this box, others barely changed and in 2009, the Charity Commission put a sample five schools to the test. Two failed because they provided too few bursaries and the Independent Schools Council, which oversees around a thousand private charity schools, has been given leave to judicially review the Charity Commission’s guidance.

The case starts next week and the ISC’s core argument, set out in papers now before the court, makes depressing reading. It suggests we should simply return to the pre 2006 status quo because charitable private schools already educate a ‘sufficiently wide’ section of the public to a very high standard while not explicitly barring entry to anyone else.  Apparently their doors are technically open to all, in the same way that anyone is theoretically free to have dinner at the Ritz, buy a Bentley or take their holidays in Mustique.

This is nonsense of course. Schools that charge fees approaching the average net earnings of some families are plainly not open to a broad cross section of the public. Look at their websites and it is clear to see why they cost so much. Beagling, polo, golf courses, rowing lakes and recording studios jostle for attention with class sizes half the size of the state sector, access to the top universities, high level networks and strings to pull in a gold plated service, which the rest of us subsidise and which simultaneously divides young people by race class and family income, acting as a break on social cohesion as well as social mobility.

The idea that a handful of subsidies, many of which do not fully cover the fees and are often offered to siblings, families of alumni and staff, should magically turn these institutions into charities is absurd, especially as most bursaries are linked to academically selective tests more likely to favour the impoverished middle classes than the socially excluded poor and also deprive many state schools of the academic mix they need to do well,

There are people who would like to see these public disbenefits eradicated by the simple blanket removal of charitable status from all independent schools, but this is a more complicated legal process than many assume.

One campaigning organisation, which I support, the Education Review Group,  has been given permission to intervene in the case. Its submission suggests that ,rather than turfing out the Charity Commission’s guidance, we should go much further and require more exacting eligibility criteria for bursaries ( I favour focussing them on those pupils most at risk of exclusion), partnerships that make a quantifiable impact on the performance of local state schools and their most needy, rather than most able, pupils and more rigorous methods of measuring that impact.

The private charity schools will say this is a costly distraction from their core job of educating an elite very well. Some of their parents, many of whom are powerful voices in society, will object to their fees being diverted into ‘legs up’ to schools they have rejected for their own children. But charitable status is a right to be earned, not a privilege. Until the private sector can make a better case for the public benefit it provides, they should do more than simply exist.