The government has confirmed it has a grammar school get-out clause that allows academy trusts to filter their brightest pupils to another site, effectively creating selective schools and dodging the need for new laws to be passed.
The education green paper introduced by Justine Greening a fortnight ago outlined proposals for multi-academy trusts to move their brightest pupils into a single “centre of excellence” school within their trust, stating the action is already “permissible” under the current system.
In March, Schools Week was told in explicit terms by the Department for Education that schools could not select by ability, and said that if trusts were found to be moving their pupils around on this basis they would be investigated as it would be a breach of the school admissions code.
But the department appears to have abandoned its stance, and said this week that pupils of both low and high ability could be moved between schools in a multi-academy trust.
The disclosure throws open the possibility for existing schools to become grammars and select in the brightest pupils from other schools within their trust.
Becky Allen, director of Education Datalab, speaking at a rally in London last week to oppose grammar schools, said: “I think [the government] could circumvent the need for legislation to go down this route of selection within MATs.”
Several other education professionals have expressed the same concerns, including a senior lawyer and policy experts.
Schools Week has been told that providing pupils remain on the roll of the school they were admitted to, and receive some of their education there, schools could share facilities and teach pupils at another school or site.
The DfE said a school move should not be done without parental consent, but would not confirm what action would be taken if parental consent was not granted.
A spokesperson said all proposals in the green paper consultation would require changes to legislation, but would not confirm if this applied to the “centres of excellence”. The green paper states that it does not.
A legal challenge was brought against the Dean trust earlier this year after it proposed to bus pupils with special educational needs to another of its schools because of limited resources.
However, Schools Week has been told the trust “backed down” after solicitors Simpson Millar found parents had not given their consent.
The 2002 Education Act says that local authority-maintained schools have the power to require children to be educated off site, but there is no equivalent power for academies.
James Betts, education solicitor at Simpson Millar, said: “This means academy trusts cannot insist on any provision being delivered off site, for example, at a different school in the chain, without agreement from parents.
“Any such proposal in the absence of parent consent is likely to be unlawful and challengeable by way of judicial review.”
Any such proposal in the absence of parent consent is likely to be unlawful and challengeable by way of judicial review
But it is likely that parents of pupils selected to enter a “centre of excellence” would consent to their child moving, although this would effectively turn the trust’s remaining schools into secondary moderns.
At the rally, Allen urged teachers in large MATs to tell their bosses they would apply for jobs elsewhere if they introduced such a form of selection.
“The teaching profession can stop this easily – this is how it ends.”
Schools Week has previously revealed multi-academy trust chief executives were uneasy about the potential of selecting within their trusts.
But Sir Dan Moynihan, chief executive of the Harris Federation, last week said he might open a selective school if forced to do so.
It also seems trusts may already be shifting around pupils. The Institute for Public Policy Research (IPPR) published a report earlier this month showing how trusts with a 14-19 vocationally focused school were moving lower-attaining pupils into the institutions at higher rates than other schools.
But Betts said shifting pupils “creates a high degree of uncertainty”, highlighting issues over which uniforms pupils should wear.
“Travel between sites during the school day also reduces the time that pupils are actually being educated.”
A DfE spokesperson said that the aim of scrapping the ban on new grammar schools would “provide stretching education for the most academically able, regardless of their background and help to eliminate the attainment gap between disadvantaged pupils and their peers”.
She added that “there will be strict conditions that grammar schools must make sure they improve the education of pupils in every other part of the system”.