Government guidance aimed at widening university access is probably unlawful and should be ignored, according to a senior education lawyer.
In a formal legal opinion obtained by the Independent Schools Council, Oliver Hyams writes that the guidance issued to the Office for Fair Access (OFFA) by the Secretary of State fails to take account of the impact of the Higher Education Act 2004 and is therefore "probably unlawful".
Mr Hyams, a barrister at Devereux chambers in London and current Chairman of the Education Law Association, concludes that the guidance "amounts in my view to a clear attempt to interfere with HEIs’ admissions criteria".
He goes on to state that the Act "makes it unlawful" for the Director of Fair Access to impose requirements "affecting the academic judgments of admissions tutors concerning the criteria to be applied by those tutors in deciding to whom to make offers of places".
"I am therefore of the view that HEIs are obliged to ignore the OFFA guidance in so far as it attempts to interfere with the exercise by them of their academic judgment," Mr Hyams adds.
The Chief Executive of ISC, David Lyscom, said the opinion undermined the government’s targeting of university admissions in its drive to improve social mobility.
He said: "Independent schools are committed to promoting social mobility. But social mobility is a complex issue and not something which can be resolved overnight through the unsophisticated use of targets and ‘performance indicators’. It entails a re-examination of the entire school system and what can be done to promote excellence for all, from birth to 18 and beyond.
"Our schools currently offer over £250 million per year in bursaries to widen access to the world class education in our schools to pupils who need financial support. Such students from disadvantaged backgrounds may, according to plans being propounded by ministers, find themselves discriminated against. Not only is the government’s proposed solution counter-productive, we now find it is likely to be unlawful.
"Independent schools are part of the solution to social mobility, not part of the problem."
Notes to editors
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