School’s not likely to be out forever for universities.

A reflection on the Government’s proposal to require universities to engage with schools

In an interview on Radio 4 last week, the Vice Chancellor of Oxford University described as “a distraction” any direct role for universities in sponsoring existing schools or setting up new schools.    The comment was in response to the Government’s latest proposal to require  universities, as a condition of charging higher tuition fees,  to have a direct role in improving  the quality of schools and pupil attainment.   While the Vice Chancellor’s response resonates with any common sense approach to such matters, it also has some foundation in law.

This approach reveals an evolving modus operandum whereby change is imposed not by statute, which is properly scrutinised and debated, but by conditions attached to funding.   Decision-makers, such as the Executive, have to act reasonably and proportionately, failing which their decisions are vulnerable to successful challenge.  This latest initiative which circumvents the usual checks and balances may qualify for potential challenge if it is ever implemented, on the following grounds:

1.        Autonomy

While no body, public or private, is immune from some regulation, any regulation should be designed to ensure a sector’s core business is delivered in the public interest rather than eroding or diluting it.  Universities’ business is higher education and they are otherwise free to determine how they engage in that business by deciding priorities and allocating resources.  The role of regulation is to ensure that in striving to fulfil their core business objects, universities do not compromise academic standards, misappropriate public funds or breach public trust.  Beyond that, Government regulation is in danger of becoming authoritarian and unreasonable.

2.        Stewardship  of resources

As charities, universities must have a clear understanding of their primary purpose and ensure that their resources are directed towards fulfilling that purpose.   While universities have the power (but not the duty) to provide secondary education, it is not a power that is usually exercised; most universities would regard direct involvement in schools as remote from their core mission to deliver higher education and conduct research.  

The rationale for the right to charge higher fees in 2012 was to compensate universities for the deficit in public funding and to recoup the real costs of providing higher education.  Directing those funds away from universities’ core mission and towards activities that are at best described as marginal is, arguably, inconsistent with the demands of proper stewardship of charitable resources.

That a small number of universities have made a considered decision to sponsor specific schools for a variety of very noble reasons, including teacher training,  does not lead one ineluctably to the conclusion that it is appropriate for the sector as a whole to undertake a direct role in secondary education.

3.        Risk and reputation

Charity law also requires that universities should not expose themselves to undue risk including any real risk to reputation.  In the absence of any compulsion, most universities would regard the role of pupil attainment and running schools as falling squarely within the expertise of the secondary and possibly the further,  education sector, supported by appropriate Government funding.   There is no rational reason why a sector dedicated to the provision of higher education should necessarily possess the relevant skills and insight required to achieve the outcomes for secondary education envisaged by the Government’s  proposal.   It would be interesting to observe audit committees allocating a risk rating to compulsory schools engagement and the likelihood is that red  would dominate the risk registers.

No one would deny that higher pupil attainment would benefit society as a whole and higher education in particular.  Compelling universities to be the instrument of change or risk the loss of much-needed funding,  however, is not a reasonable solution.  The cynic would be tempted to conclude that the sector is an easy target to seek to compensate for the repeated failures of successive Governments to provide a good school in every community.

Geraldine Swanton
Legal Director
geraldine.swanton@shma.co.uk

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