Free schools will invite corruption unless we fix them now

American free schools went through 20 years of shady deals because of their shoddy legislation. Now Britain is heading down the same path.

The coalition government pulled a clever trick with free schools. While swathes of normally vigilant people became consumed by worry about the suitability of Toby Young running a school, few of them realised that Free schools were largely a tiny distraction from a much wider-spread and more important education reform: “academisation”, the quasi-privatisation of state schools.

“Quasi-privatised” does not mean for-profit. UK state schools cannot be profit-making (though significant parts of the right would like it to be). No, academies are considered quasi-private because they are run by private non-profit companies, independently set up for the purpose of running schools. Before the change, most schools were owned and operated by local authorities. Academies effectively by-pass localism and instead get money directly from central government, which then contracts the non-profit organisation to run the school service via a “funding agreement”. Free schools are simply new schools that went through a special bidding process before they start up - but once their doors are open they are an academy like any other. And by “any other”, we are now talking about the majority of schools, since over half of England”s secondary schools operate as academies.

The first academies opened under Labour, built in areas where schools historically struggled to flourish. It was argued that giving the new school leaders greater flexibility would help with meeting the unique demands of teaching in challenging areas. A local “sponsor” was also commonly sought – someone who could bring capital, business acumen and a “brand name” to overcome the area’s poor reputation. However, this small, almost micro-managed, bundle of schools under Labour grew profusely post-2010. The coalition extended academy rules – all new schools must now be academies – and gave existing schools the opportunity to “convert”, giving up their link to the local authority in favour of direct cash and extra freedom. Enthusiasm for the change was revealed in a recent National Audit Office report where the vast majority of convertor Heads said they welcome greater freedom. The recent GCSE performance tables also suggest that academies do appear to be improving exam scores at faster rates, though only marginally.

So letting schools “go free” sounds great. But in the US, where a similar system has been operating for over twenty years, there have been some spectacular problems.

In Arizona the government went hard for autonomy when the policy began in the early 90s. Similar to Gove they encouraged speedy take-up and within two years had over a hundred schools. But the speed meant the State Department for Education could not keep up: the approvals process was not rigorous, schools started failing without a clear process for closing them, and financial issues mounted up.

Unlike in England, for-profit groups are allowed to run schools in thirty-two of America’s fifty states. While the impact of for-profits on student achievement is still debatable, several infamous for-profit “disasters” have left people questioning the appropriateness its appropriateness in education.

The most widely-reported early failures were in the Edison School network. Set up by Chris Whittle in the 1992, Edison aimed to make profit via efficient yet brilliant schools. Initially luring pupils in with promises of free laptops and bilingual education, once schools were taken over Edison closed libraries, sacked employees, and released misleading performance data. The laptops and bilingualism were also soon abandoned. Some argued this demonstrated the worst excesses of for-profit greed; others, that bad financial decisions in Edison’s early days meant cutbacks were more a scrabble for cash than anything sinister. Regardless of motive, the moral of the Edison story is that handing money over to an autonomous private company makes it hard to track, and even harder to enforce its sensible use.

Another common racket in the US is around real estate. In several states, non-profit school organisations created real estate “sister” companies that purchased buildings which they then rented back to the non-profit school company, often at rents far higher than market value. Hence money from the taxpayer - given to the school for the pupils’ benefit – actually went into paying rent to a for-profit company only able to gain the deal because of its close connections to the non-profit group. In a similar bout of high jinks, six Imagine charter schools – with more than 4,000 students enrolled - had to be unilaterally closed last summer in Missouri when a complicated real estate scandal was uncovered.

Of course, financial irregularities are not solely an academy problem. All schools can fall foul of misdemeanours. But the legislation governing Academies was pushed through in five days using a “compressed” Parliamentary process normally reserved for anti-terror laws. Much of the rushed law remains unclear and open for exploitation. For example, while academies must be run by non-profit groups, the non-profit company can hire for-profit organisations to manage the day-to-day operations of the school or for the lease of premises. These are precisely the types of loopholes in law commonly exploited in US.

One way to circumvent inevitable problems would be listening to those in the US already wise to such scams. “States didn’t realise that bad people would want to get involved, but there will always be some people who care more about the dollars than the kids” says Dr Louann Bierlein Palmer, Professor of Educational Leadership at Western Michigan University. From the late 1990s onwards Palmer analysed the differences in charter school laws springing up as each state implemented the policy in its own way. Gradually she noticed that some legal frameworks encouraged fast take-up, while others were too slow, but in either case without clear laws, financial and legal issues soon took hold.

In response Palmer and her colleagues created a list of “model laws” against which US states are ranked each year. This week’s release of the 2013 report shows that more states than ever are coming around to her way of thinking. In 2011 Maine was the first state to enact almost all 20 laws; in 2012 the state of Washington joined them. She notes that “the trick with these laws is that we want to be effective but not heavy handed”.

So what of England? How close are we to the model? The coalition cannot be faulted for encouraging autonomy and a fast take-up: on the measures ranking “freedoms” England would receive almost full marks. The bigger problem is that our current system hits almost none of Palmer”s “quality control” requirements. And those are the ones really important for avoiding disasters.

What could England improve? First, increased transparency about the way new academies (i.e. free schools) are opened. The British Humanist Association recently won a two-year Freedom of Information battle just to get a list of applicant group names, school location and religious affiliation, and the DfE still are considering using the power of veto to over-ride the ruling – all over a list of names. In the best US States there is complete transparency of the entire application process (For instance, Maine’s list is published online), and rightly so given the schools are taxpayer-financed.

There could also be clearer processes for renewing or revoking academy “agreements” as the current rules are too patchy. Campaign groups are already complaining that Roke Primary School is being forced to close (or, more likely, be taken over by an academy group) while schools with similar performance records which already operate as academies are being allowed to limp on. Perhaps this is because the government does not want to admit that academies are not a panacea; possibly it is because of finance — in the US charters have often been allowed to stay open far longer than they should because financial contracts they signed meant closing would involve prohibitive financial penalties. Finally there needs to be clearer guidance around the use of for-profit organisations, and an ability for the public to “follow the pound” as Margaret Hodge recently suggested.

The coalition government may have boosted the quasi-privatisation agenda without too much fuss, but the US's experience should be a serious warning. If its history is anything to go by, there is a need for much more transparency in the opening and closing processes of schools and for tighter financial accountability. Without both of those it’s all-too-likely that the free schools program will end in tears. Or a courtroom.

Photograph: Getty Images

Laura McInerney taught in East London for six years and is now editor of Schools Week.

Photo: Getty
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The UK press’s timid reaction to Brexit is in marked contrast to the satire unleashed on Trump

For the BBC, it seems, to question leaving the EU is to be unpatriotic.

Faced with arguably their biggest political-cum-constitutional ­crisis in half a century, the press on either side of the pond has reacted very differently. Confronting a president who, unlike many predecessors, does not merely covertly dislike the press but rages against its supposed mendacity as a purveyor of “fake news”, the fourth estate in the US has had a pretty successful first 150-odd days of the Trump era. The Washington Post has recovered its Watergate mojo – the bloodhound tenacity that brought down Richard Nixon. The Post’s investigations into links between the Kremlin and Donald Trump’s associates and appointees have yielded the scalp of the former security adviser Michael Flynn and led to Attorney General Jeff Sessions recusing himself from all inquiries into Trump-Russia contacts. Few imagine the story will end there.

Meanwhile, the New York Times has cast off its image as “the grey lady” and come out in sharper colours. Commenting on the James Comey memo in an editorial, the Times raised the possibility that Trump was trying to “obstruct justice”, and called on Washington lawmakers to “uphold the constitution”. Trump’s denunciations of the Times as “failing” have acted as commercial “rocket fuel” for the paper, according to its CEO, Mark Thompson: it gained an “astonishing” 308,000 net digital news subscriptions in the first quarter of 2017.

US-based broadcast organisations such as CNN and ABC, once considered slick or bland, have reacted to Trump’s bullying in forthright style. Political satire is thriving, led by Saturday Night Live, with its devastating impersonations of the president by Alec Baldwin and of his press secretary Sean Spicer by the brilliant Melissa McCarthy.

British press reaction to Brexit – an epic constitutional, political and economic mess-up that probably includes a mind-bogglingly destructive self-ejection from a single market and customs union that took decades to construct, a move pushed through by a far-right faction of the Tory party – has been much more muted. The situation is complicated by the cheerleading for Brexit by most of the British tabloids and the Daily Telegraph. There are stirrings of resistance, but even after an election in which Theresa May spectacularly failed to secure a mandate for her hard Brexit, there is a sense, though the criticism of her has been intense, of the media pussy-footing around a government in disarray – not properly interrogating those who still seem to promise that, in relation to Europe, we can have our cake and eat it.

This is especially the case with the BBC, a state broadcaster that proudly proclaims its independence from the government of the day, protected by the famous “arm’s-length” principle. In the case of Brexit, the BBC invoked its concept of “balance” to give equal airtime and weight to Leavers and Remainers. Fair enough, you might say, but according to the economist Simon Wren-Lewis, it ignored a “near-unanimous view among economists that Brexit would hurt the UK economy in the longer term”.

A similar view of “balance” in the past led the BBC to equate views of ­non-scientific climate contrarians, often linked to the fossil-fuel lobby, with those of leading climate scientists. Many BBC Remainer insiders still feel incensed by what they regard as BBC betrayal over Brexit. Although the referendum of 23 June 2016 said nothing about leaving the single market or the customs union, the Today presenter Justin Webb, in a recent interview with Stuart Rose, put it like this: “Staying in the single market, staying in the customs union – [Leave voters would say] you might as well not be leaving. That fundamental position is a matter of democracy.” For the BBC, it seems, to question Brexit is somehow to be unpatriotic.

You might think that an independent, pro-democratic press would question the attempted use of the arcane and archaic “royal prerogative” to enable the ­bypassing of parliament when it came to triggering Article 50, signalling the UK’s departure from the EU. But when the campaigner Gina Miller’s challenge to the government was upheld by the high court, the three ruling judges were attacked on the front page of the Daily Mail as “enemies of the people”. Thomas Jefferson wrote that he would rather have “newspapers without a government” than “a government without newspapers”. It’s a fair guess he wasn’t thinking of newspapers that would brand the judiciary as “enemies of the people”.

It does seem significant that the United States has a written constitution, encapsulating the separation and balance of powers, and explicitly designed by the Founding Fathers to protect the young republic against tyranny. When James Madison drafted the First Amendment he was clear that freedom of the press should be guaranteed to a much higher degree in the republic than it had been in the colonising power, where for centuries, after all, British monarchs and prime ministers have had no qualms about censoring an unruly media.

By contrast, the United Kingdom remains a hybrid of monarchy and democracy, with no explicit protection of press freedom other than the one provided by the common law. The national impulse to bend the knee before the sovereign, to obey and not question authority, remains strangely powerful in Britain, the land of Henry VIII as well as of George Orwell. That the United Kingdom has slipped 11 places in the World Press Freedom Index in the past four years, down to 40th, has rightly occasioned outrage. Yet, even more awkwardly, the United States is three places lower still, at 43rd. Freedom of the press may not be doing quite as well as we imagine in either country.

Harry Eyres is the author of Horace and Me: Life Lessons from an Ancient Poet (2013)

This article first appeared in the 20 July 2017 issue of the New Statesman, The new world disorder