Independent schools are often criticised for being elitist and such schools are often seen as outside the spirit of the state system. However, the treatment of the state sector as homogeneous in nature is difficult to support. The spectrum of state schools, their intake and performance is enormous, going from "super selective", selective, right down to what Newsam referred to as "sub secondary modern". Although grammar schools are rare, some of them are highly selective and state funded boarding schools require substantial fees, which may introduce further barriers to entry. Even traditional comprehensive schools may be effectively selective because only wealthier families can afford to live in their catchment area and it may be argued that the gap in performance between state schools is much larger than that between the better state and grammar schools and the independent sector. Smithers and Robinson's 2010 Sutton Trust commissioned study of social variation in comprehensive schools (excluding grammar schools) notes that "The 2,679 state comprehensive schools in England are highly socially segregated: the least deprived comprehensive in the country has 1 in 25 (4.2 per cent) of pupils with parents on income benefits compared with over 16 times as many (68.6 per cent) in the most deprived comprehensive"
Nevertheless, many of the best-known public schools are extremely expensive, and many have entry criteria geared towards those who have been at private "feeder" preparatory-schools or privately tutored. Going some way to countering the charge of exclusivity, a large number (c. one third) of independent schools provide assistance with fees. The Thatcher government introduced the Assisted Places Scheme in England and Wales in 1980, whereby the state paid the school fees for those pupils capable of gaining a place but unable to afford the fees. This was essentially a response to the decision of the previous Labour government in the mid-1970s to remove government funding of direct grant grammar schools, most of which then became private schools; some Assisted Places pupils went to the former direct-grant schools such as Manchester Grammar School. The scheme was terminated by the Labour government in 1997, and since then the private sector has moved to increase its own means-tested bursaries.
The former classics-based curriculum was also criticised for not providing skills in sciences or engineering, but was perhaps in response to the requirement of classics for entry to Oxbridge up until the early 1960s, as well as a hangover from the pre-20th century period when only Latin and Greek were taught at many public schools. It was Martin Wiener's opposition to this tendency which inspired his 1981 book English Culture and the Decline of the Industrial Spirit: 1850-1980. It became a huge influence on the Thatcher government's opposition to old-school gentlemanly Toryism. Nowadays, independent school pupils have "the highest rates of achieving grades A or B in A-level maths and sciences" compared to grammar, specialist and mainstream state schools, and pupils at independent schools account for a disproportionate number of the total number of A-levels in maths and sciences.
Some parents complain that their rights and their children's are compromised by vague and one-sided contracts which allow Heads to use discretionary powers unfairly, such as in expulsion on non-disciplinary matters. They believe independent schools have not embraced the principles of natural justice as adopted by the state sector, and private law as applied to Higher Education.
Generally political attacks on private schools have been opposed by concern that there should be no totalitarian state control of education.
In 2006, pupils at fee-paying schools made up 43 per cent of those selected for places at Oxford University and 38 per cent of those granted places at Cambridge University (although such pupils represent only 18 per cent of the 16 years old plus school population). However, the progression of pupils to Russell Group universities, including Oxbridge, is complex. For example, many independent schools (and most of the prestigious schools) take pupils at thirteen, so they would be expected to attract the strongest applicants from many feeder schools, provided the pupils are wealthy enough to afford the fees or are able to receive funding.
Charitable status
A major area of debate in recent years has centred around the continuing charitable status of independent schools, which means they are not charged business rates by local councils, amongst other benefits. This is estimated to save the schools about £200 per pupil and to cost the exchequer about £100 million in tax breaks, assuming that an increase in fees would not result in any transfer of pupils from private to maintained sector.
Following the enactment of the Charities Bill, which was passed by the House of Lords in November 2006, charitable status is based on an organisation providing a "public benefit" as judged by the Charity Commission. In 2008, the Charity Commission published guidance, including guidance on public benefit and fee charging, in which the Commission set out issues to be considered by charities charging high fees that many people could not afford. The Independent Schools Council was granted permission by the High Court to bring a judicial review of the Charity Commission's public benefit guidance as it affected the independent education sector. This was heard by the Upper Tribunal at the same time as a reference by the Attorney General asking the Tribunal to consider how the public benefit requirement should operate in relation to fee-charging charitable schools. The Upper Tribunal's decision, published on 14 October 2011, concluded that in all cases there must be more than de minimis or token benefit for the poor, but that trustees of a charitable independent school should decide what was appropriate in their particular circumstances.
The Charity Commission accordingly published revised public benefit guidance in 2013.
In Scotland, due to the Charities and Trustee Investment Act (Scotland), an entirely separate test of charitable status exists, overseen by the Office of the Scottish Charity Regulator, which assesses the public benefit provided by each registered school charity.