Fee schools have had a torrid year. The credit crunch has hit parents' pockets. The Charity Commission has made it clear that it means business in implementing the 2006 Charities Act, with fees potentially having to go up to pay for bursaries. And fees have already risen by nearly 6 per cent on average.
Worse, as the economy of greed crashed, social exclusiveness and inequality went out of fashion. Richard Wilkinson and Kate Pickett's fact-packed book The Spirit Level pinpointed the links between inequality and unhappy, unsuccessful societies. Labour MP Alan Milburn's report, Unleashing Aspiration, called for an end to "a "closed-shop society" given to "opportunity-hoarding".
The private-school lobby and its supporters reacted with venom. Abuse was heaped on the Charity Commission, some unpleasantly personal about its chairwoman, Dame Suzi Leather.
David Lyscom, chief executive of the Independent Schools Council (ISC), which represents 1,280 private schools, initially expressed "disappointment" at the commission's judgments on the first five schools it assessed. Now he is apparently considering judicial review, hoping to make the commission takes into account general considerations such as academic results and the benefit to taxpayers of not having to educate half a million more children in state schools.
Mr Lyscom should be cautious. The Charity Commission has been a model of moderation. It has set about implementing a weak piece of legislation with exemplary openness. It has issued clear guidance and listened to all views. It has issued worked examples. It holds its meetings in public. Staff are accessible and respond courteously to anyone seeking help. Its website provides a wealth of information. It is, in short, a shining example of what agencies and regulators should be and rarely are.
Nonetheless, those who campaign for state schools are at least as disappointed with the commission as Mr Lyscom, and quite as eager for general considerations to be taken into account.
First, the commission's guidance says that the benefits of any fee-charging charity "must be balanced against any detriment or harm", but they have not so far taken into account any harm done to the education of the majority of children in general by schools that selectively target the high-achieving, well-motivated and well-supported.
A Campaign for State Education member in Bedford has collected a mass of evidence of harm. For example, calculations based on 2008 GCSE results for North Bedfordshire suggest that the local authority schools' haul of five good GCSEs would be improved by an average of 10 per cent if the children recruited selectively by the four fee-paying Harpur Trust schools came into the state schools.
These findings are being confirmed by studies across nine other local authorities. And that is without taking into account the subtler impact that a full range of social backgrounds and academic abilities has on aspiration in comprehensive schools.
Second, the commission's emphasis in its first assessments on means-tested bursaries threatens to accelerate the pillage of talent from state schools. The guidance says: "Where benefit is to a section of the public, the opportunity to benefit must not be unreasonably restricted ... by ability to pay any fees charged," and, "People in poverty must not be excluded from the opportunity to benefit."
But the commission has fudged the definition of poverty. Instead of insisting on nationally agreed criteria, such as eligibility for free school meals, it has left fee-charging schools to devise their own means tests. In some cases, those "unable to afford the fees" could include people on #163;65,000 a year.
The ISC claims that nearly one pupil in 10 at their schools comes from a deprived background. This is specious when the definition used is a home address with a postcode "where there is above-average likelihood of free school meal eligibility". There are some lovely houses in Hackney and Tower Hamlets.
The commission's biggest test is still to come. How will it assesses the major public schools? These are the schools that have so effective a stranglehold on admissions to top research universities and, through them, to professional careers, as documented by the Sutton Trust and the Milburn report.
Their social divisiveness has worried policymakers for over a century. The desire to beat off threats to their autonomy led to the formation of the Headmasters' Conference in the mid-19th century.
The commission's guidance says that a charity's public benefit must be related to its aims. Many of the older, grander schools were founded explicitly to educate the poor. The commission, which is required to "increase public trust and confidence in charities", could challenge them to return to their founders' intentions and rethink their role.
Instead of providing an exclusive, gold-plated service to the rich, they might, for example, work with local authorities to provide education, regardless of academic ability, to children from families that cannot cope, making good use of small classes, excellent facilities and boarding accommodation.
Of course, their fee-paying customers might resent their school being invaded by what one distinguished public-school headmaster (long dead) described as "the ullage of the education system", the empty space in the wine bottle. Such parents would be free to pick an exclusive school for which the taxpayer does not provide charitable subsidies. Or, of course, they could take a deep breath and send their children to school with everyone else and help to create a more cohesive society.
What is not an option under the law is for these schools to give up their charitable status; once charitable, always charitable. Their assets have to be used for charitable purposes - if not by them, then by others.
Auriol Stevens, Former editor, The Times Higher Education.