The Education Secretary could face a High Court challenge over her grammar school expansion plans, it has emerged, as the the country’s biggest education union claimed they are illegal.
Kevin Courtney, general secretary of the Nation Union of Teachers (NUT), said that a handful of schools have set up “grammar streams”, whereby a cohort of students at non-selective schools are chosen on the basis of an entrance exam and then educated separately from their peers.
Speaking at the union’s annual conference in Cardiff, Mr Courtney said this was contrary to the 1998 School Standards and Framework Act which prohibits “the establishment of new selective schools and prevents existing non-selective schools from becoming selective”.
He said that he has written to Justine Greening to challenge her on the legality of “grammar streams”, adding that the NUT’s senior solicitor Clive Romain has also written to a handful of academies which operate such systems to ask for further information.
Mr Courtney said he is prepared to launch a judicial review of the Department for Education’s proposals to “encourage multi-academy trusts to select within their trust”.
On Saturday delegates will vote on a priority motion to “investigate possible legal routes to challenge the expansion of selective education”.
The vote comes in the same week that Ms Greening said selection in new generation of grammars will increase prioritise children from "ordinary working families".
Mr Courtney said: "The Conservatives did not include this in their 2015 manifesto. If the Government has legislated not to have new grammar schools, there shouldn't be ways of sneaking around it. That's what we think schools are doing at the moment.
"The Government is looking at other ways of selective schooling - having off-shoots, and having selective schools within a multi-academy trust and that they will say that's like a stream in a secondary school. We think that would be illegal and open to legal challenge."
A Department for Education spokesperson said: “Streaming pupils by ability is, and has always been, allowed at all schools, and helps teachers give every child an appropriately stretching education.
"Multi-academy trusts (MATs) have always been able to pool their resources to deliver these benefits on a larger scale and across different sites within the trust, and we want to see more do this.”