Whose rights come first?

How far should universities be bending to admit disadvantaged students from state schools with less-than-stellar A-levels? This is one of the most divisive issues in higher education today. According to a recent survey by independent school heads, some universities are discriminating against their pupils to boost the numbers from state schools. The allegation is that these universities are making lower offers to state school pupils, asking for, say, BCC in three subjects at A-level when a private-school pupil has to reach ABB to study the same course.

"The horrible danger is that you discriminate against young people who have done well," says Martin Stephen, High Master of Manchester Grammar School, a top independent school. "I think it's wrong. Worse, I think it's immoral. Universities should select on ability. It's the job of secondary education to make sure that no child apologises for their A-levels."

The issue is vexed because it puts two of the Government's cherished principles on a collision course: the "gold standard" of A-levels versus Labour's desire to widen participation. When you factor in the intense desire of some parents to give their offspring the best start in life via a private education and a "good" university, you have a combustible mix.

In the old days, posh people used independent schools and the rest used the state sector. It was a simple, if crude, Tory/Labour divide. That is no longer so true. Substantial numbers of Labour voters fork out fees of £6,000 a year for private schooling – particularly in London – as do large numbers of parents who did not go to independent schools themselves. Moreover, independent schools take bright children from poorer homes on scholarships. What is the sense in universities setting higher entry standards for them?

Independent school heads are so worried that they have arranged a meeting with the higher education minister, Margaret Hodge. They want clear criteria for university admissions and an end to its "politicisation". And they are joined in this by John Dunford, general secretary of the Secondary Heads Association, which represents mainly state school head teachers, who believes that universities are not open enough about the way they select students. It can happen that applicants are rejected by their favourite university for not having quite the right A-level mix; if they had known this before applying, they would not have included that university on their list.

"A lot of students waste applications because they don't know the rules of the game," he says. "In a sense, I almost don't mind what criteria universities use so long as they are open about them. I support widening access but let's know about it and how it's done."

The universities seem to acknowledge implicitly that they have a problem because Universities UK (UUK), the umbrella group for higher education, has commissioned a study into how bright applicants from deprived backgrounds without good A-levels should be identified. Financed by the Higher Education Funding Council (Hefce), it should bring some necessary rigour to an area that has become fraught with emotion.

But even if we had the clearest and most open admissions system in the world, Professor Roderick Floud, president of UUK, believes that the critics would not be satisfied. That's because there is a logical inconsistency in their argument, he says. On the one hand, they want universities to take account of all the information about an applicant, exam results and extra-curricula interests; on the other, they are calling for universities to stick to a set of A-level grades for each course.

"We have 54,000 undergraduate courses in British higher education," he says. "It is difficult enough to give the guidance on what are the most suitable A-levels for each course, but we do try to do that. When we also try to open up to people with all sorts of qualifications, it becomes much trickier."

The survey by the Headmasters' Conference and the Girls' Schools Association examined 18 universities, all from the élite Russell group, plus Durham, and focused on seven subjects – economics, English, French, history, law, maths and physics. The researchers looked at the standard of the offers and the rejection rate for independent school pupils. Where a subject departed from the pattern within the institution, it was labelled as needing further study. Four universities were deemed to need scrutiny – Bristol (all subjects except maths); Edinburgh (English, French, history and law); the London School of Economics (for economics, history, law and maths); and Durham (law). In addition, three university departments were identified as needing more examination. They were law at Manchester, history at Nottingham and history at University College London (UCL).

Some of these universities have rejected the charges outright, saying that the survey was flawed and that they would not dream of discriminating against university applicants on the basis of type of school. One of those is Manchester, which has written to the independent school heads to object to the survey. It took the allegation that its law school was discriminating very seriously, according to Jacqueline Henshaw, the university's admissions officer. "We examined the research and had significant reservations about its validity. The survey was not comprehensive, the sample size was small, and the response rate was low. Crucially, there was no attempt to analyse rates of rejection for candidates in the state sector. Applicants from the private sector do not fare any worse than those from state schools."

Nottingham said that its history department did not discriminate. Applications for history rose from 1,359 to 1,700 last year. Thus, many well-qualified applicants were turned away from both state and private schools. UCL also denied discrimination but explained that, as part of its effort to widen participation, it did take some applicants from deprived backgrounds on lower offers. All history applicants were interviewed first, according to Martin Welsh, UCL's faculty admissions tutor for social and historical sciences.

"We're trying to maintain a range of applications from all schools and further education colleges," he says. "We're not biased against any one group, or biased for any one group. We're looking to get the best students. Maybe at the margins, the occasional independent school candidate will lose out, but it's at the margins."

Other universities were happy to admit to special efforts to recruit more state school pupils, even if that meant taking them on lower grades. These were universities that perform poorly compared with their benchmark – the percentage of state school pupils that they would be expected to have for their type of institution. The new vice- chancellor of Edinburgh University, Professor Tim O'Shea, makes no apologies for the university's special efforts to recruit more pupils from state schools. He has set up an inquiry under the vice-principal Gordon Kirk, and said, in an introductory letter to staff, "We have more to do to make our admissions more equitable".

Durham University's law department has a policy of trying to encourage applicants from local state schools, said a spokesman. It has been seeking out high-achieving pupils from schools that traditionally have a poor record for A-levels and inviting them to visit the university. These students are interviewed, their academic record looked at, and some are offered places on lower grades than other applicants.

Another university well below its Hefce benchmark is Bristol, an institution beloved of upper middle-class parents that also takes some pupils from disadvantaged state schools on lower grades. At present, it has 39 per cent of students from independent schools and 61 per cent from the state sector. According to Hefce, its benchmark is 27:73.

"We're looking for candidates with the greatest potential from a wider and deeper pool," says a spokesman for Bristol University. "We're doing this because we think it's fair and because it's the best way of recruiting the able candidates that we are after. And the lower offers are not done as an automatic thing."

Universities like Bristol have been concerned with access for some time. But all universities are under new pressure from the Government to widen participation to groups that have not traditionally gone to university. And they have responded with more or less alacrity. Some, such as the LSE, have been turning their benchmarks into targets; others have been more cautious. UCL has decided to go some of the way towards meeting its benchmark. The LSE committed itself to moving from 68 per cent of students from state schools to 74 per cent – but is now reconsidering whether to do this. The problem is that, when benchmarks become targets, there is a danger that they can turn into quotas and become discriminatory.

The survey from the independent school heads has been useful in sparking a debate about that issue, concentrating universities' minds on what they should and shouldn't be doing. It is clear that a few independent school pupils may be losing out to those from state schools.

Looking at applicants' potential rather than simply their A-levels is justified, according to Professor Ivor Crewe, vice-chancellor of Essex University. "It's perfectly reasonable for any department to make a judgement about the potential of a student," he says. "Obviously, you take A-levels into account but it's not only A-levels and it's not in a mechanistic way.

"Most universities have always operated on that basis. The likelihood is that, if universities take the policy too far, it is not the best but the moderate independent school performers who will fail to get into their first choice university."

l.hodges@independent.co.uk

The case that shook the United States

Time magazine called it "the most important civil rights case in a generation". In the Seventies, a white man, Allan Bakke (right), had been a good student at college and later a space-agency engineer before deciding at the age of 32 to become a doctor. He applied twice to the University of California at Davis and was rejected both times. He learnt later that his college grades and aptitude test scores were higher than those of others who got in. The reason for his rejection, Bakke concluded, was that he was white, while some of the successful applicants were not.

The medical school had a quota system for applicants who were members of minority groups – blacks, Hispanics, Asians and native Americans. A number of places in each entering class were reserved for these applicants and the school admitted some on lower grades than whites.

Bakke sued for reverse discrimination. His case went all the way to the Supreme Court. Bakke was admitted to the school and the quotas were struck down.

Could a similar case happen here if universities decided to apply targets zealously and an independent-school applicant felt sufficiently aggrieved to pursue the matter through the courts?