Writing in the Institute of Economic Affairs autumn journal, he points out that section 16 of the 1988 Education Reform Act allows schools to escape from the curriculum's constraints and apply to opt out for "development" work or "experiments".
He said: "Almost any change to a school's curriculum can be described as development work . . . any school could apply to opt out, but it would be particularly attractive to those who saw a curriculum niche that could bring about increased demand or improve the quality of education for its students."
All state schools have to offer the national curriculum while independent schools are free to teach what they like.
Right-wingers have opposed the national curriculum since it was introduced. Margaret Thatcher wanted it to consist only of English, maths and science so that schools were free to choose what else they taught.
The paper says schools that wanted to opt out would have to apply to their local authority for permission first and then to the Secretary of State for Education. Opted-out schools would apply directly to the Secretary of State.
It points out that section 16 was included in the Act because of fears that the national curriculum might cramp innovation. Conservatives need not fear that allowing opt-outs would lead to left-wing innovations such as anti-racist maths, it says.
Independent schools were excluded from the national curriculum because they were subject to market disciplines.
Now state schools are part of the market - they compete for students and are funded on the basis of their success - they should also be allowed to opt out.
"A safety net may be needed for those schools which are not flourishing: a bureaucratic monolith stifles innovation," the paper says.
The Department for Education showed no sign of taking up Dr Tooley's invitation to announce that it was ready to receive opt-out applications.
A spokesman said: "Section 16 is not something we would envisage schools using to opt out of the national curriculum."Reuse content