[Federal Register: March 4, 2010 (Volume 75, Number 42)]
[Rules and Regulations]              
[Page 9777-9780]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04mr10-6]         
         

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DEPARTMENT OF EDUCATION

34 CFR Part 280

RIN 1855-AA07
[Docket ID ED-2010-OII-0003]


Magnet Schools Assistance Program

AGENCY: Office of Innovation and Improvement, Department of Education.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Secretary amends the regulations governing the Magnet
Schools Assistance Program (MSAP) to provide greater flexibility to
school districts designing MSAP programs for the Fiscal Year (FY) 2010
grant competition announced in a notice inviting applications for new
awards published elsewhere in this issue of the Federal Register. These
changes remove provisions in the regulations that require districts to
use binary racial classifications and prohibit the creation of magnet
schools that result in minority group enrollments in magnet and feeder
schools exceeding the district-wide average of minority group students.
This new flexibility is necessary to permit school districts interested
in receiving funds under this program to determine how best to meet
program requirements while also taking into account intervening Supreme
Court case law, including the Court's decision in Parents Involved in
Community Schools v. Seattle School District No 1 et al., 551 U.S. 701
(2007) (Parents Involved).

DATES: These regulations are effective March 4, 2010. We must receive
your comments by April 5, 2010.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by e-mail. Please submit your comments only
one time, in order to ensure that we do not receive duplicate copies.
In addition, please include the Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to http://www.regulations.gov to 
submit your comments electronically. Information
on using Regulations.gov, including instructions for accessing agency
documents, submitting comments, and viewing the docket is available on
the site under ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you
mail or deliver your comments about these interim final regulations,
address them to Anna Hinton, U.S. Department of Education, 400 Maryland
Avenue, SW., room 4W229, Washington, DC 20202.

    Privacy Note: The Department's policy for comments received from
members of the public (including those comments submitted by mail,
commercial delivery, or hand delivery) is to make these submissions
available for public viewing in their entirety on the Federal
eRulemaking Portal at  http://www.regulations.gov. Therefore,
commenters should be careful to include in their comments only
information that they wish to make publicly available on the
Internet.


FOR FURTHER INFORMATION CONTACT: Anna Hinton, U.S. Department of
Education, 400 Maryland Avenue, SW., room 4W229, Washington, DC 20202.
Telephone: (202) 260-1816 or by e-mail: FY10MSAPCOMP@ed.gov.
    If you use a telecommunications device for the deaf (TDD), call the
Federal Relay Service (FRS), toll free at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an
accessible format (e.g., braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding the removal of the
regulatory provisions in these interim final regulations. The MSAP
regulations in 34 CFR part 280, as amended by these interim final
regulations, will govern the FY 2010 MSAP competition. Any changes made
to these interim final regulations in light of comments would govern
the next MSAP competition in FY 2013. To ensure that your comments have
maximum effect in developing the final regulations, we urge you to
identify clearly the specific section or sections of the interim final
regulations that each of your comments addresses and to arrange your
comments in the same order as the interim final regulations. We also
are considering issuing a notice of proposed rulemaking (NPRM) that
would propose provisions to replace those that are removed by these
interim final regulations, although we are not soliciting comments on
an NPRM at this time. Again, any changes subsequent to these interim
final regulations would apply to the next MSAP competition, which the
Department anticipates conducting in FY 2013.
    We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these interim final
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.
    During and after the comment period you may inspect all public
comments about these interim final regulations by accessing
Regulations.gov. You may also inspect the comments, in person, in room
4W229, 400 Maryland Avenue, SW., Washington, DC 20202, between the
hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of
each week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record

    On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these interim final regulations. If you want to
schedule an appointment for this type of aid, please contact Anna
Hinton, U.S. Department of Education, 400 Maryland Avenue, SW., room
4W229, Washington, DC 20202. Telephone: (202) 260-1816 or by e-mail:
FY10MSAPCOMP@ed.gov.

Background

    The MSAP is a discretionary grant program that provides funds to
local educational agencies (LEAs) for ``the elimination, reduction, or
prevention of minority group isolation in elementary and secondary
schools'' with substantial proportions of minority students, and ``the
development and design of innovative educational methods and practices
that promote diversity.'' 20 U.S.C. 7231; 34 CFR 280.1. The Department
awards grants to LEAs for magnet schools that are ``part of an approved
desegregation plan'' and ``designed to bring students from different
social, economic, ethnic, and racial backgrounds together.'' 20 U.S.C.
7231b; 34 CFR 280. There are two types of MSAP desegregation plans: (1)
Required desegregation plans ordered by a Federal or State court or
agency of competent jurisdiction;\1\ and (2)

[[Page 9778]]

voluntary desegregation plans that must be approved by the Secretary as
adequate under Title VI of the Civil Rights Act of 1964 (Title VI). See
20 U.S.C. 7231c; 34 CFR part 280.
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--

    \1\ The revisions in these interim final regulations do not
affect how the Department treats required desegregation plans under
the MSAP.
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--

The Supreme Court's Decision in Parents Involved

    On June 28, 2007, the Supreme Court in Parents Involved found the
voluntary desegregation plans in the Seattle, Washington, and
Louisville, Kentucky school districts unconstitutional in part because
the districts failed to adequately show that they considered race-
neutral alternatives prior to using individual racial classifications
in assigning students to schools.\2\ In Parents Involved, five justices
affirmed that avoiding racial isolation--one of the purposes of the
MSAP program--is a compelling governmental interest. However, the
majority opinion found each plan's use of only two categories in
defining race problematic. The Seattle school district used ``white''
and ``nonwhite'' and the Louisville school district used ``black'' and
``other.'' The Parents Involved Court also rejected the achievement of
racial balance, (i.e., a student enrollment that mirrors the racial
composition of a school district, as a basis for the use of race in a
voluntary desegregation plan.) Parents Involved at 722.
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--

    \2\ In evaluating these challenges to the districts' use of
individual racial classifications, the Court applied the two part
strict scrutiny standard which requires a compelling governmental
interest for the use of race and that any use of race be narrowly
tailored to further the compelling interest.
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--

The MSAP Regulations

    The current regulations governing the MSAP are in 34 CFR part 280.
In light of guidance provided by the Supreme Court in Parents Involved,
we are changing three provisions of these regulations to provide
districts greater flexibility in how they demonstrate that their magnet
or feeder schools will eliminate, reduce, or prevent minority group
isolation and that their voluntary desegregation plans are adequate
under Title VI. Each of these provisions and the changes we are making
are described in the following paragraphs.\3\
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--

    \3\ We are not removing a fourth regulatory provision in the
selection criterion Quality of project design at 34 CFR
280.31(c)(2)(v) that provides for the Secretary to determine the
extent to which each magnet school for which funding is sought will
improve the racial balance of students in the applicant's schools,
because we are not using this factor in the FY 2010 grant
competition.
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--

    The current regulations in 34 CFR 280.4(b) define the term minority
group isolation, in reference to a school, to mean ``a condition in
which minority group children constitute more than 50 percent of the
enrollment of the school.'' 34 CFR 280.4(b). We are removing the
definition of minority group isolation through these interim final
regulations because the definition requires the use of only two racial
classifications of students--``minority group'' and ``nonminority
group'' students. In the absence of a definition of minority group
isolation, the Department will determine on a case-by-case basis
whether a district's voluntary plan meets the statutory purpose of
reducing, eliminating, or preventing minority group isolation in its
magnet or feeder schools, considering the unique circumstances in each
district and school. For example, the Department may consider whether
there is a substantial proportion of students from any minority group
enrolled in a school, looking at the student enrollment numbers of the
district and the targeted schools disaggregated by race.
    The current regulations in 34 CFR 280.2(b)(2) and 280.20(g) provide
for the use of a district-wide percentage of minority students as an
absolute limitation on student enrollment in magnet or feeder schools.
Specifically, section 280.2(b)(2) provides for the Secretary to approve
a voluntary plan as adequate under Title VI if the establishment of the
magnet school will not result in an increase of minority enrollment, at
the magnet school or at any feeder school, above the district-wide
percentage of minority group students in the LEA's schools at the grade
levels served by the magnet school. Similarly, section 280.20(g),
related to the information that an applicant must include in its
application, provides, in part, that an applicant seeking approval of a
voluntary plan as adequate under Title VI that cannot provide the
information required for review of its application may submit other
information to demonstrate that--

the creation or operation of its proposed magnet school * * * would
not result in an increase of minority student isolation at one of
the applicant's schools above the districtwide percentage for
minority students at the same grade levels as those served in the
magnet school.

    The Department is removing the language requiring use of the
district-wide percentage limitations in both of these sections. Section
280.2(b)(2) is removed in its entirety, and section 280.20(g) is
revised to remove the language regarding district-wide percentage for
minority students. This amended provision reads as follows:

    An applicant that does not have an approved desegregation plan,
and demonstrates that it cannot provide some portion of the
information requested under paragraphs (f)(4) and (5) of this
section, may provide other information (in lieu of that portion of
the information not provided in response to paragraphs (f)(4) and
(5) of this section) to demonstrate that the creation or operation
of its proposed magnet school would reduce, eliminate, or prevent
minority group isolation in the applicant's schools.

    The Department will determine on a case-by-case basis whether the
voluntary plans are adequate under Title VI of the Civil Rights Act of
1964 and whether the proposed magnet schools will reduce, eliminate or
prevent minority group isolation within the period of the grant award,
for the purposes of sections 280.2(b) and 280.20(g). This will include
an examination of the factual basis for any proposed increases in
minority enrollment at district schools rather than the use of the
absolute district-wide percentage limitation found in the current
regulations. For example, the Department may consider whether a plan to
reduce, eliminate or prevent minority group isolation at a magnet
school or at a feeder school would significantly increase minority
group isolation at any magnet or feeder school in the project at the
grade levels served by the magnet school. In cases in which a school
district is subject to a desegregation order that prohibits magnet or
feeder schools from exceeding the district-wide average of minority
group students, the district would, of course, continue to be bound by
that order.

Waiver of Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the
Department is generally required to publish a notice of proposed
rulemaking and provide the public with an opportunity to comment on
proposed regulations prior to establishing a final rule. However, we
are waiving the notice-and-comment rulemaking requirements under the
APA. Section 553(b) of the APA provides that an agency is not required
to conduct notice-and-comment rulemaking when the agency for good cause
finds that notice and public comment thereon are impracticable,
unnecessary, or contrary to the public interest. Although these
regulations are subject to the APA's notice-and-comment requirements,
the Secretary has determined that it would be contrary to the public
interest and impracticable to conduct notice-and-comment rulemaking.
    This determination is based on the need to provide school districts

[[Page 9779]]

flexibility in determining how to meet the MSAP's statutory
requirements (i.e., that magnet schools eliminate, reduce, or prevent
minority group isolation and that voluntary plans are adequate under
Title VI) while taking into account the Supreme Court's decision in
Parents Involved. It would be impracticable for the Department to
conduct notice-and-comment rulemaking and then promulgate final
regulations in time to make new awards for FY 2010 funding prior to
September 30, 2010, the date by which FY 2010 funds must be obligated
under the MSAP program. The application submission and review process
for this program normally takes seven to eight months, without any
rulemaking activity, and we anticipate that conducting notice-and-
comment rulemaking would require at least an additional four months.
More specifically, given the complexity of the application, LEAs need
60 days to submit their applications, which is the time that has been
provided in the past, and which, in our experience, is the minimum
amount of time LEAs need. The peer review of the applications will take
at least two months, if done on an expedited basis. And, the Department
will need significant additional time to review the most competitive
applications to determine, as required by the MSAP statute, whether
each applicant will meet its assurances of non-discrimination, and
whether each voluntary plan is adequate under Title VI of the Civil
Rights Act of 1964. Finally, we must allow time in September to
negotiate and award the grants. Given these time frames, even
expediting the application review process, we could not conduct both
notice-and-comment rulemaking and make awards before the end of the
fiscal year. Based upon these considerations, therefore, the Secretary
is issuing these interim final regulations without first publishing
proposed regulations for public comment.
    Although the Department is adopting these regulations on an interim
final basis, the Department requests public comment on these changes in
the MSAP regulations for future grant competitions. After consideration
of public comments, the Secretary will publish final regulations
applicable to the next grant competition.
    The APA also requires that a substantive rule be published at least
30 days before its effective date, except as otherwise provided for
good cause (5 U.S.C. 553(d)(3)). For the reasons outlined in the
preceding paragraphs, the Secretary has determined that a delayed
effective date for these interim final regulations is unnecessary and
contrary to the public interest, and that good cause exists to waive
the requirement for a delayed effective date.

Executive Order 12866

    Under Executive Order 12866, the Secretary must determine whether a
regulatory action is ``significant'' and therefore subject to the
requirements of the Executive order and subject to review by the Office
of Management and Budget (OMB). Section 3(f) of Executive Order 12866
defines a ``significant regulatory action'' as an action likely to
result in a rule that may (1) Have an annual effect on the economy of
$100 million or more, or adversely affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or Tribal governments or communities in a
material way (also referred to as an ``economically significant''
rule); (2) create serious inconsistency or otherwise interfere with an
action taken or planned by another agency; (3) materially alter the
budgetary impacts of entitlement grants, user fees, or local programs
or the rights and obligations of recipients thereof; or (4) raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive order. The
Secretary has determined that this regulatory action is significant
under section 3(f) of the Executive order.

Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action. The potential costs associated
with the regulations are those resulting from Supreme Court action and
those we have determined to be necessary for administering this program
effectively and efficiently. In assessing the potential costs and
benefits--both quantitative and qualitative--of this regulatory action,
we have determined that the benefits justify the costs.
    We have also determined that this regulatory action does not unduly
interfere with State, local, and Tribal governments in the exercise of
their governmental functions.

Summary of Potential Costs and Benefits

    Because the Secretary has chosen to regulate only to the extent
necessary to reflect changes required by the Supreme Court's decision
in Parents Involved, LEAs have considerable flexibility in implementing
the provisions of the MSAP. Consequently, the potential costs
associated with this regulatory action are minimal.
    Benefits of the regulations include providing LEAs greater latitude
in the design of projects, the removal of the restriction of using a
binary classification in the definition of minority group isolation,
and removing the district-wide average limitation in the MSAP
regulation.

Regulatory Flexibility Act Certification

    The Secretary certifies that these regulations will not have a
significant economic impact on a substantial number of small entities.
The small entities that are affected by these regulations are small
local educational agencies (LEAs) receiving Federal funds under this
program. However, the regulations will not have a significant economic
impact on the small LEAs affected because the regulations do not impose
excessive regulatory burdens or require unnecessary Federal
supervision. The regulations impose minimal requirements to ensure the
proper expenditure of program funds.

Paperwork Reduction Act of 1995

    These regulations do not require the collection of new information
subject to the Paperwork Reduction Act of 1995. The existing MSAP
student enrollment data forms approved under control number OMB-1855-
0011, require districts to report current and projected racial and
ethnic student enrollment data using the binary classifications of
minority and non-minority. In order to conform to the change in the
regulations removing the definition of minority group isolation, the
required data will now be reported in a different manner by applicants.
The forms have been changed to remove the requirement that applicants
report racial and ethnic data using the minority and non-minority
racial and ethnic classifications. Applicants will now be required to
report racial and ethnic data disaggregated by the racial and ethnic
categories used by the district for reporting such racial and ethnic
data to the Department for the 2009-2010 school year. Although the
Department has made changes to these student enrollment data forms, we
do not anticipate that these changes will alter the current burden
because the same racial and ethnic data will be collected by districts,
even though it will be reported in a different manner.
    In the October 2007 Guidance on Collecting, Maintaining and
Reporting Data by Race or Ethnicity (Guidance) (72 FR 59266 (Oct. 19,
2007), at http://www.ed.gov/legislation/FedRegister/other/2007-4/101907c.html, 
the Department established new requirements for the collection and

[[Page 9780]]

reporting of racial and ethnic data under the programs we administer.
The Department also announced that districts must begin reporting data
using the new collection procedures and aggregate reporting categories
no later than for data about the 2010-2011 school year. Under the
Guidance, for upcoming grant applications, which would include
applications for new MSAP funds, districts are permitted to report data
using the racial and ethnic categories used in their district for the
2009-2010 school year.
    This means that districts have two options for reporting the
required data in disaggregated categories in their MSAP applications.
    For districts that have already converted to the revised
categories, racial and ethnic student enrollment data should be
reported and projected using the revised forms that disaggregate
student enrollment data by race and ethnicity using the following
categories: Hispanic/Latino, American Indian or Alaska Native, Asian,
Black or African American, Native Hawaiian or Other Pacific Islander,
White, and Two-or More Races.
    For districts that have not already converted to the revised
categories, racial and ethnic student enrollment data should be
reported and projected using the revised forms that disaggregate
student enrollment data by race and ethnicity using the following
categories: American Indian or Alaskan Native, Asian or Pacific
Islander, Black (Not of Hispanic Origin), Hispanic, and White.
    Two versions of the forms will be included in the application
package.

Intergovernmental Review

    This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
    This document provides early notification of our specific plans and
actions for this program.

Assessment of Educational Impact

    In accordance with section 411 of the General Education Provisions
Act, 20 U.S.C. 1221e-4, we have determined that these regulations do
not require transmission of information that any other agency or
authority of the United States gathers or makes available.

Electronic Access to This Document

    You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available
free at this site.
    You may also view this document in text or PDF at the following
site:  http://www.ed.gov/programs/magnet/applicant.html.

    Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: 
http://www.access.gpo.gov/nara/index.html.


(Catalog of Federal Domestic Assistance Number 84.165A Magnet
Schools Assistance Program)

List of Subjects in 34 CFR Part 280

    Elementary and secondary education, Equal educational opportunity,
Grant programs--education, Reporting and recordkeeping requirements.

    Dated: February 25, 2010.
James H. Shelton, III,
Assistant Deputy Secretary for Innovation and Improvement.

0
For the reasons discussed in the preamble, the Secretary amends part
280 of title 34 of the Code of Federal Regulations as follows:

PART 280--MAGNET SCHOOLS ASSISTANCE PROGRAM

0
1. The authority citation for part 280 continues to read as follows:

    Authority: 20 U.S.C. 7231-7231j, unless otherwise indicated.


Sec.  280.2  [Amended]

0
2. Section 280.2 is amended by revising paragraph (b) to read as
follows:


Sec.  280.2  Who is eligible to apply for a grant?

* * * * *
    (b) The Secretary approves a voluntary plan under paragraph (a)(2)
of this section only if he determines that for each magnet school for
which funding is sought, the magnet school will reduce, eliminate, or
prevent minority group isolation within the period of the grant award,
either in the magnet school or in a feeder school, as appropriate.
* * * * *


Sec.  280.4  [Amended]

0
3. Section 280.4 is amended by removing the definition of minority
group isolation in paragraph (b).

0
4. Section 280.20(g) is revised to read as follows:


Sec.  280.20  How does one apply for a grant?

* * * * *
    (g) An applicant that does not have an approved desegregation plan,
and demonstrates that it cannot provide some portion of the information
requested under paragraphs (f)(4) and (5) of this section, may provide
other information (in lieu of that portion of the information not
provided in response to paragraphs (f)(4) and (5) of this section) to
demonstrate that the creation or operation of its proposed magnet
school would reduce, eliminate, or prevent minority group isolation in
the applicant's schools.
* * * * *

[FR Doc. 2010-4415 Filed 3-3-10; 8:45 am]
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