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[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.

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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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