[Federal Register Volume 71, Number 151 (Monday, August 7, 2006)]
[Notices]
[Pages 44866-44871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6695]



[[Page 44865]]

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Part V





Department of Education





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Proposed Guidance on Maintaining, Collecting and Reporting Data on Race 
and Ethnicity to the U.S. Department of Education; Notice

Federal Register / Vol. 71 , No. 151 / Monday, August 7, 2006 / 
Notices

[[Page 44866]]


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DEPARTMENT OF EDUCATION


Proposed Guidance on Maintaining, Collecting and Reporting Data 
on Race and Ethnicity to the U.S. Department of Education

AGENCY: Department of Education.

ACTION: Request for comments.

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SUMMARY: The Secretary is proposing guidance to modify the standards 
for data on race and ethnicity used by the Department of Education. 
Once adopted, this guidance will provide educational institutions and 
other recipients of grants and contracts from the Department with 
straightforward instructions for their collection and reporting of data 
on race and ethnicity.
    We request from all interested parties written comments on the 
proposed guidance.

DATES: We must receive your comments on or before September 21, 2006.

ADDRESSES: Address all comments regarding this proposed guidance to 
Patrick J. Sherrill, US Department of Education, 400 Maryland Avenue, 
SW., Room 6C103, Washington, DC 20202-0600. If you prefer to send your 
comments through the Internet, you may address them to us at the U.S. 
Government Web site: http://www.regulations.gov.
    Or you may send your Internet comments to us at the following 
address: <a href="/cdn-cgi/l/email-protection#8ae9e5e7e7efe4fef9caefeea4ede5fc"><span class="__cf_email__" data-cfemail="86e5e9ebebe3e8f2f5c6e3e2a8e1e9f0">[email protected]</span></a>.
    You must include the phrase ``Guidance for Data on Race and 
Ethnicity'' in the text of your paper document or the subject line of 
your electronic message to ensure that your comments will be 
considered.

FOR FURTHER INFORMATION CONTACT: For general information: Patrick J. 
Sherrill, US Department of Education, 400 Maryland Avenue, SW., Room 
6C103, Washington, DC 20202-0600, telephone: (202) 708-8196 or Edith K. 
McArthur, US Department of Education, National Center for Education 
Statistics, 1990 K Street, NW., Room 9115, Washington, DC 20006, 
telephone: (202) 502-7393.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to one of the contact persons listed under FOR 
FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding this proposed guidance. 
During and after the comment period, you may inspect all public 
comments about this proposed guidance in Room 6C103, 400 Maryland 
Avenue, SW., Washington, DC, 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 Public 
Record

    On request, we will supply an appropriate aid to an individual with 
a disability who needs assistance to review the comments or other 
documents in the public record for the proposed guidance. If you want 
to schedule an appointment for this type of aid, please contact one of 
the persons listed under FOR FURTHER INFORMATION CONTACT.

Proposed Guidance

I. Purpose

    This proposed guidance is provided to the public to solicit 
comments on how the US Department of Education (the Department) is 
proposing to modify standards and aggregation categories for collecting 
information on race and ethnicity. The proposed changes are necessary 
in order to implement the Office of Management and Budget's (OMB) 1997 
Standards for Maintaining, Collecting, and Presenting Federal Data on 
Race and Ethnicity (1997 Standards).\1\ The 1997 Standards instituted a 
number of changes for how Federal agencies should collect data on race 
and ethnicity.
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    \1\ See OMB, Revisions to the Standards for the Classification 
of Federal Data on Race and Ethnicity, 62 FR 58781 (October 30, 
1997); http://www.whitehouse.gov/omb/fedreg/1997standards.html.
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    This proposed guidance is designed to be straightforward and easy 
to implement. Whenever possible, we have proposed a Department-wide 
standard. However, in certain situations, we have tailored the standard 
to the different needs of the institutions collecting data.\2\ The 
Department recognizes that implementing the changes required by OMB to 
improve the quality of data on race and ethnicity may result in an 
additional burden to educational institutions. In developing this 
proposed guidance, we have sought to minimize the burden of 
implementation on local and State educational agencies (LEAs and SEAs), 
schools, colleges, universities, (hereinafter collectively referred to 
as ``educational institutions''), and other recipients of grants and 
contracts from the Department (hereinafter referred to as ``other 
recipients''), while developing guidance that would result in the 
collection of comprehensive and accurate data on race and ethnicity 
that the Department needs to fulfill its responsibilities. We have done 
so by using the same reporting categories used by the Equal Employment 
Opportunity Commission (EEOC), so that local educational agencies can 
use the same reporting requirements for students and staff.
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    \2\ For example, for the purposes of No Child Left Behind, 
States are allowed to define major racial and ethnic groups using 
categories that may be different than the seven categories announced 
in this guidance. These differences may reflect the State using more 
categories than the seven, less categories than the seven, or a 
decision to use subsets of the seven categories announced in this 
guidance. Additionally, in the Integrated Postsecondary Education 
Data Systems (IPEDS) and Rehabilitation Services Administration 
(RSA) data collections, grantees are permitted to use a race unknown 
category, while in elementary and secondary programs use of a race 
unknown category is not permitted.
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    This proposed guidance applies to the collection of individual-
level data and to aggregate data on race and ethnicity reported to the 
Department. Aggregate data mean the total data on race and ethnicity 
that are reported to the Department by educational institutions and 
other recipients. The data are collected by them and reported in the 
aggregate to the Department. This proposed guidance directly addresses 
three sets of issues:
    (A) How educational institutions and other recipients will collect 
and maintain data on race and ethnicity from students and staff;
    (B) How educational institutions and other recipients will 
aggregate data on race and ethnicity when reporting those data to the 
Department; and
    (C) How data on multiple races will be reported and aggregated 
under the Elementary and Secondary Education Act of 1965 (ESEA), as 
reauthorized by the No Child Left Behind Act of 2001 (NCLB).
    In addition, this proposed guidance provides information regarding 
the implementation schedule for these changes.

II. Background

    In October 1997, OMB issued revised standards for the collection 
and reporting of data on race and ethnicity. A transition period was 
provided in order for agencies to review the results of Census 2000, 
the first national data collection that implemented the revised 
standards. (See the discussion in Part

[[Page 44867]]

IV.) The Department plans to begin the process of implementing all 
necessary changes by the school year beginning in the Fall of 2006, 
with the implementation required to be completed by the Fall of 
2009.\3\
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    \3\ Although not required to do so, educational institutions and 
other recipients already collecting individual-level data in the 
manner specified by this notice are encouraged to immediately begin 
reporting aggregate data to the Department in accordance with this 
notice.
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    The 1997 Standards include several important changes:
    A. OMB revised the minimum set of racial categories by separating 
the category ``Asian or Pacific Islander'' into two separate 
categories--one for ``Asian'' and one for ``Native Hawaiian or Other 
Pacific Islander.'' Therefore, under the 1997 Standards, there are five 
racial categories:
    (1) American Indian or Alaska Native,
    (2) Asian,
    (3) Black or African American,
    (4) Native Hawaiian or Other Pacific Islander, and
    (5) White.
    B. For the first time, individuals have the opportunity to identify 
themselves as being of or belonging to more than one race. In the 2000 
Census, 2.4 percent of the total population (or 6.8 million people) 
identified themselves as belonging to two or more racial groups. For 
the population under 18 years old, 4.0 percent (or 2.8 million 
children) selected two or more races.\4\
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    \4\ See United States Census Bureau, The Two or More Races 
Population: 2000, Census 2000 Brief, at p. 9 (November 2001) 
(hereinafter ``The Two or More Races Population''); this information 
is on the Internet at the following address: http://www.census.gov/prod/2001pubs/c2kbr01-6.pdf.
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    C. In an effort to allow individuals--rather than a third party--to 
report their race and ethnicity, the 1997 Standards strongly encourage 
``self-identification'' of race and ethnicity rather than third party 
``observer identification.''
    D. Under the 1997 Standards, OMB strongly encouraged the use of a 
two-question format when collecting data on race and ethnicity; i.e., 
individuals should first indicate whether or not they are of Hispanic/
Latino ethnicity; then, individuals may select one or more races from 
the five racial categories.

III. Summary of Guidance

    The Department proposes to modify its standards for the collection 
and reporting of data on race and ethnicity in the following manner:
    A. Educational institutions and other recipients will be required 
to collect data on race and ethnicity using a two-question format on 
the educational institution's or other recipient's survey instrument. 
The first question would be whether or not the respondent is Hispanic/
Latino. Hispanic or Latino means a person of Cuban, Mexican, Puerto 
Rican, South or Central American, or other Spanish culture or origin, 
regardless of race. The term, ``Spanish origin,'' can be used in 
addition to ``Hispanic or Latino.''
    The second question would ask the respondent to select one or more 
races from the following five racial groups:
    (1) American Indian or Alaska Native. A person having origins in 
any of the original peoples of North and South America (including 
Central America), and who maintains a tribal affiliation or community 
attachment.
    (2) Asian. A person having origins in any of the original peoples 
of the Far East, Southeast Asia, or the Indian subcontinent including, 
for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, 
the Philippine Islands, Thailand, and Vietnam.
    (3) Black or African American. A person having origins in any of 
the black racial groups of Africa.
    (4) Native Hawaiian or Other Pacific Islander. A person having 
origins in any of the original peoples of Hawaii, Guam, Samoa, or other 
Pacific Islands.
    (5) White. A person having origins in any of the original peoples 
of Europe, the Middle East, or North Africa. See 1997 Standards, 62 FR 
58789 (October 30, 1997).
    (See the discussion in Part IV.A.1 and 2 of this notice.)
    B. Educational institutions and other recipients should allow 
students, parents, and staff to ``self-identify'' race and ethnicity 
unless self-identification is not practicable or feasible. (See the 
discussion in Part IV.A.3 of this notice.)
    C. The Department encourages educational institutions and other 
recipients to allow all students and staff the opportunity to re-
identify their race and ethnicity under the 1997 Standards. (See the 
discussion in Part IV.A.4 of this notice.)
    D. The Department proposes to have educational institutions and 
other recipients report aggregated data on race and ethnicity in 7 
categories:
    (1) Hispanics of any race; and, for Non-Hispanics only,
    (2) American Indian or Alaska Native,
    (3) Asian,
    (4) Black or African American,
    (5) Native Hawaiian or Other Pacific Islander,
    (6) White, and
    (7) Two or more races. (See the discussion in Part IV.B.1 of this 
notice.)
    E. The Department proposes to continue its current practice for 
handling the reporting of individuals who do not self-identify a race 
and/or an ethnicity. Elementary and secondary educational institutions 
will continue to use observer identification when a respondent refuses 
to self-identify his or her race and/or ethnicity. The Department would 
not include a ``race and/or ethnicity unknown'' category in its 
aggregate elementary and secondary collections of data on race and 
ethnicity. The Integrated Postsecondary Education Data System (IPEDS) 
would continue to use the category of ``nonresident alien'' as an 
alternative to collecting race/ethnicity from nonresident aliens 
(information that is not needed for civil rights reporting purposes). 
IPEDS would also continue to include a ``race and/or ethnicity 
unknown'' category for reporting aggregate data from postsecondary 
institutions. Similarly, RSA will continue to use a ``race and/or 
ethnicity unknown'' category for reporting aggregate data. The ``race 
and/or ethnicity unknown'' category would not appear on forms provided 
to postsecondary students and staff or to clients and staff of RSA 
recipients. (See the discussion in Part IV.B.2 of this notice.)
    F. When the Department asks educational institutions and other 
recipients to report data on race and ethnicity, the Department 
indicates in the instructions to the collection how long educational 
institutions and other recipients are required to keep the original 
individual responses from staff and students to requests for data on 
race and ethnicity. In addition, at a minimum, generally, a Department 
grantee or sub-grantee must retain for three years all financial and 
programmatic records, supporting documents, statistical records, and 
other records that are required to be maintained by the grant agreement 
or the Department regulations applicable to the grant or that are 
otherwise reasonably considered as pertinent under the grant or 
Department regulations. One exception is when there is litigation, a 
claim, an audit, or another action involving the records that has 
started before the three-year period ends; in these cases the records 
must be maintained until the completion of the action. (See the 
discussion in Part IV.A.5 of this notice.)
    G. States will continue to have discretion in determining which 
racial and ethnic groups will be used for accountability and reporting 
purposes under the ESEA. (See the discussion in Part IV.C of this 
notice.)
    H. Educational institutions and other recipients will be required 
to implement this guidance, once issued in final, no later than by the 
Fall of 2009 with data regarding the 2009-2010 school year,

[[Page 44868]]

and are encouraged to do so before, if feasible. (See the discussion in 
Part VI. of this notice.)

IV. The Department's Proposed Implementation of OMB's 1997 Standards 
for Maintaining, Collecting, and Presenting Federal Data on Race and 
Ethnicity

    The Department has been carefully examining its options for 
implementing the 1997 Standards for some time. Department staff have 
met or spoken with a variety of individuals and organizations 
representing educational institutions to ascertain their needs and 
interests. The Department has consistently heard that major revisions 
to the collection of data on race and ethnicity will impose a 
substantial burden on educational institutions and other recipients as 
they adopt new data systems or modify existing systems, prepare new 
forms, and train staff at all levels to implement these changes. 
Furthermore, the Department's implementation plan must be effective for 
the Department's diverse uses for data on race and ethnicity, such as 
research and statistical analysis, measuring accountability and student 
achievement, civil rights enforcement, and monitoring of the 
identification and placement of students in special education.
    Finally, the Department repeatedly has heard from educational 
institutions that they would prefer that the various Federal agencies 
involved in data collection all use the same aggregate categories so 
that the burden of implementing changes is minimized and educational 
institutions are not forced to provide different and/or inconsistent 
data on race and ethnicity to Federal agencies. In response to these 
repeated requests, the Department decided to wait to propose its 
implementation plan until after the EEOC announced its final 
implementation plan, which was published in November 2005, because the 
EEOC collects data on race and ethnicity for staff in elementary and 
secondary schools and districts.\5\
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    \5\ See EEOC, Agency Information Collection Activities: Notice 
of Submission for OMB Review; Final Comment Request (EEO-1), 70 FR 
71294--71303 (November 28, 2005) (hereinafter ``EEOC Notice''); this 
notice is on the Internet at the following address: http://www.eeoc.gov/eeo1/ See also EEOC, Agency Information Collection 
Activities: Revision of the Employer Information Report (EEO-1) 
Comment Request, 68 FR 34965, 34967 (June 11, 2003).
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    A. How Educational Institutions and Other Recipients Will Be 
Required to Collect Data on Race and Ethnicity from Students and Staff. 
This portion of the proposed guidance, Part A, presents a proposal for 
how educational institutions and other recipients will collect data on 
race and ethnicity; Part B, which follows, proposes how data on race 
and ethnicity will be reported to the Department.
    1. Educational Institutions and Other Recipients Will be Required 
to Allow Students and Staff To Select One or More Races from Five 
Racial Groups. Educational institutions and other recipients will be 
required to allow students and staff to select one or more races from 
the following five racial groups:
    (1) American Indian or Alaska Native;
    (2) Asian;
    (3) Black or African American;
    (4) Native Hawaiian or other Pacific Islander; and
    (5) White.
    This is the minimum number of categories that educational 
institutions and other recipients will be required to use for purposes 
other than NCLB reporting. Any additional categories that educational 
institutions and other recipients choose to use to collect information 
must be subcategories of these categories (such as Japanese, Chinese, 
Korean, and Pakistani--subcategories of Asian). Students and staff 
would then be able to select one or more of these subcategories.
    2. Educational Institutions and Other Recipients Will be Required 
to Use a Two-Question Format When Collecting Data on Race and Ethnicity 
Whenever Feasible. Educational institutions and other recipients will 
be required to collect data on race and ethnicity using a two-question 
format, except as provided in the following paragraph. Using the two-
question format, the first question asks whether or not the respondent 
is Hispanic/Latino. The second question allows individuals to select 
one or more races from the five racial groups listed in paragraph 1 of 
this part, and Hispanic/Latino is NOT included in the list of racial 
categories. A two-question format provides flexibility and ensures data 
quality. In particular, a two-question format typically results in more 
complete reporting of Hispanic ethnicity; however, the most frequent 
cases of an individual not reporting a race occur for individuals who 
identify themselves as Hispanic/Latino. Therefore, educational 
institutions and other recipients should include instructions that 
encourage students and staff to answer both questions.
    A combined one-question format in which Hispanic ethnicity is 
included in the list of options with the racial categories may be used 
if necessary for observer-collected data on race and ethnicity. (See 
the discussion in Part IV.A.3 of this notice on using self-
identification of the race and ethnicity of respondents.)
    3. Educational Institutions and Other Recipients Should Allow 
Students and Staff to Self-Identify Their Race and Ethnicity Unless 
Self-Identification Is Not Practicable or Feasible. Educational 
institutions and other recipients should allow students and staff to 
self-identify their race and ethnicity unless self-identification is 
not practicable or feasible. If a student or staff member does not 
provide his or her race and ethnicity, educational institutions and 
other recipients should ensure that the respondent is refusing to self-
identify rather than simply overlooking the question. If the 
educational institution or other recipient has provided adequate 
opportunity for the respondent to self-identify and he or she still 
leaves the items blank or refuses to complete them, observer 
identification may be used.
    Educational institutions and other recipients also may allow 
parents to identify the race and ethnicity of their child when the 
educational institution or other recipient believes that this is 
appropriate, such as when a child is too young to self-identify.
    4. The Department Encourages Educational Institutions and Other 
Recipients To Allow All Current Students and Staff to Re-Identify Their 
Race and Ethnicity Using the 1997 Standards. Students are typically 
asked their race and ethnicity upon entrance or application to an 
educational institution. Staff members typically provide this 
information upon employment or application for employment. The 
Department encourages educational institutions and other recipients to 
allow all students and staff, and other individuals that data is 
collected from the opportunity to re-identify their race and ethnicity 
under the 1997 Standards.\6\ Re-identification will provide all 
students, staff and other individuals the opportunity to select more 
than one race and to report both their ethnicity and their race 
separately, and will allow all individuals who previously identified 
themselves as within the Asian or Pacific Islander category the 
opportunity to select either ``Asian'' or

[[Page 44869]]

``Native Hawaiian or Other Pacific Islander,'' thereby conforming all 
racial and ethnic information to the 1997 Standards. If all individuals 
are not provided the opportunity to identify their race and ethnicity 
in a manner that is consistent with the 1997 Standards, data within 
schools, districts, and States will not accurately reflect the 
diversity of the population; and data on those who were permitted to 
identify their race and ethnicity under the 1997 Standards will not be 
easily comparable with data on those who were not permitted to identify 
their race and ethnicity under the 1997 Standards.
    The Department's proposal does not mandate re-identification 
because we recognize the considerable one-time cost that re-
identification would entail. Also, the 1997 Standards do not require 
existing records to be updated. However, the Department's proposal 
reflects our expectation that most educational institutions and other 
recipients will provide all respondents the opportunity to re-identify 
their race and ethnicity under the 1997 Standards.
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    \6\ This recommendation is consistent with the recommendations 
of the Education Information Advisory Committee of the Chief State 
School Officers and the Policy Panel on Racial/Ethnic Data 
Collection, a panel sponsored by the National Postsecondary 
Education Cooperative, of the National Center for Educational 
Statistics and the National Science Foundation in April 1999. Both 
have recommended that all respondents be permitted to identify their 
race and ethnicity under the 1997 Standards.
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    The proposal requires educational institutions and other recipients 
to provide students and staff who enter an educational institution or 
other recipient program on or after the implementation deadline the 
opportunity to identify their race and ethnicity in a manner that is 
consistent with this proposed Department guidance. Thus, those 
educational institutions and other recipients that do not conduct a re-
identification will transition to the new standard over time as new 
staff and students enter.
    5. Maintaining the Original Responses from Staff and Students to 
Requests for Data on Race and Ethnicity. When the Department requests 
data on race and ethnicity from educational institutions and other 
recipients, the Department indicates in the instructions to the 
collection how long each office asks, or requires, educational 
institutions to keep the original individual responses to the request.
    At a minimum, under 34 CFR 74.53 and 80.42, generally, a Department 
grantee or sub-grantee must retain for three years all financial and 
programmatic records, supporting documents, statistical records, and 
other records that are required to be maintained by the grant agreement 
or the Department regulations applicable to the grant or that are 
otherwise reasonably considered as pertinent to the grant agreement or 
Department regulations and these would include records on race and or 
ethnicity data and the individual responses. One exception is when 
there is litigation, a claim, an audit, or another action involving the 
records that has started before the three-year period ends; in these 
cases the records must be maintained until the completion of the 
action.
    If additional information on the race or ethnicity of a respondent 
is needed for the Department to perform its functions fully and 
effectively, the Department will request this information from 
educational institutions and other recipients, such as when the Office 
for Civil Rights (OCR) requests information to investigate a complaint 
or undertake a compliance review under 20 U.S.C. 3413(c)(1) and 34 CFR 
100.6(b).
    B. The Aggregate Categories Educational Institutions and Other 
Recipients Will be Required to Use to Report Data on Race and Ethnicity 
to the Department and How to Handle Missing Data. In contrast to the 
discussion in Part IV.A of this notice, which addressed how educational 
institutions and other recipients will collect data on race and 
ethnicity, this section will examine how educational institutions and 
other recipients will report these data on race and ethnicity to the 
Department.
    1. The Aggregate Categories Educational Institutions and Other 
Recipients Will be Required to Use to Report Data on Race and Ethnicity 
to the Department. The Department proposes to have educational 
institutions and other recipients report aggregated data on race and 
ethnicity in the following 7 categories:
    (1) Hispanics of any race; and, for Non-Hispanics only,
    (2) American Indian or Alaska Native,
    (3) Asian,
    (4) Black or African American,
    (5) Native Hawaiian or Other Pacific Islander,
    (6) White, and
    (7) Two or more races.
    The definitions in the 1997 Standards will be used for each 
category. (See the discussion in Part III.A of this notice.)
    The Department proposes to have reports use these 7 aggregate 
categories for several reasons. Reporting these 7 aggregate categories 
allows data on race and ethnicity to achieve an appropriate balance 
that reflects the growing diversity of our Nation while minimizing the 
implementation and reporting burden placed on educational institutions 
and other recipients. The growing diversity is illustrated by the fact 
that in the 2000 Census, children and youth reported being of more than 
one race at a substantial rate--more than twice the rate of adults.\7\
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    \7\ For individuals 18 and over, 1.9 percent (3,969,342 in the 
2000 Census) of individuals reported more than one race; while 4 
percent (2,856,886) of individuals under 18 reported more than one 
race.See The Two or More Races Population.
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    Finally, the proposed approach provides for reporting the race and 
ethnicity of individuals in a manner that permits effective analysis of 
data by agencies that are responsible for civil rights monitoring and 
enforcement. In those instances in which more detailed information is 
needed by civil rights monitoring and enforcement agencies or other 
offices in the Department about individuals in the ``two or more 
races'' category, educational institutions and other recipients will be 
contacted directly for more detailed information about the individuals.
    The Department's proposed aggregate reporting categories do not 
separately identify the race of Hispanics. The Department's proposal 
reflects its assessment that the inclusion of Hispanics of any race in 
one category is appropriate in light of both the implementation burden 
and cost that these changes will place on educational institutions and 
other recipients and the Department's need to adopt an approach that 
provides the Department sufficient information to fulfill its various 
functions. If the Department required the reporting of the same racial 
categories for Hispanics as non-Hispanics, 6 additional aggregate 
categories would be reported to the Department.
    The cost and burden of these 6 additional cells would be 
substantial because each racial and ethnic category is often cross 
tabulated with other relevant information, such as the individual's 
sex, disability category, or educational placement, thereby multiplying 
the number of categories in which information must be reported. The 
Department has determined that it can effectively fulfill its 
responsibilities that involve information on race and ethnicity if 
Hispanics of any race are reported in one category. The Department 
notes that its proposal not to separately aggregate Hispanics by race 
is consistent with the final implementation plan of the EEOC.
    Finally, the Department's reporting requirement for data on 
Hispanics in one category is different from the Department's collection 
requirements discussed in Part IV.5 of this notice, which require 
educational institutions and other recipients to maintain information 
on the racial identification of Hispanics. As discussed above, the

[[Page 44870]]

Department will require educational institutions and other recipients 
to keep the original individual responses from staff and students to 
requests for data on race and ethnicity for the length of time 
indicated in the instructions to the collection. If the Department 
determines that additional information will be needed to perform its 
functions effectively in a specific instance, the Department will 
request this additional information from educational institutions and 
other recipients.
    The EEOC published a notice in November 2005 that provided for the 
use of 7 categories to collect data on race and ethnicity from private 
employers. These 7 categories are:
    (1) Hispanics of any race; and, for non-Hispanics,
    (2) American Indian or Alaska Native,
    (3) Asian,
    (4) Black or African American,
    (5) Native Hawaiian or Other Pacific Islander,
    (6) White, and
    (7) Two or more races.
    It is the Department's understanding that EEOC intends to use these 
7 categories to collect data on race and ethnicity from LEAs on their 
employees. The adoption of 7 categories for the Department collections 
would mean that the Department and EEOC would collect the same 
categories of data on race and ethnicity from LEAs.
    2. Reporting on Individuals Who Do Not Self-Identify a Race or 
Ethnicity. Some individuals will refuse to self-identify their race 
and/or their ethnicity. The Department currently has a different 
approach for how educational institutions and other recipients may 
handle such respondents at the elementary and secondary level as 
compared with the postsecondary level and with adults served under the 
RSA programs. Currently elementary and secondary institutions must use 
observer identification if a student (or his or her parents) does not 
self-identify a race, and postsecondary institutions also may use 
observer identification. In addition, since 1990, postsecondary 
institutions have been permitted to report aggregate information on 
students or staff members who do not identify a race for the IPEDS in a 
``race unknown'' category. Similarly, RSA recipients have been 
permitted to report aggregate information on its clients and staff 
using a ``race unknown'' category when clients or staff do not identify 
a race.
    The Department proposes to continue its current practice for 
handling missing data.\8\ Elementary and secondary institutions and 
other recipients would continue to use observer identification when a 
respondent leaves blank or refuses to self-identify his or her race 
and/or ethnicity. The Department would not include a ``race and/or 
ethnicity unknown'' category in its aggregate elementary and secondary 
collections of data on race and ethnicity. IPEDS would continue to 
include a ``race and/or ethnicity unknown'' category for reporting 
aggregate data from postsecondary institutions. Similarly, the RSA will 
continue to use a ``race and/or ethnicity unknown'' category for 
reporting aggregate data. The ``race and/or ethnicity unknown'' 
category would not appear on forms provided to postsecondary students 
and staff or RSA recipients' clients and staff.
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    \8\ The Department proposes to continue to include a ``race 
unknown'' category in IPEDS because the experience of the National 
Center for Education Statistics has shown that (1) a substantial 
number of college students have refused to identify a race and (2) 
there is often not a convenient mechanism for college administrators 
to use observer identification. RSA grantees have had similar 
experiences.
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    C. Multiple Race Responses under the No Child Left Behind Act of 
2001. The creation of a multiple race aggregation category implicates 
several requirements under the ESEA as reauthorized by NCLB regarding 
race and ethnicity. First, States, districts, and schools are held 
accountable for making adequate yearly progress (AYP) based, among 
other factors, on the proficiency in reading/language arts and 
mathematics of major racial and ethnic groups of students.\9\ Neither 
ESEA nor the ESEA regulations define what is a ``major'' racial and/or 
ethnic group. States have this responsibility and the Department checks 
to ensure that States carry out that responsibility.
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    \9\ 20 U.S.C. 6311(b)(2)(B) and 6311(b)(2)(C)(v)(I)(bb); (34 CFR 
200.13).
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    Second, each State and school district that receives ESEA Title I 
funds must issue a report card that includes information on student 
achievement at each proficiency level on the State assessment, 
disaggregated by race and ethnicity, among other factors, at the State, 
district, and school levels.\10\ The same racial and ethnic groups that 
are examined to determine AYP are typically the groups examined in 
State report cards.\11\
---------------------------------------------------------------------------

    \10\ 20 U.S.C. 6311(h)(1) and (2).
    \11\ 20 U.S.C. 6311(h)(1)(C)(i).
---------------------------------------------------------------------------

    Finally, the creation of a ``two or more races'' group will affect 
two provisions that require comparisons to prior years' data. State 
report cards must report the most recent two-year trend in student 
achievement by racial and ethnic group.\12\ In addition, to take 
advantage of the ``safe harbor'' method of making AYP (where a school 
can make AYP by decreasing the percent of students who are not 
proficient on statewide assessments by 10%), a State must compare a 
group's current assessment data to the prior year's data, and must 
examine the group's performance on the State's additional indicator, 
including its graduation rate.\13\
---------------------------------------------------------------------------

    \12\ 20 U.S.C. 6311(h)(1)(C)(iv).
    \13\ 20 U.S.C. 6311(b)(2)(I)(i); (34 CFR 200.20(b)).
---------------------------------------------------------------------------

    States will continue to have discretion in determining what racial 
and ethnic groups will be deemed ``major'' for purposes of fulfilling 
these ESEA requirements. The States vary substantially in the number 
and distribution of multiple race individuals and are in the best 
position to decide how these requirements should be applied to their 
populations. States implementing this new guidance will not necessarily 
be changing the race and ethnicity categories used for AYP purposes. If 
a State makes changes to the racial and ethnic categories it will use 
under the ESEA, the State must submit an amendment to its Title I 
accountability plan to the Department.
    D. Bridging Data to Prior Years' Data.
    States, educational institutions and other recipients also may 
propose to ``bridge'' the ``two or more races'' category into single 
race categories or the new single race categories into the previous 
single race categories. Bridging involves adopting a method for being 
able to link the new data collected using the two-part question with 
data collected before the publication of this guidance by the 
Department. If States, educational institutions and other recipients do 
bridge data, the bridging method should be documented and available for 
the Department to review, if necessary.
    One method is to redistribute the new data collected under this 
guidance using the new racial categories and relate them back to the 
racial categories used before the publication of this guidance. For 
example, if a State's new data collection results in 200 students 
falling in the ``two or more races'' category at the same time that 
there is a combined drop in the number in the two single race 
categories of Black or African American students and White students, 
the State can adopt a method to link the 200 students in the ``two or 
more races'' category to the previously used Black and White 
categories.
    Another method is assigning a proportion of the ``two or more 
races'' respondents into the new five single-race categories. If 
educational institutions or other recipients choose to bridge, they may 
use one of several bridging techniques. For example, they

[[Page 44871]]

may select one of the bridging techniques in OMB's Provisional Guidance 
on the Implementation of the 1997 Standards for Federal Data on Race 
and Ethnicity.\14\ Educational institutions and other recipients also 
may choose to use the allocation rules developed by OMB in its Guidance 
on Aggregation and Allocation of Data on Race for Use in Civil Rights 
Monitoring and Enforcement.\15\ If a bridging technique is adopted, the 
same bridging technique must be used when reporting data throughout the 
educational institution or other recipient. For example, the same 
bridging technique should be used by the entire State for the purposes 
of NCLB.
---------------------------------------------------------------------------

    \14\ See OMB, Provisional Guidance on the Implementation of the 
1997 Standards for Federal Data on Race and Ethnicity, December 15, 
2000; http://www.whitehouse.gov/omb/inforeg/statpolicy.html#dr 
(Appendix C).
    \15\ For civil rights monitoring and enforcement purposes, OMB 
issued guidance in March 2000 on how Federal agencies can allocate 
multiple race responses to a single race response category. Multiple 
race responses that combine one minority race and white, for 
example, are to be allocated to the minority race. OMB, Bulletin 00-
02, Guidance on Aggregation and Allocation of Data on Race for Use 
in Civil Rights Monitoring and Enforcement, (March 9, 2000); http://www.whitehouse.gov/omb/bulletins/b00-02.html (OMB 2000 Guidance).
---------------------------------------------------------------------------

V. OMB Guidance on Aggregation and Allocation of Multiple Race 
Responses for Use in Civil Rights Monitoring and Enforcement

    OMB issued guidance in March 2000, for how Federal agencies will 
aggregate and allocate multiple race data for civil rights monitoring 
and enforcement.\16\ The guidance was issued to ensure that as the 1997 
Standards are implemented, Federal agencies maintain their ``ability to 
monitor compliance with laws that offer protections for those who 
historically have experienced discrimination.'' Furthermore, OMB sought 
to ensure consistency across Federal agencies and to minimize the 
reporting burden for institutions such as businesses and schools that 
report aggregate data on race and ethnicity to Federal agencies.
---------------------------------------------------------------------------

    \16\ OMB 2000 Guidance.
---------------------------------------------------------------------------

    This OMB guidance encourages Federal agencies to collect aggregated 
information on a given population using the five single race categories 
and the four most common double race combinations. These four double 
race combinations are: (1) American Indian or Alaska Native and White, 
(2) Asian and White, (3) Black or African American and White, and (4) 
American Indian or Alaska Native and Black or African American. In 
addition to these categories, the March 2000 OMB guidance also 
encourages the aggregation of data on any multiple race combinations 
that comprise more than one percent of the population of interest to 
the Federal agency. The Bulletin also encourages the reporting of all 
remaining multiple race data by including a ``balance'' category so 
that all data sum to 100 percent.
    The OMB guidance also addresses how Federal agencies, including the 
Department, should allocate multiple race responses for the purpose of 
assessing and taking action to ensure civil rights compliance. The 
Department believes that requiring educational institutions and other 
recipients to report these four most common double race reporting 
combinations or information on multiple race individuals who represent 
more than one percent of the population on a state-by-state basis or 
other geographical basis would impose a substantial burden on 
educational institutions and other recipients without a corresponding 
benefit for recurring, aggregate data collections. However, in order to 
ensure that the Department has access to this information when needed 
for civil rights enforcement and other program purposes, the Department 
proposes to require educational institutions and other recipients to 
keep the original individual responses for data on race and ethnicity. 
This approach will provide the Department with access to this important 
information when needed. (See discussion in Part IV.A.5. of this 
notice.)

VI. The Implementation Schedule

    Educational institutions and other recipients have consistently 
informed the Department that they will need three years from the time 
that the Department provided them final guidance to implement the new 
race and ethnicity standards.
    Educational institutions and other recipients will be required to 
implement this guidance, once issued in final, by the Fall of 2009. 
Although not required to do so, educational institutions and other 
recipients already collecting individual-level data in the manner 
specified by this notice are encouraged to immediately begin reporting 
aggregate data to the Department in accordance with this notice.
    Many educational institutions and other recipients have already 
taken significant steps to develop and implement new data systems for 
collecting, aggregating, and reporting data on race and ethnicity. 
Since the mid-1990s and certainly subsequent to the October 30, 1997, 
issuance of the 1997 Standards, the Department has been meeting with 
educational agencies and organizations regarding the need for changes 
to the collection of data on race and ethnicity to be consistent with 
the 1997 Standards. The opportunity for students and parents on their 
behalf to report their multiple race identity is vitally important. 
Multiple race children and their families were one of the primary 
impetuses for initiating the review of and modifying the standards. 
Also, with increasing automation of educational data systems, the 
Department believes that less than three years should be needed to 
implement data systems consistent with guidance in this area. The 
Department will work expeditiously to review any comments we receive 
and issue final guidance.
    The Department recognizes that its delay in issuing proposed 
guidance, including its decision to delay issuing guidance until after 
EEOC issued its guidance in final form as discussed in Part IV of this 
notice, may result in implementation difficulties for some educational 
institutions and other recipients. The Department regrets any 
inconvenience that its delay in issuing guidance may cause. 
Nevertheless, given the vital importance of collecting data on race and 
ethnicity under the 1997 Standards and the fact that educational 
institutions and other recipients are being provided a considerable 
amount of time to comply with the 1997 Standards, the Department 
expects that all educational institutions and other recipients will 
meet this deadline.

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. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.


    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.gpoaccess.gov/nara/index.html.


    Dated: July 31, 2006.
Margaret Spellings,
Secretary of Education.
[FR Doc. 06-6695 Filed 8-4-06; 8:45 am]
BILLING CODE 4000-01-P


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