[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Rules and Regulations]
[Pages 67572-67574]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27559]
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DEPARTMENT OF EDUCATION
34 CFR Part 280
[Docket ID ED-2010-OII-0003]
RIN 1855-AA07
Magnet Schools Assistance Program
AGENCY: Office of Innovation and Improvement, Department of Education.
ACTION: Final regulations.
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SUMMARY: This document adopts as final a March 2010 interim final rule
by which the Secretary amended the regulations governing the Magnet
Schools Assistance Program (MSAP) to provide greater flexibility to
school districts designing MSAP programs for the FY 2010 competition.
The amendments removed 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. We sought comments on the amendments because
we adopted them through an interim final rule. We have reviewed the
comments we received and retain the amendments without change for
competitions going forward.
DATES: These regulations are effective December 13, 2012.
FOR FURTHER INFORMATION CONTACT: Brittany Beth, U.S. Department of
Education, 400 Maryland Avenue SW., Room 4W252, Washington, DC 20202.
Telephone: (202) 453-6653 or via email: brittany.beth@ed.gov.
If you use a telecommunications device for the deaf (TDD) or text
telephone (TTY), call the Federal Relay Service (FRS), toll free at 1-
800-877-8339.
Accessible format: Individuals with disabilities may obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the contact person listed
under FOR FURTHER INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: On March 4, 2010, the Department published
an interim final rule (IFR) with a request for public comment in the
Federal Register (75 FR 9777). The IFR, applicable only to the FY 2010
competition, removed provisions in the MSAP regulations at 34 CFR
280.2(b)(2), 280.4(b), and 280.20(g) that required districts to use
binary racial classifications and prohibited 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.
The IFR explained that these changes were necessary to permit MSAP
applicants ``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).''
In the IFR, the Department also invited comments on the removal of
the regulatory provisions, noting that any changes made to the IFR in
light of comments received would govern future MSAP grant competitions.
Analysis of Comments and Changes
In response to the Secretary's invitation in the IFR, three parties
submitted comments on the proposed regulations. We make no further
amendments to the regulations in response to the comments; however, an
analysis of the comments follows.
Generally, we do not address technical and other minor changes or
suggested changes the law does not authorize the Secretary to make.
Comments: The commenters agreed with the decision to remove the
provisions of the regulations in light of the Supreme Court's decision
in Parents Involved, but they expressed concern about the use of case-
by-case decision-making when evaluating proposed MSAP voluntary
desegregation plans. The commenters requested additional guidance from
the Department about permissible ways for applicants to voluntarily
reduce minority group isolation after the Court's decision in Parents
Involved. The commenters suggested replacing the removed provisions
with more specific language in order to assist school districts in
designing legally permissible voluntary desegregation plans.
Discussion: In the IFR, the Department removed the definition of
``minority group isolation'' in 34 CFR 280.4(b). Under the definition,
the term meant, in reference to a school, ``a condition in which
minority group children constitute more than 50 percent of the
enrollment of the school.'' We removed the definition because it
required 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 IFR stated--
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 Department agrees that at the time of publication of the IFR
there was some confusion for applicants about whether the case-by-case
analysis would be an effective way to evaluate voluntary plans under
the MSAP. The Department recognized the need for additional guidance
about ways that districts can voluntarily reduce minority group
isolation and promote diversity in school districts in light of Parents
Involved. On December 2, 2011, the Departments of Education and Justice
jointly issued guidance that explains how educational institutions can
lawfully pursue voluntary policies to achieve diversity or avoid racial
isolation within the framework of Titles IV and VI of the Civil Rights
Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to
the U.S. Constitution, and current case law. The ``Guidance on the
Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation
in Elementary and Secondary Schools'' (Guidance) is available on the
Department's Web site at http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.pdf.
In light of this Guidance, and based on the Department's experience
in awarding FY 2010 grants under the regulations as amended by the IFR,
the Department has concluded that it is not necessary to propose
provisions to replace those that were removed by the IFR. Applicants
are encouraged to use the Guidance when designing voluntary
desegregation plans.
The Department continues to believe that case-by-case decision-
making is
[[Page 67573]]
appropriate so that determinations regarding voluntary desegregation
plans can be made on the unique facts in each district. The Department
determines on a case-by-case basis whether the voluntary plans are
adequate under Title VI of the Civil Rights Act of 1964 for the
purposes of 34 CFR 280.2. We also determine 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). These determinations will include an
examination of the factual basis for any proposed increases in minority
enrollment at district schools. For example, the Department might
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 a case 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.
Changes: None.
Executive Orders 12866 and 13563
Under Executive Order 12866, the Secretary must determine whether
this 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 loan 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 stated in the
Executive order.
This final regulatory action is not a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this final regulatory action under Executive
Order 13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these final regulations only on a reasoned
determination that their benefits justify their costs. In choosing
among alternative regulatory approaches, we selected those approaches
that maximize net benefits. Based on the analysis that follows, the
Department believes that this regulatory action is consistent with the
principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
In accordance with both Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential costs are those
resulting from statutory requirements and those we have determined as
necessary for administering the Department's programs and activities.
We discussed the potential costs and benefits of these final
regulations in the interim final rule at 75 FR 9779.
Paperwork Reduction Act of 1995
These regulations do not contain any information collection
requirements.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, we intend this document to provide
early notification of the Department's specific plans and actions for
this program.
Electronic Access to This Document: 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 via the Federal Digital System
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You may also access documents of the Department published in the
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You may also view this document in text or PDF at the following
site:
www.ed.gov/programs/magnet/legislation.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.
[[Page 67574]]
Dated: November 7, 2012.
James H. Shelton, III,
Assistant Deputy Secretary for Innovation and Improvement.
For the reasons discussed in the preamble, the interim final rule
amending 34 CFR part 280, published at 75 FR 9777 on March 4, 2010, is
adopted as a final rule without change.
[FR Doc. 2012-27559 Filed 11-9-12; 8:45 am]
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