[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Rules and Regulations]
[Pages 67572-67574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27559]



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.


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-
    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 

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 
    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 

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 
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    You may also view this document in text or PDF at the following 


(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]