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.
These regulations are effective December 13, 2012.
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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 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.
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.
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.
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You may also view this document in text or PDF at the following site:
(Catalog of Federal Domestic Assistance Number 84.165A Magnet Schools Assistance Program)
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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