2015-14391.pdf

Vol. 80 Monday, No. 114 June 15, 2015

Part II

Department of Education 34 CFR Subtitle A Final Priorities, Requirements, Definitions, and Selection Criteria; Charter Schools Program Grants to State Educational Agencies; Applications for New Awards; Final Rule and Notice

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34202 Federal Register / Vol. 80, No. 114 / Monday, June 15, 2015 / Rules and Regulations

DEPARTMENT OF EDUCATION

34 CFR Subtitle A

[Docket ID ED–2014–OII–0019]

Final Priorities, Requirements, Definitions, and Selection Criteria;

Charter Schools Program Grants to State Educational Agencies

Catalog of Federal Domestic Assistance (CFDA) Number: 84.282A

AGENCY: Office of Innovation and Improvement, Department of Education.

ACTION: Final priorities, requirements, definitions, and selection criteria.

SUMMARY: The Assistant Deputy Secretary for Innovation and Improvement announces priorities, requirements, definitions, and selection criteria under the Charter Schools Program (CSP) Grants to State Educational Agencies (SEAs). The Assistant Deputy Secretary may use one or more of these priorities, requirements, definitions, and selection criteria for competitions in fiscal year (FY) 2015 and later years.

DATES: These priorities, requirements, definitions and selection criteria are effective July 15, 2015.

FOR FURTHER INFORMATION CONTACT:

Kathryn Meeley, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W257, Washington, DC 20202– 5970. Telephone: (202) 453–6818 or by email: Kathryn.Meeley@ed.gov.

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877– 8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of This Regulatory Action:

The Assistant Deputy Secretary for Innovation and Improvement announces the final priorities, requirements, definitions, and selection criteria for CSP Grants to SEAs. The Assistant Deputy Secretary may use one or more of these priorities, requirements, definitions, and selection criteria for competitions in FY 2015 and later years.

We take this action in order to support the development of high-quality charter schools throughout the Nation by strengthening several components of the CSP Grants to SEAs program, including accountability for grantees, accountability and oversight for authorized public chartering agencies in a State, and support for educationally disadvantaged students.

Summary of the Major Provisions of This Regulatory Action: This regulatory action announces four priorities, four requirements, four definitions, and nine selection criteria that may be used for CSP Grants to SEAs competitions in FY 2015 and later years. This regulatory action’s purpose is to achieve three main goals.

The first goal is to ensure that CSP funds are directed toward the creation of high-quality charter schools. For example, we are creating a selection criterion to ask applicants to explain how charter schools fit into the State’s broader education reform strategy. In addition, the selection criteria request information from the SEA regarding how it will manage and report on project performance.

The second goal is to strengthen public accountability and oversight for authorized public chartering agencies (also referred to as authorizers). The priorities, requirements, definitions, and selection criteria collectively provide incentives for SEAs to implement CSP requirements, as well as State law and policies, in a manner that encourages authorized public chartering agencies to focus on school quality through rigorous and transparent charter approval processes. For example, Priority 1— Periodic Review and Evaluation and Priority 2—Charter School Oversight give priority to SEAs that take steps to improve public accountability and oversight for charter schools within the State, including by holding authorized public chartering agencies accountable for the quality of the charter schools in their portfolios.

The third goal is to support and improve academic outcomes for educationally disadvantaged students.

Our commitment to equitable outcomes for all students, continued growth of high-quality charter schools, and addressing ongoing concerns about educationally disadvantaged students’ access to and performance in charter schools, compel the Department to encourage a continued focus on students at the greatest risk of academic failure. A critical component of serving all students, including educationally disadvantaged students, is consideration of student body diversity, including racial, ethnic, and socioeconomic diversity. For example, the selection criteria encourage applicants to meaningfully incorporate student body diversity into charter school models and practices and ask applicants to describe specific actions they would take to support educationally disadvantaged students through charter schools.

In addition to the three goals outlined above, we believe this notice of final priorities, requirements, definitions, and selection criteria (NFP or notice) streamlines the CSP application process.

For example, selection criterion (f) Dissemination of Information and Best Practices combines two statutory criteria that have been used separately in previous competitions, asking applicants to describe their plans to disseminate best or promising practices of charter schools to each local educational agency (LEA) in the State and to describe their dissemination subgrant awards processes, thereby decreasing the burden on applicants.

Additional discussion regarding the final priorities, requirements, definitions, and selection criteria can be found in the Public Comment section of this document.

Costs and Benefits: The Department believes that the benefits of this regulatory action outweigh any associated costs, which we believe will be minimal. This action will not impose cost-bearing requirements on participating SEAs apart from those related to preparing an application for a CSP grant and would strengthen accountability for the use of Federal funds by helping to ensure that the Department awards CSP grants to SEAs that are most capable of expanding the number of high-quality charter schools available to our Nation’s students.

Please refer to the Regulatory Impact Analysis in this NFP for a more detailed discussion of costs and benefits.

Purposes of Program: The purpose of the CSP is to increase national understanding of the charter school model by:

(1) Providing financial assistance for the planning, program design, and initial implementation of charter schools;

(2) Evaluating the effects of charter schools, including the effects on students, student achievement, student growth, staff, and parents;

(3) Expanding the number of high-quality charter schools available to students across the Nation; and

(4) Encouraging the States to provide support to charter schools for facilities financing in an amount more nearly commensurate to the amount the States have typically provided for traditional public schools.

The purpose of the CSP Grants to SEAs is to enable SEAs to provide financial assistance, through subgrants to eligible applicants, for the planning, program design, and initial implementation of charter schools and for the dissemination of information about successful charter schools, including practices that existing charter schools have demonstrated are successful.

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Program Authority: The CSP is authorized under Title V, Part B, Subpart 1 of the Elementary and Secondary Education Act of 1965, as amended (ESEA) (20 U.S.C. 7221– 7221j); and the Consolidated and Further Continuing Appropriations Act, 2015 (FY 2015 Appropriations Act), Public Law 113–235.

We published a notice of proposed priorities, requirements, definitions, and selection criteria for this program in the Federal Register on November 19, 2014 (NPP) (79 FR 68812). That NPP contained background information and our reasons for proposing the particular priorities, requirements, definitions, and selection criteria.

The Analysis of Comments and Changes section in this NFP describes the differences between the priorities, requirements, and definitions we proposed in the NPP and these final priorities, requirements, definitions, and selection criteria.

Public Comment: In response to our invitation in the NPP, 26 parties submitted comments on the proposed priorities, requirements, definitions, and selection criteria.

We group major issues according to subject. Generally, we do not address technical and other minor changes. In addition, we do not address comments that raise concerns not directly related to the priorities, requirements, definitions, or selection criteria.

Analysis of Comments and Changes:

An analysis of the comments and of any changes in the priorities, requirements, definitions, and selection criteria since publication of the NPP follows.

Priorities

Priority 1—Periodic Review and Evaluation

Comment: We received several general comments regarding Priority 1.

One commenter expressed support for the priority. Another commenter recommended that we revise the language of Priority 1 to reflect language in the FY 2015 Appropriations Act that requires each SEA to provide an assurance that authorizers in the State use increases in student academic achievement as one of the most important factors, as opposed to the most important factor, when determining whether to renew or revoke a school’s charter. Another commenter suggested that we designate this priority as a minimum requirement for applicants rather than a priority that the Department may or may not utilize in any particular competition year. Finally, several commenters suggested that there is overlap between Priority 1 and the other three priorities.

Discussion: We agree that the priorities, requirements, definitions and selection criteria should be consistent with the FY 2015 Appropriations Act, which was enacted after publication of the NPP in the Federal Register.

Accordingly, we have modified Priority 2—Charter School Oversight and selection criterion (g) Oversight of Authorized Public Chartering Agencies to reflect the language in the FY 2015 Appropriations Act. We decline, however, to make any additional changes to Priority 1.

Regarding the comment that Priority 1 should be a minimum requirement, we agree with the commenter that it is important for authorizers to conduct periodic reviews to evaluate how well their charter schools are performing.

This priority is derived largely from a priority in the CSP authorizing statute (20 U.S.C. 7221a(e)(2)), and we believe that it is appropriate to retain it as a priority in this NFP.

Finally, we note that each priority can be used independently in any given competition. We believe that the overlapping elements across some of the priorities emphasize critical factors and provide the Department with flexibility to use or not use a particular priority in any given year.

Changes: None.

Comment: One commenter expressed concern that Priority 1 diminishes the ability of an authorized public chartering agency (authorizer) to tailor charter contracts and performance standards in accordance with the needs of the charter school and its students.

The commenter also suggested that charter schools would act responsibly without this priority. Similarly, one commenter stated that Priority 1 removes local control of a charter school. Finally, one commenter asserted that the priority implies that an authorizer will conduct a review only once every five years at the time of charter renewal, and suggested that this will weaken authorizer oversight.

Discussion: This priority is based on section 5202(e)(2) of the ESEA (20 U.S.C. 7221a(e)(2)), which requires the Department to give priority to SEAs in States that provide for periodic review and evaluation of a charter school by its authorizer at least once every five years.

In addition, we disagree that the priority will diminish an authorizer’s ability to tailor charter contracts or performance standards to a specific charter school.

Rather, with this priority, we can reward States that provide for periodic review and evaluation of each charter school by the authorizer, at a minimum, once every five years. Furthermore, while the review provides an opportunity for the authorizer to take appropriate action or impose meaningful consequences on the school for failing to meet certain performance standards, it does not prevent the authorizer from determining a more tailored approach under specific circumstances.

Finally, we note that the priority is designed to strengthen authorizer oversight. In specific instances, certain State laws allow charters to be awarded for a term of up to 15 years before being evaluated for renewal. In such circumstances, this priority is designed to promote more frequent reviews and evaluations. An SEA in a State that requires authorizers to conduct reviews and evaluations more frequently than every five years will not be penalized.

Changes: None.

Comment: Several commenters stated that the language of Priority 1 is unclear and some recommended that we delete the priority. One commenter inquired whether Priority 1 is designed to address a specific policy concern, stating that they were unaware of any scenario in which a State would have a charter school policy in place that is inconsistent with existing State law.

Another commenter objected to the reference to the authorizer taking appropriate action, and also recommended that we remove the reference to the student academic achievement requirements and goals set forth in a State policy exceeding such requirements in State law. Finally, one commenter recommended that Priority 1 be revised to ensure that the periodic reviews actually take place.

Discussion: Priority 1 is designed to clarify that performance standards for charter schools (including those related to student academic achievement) should be established in accordance with a State law, a State regulation, or a State policy to ensure the rigor of these performance standards across the State. Therefore, we decline to delete this priority.

In addition, we decline to remove from Priority 1 the statement that periodic review and evaluation provides an opportunity for authorizers to take appropriate action or impose meaningful consequences on the charter school, if necessary. Often, the State charter school law, regulations, or policies that stipulate performance standards applicable to charter schools do not specify actions associated with meeting or failing to meet those performance standards. Given the underlying premise of charter schools— greater autonomy in exchange for accountability—we believe this language is critical to ensure that the

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34204 Federal Register / Vol. 80, No. 114 / Monday, June 15, 2015 / Rules and Regulations periodic review and evaluation result in deliberate, meaningful action if a charter school is failing to meet the standards of its charter or State charter law, regulation, or policy.

Changes: We agree that additional language in Priority 1 is necessary to ensure that periodic reviews actually take place. For this reason, we have revised Priority 1 to add that, in order to meet the priority, SEAs must take steps to ensure that periodic reviews take place. We believe this revision is consistent with the intent of the relevant priority in the authorizing statute.

Comment: None.

Discussion: The Department determined through internal review that the last sentence of Priority 1 should be clarified to emphasize that the authorizer must have an opportunity to take appropriate action in order for an SEA to meet this priority.

Changes: We have revised the last sentence of Priority 1 to clarify that periodic review and evaluation must include an opportunity for the authorized public chartering agency to take appropriate action or impose meaningful consequences on the charter school, if necessary.

Priority 2—Charter School Oversight Comment: We received several general comments regarding Priority 2— Charter School Oversight. One commenter expressed support for the priority. One commenter recommended that we designate this priority an absolute priority. Another commenter recommended that we revise the priority to include language added to the FY 2015 Appropriations Act.

Specifically, the commenter recommended that paragraph (b) be eliminated, and that paragraph (a)(1) refer only to legally binding performance contracts rather than to legally binding charters or performance contracts. Finally, one commenter expressed concern about requiring the use of increases in student academic achievement by subgroup as the most important factor in determining whether to renew or revoke a charter. The commenter recommended that the Department remove this requirement and substitute language that would allow greater authorizer discretion in making these renewal or revocation decisions.

Discussion: This NFP establishes the priorities that we may choose to use in the CSP Grants for SEAs competitions in FY 2015 and later years. We do not designate whether a priority will be absolute, competitive preference, or invitational in this NFP; we retain the flexibility to determine how best to designate the priorities to ensure that funded projects address the most pressing areas of need for competitions in FY 2015 and later years. When inviting applications for a competition using one or more of these priorities, we will designate the type of each priority through a notice published in the Federal Register.

We agree that Priority 2 should reflect the language in the FY 2015 Appropriations Act, which was enacted after publication of the NPP in the Federal Register, and have made the appropriate change to Priority 2.

Likewise, in accordance with the FY 2015 Appropriations Act, we believe paragraph (b) needs to remain part of Priority 2 and have opted to retain the reference to a legally binding charter or performance contract in paragraph (a)(1) of Priority 2.

Changes: In conformance with the FY 2015 Appropriations Act, we have revised paragraph (b) of Priority 2 to state that student achievement is one of the most important factors, as opposed to the most important factor, when determining whether to renew or revoke a school’s charter.

Comment: One commenter recommended that Priority 2 require annual financial audits and that the information from such audits describe public and private contributions. The commenter also suggested that this information be made public and that the Department strengthen the priority by requiring that charter schools include F–33 survey data (i.e., LEA finance survey data on revenues and expenditures) collected by the Department’s National Center for Education Statistics (NCES).

Discussion: We agree with the commenter that fiscal responsibility and public reporting are critical aspects of charter school oversight. Accordingly, the NFP includes a priority and a selection criterion regarding authorizer monitoring of operational performance expectations, including financial management, and annual public reporting of charter school performance (see Priority 3—High-Quality Authorizing and Monitoring Processes and selection criterion (g) Oversight of Authorized Public Chartering Agencies).

We note, also, that in order for an SEA to meet Priority 2, all charter schools in the State must be required to file with their authorizers, on an annual basis, independent audits of their financial statements. We believe these elements address the commenter’s concerns and, therefore, decline to revise Priority 2.

We decline to require that SEAs submit F–33 data for charter schools in order to meet this priority. The F–33 survey is a data collection and data census effort supported by NCES, whereas Priority 2 is concerned primarily with charter school oversight by authorized public chartering agencies. We do not believe that requiring SEAs to complete a census report in order to meet this priority would strengthen or otherwise improve charter school oversight.

Changes: None.

Comment: One commenter suggested that the Department require SEAs to provide an assurance that charter schools will comply with the McKinney-Vento Homeless Assistance Act (McKinney-Vento) (42 U.S.C. 11301, et seq.) and that charter schools ensure their compliance by designating a McKinney-Vento Homeless liaison within the LEA in order to meet Priority 2.

Discussion: In order to qualify for funds under the CSP, a charter school must provide all students in the community, including educationally disadvantaged students, such as those served under McKinney-Vento, with an equal opportunity to attend the charter school. Charter schools that are considered to be independent LEAs under the applicable State’s charter school law must comply with McKinney-Vento on the same basis as other LEAs. For these reasons, we decline to revise Priority 2 as suggested by the commenter.

Changes: None.

Comment: One commenter expressed concern that paragraph (a)(3) of Priority 2 would require State law to mandate that every charter school demonstrate academic improvement and recommended that the Department make this an assurance rather than a priority. The commenter stated that it is unlikely that every charter school in a State would demonstrate such improvement and that some charter schools may have such a high level of achievement that further improvement is not possible.

Discussion: An SEA is not required to demonstrate improved student academic achievement in order to meet the priority. First, if designated a competitive preference or invitational priority, Priority 2 would not impose requirements on applicants. While applicants would be required to meet an absolute priority, under Priority 2, an SEA would have to show only that State law, regulation, or policy requires each charter school in the State to demonstrate improved student academic achievement.

Changes: None.

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Priority 3—High-Quality Authorizing and Monitoring Processes

Comment: We received several general comments regarding Priority 3— High-Quality Authorizing and Monitoring Processes. One commenter expressed support for the priority.

Another commenter recommended that Priority 3 be mandatory for all applicants. Another commenter recommended designating Priority 3 as an invitational priority because the priority necessitates oversight and monitoring that could be contrary to the practices States have already established. In addition, a commenter stated that Priority 3 could favor States with a single authorizer and not work to strengthen authorizer diversity.

Discussion: This priority is designed to provide an incentive to States to adopt high-quality authorizing and monitoring processes. As discussed above, this NFP is designed only to establish the priorities that we may choose to use in the CSP Grants for SEAs competitions in FY 2015 and later years. Accordingly, we decline to designate this priority as absolute, competitive preference, or invitational in this NFP. While Priority 3 is intended to strengthen authorizer quality, it is not designed to address authorizer diversity.

We believe that States with a single authorizer, as well as States with multiple authorizers, can meet this priority by focusing on overall authorizer quality.

Changes: None.

Comment: One commenter suggested we revise Priority 3 to include performance benchmarks that would trigger prompt inquiry by an SEA of an authorizer that is persistently poor-performing. The commenter also suggested revisions that would provide for ongoing public dissemination of authorizers’ performance information, thus increasing accountability for authorizers.

Another commenter expressed concerns about the disruptive nature of charter school closures and suggested that the Department place a greater emphasis on high standards for authorizer performance, including consequences for persistently poor-performing authorizers. The commenter stated that the Department should focus more on the charter application phase to ensure that the authorizer’s review of charter applications is sufficiently rigorous in order to minimize the number of charter closures.

Discussion: We agree that the public should be informed about authorizer performance, and that mechanisms should exist to facilitate the termination of chartering authority for persistently poor-performing authorizers. This priority is designed to encourage States to ensure quality practices for charter school authorizing and to take appropriate action to strengthen charter school authorizing across the State, as necessary. It also is designed to accommodate a wide range of State contexts, including where the SEA itself is an authorizer, and where an SEA may or may not have the authority to revoke the authorizer role from an organization.

We believe that Priority 3 is sufficiently rigorous and fully addresses Congressional intent while still meeting the needs of SEAs in varying contexts.

Changes: None.

Comment: One commenter suggested that we revise paragraph (a)(2) of Priority 3 to state that performance objectives may, rather than must, be school-specific. Additionally, the commenter recommended that the Department clarify whether the reference to standardized systems that measure and benchmark performance of the authorizer in paragraph (b) of Priority 3 applies to authorizers or SEAs. Another commenter recommended changing standardized systems to standardized reporting in this paragraph.

Discussion: We believe that performance objectives that are developed for each charter school and tie to rigorous academic and operational performance expectations are critical to the evaluation of school performance.

While some performance objectives may be used by the authorizer for more than one school, a school’s performance objectives serve as the basis for measuring performance at that specific school, and we believe that some of these objectives must be school specific in order to evaluate school performance effectively. However, to clarify the purpose of this priority, we have revised paragraph (a)(2) of Priority 3 to state that performance objectives for each charter school must be aligned to the rigorous academic and operational performance expectations established by the authorizer.

We note that paragraph (b) of Priority 3 gives priority to SEAs that demonstrate that all authorizers use standardized systems to measure and benchmark their performance, and was not intended to imply that an entity other than the authorizer would develop or implement these systems. We also agree that the term ‘‘standardized systems’’ could be misunderstood and understand the recommendation that we change this reference to ‘‘standardized reporting.’’ However, because our intent is to require a State to develop clear and specific standards, we have revised this section to clarify that, in order for the SEA to meet the priority, each authorizer in the State should be measuring and benchmarking performance and disseminating the results annually, but the SEA does not need to develop a standardized system across all authorizers.

Changes: We have revised paragraph (a)(2) of Priority 3—High-Quality Authorizing and Monitoring Processes to refer to the performance objectives for each school instead of school-specific performance objectives to clarify that the objectives must be aligned to the rigorous academic and operational performance expectations established by the authorizer. We also have revised paragraph (b) of Priority 3 to specify that authorizers must use clear and specific standards and formalized processes that measure and benchmark authorizer performance, instead of standardized systems, to clarify our intent.

Comment: One commenter recommended that we revise paragraph (a)(2) of Priority 3 to allow charter schools to create school-specific performance objectives that meet some or all of the outlined expectations rather than all expectations.

Discussion: We believe that it is important for schools to establish performance objectives that are aligned with all academic and operational expectations and that high-quality charter schools should meet all performance objectives. While a charter school that fails to meet all of its performance objectives should not automatically have its charter revoked, we believe that authorizers should evaluate a charter school’s performance based on performance objectives that are aligned with the academic and operational performance expectations that have been established for the charter school. Periodic review and evaluation allows an authorizer to assess a charter school’s performance with respect to defined expectations and ensures that charter schools are held accountable for academic and organizational performance objectives.

We also note that a charter school or authorizer can establish performance expectations and objectives that are more rigorous or cover more areas than specified under State law.

Changes: None.

Comment: One commenter suggested revising paragraph (d) of Priority 3 to remove the reference to differentiated review based on whether the developer has been successful in establishing and operating one or more high-quality charter schools. The commenter also suggested removing the reference to

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34206 Federal Register / Vol. 80, No. 114 / Monday, June 15, 2015 / Rules and Regulations high-quality when referring to charter schools. Another commenter stated that, with respect to the concept of differentiated review, although applicants’ past performance is occasionally a partial indicator of an organization’s ability to expand successfully, the expansion process may raise new and unforeseen challenges that the authorizer should consider.

Finally, one commenter recommended deleting paragraph (d) altogether.

Discussion: We believe that an applicant could meet Priority 3 if authorizers in its State conduct a differentiated review for charter school developers who operate charter schools that do not currently meet the definition of high-quality charter schools. We agree that differentiated review is not exclusive to high-quality charter schools and have revised the priority accordingly.

For purposes of this program, we agree that authorizers should be able to exercise discretion in approving charters through a differentiated process based on the past performance of charter school developers.

By promoting differentiated review, we intend to encourage authorizers to acknowledge that there are additional factors to consider when reviewing a charter petition from an existing charter school developer versus a charter petition from a charter school developer who is not currently operating charter schools. For these reasons, we decline to delete the paragraph.

Changes: We have revised paragraph

(d) of Priority 3 to clarify that an SEA can meet the priority by demonstrating that authorizers in the State use authorizing processes that include differentiated review of charter petitions to assess whether and the extent to which, the charter school developer has been successful, as opposed to basing the differentiated review on those considerations.

Comment: One commenter stated that Priority 3 is generally problematic and should be deleted because it promotes undefined authorizer practices that do not work well in actual school settings, relies on performance data that are neither clear nor objective, and expects authorizers to weigh and interpret data to make closure decisions. The commenter also stated that standardized systems of measurement governing complex decisions regarding renewal or closure serve to embolden weak authorizers and interfere with charter school autonomy.

Discussion: We recognize that the authorizing process may not be governed by absolutes in all instances.

We also recognize that there may be certain qualitative data or additional circumstances that authorizers consider when determining whether to approve a charter petition or to revoke an existing school’s charter, and agree that authorizers should use the full range of information available. We disagree, however, that the factors of Priority 3 are unfounded or unlikely to promote the growth and development of a high-quality charter school sector.

Priority 3 encourages authorizers to define quantifiable and clear objectives and expectations, both for themselves and charter schools. Furthermore, we believe that this priority encourages SEAs and States to invest in and develop an infrastructure that fosters the development of high-quality charter schools and chartering practices. As a secondary benefit, this priority brings together many entities involved in the chartering process, which creates a network for effective development and dissemination of information. For example, this may provide an opportunity for authorizers to share best practices and learn from each other within a State.

Changes: None.

Comment: One commenter recommended adding language to Priority 3 to state that the reporting referenced in paragraph (a)(5) must provide information necessary for the State to benchmark performance. The commenter also recommended revising paragraph (b) to require SEAs to disseminate information on authorizer performance. Additionally, the commenter recommended revising paragraph (c) to remove the factor for multi-tiered clearance or review and instead focus on an evaluation of an applicant’s readiness to open and operate. Finally, the commenter recommended that the Department delete from paragraph (d) the reference to high-quality charter schools, regarding authorizing processes that include differentiated review.

Discussion: With regard to adding language to require the State to benchmark performance in paragraph (a)(5), the paragraph already requests the use of frameworks and processes to evaluate performance of charter schools on a regular basis and, therefore, already includes the commenter’s suggestion. In response to the recommendation to revise paragraph (b) of Priority 3, the intent of the priority is not to ask authorizers to disseminate information on performance in general. Paragraph

(b) already calls for annual dissemination of performance information related to standards and formalized processes that measure and benchmark the performance of the authorizer. We believe paragraph (b), with our previously described revisions, is clear in that respect and decline to revise it further.

We decline to revise paragraph (c) of this priority. Multi-tiered clearance or review will often involve making a determination about whether a charter school is prepared to open and operate successfully. However, there may be scenarios where the multi-tiered clearance or review is more involved or examines other elements, and we want to give authorizers latitude to consider those elements. For this reason, we believe it would be counter-productive to limit the focus of the paragraph to the evaluation of readiness to open and operate.

Finally, we decline to delete the reference to high-quality in paragraph

(d) because a major purpose of the CSP Grants for SEAs program is to foster the development of high-quality charter schools.

Changes: We have revised paragraph (b), as described above, to refer to clear and specific standards and formalized processes, instead of standardized systems.

Comment: One commenter suggested several revisions to paragraphs (a) and

(b) of Priority 3. First, the commenter suggested adding language regarding the use of student achievement as a factor in renewal and revocation decisions.

Additionally, the commenter suggested that we revise paragraph (b) to provide additional authority for intervention for poor-performing authorizers and to emphasize that SEAs should be paying close attention to authorizer performance.

Discussion: We believe that the final priorities, requirements, definitions, and selection criteria will provide sufficient incentives for SEAs to monitor authorizers and to take appropriate action against poor-performing authorizers. As a general rule, authorized public chartering agencies are created pursuant to State charter school law and, as such, are governed by State law. Therefore, the Department defers to States with respect to the oversight of authorizers.

Changes: None.

Priority 4—SEAs That Have Never Received a CSP Grant

Comment: We received general comments regarding Priority 4. One commenter expressed support for the priority. Another commenter recommended that we make Priority 4 invitational.

Discussion: This NFP establishes the priorities that we may choose to use in the CSP Grants for SEAs competitions in

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FY 2015 and later years. We do not designate whether a priority will be absolute, competitive preference, or invitational in this NFP; but rather, retain the flexibility to designate each priority as invitational, competitive preference, or absolute in order to ensure that program funds are used to address the most pressing programmatic concerns for competitions in FY 2015 and later years. When inviting applications for a competition using one or more of these priorities, we will designate the type of each priority through the notice inviting applications for new awards (NIA).

Changes: None.

Comment: Several commenters suggested that Priority 4 penalizes States that have established robust charter sectors. One commenter stated that the priority is overly broad and would provide an advantage to States with new charter school laws that have been unsuccessful in previous competitions.

Similarly, several commenters stated that the Department should be more concerned with directing CSP funds to ensure charter school quality and oversight rather than to States that have been ineligible to apply for a grant or a State with weak charter school laws.

One commenter suggested that the priority would favor less qualified applications above higher quality applications. Similarly, another commenter suggested that the priority would penalize States that support innovation or have otherwise demonstrated successful and high-quality authorizing practices. Finally, one commenter recommended that we remove the priority altogether.

Discussion: Priority 4 is designed to provide the Department with the option to provide incentives to SEAs that have never received a CSP grant and might be at a competitive disadvantage due to a limited charter school infrastructure or limited record of past performance.

Additionally, the priority reflects our belief that CSP funds can have a greater impact when they help seed a charter sector as a part of a State’s initial effort to create high-quality public schools.

We believe that in any year in which we run a competition, the combination of priorities, requirements, and selection criteria in the NIA will ensure that high-quality applications will have an opportunity to receive funding. We disagree that Priority 4 will penalize States that support innovation or have demonstrated success in the charter school sector. Other priorities, requirements, definitions, and selection criteria will provide an opportunity for States to describe their proposed activities, regardless of whether they have received a CSP grant in the past.

Changes: None.

Comment: One commenter stated that

Priority 4 provides a disincentive to States that have invested in the growth of charter schools. The commenter recommended that the Department establish a bifurcated process to separate States that have not previously received a grant from States that have.

Similarly, another commenter recommended that the Department limit the priority to States that have been ineligible rather than unsuccessful in previous grant competitions.

Discussion: We disagree that the priority should focus on SEAs that were ineligible rather than unsuccessful. As written, this priority will already apply to a very limited pool of applicants.

Only a small number of States with charter school laws have not received a CSP grant at any point in the past. We do not believe that it is necessary to separate unsuccessful applicants from ineligible applicants; we believe that our application review process ensures that only the highest quality proposals will be recommended for funding. In addition, the priority promotes the purposes of the CSP with respect to innovation and geographic diversity.

Changes: None.

Comment: One commenter stated that

Priority 4 excludes States with critical needs to support educationally disadvantaged students; the commenter noted that some States have a greater need for funds than comparable States that have not previously received an SEA grant. The commenter stated that only four SEAs are eligible for points under this priority, and that those States would be unlikely to benefit from SEA funding. The commenter asserted that charter management organizations (CMOs) are reluctant to operate in States that have not received SEA grants because the States are isolated, funding is inadequate, or talent is limited. A few commenters suggested that SEA funds are better expended in States that welcome charter growth and produce conditions favorable to charter expansion and that Priority 4 unfairly penalizes States that have invested in robust charter sectors and supported innovation in the field.

Several commenters expressed a general concern that the Department should not give priority to States that have been unsuccessful in receiving a CSP grant over States that have received CSP funding in the past. One commenter suggested that Priority 4 would unfairly disadvantage States with significant rural school populations, while another commenter recommended that we expand the priority to include States that submitted applications but were denied funding under the FY 2011 CSP Grants for SEAs competition.

Another commenter recommended revising the background statement to state that this priority would encourage rather than assist States that have not yet received a CSP grant.

Discussion: We disagree that this priority will exclude States with substantial populations of educationally disadvantaged students or that States with smaller populations (or more rural communities) will not benefit from SEA funding. We do not believe that a developer—including a CMO—will be discouraged from operating in a State merely because the State has not received a CSP grant previously.

We also disagree that Priority 4 penalizes States that have invested in their charter sectors or that it provides a disincentive for SEAs to support innovation in the charter school sector.

States in both situations will be eligible to respond to this priority if they have never received a CSP grant. We do not believe Priority 4 will unfairly disadvantage SEAs in States with significant rural populations, as the priority does not distinguish between urban and rural applicants. Finally, we do not believe that it is appropriate to prioritize unsuccessful applicants from the FY 2011 CSP Grants for SEAs competition but not give priority to unsuccessful applicants from competitions held in other fiscal years.

Further, all SEAs that applied for funding under the FY 2011 CSP Grants for SEAs competition have received CSP grants in the past; therefore, giving priority to those States would be contrary to the purpose of Priority 4.

Changes: None.

Requirements

Lottery and Enrollment Preferences

Comment: One commenter expressed the view that data on enrollment patterns will be essential for understanding the extent to which an existing charter school complies with the CSP Nonregulatory Guidance on weighted lottery procedures. The commenter asserted that States with clusters of specialized charter schools should be required to provide assurances that procedures exist to ensure that these charter schools do not limit students’ access to more inclusive education settings. Finally, another commenter stated that the Department should prohibit charter schools from having an enrollment preference or exemption that would exclude any group of students.

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Discussion: We agree that equal access for all students is important in the context of charter school development and the provision of public education generally. The CSP Nonregulatory Guidance (www2.ed.gov/programs/ charter/nonregulatory-guidance.html) is intended to provide information and guidance to CSP grantees on the Department’s interpretation of various CSP statutory and regulatory requirements. The Guidance specifies the circumstances under which a charter school receiving CSP funds may use a weighted lottery to give slightly greater chances of admission to educationally disadvantaged students.

As public schools, charter schools must employ open admissions practices and comply with applicable Federal civil rights laws, including laws prohibiting discrimination on the basis of race, ethnicity, or disability, and requirements of Part B of IDEA. For these reasons, we do not believe that an additional assurance is necessary.

Changes: None.

Comment: One commenter stated that the collective body of Federal law related to student enrollment practices was never intended to create agency guidance on the matter of weighted lottery processes. Rather, the commenter asserted that the original drafters of the statutes only intended to distinguish charter schools from magnet or other specialized public schools. The commenter suggested a more modest role for the Department in the charter school lottery process, focusing on relevant statutory language, reducing prescriptive guidance, and permitting greater deference to State law, provided that it does not conflict with applicable Federal statutes.

Discussion: We agree that States should have great flexibility in administering their charter school subgrant programs, including their lottery processes. The purpose of the CSP Nonregulatory Guidance is to provide clarity to grantees regarding how Federal requirements apply to their projects and to ensure that grantees are aware of permissible enrollment practices for charter schools receiving CSP funds.

Changes: None.

Comment: Several commenters suggested that an entity other than an SEA may be responsible for monitoring charter school lotteries and admissions processes. These commenters recommended adding other responsible public entities to the current list of entities (SEAs and authorized public chartering entities) responsible for reviewing, monitoring, or approving lotteries with enrollment preferences to account for this difference.

Discussion: We acknowledge that the SEA may not be the only entity responsible for approving and monitoring a charter school’s lottery and admissions process. Because the SEA is the grant recipient under this program and provides subgrants to charter schools and charter school developers, for purposes of the CSP, the SEA is primarily responsible for ensuring that subgrantees comply with CSP requirements, including the definition of a charter school and the lottery requirement in section 5210(1) of the ESEA (20 U.S.C. 7221i(1)).

Changes: None.

Logic Model

Comment: Several commenters stated that a logic model is either unnecessary, unduly burdensome to applicants, or not required for monitoring compliance.

Other commenters recommended that the Department provide additional guidance on the form and composition of the logic model requirement (e.g., on granularity, format, components, etc.).

One commenter argued that the requirement to include a logic model would not lead to the creation of high-quality charter schools. Finally, another commenter recommended deleting the requirement on the ground that a State with a small charter sector or a new charter school law might be ill-positioned to articulate a statewide theory of action with regard to the use of CSP funds.

Discussion: We believe that the logic model is an important element that will enable us to review and evaluate the theory of action that supports each application. All applicants should be able to articulate clearly their plan for using Federal funds.

The logic model represents one of many sources of information to allow us to assess grantee progress. In addition, we believe that developing a logic model will help SEAs clearly articulate their proposed outcomes and methods for achieving them. The logic model will also assist peer reviewers in evaluating the merits and key elements of each applicant’s project plan. Because of its importance to the process, we believe that a logic model is not unduly burdensome as part of a well-developed application.

Department regulations define a logic model in 34 CFR 77.1, and we will refer all…