2018-26095.pdf

61532 Federal Register / Vol. 83, No. 231 / Friday, November 30, 2018 / Rules and Regulations

1 Italicized terms are defined in the Final Definitions section of this document.

Dated: November 27, 2018.

Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.

[FR Doc. 2018–26051 Filed 11–29–18; 8:45 am]

BILLING CODE 9110–04–P

DEPARTMENT OF HOMELAND

SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG–2018–1041]

Recurring Safety Zone; Steelers Fireworks, Pittsburgh, PA

AGENCY: Coast Guard, DHS.

ACTION: Notice of enforcement of regulation.

SUMMARY: The Coast Guard will enforce the safety zone for the Pittsburgh Steelers Fireworks to provide for the safety of persons, vessels, and the marine environment on the navigable waters of the Allegheny, Ohio, and Monongahela Rivers during this event.

Our regulation for marine events within the Eighth Coast Guard District identifies the regulated area for this event in Pittsburgh, PA. During the enforcement periods, entry into this zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh or a designated representative.

DATES: The regulations in 33 CFR 165.801, Table 1, Line 57 will be enforced from 7 p.m. through 11 p.m. on December 2, 2018.

FOR FURTHER INFORMATION CONTACT: If you have questions about this notice of enforcement, call or email Petty Officer Jennifer Haggins, Marine Safety Unit Pittsburgh, U.S. Coast Guard; telephone 412–221–0807, email Jennifer.L.Haggins@uscg.mil.

SUPPLEMENTARY INFORMATION: The Coast Guard will enforce a safety zone for the Steelers fireworks listed in 33 CFR 165.801, Table 1, Line 57 from 7 p.m.

through 11 p.m. on December 2, 2018.

This action is being taken to provide for the safety of persons, vessels, and the marine environment on the navigable waters of the Allegheny, Ohio, and Monongahela Rivers during this event.

Our regulation for marine events within the Eighth Coast Guard District, § 165.801, specifies the location of the safety zone for the Steelers fireworks, which covers a less than one-mile stretch of the Ohio, Allegheny, and Monongahela Rivers. Entry into the safety zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. Persons or vessels desiring to enter into or pass through the area must request permission from the COTP or a designated representative. They can be reached on VHF FM channel 16. If permission is granted, all persons and vessel shall comply with the instructions of the COTP or designated representative.

In addition to this notice of enforcement in the Federal Register, the COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), Marine Safety Information Bulletins (MSIBs), and/or through other means of public notice as appropriate at least 24 hours in advance of each enforcement.

Dated: November 26, 2018.

F.M. Smith, Commander, U.S. Coast Guard, Acting Captain of the Port Marine Safety Unit Pittsburgh.

[FR Doc. 2018–26050 Filed 11–29–18; 8:45 am]

BILLING CODE 9110–04–P

DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED–2018–OII–0062]

RIN 1855–AA14

Final Priorities, Requirements, Definitions, and Selection Criteria— Expanding Opportunity Through Quality Charter Schools Program;

Grants to Charter Management Organizations for the Replication and Expansion of High-Quality Charter Schools

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

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

SUMMARY: The Acting Assistant Deputy Secretary for Innovation and Improvement announces priorities, requirements, definitions, and selection criteria for Grants to Charter Management Organizations for the Replication and Expansion of High- Quality Charter Schools (CMO grants or CMO grant program) under the Expanding Opportunity Through Quality Charter Schools Program (CSP), Catalog of Federal Domestic Assistance (CFDA) number 84.282M. We may use one or more of these priorities, requirements, definitions, and selection criteria for competitions in fiscal year (FY) 2019 and later years. We take this action to support the replication and expansion of high-quality charter schools by charter management organizations (CMOs) throughout the Nation, particularly those that serve educationally disadvantaged students, such as students who are individuals from low-income families, students with disabilities, and English learners; and students who traditionally have been underserved by charter schools, such as Native American students and students in rural communities.

DATES: These priorities, requirements, definitions, and selection criteria are effective November 30, 2018.

FOR FURTHER INFORMATION CONTACT:

Allison Holte, U.S. Department of Education, 400 Maryland Avenue SW, Room 4W243, Washington, DC 20202.

Telephone: (202) 205–7726.

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: Summary of the Major Provisions of This Regulatory Action: We announce these final priorities, requirements, definitions, and selection criteria to achieve two main goals.

First, we seek to continue to use funds under this program to support high-quality applications from highly qualified applicants. To that end, we announce priorities, requirements, definitions, and selection criteria that encourage or require applicants to describe, for example: Past successes working with academically poor-performing public schools; 1 experience operating or managing multiple charter schools; plans to expand their reach into new and diverse communities; logical connections between their proposed projects and intended outcomes for the students they propose to serve; and plans to evaluate the extent to which their proposed projects, if funded, yield intended outcomes.

Second, these final priorities, requirements, definitions, and selection criteria are designed to increase the likelihood that CMO grants support expanded high-quality educational opportunities for educationally disadvantaged students, as well as students who traditionally have been underserved by charter schools, such as Native American students and students in rural communities. Specifically, among other things, the final priorities, requirements, definitions, and selection criteria enable the Department to give

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61533 Federal Register / Vol. 83, No. 231 / Friday, November 30, 2018 / Rules and Regulations

2 For purposes of these final priorities, requirements, definitions, and selection criteria, ‘‘students with disabilities’’ or ‘‘student with a disability’’ has the same meaning as ‘‘children with disabilities’’ or ‘‘child with a disability,’’ respectively, as defined in section 8101(4) of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA). Under section 8101(4), ‘‘child with a disability’’ has the same meaning given that term in section 602 of the Individuals with Disabilities Education Act.

priority to applications that propose to:

Replicate or expand high-quality charter schools with an intentional focus on recruiting students from racially and socioeconomically diverse backgrounds, and maintaining racially and socioeconomically diverse student bodies, consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws; serve a meaningful proportion of students who are individuals from low-income families; and replicate or expand high-quality charter schools that serve high school students, students in rural communities, and Native American students. Further, in order to meet the final requirements announced in this document, CMO applicants must describe how the schools they intend to replicate or expand would recruit and enroll educationally disadvantaged students and support such students in mastering State academic standards.

Costs and Benefits: The Department of Education (Department) believes that the benefits of this regulatory action outweigh any associated costs, which we believe would be minimal. While this action imposes cost-bearing requirements on participating CMOs, we expect that applicants will include requests for funds to cover such costs in their proposed project budgets. We believe this regulatory action strengthens accountability for the use of Federal funds by helping to ensure that the Department awards CSP grants to CMOs 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 document for a more detailed discussion of costs and benefits.

Purpose of Program: The major purposes of the CSP are to: Expand opportunities for all students, particularly students facing educational disadvantages and students who traditionally have been underserved by charter schools, to attend high-quality charter schools and meet challenging State academic standards; provide financial assistance for the planning, program design, and initial implementation of public charter schools; increase the number of high-quality charter schools available to students across the United States;

evaluate the impact of charter schools on student achievement, families, and communities; share best practices between charter schools and other public schools; encourage States to provide facilities support to charter schools; and support efforts to strengthen the charter school authorizing process. Through the CMO grant program, the Department provides funds to CMOs on a competitive basis to enable them to replicate or expand one or more high-quality charter schools. More specifically, grant funds may be used to expand the enrollment of one or more existing high-quality charter schools, or to open one or more high-quality charter schools by replicating an existing high-quality charter school model.

Program Authority: Title IV, Part C of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA).

We published a notice of proposed priorities, requirements, definitions, and selection criteria for this program in the Federal Register on July 27, 2018 (83 FR 35571) (NPP). The NPP contained background information and our reasons for proposing the particular priorities, requirements, definitions, and selection criteria.

There are several significant differences between the NPP and this notice of final priorities, requirements, definitions, and selection criteria (NFP).

First, we have revised the title and focus of Priority 2 (which was proposed as ‘‘School Improvement through Restart Efforts’’) to clarify that applicants addressing the priority should be focused on reopening, and not restarting, academically low-performing public schools as charter schools. In addition, we have revised Priority 2 to require applicants to address each subpart in order to meet the priority.

Second, we have revised Priority 3— High School Students to clarify that there is a broad range of postsecondary education options for which high-quality charter schools that serve high school students may prepare their students, including certain one-year training programs as well as two- and four-year colleges and universities. We have also revised Priority 3 to specify that high school students include educationally disadvantaged students.

In addition, we have revised Priority 4— Low-Income Demographic to require applicants receiving priority points to demonstrate that they will maintain a poverty threshold that is the same as, or substantially similar to, the level specified in the grant application for the entire grant period. Further, we have revised Priority 7 and related definitions to include students who are Native Hawaiian or Native American Pacific Islander, as well as students who are Indians (including Alaska Natives), and to clarify that applicants must meaningfully collaborate with community leaders. Finally, we have revised Selection Criterion (b)—

Significance of Contribution in Assisting Educationally Disadvantaged Students to emphasize students with disabilities 2 and English learners. We discuss these changes in detail in the Analysis of Comments and Changes section of this document.

Public Comment: In response to our invitation in the NPP, 36 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 raised concerns not directly related to the proposed priorities, requirements, definitions, or selection criteria.

Analysis of Comments and Changes:

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

General Comments: One commenter suggested that we include a focus on students from military families, noting that military families may not be able to afford charter school tuition.

Discussion: First, we note that charter schools are public schools and, by definition, may not charge tuition (ESEA section 4310(2)). Nonetheless, we agree that military- and veteran-connected students often face unique challenges. On March 2, 2018, the Department published in the Federal Register (83 FR 9096) the Secretary’s Final Supplemental Priorities and Definitions for Discretionary Grant Programs (Supplemental Priorities), which are available for use in all of the Department’s discretionary grant programs, including the CMO grant program. In recognition of the unique challenges faced by military families, Priority 11 in the Supplemental Priorities focuses on ensuring that service members, veterans, and their families have access to high-quality educational options. In any fiscal year in which the Department awards new grants under the CMO grant program, we may use this supplemental priority in conjunction with the priorities, requirements, definitions, and selection

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61534 Federal Register / Vol. 83, No. 231 / Friday, November 30, 2018 / Rules and Regulations

3 Students with disabilities attending public charter schools and their parents retain all rights under Part B of the IDEA. Further, charter schools that operate as LEAs under State law, as well as LEAs that include charter schools among their public schools, are responsible for ensuring that the requirements of Part B of the IDEA are met, unless State law assigns that responsibility to some other entity. See 34 CFR 300.209.

criteria in the ESEA and established in this document. Therefore, we decline to revise the final priorities, requirements, definitions, and selection criteria to add a focus on military families.

Changes: None.

Comments: Seven commenters urged the Department to clarify through these final priorities, requirements, definitions, and selection criteria that virtual charter schools must ensure that all students, particularly students with disabilities, can access virtual and online content. Several commenters requested that we require all virtual public schools, including virtual charter schools, to demonstrate compliance with the Web Content Accessibility Guidelines (WCAG). Other commenters suggested that applicants proposing to replicate or expand virtual charter schools be required to focus on enrollment and retention of, and academic outcomes for, educationally disadvantaged students, and make performance and compliance data available publicly and in a timely manner. One commenter suggested that we refrain from awarding grants to virtual charter schools altogether.

Discussion: Section 4310(2)(G) of the ESEA requires charter schools receiving CSP funds to comply with various laws, including section 504 of the Rehabilitation Act of 1973 (Section 504), the Americans with Disabilities Act of 1990 (ADA), and Part B of the Individuals with Disabilities Education Act (IDEA). Thus, consistent with the requirements in Section 504 and Title II of the ADA, virtual charter schools must ensure that all content is accessible to students with disabilities enrolled in the school as well as prospective students with disabilities and parents or guardians. Similarly, like other local educational agencies (LEAs), public charter schools that operate as LEAs under State law, including virtual charter school LEAs and LEAs that include virtual charter schools among their public schools, must ensure that eligible students with disabilities enrolled in these schools receive a free appropriate public education (FAPE) in accordance with the requirements of Part B of the IDEA.3 To meet this obligation, these schools must provide instructional materials to students with disabilities in accessible formats, consistent with the requirements in Section 504 and Title II of the ADA. If web-based instruction or online instructional platforms are used, these schools must ensure that the information provided through those sources is accessible to students with disabilities, consistent with the requirements in Section 504 and Title II of the ADA. Because these requirements are already established by Federal law, we decline to revise these final priorities, requirements, definitions, or selection criteria.

Further, while we understand that WCAG is designed to make web content accessible to a wide range of individuals with disabilities and that demonstrating compliance with WCAG is a widely accepted method for public schools, including virtual public charter schools, to meet the obligations discussed above, the Department does not require grantees to adopt a particular standard to ensure accessibility of web content or online platforms to meet their obligations under Section 504 or Title II of the ADA. Moreover, the WCAG standards are updated periodically.

With respect to requiring virtual charter schools to focus on the enrollment and retention of, and academic outcomes for, educationally disadvantaged students, to receive a grant under the CMO grant program, an applicant must provide, among other things, student assessment results and attendance and retention rates for all students served by its schools, including educationally disadvantaged students (ESEA section 4305(b)(3)(A)). Further, CMO grantees must assure that each charter school receiving CSP funds makes annual performance and enrollment data publicly available (ESEA section 4303(f)(2)(G)(v)). CMO applicants must also provide the Department with information on existing significant compliance and management issues (ESEA section 4305(b)(3)(A)(iii)). These requirements apply to all CMO grantees, regardless of whether they intend to replicate or expand virtual or brick-and-mortar charter schools.

Finally, while we recognize that virtual charter schools can present unique challenges with respect to the enforcement of CSP requirements, the ESEA does not preclude virtual charter schools from receiving CSP funds. For this reason, we decline to adopt the commenter’s suggestion that we preclude applicants that propose to replicate or expand virtual charter schools from applying for funds under this program.

Changes: None.

Comments: Several commenters requested that we clarify that charter schools are obligated to serve students with disabilities. One commenter stated that charter schools must adhere to the IDEA, hold regular individualized education plan meetings, and offer face-inclusive policies as codified by State law. Another commenter urged the Department to focus specifically on the needs of students with Tourette’s syndrome and obsessive compulsive disorder. Several commenters suggested that we include a priority for applicants that propose to replicate or expand high-quality charter schools that serve students with disabilities.

Discussion: It is unclear what the commenter meant by ‘‘face-inclusive policies,’’ but we agree that students with disabilities face unique educational challenges. As stated above, all eligible students with disabilities attending public charter schools and their parents retain all rights under Part B of the IDEA, including the right to receive FAPE. In addition, these final priorities, requirements, definitions, and selection criteria include a requirement that applicants for CMO grants describe how they intend to comply with Part B of the IDEA.

Further, a number of priorities, requirements, definitions, and selection criteria under this program focus on educationally disadvantaged students, which include students who are children with disabilities, as defined in section 8101(4) of the ESEA. The Supplemental Priorities also include two priorities that focus on the needs of students with disabilities and could be used in future CMO grant competitions.

These priorities are: Priority 1— Empowering Families and Individuals to Choose a High-quality Education that Meets their Unique Needs (which includes a specific option for focusing on students with disabilities) and Priority 5—Meeting the Unique Needs of Students and Children with Disabilities and/or Those with Unique Gifts and Talents. For these reasons, we decline to include a specific priority for students with disabilities or to focus this priority on students with a particular disability or impairment, such as Tourette’s Syndrome or obsessive compulsive disorder.

Changes: None.

Comments: Several commenters urged the Department to clarify whether applicants could still apply for CMO grants as groups or consortia and, if so, what the Department’s expectations are for how a group or consortium application should be organized.

Discussion: Federal regulations at 34 CFR 75.127–75.129 specifically

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4 Under section 4305(c) of the ESEA, ‘‘the same terms and conditions’’ that apply to State Entity grants under section 4303 apply to CMO grants.

5 See https://innovation.ed.gov/files/2017/12/ CSP-ESSA-Flexibilities-FAQ-2017.pdf.

authorize applicants to apply as a group or consortium, and prescribe the requirements governing such applications. These final priorities, requirements, definitions, and selection criteria do not alter the requirements for group applications in 34 CFR 75.127–

75.129. Therefore, we decline to make

any changes in this area.

Changes: None.

Comments: One commenter suggested that the Department allow high-performing applicants to submit streamlined applications for CMO grants. The commenter also suggested that we increase per-seat funding caps for CMOs that are expanding grades in schools because grade expansion can often be as costly as opening new schools. In addition, the commenter asked that we allow CMOs to apply for CMO grants and subgrants under section 4303 of the ESEA. Finally, the commenter asked that we issue nonregulatory guidance that would broadly interpret the term ‘‘minor facilities repairs’’ to ensure that charter schools can use CSP funds to ensure that students attend safe, clean, and well-maintained schools.

Discussion: Although the Department may have information regarding the past performance of some applicants—in particular, CMOs that have received CSP grants previously—we rely on the expertise of independent peer reviewers to evaluate the quality of applications submitted under a grant competition in order to ensure the fairness and integrity of the competition. Further, each application proposes to carry out different activities, and an applicant’s successful implementation of one project does not guarantee the successful implementation of subsequent projects. To ensure an equal playing field, we believe it is critical that all applicants be required to submit the same general information for review.

Therefore, we decline to enable high-performing applicants to submit streamlined applications, as suggested by the commenter.

With respect to the commenter’s suggestion to raise per-seat funding caps, no revisions to these final priorities, requirements, definitions, or selection criteria are necessary for the Department to change per-seat funding caps for CMO grants in a given year.

Under 34 CFR 75.101 and 75.104(b), the Secretary may establish maximum funding amounts for grants by publishing a notice in the Federal Register. When establishing funding limits under a CMO grant competition for a given fiscal year, the Department considers a number of factors, including the availability of funds.

We also note that section 4303 of the ESEA authorizes the CSP Grants to State Entities (State Entities) program, under which the Department awards grants to State entities, and State entities, in turn, award subgrants to eligible applicants (i.e., charter school developers and charter schools) to enable such eligible applicants to open and prepare for the operation of new charter schools and replicated high-quality charter schools, and to expand high-quality charter schools. The ESEA does not explicitly prohibit an entity that qualifies as a CMO and an eligible applicant from applying for both a CMO grant under section 4305(b) and a subgrant under section 4303(b). In order to receive funds under both programs, however, the CMO must propose to carry out different activities under each application and demonstrate that it has the resources and capability to administer multiple projects effectively and efficiently.

Finally, we agree that students learn best in safe, clean, and well-maintained environments. Section 4303(h)(3) of the ESEA authorizes the use of CSP funds to ‘‘[carry] out necessary renovations to ensure that a new school building complies with applicable statutes and regulations, and minor facilities repairs (excluding construction)’’ (20 U.S.C.

7221b(h)(3)).4 We believe this provision affords CMO grantees the flexibility they need to ensure that the charter schools they manage occupy buildings and facilities that are safe, clean, and well-maintained. For examples of the types of repairs that could qualify as ‘‘minor facilities repairs’’ under section 4305(c), please see the Department’s nonregulatory guidance entitled, ‘‘Charter Schools Program New Flexibilities under the Every Student Succeeds Act (ESSA): Frequently Asked Questions.’’ 5

Changes: None.

Comments: One commenter suggested that we add a priority for CMOs that propose to replicate or expand high-quality charter schools that focus on dropout recovery and academic re-entry in order to maintain consistency with the authorizing statute.

Discussion: We agree that these final priorities, requirements, definitions, and selection criteria should align with the ESEA and believe that they do. Section 4305(b)(5)(D) of the ESEA authorizes the Secretary to give priority to applicants that ‘‘propose to operate or manage high-quality charter schools that focus on dropout recovery and academic re-entry.’’ We believe this statutory language is clear. Like the other statutory priorities as well as the priorities established under this NFP, the Secretary may choose to apply the statutory priority for dropout recovery and academic re-entry charter schools under a CMO grant competition in FY 2019 and future years. Accordingly, we decline to add a priority for CMOs that propose to replicate or expand high-quality charter schools that focus on dropout recovery and academic re-entry.

Changes: None.

Comments: Several commenters suggested that we designate specific priorities as absolute priorities or competitive preference priorities for competitions in FY 2019 and later years.

Discussion: Federal regulations at 34 CFR 75.105 authorize the Department to establish annual priorities and to designate the priorities as invitational, competitive preference, or absolute.

Therefore, we do not need to revise the final priorities in order to designate them as absolute or competitive preference priorities for competitions in FY 2019 and in later years. In accordance with 34 CFR 75.105(c), we will designate specific priorities as invitational, absolute or competitive preference priorities for the FY 2019 competition, and competitions in later years, through a notice inviting applications (NIA) in the Federal Register.

Changes: None.

Priority 1—Promoting Diversity Comments: Several commenters expressed support for a priority that encourages diverse student populations.

One commenter recommended that we follow a specific methodology for assessing whether applicants meet the priority. Several commenters questioned whether an applicant could meet this priority and Priority 4—Low-Income Demographic, stating that it may be difficult for a school focused on socioeconomic diversity to maintain a high percentage of students who are individuals from low-income families.

Some commenters recommended that the Department expand the scope of the priority to include students with disabilities, in addition to students from racially and socioeconomically diverse backgrounds. Finally, two commenters expressed concern about the priority’s effect on communities and school districts more broadly. Specifically, one commenter argued that providing incentives for CMOs that propose to replicate or expand charter schools with diverse student bodies is unlikely to be

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61536 Federal Register / Vol. 83, No. 231 / Friday, November 30, 2018 / Rules and Regulations

6 See, e.g.: The Century Foundation (2018).

Diverse by Design Charter Schools. https://tcf.org/ content/report/diverse-design-charter-schools/.

successful because students typically attend schools in or near their neighborhoods, and neighborhoods, particularly in cities, tend to be segregated due to decades of deeply rooted societal forces, including racially motivated housing practices and school assignments. Another commenter suggested that we revise the priority to require that any efforts to replicate or expand high-quality charter schools with an intentional focus on diversity yield ‘‘zero net effect’’ on the demographics of the schools from which the students are recruited.

Discussion: We believe that students can benefit from attending high-quality charter schools with racially and socioeconomically diverse student bodies. We agree that following a rubric, or methodology, for determining whether an applicant meets the priority can be useful. We will determine an appropriate method for reviewing applications addressing this priority in the NIA for a given competition.

We agree with the commenters that some aspects of Priority 1—Promoting Diversity could potentially conflict with certain subparts of Priority 4—Low- Income Demographic and, as such, it may be challenging for a CMO grant application to meet both priorities. The Department has flexibility in choosing priorities, requirements, and selection criteria for its grant competitions. In FY 2019 and in future years, we will select a combination of priorities, requirements, and selection criteria that is appropriate for the CMO program and aligned with the Secretary’s policy objectives.

In addition, we share the commenters’ concerns about ensuring that students with disabilities receive FAPE.

However, this priority focuses specifically on diversity with respect to race and socioeconomic status. Race and socioeconomic status are commonly cited in research on diversity and its relationship with student academic achievement as two demographic factors that have a major impact.6 Further, we believe it is important that the final priority aligns with the statutory priority for this program in ESEA section 4305(b)(5)(A), which focuses on replicating or expanding high-quality charter schools with racially and socioeconomically diverse student bodies.

We agree with the commenter that cultivating and maintaining a diverse student body can be difficult and is unlikely to happen overnight. We also agree that high-quality charter schools can be a powerful option for educationally disadvantaged students but that many factors, such as safe and reliable transportation to and from school, can impact a family’s realistic educational choices. This priority focuses on applicants that propose to replicate or expand high-quality charter schools with an intentional focus on racial and socioeconomic diversity, but it does not dictate how a CMO should approach this work. Promising practices for promoting diversity continue to emerge, and charter schools have great flexibility to choose an educational program that attracts students from diverse backgrounds and geographic areas outside of the immediate area surrounding the school. The intent of this priority is to encourage CMOs to replicate or expand high-quality charter schools with purposefully diverse student bodies through strategies that comply with non-discrimination requirements in the U.S. Constitution and in Federal civil rights laws, make sense for their local contexts, and are aligned with reliable research on the relationship between academic achievement and racial and socioeconomic diversity in schools.

Finally, we agree with the commenter that CMOs should consider the community context when replicating or expanding high-quality charter schools, particularly charter schools with an intentional focus on racial and socioeconomically diverse student bodies. However, we do not think it is appropriate or practical to require that CMOs demonstrate to the Department a net zero effect on surrounding schools.

For these reasons, we decline to revise the priority.

Changes: None.

Comment: None.

Discussion: Upon further review, we determined that it is critical to remind applicants addressing Priority 1 of their nondiscrimination obligations under Federal law. As such, we are revising the priority to clarify that proposed projects must be consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

Changes: We have added the phrase ‘‘consistent with nondiscrimination requirements contained in the U.S.

Constitution and Federal civil rights laws’’ to the priority.

Priority 2—Reopening Academically Poor-Performing Public Schools as Charter Schools

Comments: Several commenters expressed support for this priority. One commenter asked that we revise the priority to encourage applications from CMOs that can share best practices for turning around low-performing traditional public schools. Two commenters requested that we clarify whether an applicant could address the priority by proposing to open a new charter school, rather than to reopen an academically poor-performing public school as a charter school. One commenter suggested that we focus the priority on reopening academically poor-performing middle and high schools as charter schools.

Discussion: We agree with the commenters that the purpose of this priority—to ‘‘reopen’’ academically poor-performing charter schools—could be clearer. An applicant proposing only to open new charter schools, and not ‘‘reopen’’ an academically poor-performing public school as a charter school, would not meet this specific priority (but could meet other priorities established in this NFP). Therefore, in order to clarify the purpose of this priority, we are replacing the term ‘‘restart’’ with ‘‘reopen.’’ In addition, we agree that starting a new school is an important endeavor, and note that opening new high-quality charter schools is a key element of the CSP. We also believe that charter schools can play an important role in helping to improve academic outcomes for students in low-performing public schools. Therefore, this priority is specifically focused on CMOs that propose to reopen academically poor-performing public schools as charter schools.

We also agree that applicants should be required to demonstrate past success working with low-achieving public schools in order to meet the priority.

Accordingly, we are revising the stem of the priority to require applicants to address each subpart of the priority, including the subpart focused on demonstrating past success working with at least one academically poor-performing public school or schools that were designated as persistently lowest-achieving schools or priority schools under the School Improvement Grant program or ESEA flexibility. Under this standard, an applicant can share best practices working with traditional public schools as well as nontraditional public schools, such as public charter schools.

Finally, we agree that a focus on middle schools and high schools may be appropriate in specific contexts, and have included a priority for applications that propose to replicate or expand high-quality charter schools that serve high school students. Under this priority, an applicant can propose to

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7 As stated above, under section 4305(c) of the ESEA, CMO grantees generally are subject to the same terms and conditions as State entity grantees funded under section 4303.

8 See http://www2.ed.gov/programs/charter/ fy14cspnonregguidance.doc.

reopen an academically poor-performing middle school or high school as a charter school as it sees fit.

Therefore, we decline to revise the priority to focus on reopening academically poor-performing middle schools and high schools.

Changes: We have revised the priority to replace the term ‘‘restart’’ with ‘‘reopen.’’ In addition, we have revised the stem of the priority so that all subparts must be addressed in order for an applicant to meet the priority.

Comments: Several commenters opined that there is a disproportionately high percentage of students with disabilities in turnaround schools and suggested that we require CMOs proposing to reopen academically poor-performing public schools as charter schools to address the issue.

Discussion: A major goal of these priorities, requirements, definitions, and selection criteria is to expand high-quality educational opportunities for educationally disadvantaged students, including students with disabilities.

CMO grantees, and the charter schools they manage, must comply with applicable laws, including Part B of the IDEA, Section 504, and Title II of the ADA. Further, to meet the priority, an applicant must propose a strategy that targets a student population that is demographically similar to that of the academically poor-performing public school. Therefore, we decline to revise this priority in the manner suggested by the commenter.

Changes: None.

Comments: Several commenters requested that the Department clarify its policy regarding admissions lotteries, including how a CMO might use a weighted lottery to address this priority.

One commenter urged the Department to ensure that any grantee using a weighted lottery meet all relevant statutory requirements, and another commenter suggested that we ensure that any weighted lotteries are designed to enroll students with disabilities in proportion to the enrollment of such students in neighboring schools. Several commenters suggested that the Department update its nonregulatory guidance to clarify that CMOs that are reopening academically poor-performing public schools as charter schools could exempt from admissions lotteries students who are enrolled in the academically poor-performing public school at the time it is reopened.

Discussion: Under section 4303(c)(3) of the ESEA, charter schools receiving funds under a CMO grant generally may use ‘‘a weighted lottery to give slightly better chances for admission to all, or a subset of, educationally disadvantaged students,’’ so long as weighted lotteries in favor of such students are not prohibited under State law and are not used to create schools that would serve a particular group of students exclusively.7 Therefore, a charter school could use a weighted lottery for the purpose of enrolling a proportionate number of students with disabilities in the charter school as compared to the number of such students enrolled in neighboring schools. As such, the Department declines to expand the statutory requirements for weighted lotteries as they apply to CMO grants.

Further, the Department’s most recent update to the CSP nonregulatory guidance was issued in January 2014.8 Although that guidance was issued prior to enactment of the ESSA, much of it is applicable to the CSP lottery requirement in section 4310(2)(H) of the ESEA. Specifically, the January 2014 CSP Nonregulatory Guidance identifies several categories of students who may be exempted from a charter school’s lottery, including students who are enrolled in a public school at the time it is converted into a charter school. The Department may update this guidance to address changes to the CSP made by the ESSA. In the meantime, CMO grantees may continue to follow the guidelines in the January 2014 CSP Nonregulatory Guidance regarding the categories of students who may be exempted from the lottery requirement.

Changes: None.

Comments: One commenter recommended that we use Priority 2 cautiously because available research on charter school performance is mixed.

Discussion: We agree that, where possible, Federal funding should be used primarily to support strategies that are based on research. To meet this priority, applicants would need to demonstrate past success working with academically poor-performing public schools. In addition, all applicants, regardless of whether they address this priority, must disclose compliance issues, provide a logic model for how they will replicate or expand high-quality charter schools, and describe how they currently operate or manage high-quality charter schools. This program specifically supports the replication and expansion of high-quality charter schools, and the final priorities, requirements, definitions, and selection criteria are designed to differentiate between high-quality applications that are likely to be successful and low-quality applications that have little chance of succeeding.

Changes: None.

Comment: None.

Discussion: Upon further review, we determined that it is critical to remind applicants addressing Priority 2 of their nondiscrimination obligations under Federal law. As such, we are revising the priority to clarify that proposed projects must be consistent with nondiscrimination requirements contained in the U.S. Constitution and Federal civil rights laws.

Changes: We have added the phrase ‘‘consistent with nondiscrimination requirements contained in the U.S.

Constitution and Federal civil rights laws’’ to the priority.

Priority 3—High School Students Comments: Several commenters expressed support for the priority but asked that we revise it to require applicants to demonstrate that their proposed strategy for replicating or expanding high-quality charter high schools is evidence-based. One commenter also suggested that applicants be required to provide data on former students’ postsecondary degree attainment and employment.

Conversely, another commenter suggested we use this priority cautiously due to a lack of research on charter high schools.

Discussion: We agree that using research to inform CMO grant proposals is useful in certain contexts, but we also understand that research in this area is limited. The Department’s regulations at 34 CFR 75.226 specifically authorize the Secretary to give priority to applications that are supported by ‘‘evidence.’’ The Department may choose to implement such a priority under the CMO grant competition in a given year.

Likewise, we agree that obtaining data on students’ postsecondary degree attainment and employment may be relevant and encourage applicants to submit such information, as appropriate. On the other hand, the Department must balance its interest in obtaining sufficient information to assist peer reviewers in evaluating the quality of applications with its interest in minimizing the burden on applicants. In order to meet the priority, an applicant must describe how it will prepare students for postsecondary education and provide support for its graduates who enroll in institutions of higher education (IHEs) and certain one-year training programs that prepare students for gainful employment in a recognized occupation. In addition, applicants must establish one or more project-specific

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9 See 20 U.S.C. 1414(d)(1)(A)(i)(VIII) and 34 CFR 300.320(b); see also 20 U.S.C. 1401(34) and 34 CFR 300.43.

performance measures that will provide reliable information about the grantee’s progress in meeting the objectives of the project. We believe these requirements will generate the necessary information to enable peer reviewers to evaluate the quality of applications without placing an undue burden on applicants. For these reasons, we decline to revise the priority in the manner suggested by the commenters.

Changes: None.

Comments: Several commenters suggested that we broaden the priority to focus on high schools that prepare students for paths to career and technical training and military service, as well as enrollment in two- and four-year colleges and universities. Several other commenters suggested that we revise the priority to encompass high schools that focus on transitional programming for students with disabilities.

Discussion: We agree that sending students to two- or four-year colleges and universities is not the only measure of a charter high school’s success and that, for some students, getting a job or attending technical school may be the best option immediately after high school. Accordingly, we are revising subparts (ii) and (iii) of the priority to encompass a broader range of postsecondary education, training, and career options. Specifically, for this priority, postsecondary education institutions include both IHEs and educational institutions that offer one-year training programs that prepare students for gainful employment in a recognized occupation (as described in section 101(b)(1) of the Higher Education Act of 1965, as amended (HEA)). For clarity, we are also defining ‘‘IHE’’ in this NFP. The definition we are adding to the NFP is the same as the definition of ‘‘IHE’’ in section 8101(29) of the ESEA.

Further, while a career in the military can be very rewarding, the Department’s mission is to promote student academic achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access. Therefore, we believe the primary goal of elementary and secondary education should be preparing students for success at the postsecondary education level.

Nevertheless, charter schools have great flexibility to establish a unique mission and educational focus. Thus, an applicant may propose to replicate or expand charter schools with a wide range of educational programs, including a military (i.e., Reserve Officers’ Training Corps (ROTC)) focus, so long as the charter school meets the definition of ‘‘high-quality charter school’’ in section 4310(8) of the ESEA and the terms of its charter. Our ultimate focus remains on ensuring that students graduate from high school prepared to succeed in a wide variety of postsecondary education options.

We also agree with the commenters that ensuring that students with disabilities (as well as other educationally disadvantaged students) graduate from high school with adequate preparation for postsecondary education options is paramount.

Therefore, we are revising the priority to include specific references to educationally disadvantaged students where appropriate. Also, as stated above, eligible students with disabilities attending public charter schools and their parents retain their right to receive FAPE, and the IDEA requirements for transition services apply beginning with the first individualized education plan (IEP) to be in effect when the student turns 16, or younger if determined appropriate by the IEP team.9 Further, in order to be considered a high-quality charter school (a key aspect of this program), a charter school that serves high school students must have demonstrated success in increasing student academic achievement and graduation rates, and must provide that information disaggregated by subgroups of students defined in section 1111(c)(2) of the ESEA, which includes children with disabilities, as defined in the IDEA.

Therefore, while we are revising the priority to include specific references to educationally disadvantaged students, we decline to revise the priority to include a specific focus on high schools that provide transitional programming (i.e., preparation for specific postsecondary education options) for students with…