2022-14445.pdf

40406 Federal Register / Vol. 87, No. 128 / Wednesday, July 6, 2022 / Rules and Regulations

1 Section 4310(5) and (6) of the ESEA (20 U.S.C.

7221i(5) and (6)) (www.congress.gov/114/plaws/ publ95/PLAW-114publ95.pdf).

DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED–2022–OESE–0006]

Final Priorities, Requirements, Definitions, and Selection Criteria— Expanding Opportunity Through Quality Charter Schools Program (CSP)—Grants to State Entities (State Entity Grants); Grants to Charter Management Organizations for the Replication and Expansion of High- Quality Charter Schools (CMO Grants);

and Grants to Charter School Developers for the Opening of New Charter Schools and for the Replication and Expansion of High- Quality Charter Schools (Developer Grants)

AGENCY: Office of Elementary and Secondary Education, Department of Education.

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

SUMMARY: The Department of Education (Department or ED) announces priorities, requirements, definitions, and selection criteria for CSP State Entity Grants, Developer Grants, and CMO Grants, Assistance Listing Numbers (ALNs) 84.282A, 84.282B, 84.282E, and 84.282M. We may use one or more of these priorities, requirements, definitions, and selection criteria for grant competitions under these programs in fiscal year (FY) 2022 and later years.

DATES: These priorities, requirements, definitions, and selection criteria are effective August 5, 2022.

FOR FURTHER INFORMATION CONTACT:

Porscheoy Brice, U.S. Department of Education, 400 Maryland Avenue SW, Room 3E209, Washington, DC 20202– 5970. Telephone: (202) 260–0968.

Email: charterschools@ed.gov.

If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7–1–1.

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of This Regulatory Action:

These priorities, requirements, definitions, and selection criteria are aimed at ensuring that all students have access to excellent schools that deliver the highest quality education. We take this action to ensure that Federal CSP funds support the creation, replication, and expansion of high-quality charter schools that promote positive student outcomes, educator and community empowerment, and promising practices;

and to promote school diversity. We also seek to promote greater fiscal and operational transparency and accountability for CSP-funded charter schools. We believe the policies and strategies reflected in this regulatory action can serve as a model for all charter schools.

Summary of the Major Provisions of This Regulatory Action: Through this regulatory action, we establish two priorities, three application requirements, and two selection criteria for CMO Grants and Developer Grants;

six application requirements and one selection criterion for State Entity Grants; and several assurances, definitions, and selection criteria applicable to CSP State Entity Grants, CMO Grants, and Developer Grants.

These final priorities, requirements, definitions, and selection criteria supplement the provisions in Title IV, Part C of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA);

and the priorities, requirements, definitions, and selection criteria in:

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 (CMO NFP), published in the Federal Register on November 30, 2018 (83 FR 61532), and Final Priorities, Requirements, Definitions, and Selection Criteria— Expanding Opportunity Through Quality Charter Schools Program; Grants to Charter School Developers for the Opening of New Charter Schools and for the Replication and Expansion of High- Quality Charter Schools (Developer NFP), published in the Federal Register on July 3, 2019 (84 FR 31726).

Costs and Benefits: In accordance with Executive Order 12866, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action.

The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department’s programs and activities.

We believe the benefits of this regulatory action outweigh any associated implementation costs for State Entity Grant applicants and subgrant applicants, CMO Grant applicants, and Developer Grant applicants. We also believe this regulatory action will strengthen accountability for the use of Federal funds in the CSP by helping to ensure that CSP grants and subgrants are awarded to those entities most capable of successfully implementing their proposed projects and meeting the needs of the students and families they serve.

Purposes of Programs: State Entity Grants, CMO Grants, and Developer Grants support various activities critical to the successful creation and implementation of charter schools. The major purposes of the CSP are to expand opportunities for all students, particularly underserved students, to attend charter schools and meet challenging State academic standards;

provide financial assistance for the planning, program design, and initial implementation of 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; aid States in providing facilities support to charter schools; and support efforts to strengthen the charter school authorizing process.

State Entity Grants (ALN 84.282A) comprise the largest portion of CSP funds. These competitive grants are awarded to State entities (SEs) that, in turn, award subgrants to eligible applicants on a competitive basis for the purpose of opening and preparing for the operation of new charter schools and replicated high-quality charter schools and expanding high-quality charter schools. Eligible applicants are charter school developers that have applied to an authorized public chartering agency to operate a charter school and have provided adequate and timely notice to that authority. A developer is an individual or group of individuals (including a public or private nonprofit organization), which may include teachers, administrators, and other school staff; parents; or other members of the local community in which a charter school project will be carried out.1 For-profit organizations are ineligible to apply for grants or subgrants under the CSP.

In addition to awarding subgrants to eligible applicants to enable them to open new charter schools and to replicate or expand high-quality charter schools, State entity grantees may use grant funds to provide technical assistance to eligible applicants and authorized public chartering agencies in opening and preparing for the operation of new charter schools and replicated high-quality charter schools, and

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40407 Federal Register / Vol. 87, No. 128 / Wednesday, July 6, 2022 / Rules and Regulations expanding high-quality charter schools;

and to work with authorized public chartering agencies in the State to improve authorizing quality, including developing capacity for, and conducting, fiscal oversight and auditing of charter schools. State entities may also use up to 3 percent of grant funds for administration, which may include technical assistance and monitoring of subgrants for performance and fiscal and regulatory compliance, as required under 2 CFR 200.332(d).

If a State does not have an active CSP State Entity Grant, the Department may award Developer Grants (ALNs 84.282B and 84.282E) to eligible applicants in the State on a competitive basis to enable them to open and prepare for the operation of new charter schools and replicated high-quality charter schools, or to expand high-quality charter schools.

Through CMO Grants (ALN 84.282M), the Department provides funds to nonprofit charter management organizations (CMOs) on a competitive basis to enable them to replicate or expand one or more high-quality charter schools.

CSP State Entity Grants, Developer Grants, and CMO Grants are intended to support charter schools that serve elementary or secondary school students. Funds may also be used to serve students in early childhood education programs or postsecondary education programs.

Section 4310 of the ESEA defines ‘‘replicate’’ as opening a new charter school, or a new campus of a high-quality charter school, based on the educational model of an existing high-quality charter school; and ‘‘expand’’ as significantly increasing enrollment or adding one or more grades to a high-quality charter school (20 U.S.C.

7221i(9) and (7)). Section 4310 defines ‘‘high-quality charter school,’’ in pertinent part, as a charter school that shows evidence of strong academic results, which may include strong student academic growth, as determined by a State; has no significant issues in the areas of student safety, financial and operational management, or statutory or regulatory compliance; and has demonstrated success in significantly increasing student academic achievement, including graduation rates where applicable, for all students served by the charter school and for each of the subgroups of students defined in section 1111(c)(2) of the ESEA (20 U.S.C.

7221i(8)).

Program Authority: Title IV, part C of the ESEA (20 U.S.C. 7221–7221j).

We published a notice of proposed priorities, requirements, definitions, and selection criteria for CSP State Entity Grants, CMO Grants, and Developer Grants in the Federal Register on March 14, 2022 (NPP) (87 FR 14197). That document contained background information and our reasons for proposing the particular priorities, requirements, definitions, and selection criteria. We also published an extension notice in the Federal Register on April 12, 2022 (87 FR 21644), extending the deadline for interested parties to submit public comments on the NPP from April 13, 2022, to April 18, 2022.

There are important differences between the proposed priorities, requirements, definitions, and selection criteria and the final priorities, requirements, definitions, and selection criteria established in this NFP, as discussed in the Analysis of Comments and Changes section in this document.

Public Comment: In response to our invitation in the NPP, 26,586 parties submitted comments on the proposed priorities, requirements, definitions, and selection criteria. A large proportion of those comments appear to have been part of organized letter-writing campaigns and addressed the same issues and concerns. Approximately 5,770 of the total comments received were unique comments. These comments also raised similar issues either in support of, or expressing concerns about, the proposed priorities, requirements, definitions, and selection criteria.

We group major issues according to subject. We discuss other substantive issues under the title of the item to which they pertain. Generally, we do not address technical and other minor changes. In addition, we do not address general comments that raised concerns not directly related to any of the proposed priorities, requirements, definitions, or selection criteria in the

NPP.

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 Comments: A majority of commenters expressed general support for the proposed priorities, requirements, definitions, and selection criteria. Many of these commenters, however, but also recommended that the Department modify some of the proposed priorities, requirements, definitions, and selection criteria to strengthen their purpose and intent and to clarify the language.

One commenter who expressed general support for the proposed priorities, requirements, definitions, and selection criteria, for example, stated that the Department should address teacher licensure requirements in charter schools. The commenter noted that some teachers in charter schools do not have appropriate State teaching licenses or credentials, despite extensive research indicating that highly qualified educators improve student achievement. The commenter encouraged the Department to issue regulations under the ESEA to reduce the reliance on what the commenter described as unqualified teachers in charter schools, which the commenter argued adversely impacts student achievement, undermines the teaching profession, and hinders union organization efforts in charter schools.

Another commenter stated that the proposed actions are a positive development for America’s children and, if fully implemented, will advance equity and help restore charter schools to their original purpose by integrating them into the broader education community. This commenter also suggested that we require applicants to certify that they will remain neutral in any union organizing effort for the term of the grant award, noting that charter-district collaborations can benefit when charter school and district teachers belong to the same union.

Discussion: We agree with the vast majority of commenters that these priorities, requirements, definitions, and selection criteria will improve the overall quality of CSP-funded charter schools. We agree with the commenter that research shows that highly qualified educators improve student achievement and that all students should be taught by teachers who are fully certified in the area they are assigned to teach. As a general matter, however, State law governs the licensure and credentialing requirements for teachers in public schools, including public charter schools. Therefore, the Department believes the issue of teacher licensure should be addressed at the State level.

Additionally, while we acknowledge that teacher unions can play an important role in charter schools as well as traditional public schools, we believe the issue of union organizing is outside the scope of this regulatory action.

Changes: None.

Comments: With respect to the peer review of CSP grants and subgrants, one commenter recommended that review teams include at least one reviewer representative of the district public school community. This commenter also recommended that a minimum point threshold be established for an award, and that applications be checked

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2 WestED, Data Collection Form, 2012.

for factual accuracy and posted for public review and comment for a period of no less than 45 days before award decisions are made.

Discussion: The Department considers a number of factors when selecting peer reviewers, including their knowledge and experience relevant to the competition for which they are reviewing applications, and any possible conflicts of interest that might affect their ability to be objective when reviewing grant applications. While some peer review panels may include district employees, it would be impractical, and possibly impede timely grant award decisions, to require each peer review team to include one representative from any particular school district community. In an effort to expand our peer reviewer pool, increase peer reviewer diversity, and ensure that grant applications are evaluated by individuals with up-to-date and relevant knowledge in a variety of learning settings, we published a notice in the Federal Register on May 20, 2022, inviting interested persons to apply to serve as peer reviewers for upcoming grant competitions in the Department’s Office of Elementary and Secondary Education, Office of Postsecondary Education, and Office of Special Education and Rehabilitative Services. A link to this notice in the Federal Register can be found here:

https://www.federalregister.gov/ documents/2022/05/20/2022-10834/ peer-review-opportunities-with-the-us-department-of-educations-office-of-elementary-and-secondary.

Further, while the Department checks all applications for accuracy prior to making a grant award, we believe it would be impractical and lead to unnecessary delays to require applications to be posted for at least 45 days before award decisions are made.

Currently, the Department posts on the CSP website copies of all CSP applications that are approved for funding as well as their overall scores and peer reviewers’ comments. Even after an award is made, projects must continue to meet program requirements and can be subject to administrative actions, including possible termination, if they do not comply with applicable statutory and regulatory requirements and the terms of the approved application.

Although State entity grantees must award subgrants on a competitive basis, State entity grantees generally establish their own procedures for reviewing subgrant applications, consistent with the program statute and applicable regulations. With respect to grants awarded by the Department, we believe it would be impractical to establish a minimum funding threshold, as such decisions are driven by several factors (e.g., total amount of funds available, number of applications received, overall quality of the applications received) that may vary from one competition to the next. We are confident that the statutory requirements concerning the peer review of CSP grants and subgrants, the notice we published in the Federal Register on May 20, 2022, and the actions taken in this NFP combined will lead to further improvements in the quality of our peer review processes.

Changes: None.

Comments: Some commenters expressed concern that the proposed regulations empower Federal and State peer reviewers to question decisions that are central to the charter school authorizing process, such as whether there is sufficient demand for a school to be financially viable. These commenters contend that charter school authorizers are best positioned to determine whether requirements under State law have been met and evaluate the data and analyses that applicants are required to produce. These commenters recommended that we remove the community impact analysis requirement.

Discussion: We understand that the charter school authorizing process is governed by State law and agree with the commenters that charter school authorizers are better positioned than the Department to determine whether a particular proposed charter school meets State law requirements. On the other hand, the Department is responsible for administering the CSP and ensuring that CSP funds are used properly to support the highest quality applications that have the greatest likelihood of success. Given that peer reviews inform funding decisions involving the award of more than $400 million annually under the CSP, we believe it is necessary for peer reviewers to have access to as much information as possible in order to assess the viability of proposed charter schools.

This peer review process is not merely an academic exercise; since 2001, seven years after the CSP was first authorized in 1994, approximately 930 CSP-funded charter schools and proposed charter schools (approximately 14.5 percent) either never opened or closed prior to the end of the grant period. These charter school closures and failures to open cost more than $174 million in Federal resources provided through CSP; are disruptive for communities, particularly for students and families directly affected by school closures; and potentially undermine the effectiveness of charter schools.2 Moreover, assessing the need for Federal funding, including in the context of how well a particular proposal addresses local needs, is a standard consideration for peer reviewers in many Department discretionary grant programs, such as ‘‘Promise Neighborhoods’’ and ‘‘Full- Service Community Schools.’’

Changes: See the discussion of changes we have made to the requirements related to a community impact analysis, including changing this requirement to a ‘‘needs analysis’’ to align with other Department programs, under the Requirements Applicable to CMO Grants and Developer Grants, Requirement 1 section of this Analysis of Comments and Changes.

Comments: Some commenters expressed concern about specific charter school practices that may exclude certain students from charter schools. A few commenters stated that charter schools should be required to disclose information about their student application, selection, turnover, backfilling, and disciplinary practices.

One commenter stated that applicants should certify that application materials are available in all languages spoken in the community, that charter schools do not cap for admission the number of students with disabilities (or students with a particular type of disability), and that charter schools do not charge an application fee. The commenter further recommended that we require applicants that currently operate charter schools to disclose annual student turnover figures for the past 5 years and whether they use admissions tests, consider students’ past academic or behavioral issues during admissions, and backfill student vacancies created as a result of withdrawals or expulsions during the school year. The commenter added that applicants should also be required to disclose how they have recruited students from diverse populations within their communities.

Discussion: We agree that transparency regarding student recruitment and enrollment practices of charter schools is important, including ensuring that charter schools implement enrollment practices that attract students from all different backgrounds.

Accordingly, under the Final Application Requirements, Requirements Applicable to CMO Grants and Developer Grants, Requirement 1 and Requirements Applicable to State Entity Grants, Requirement 1, grant and subgrant applicants must conduct a needs analysis that addresses the need for the

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40409 Federal Register / Vol. 87, No. 128 / Wednesday, July 6, 2022 / Rules and Regulations project and includes a robust family and community engagement plan that, among other things, describes how the charter school’s recruitment, enrollment, and retention processes will engage and accommodate families from various backgrounds. As part of the needs analysis, applicants must include details about the school’s common enrollment and retention practices that include, as part of the enrollment process, how it will disclose to families and community members policies or requirements (e.g., discipline policies, purchasing and wearing specific uniforms and other fees, or family participation), and any services that are or are not provided, that could impact a family’s ability to enroll or remain enrolled (e.g., transportation services or participation in the National School Lunch Program). Accordingly, we believe the needs analysis requirement is sufficient to obtain information from applicants necessary to address the commenters’ concerns, without being overly burdensome.

Changes: None.

Comments: Some commenters expressed general concern about how CSP funding is allocated to charter schools and recommended ways to strengthen accountability and oversight of the grants. For example, one commenter noted that the CSP authorizing statute has a provision that prohibits a State from having more than one active State Entity Grant at a time and suggested that the Department impose a similar restriction under the CMO Grant program. The commenter further suggested that the Department should not award a grant to any charter management organization with an active CMO Grant that exceeds $25 million, citing the potential misuse of grant funds by grantees as an example of why such a provision is needed. Two other commenters recommended that the Department require a forensic audit for any charter school applying for CSP funding. These commenters also stated that charter schools that do not operate as classroom-based entities or that are operated by for-profit entities should be barred from receiving CSP funds.

Another commenter requested that we require all federally funded charter schools and charter school authorizers to comply with State freedom of information and open meetings laws.

Discussion: We agree that transparency and accountability regarding the use of Federal funds are important and believe these priorities, requirements, definitions, and selection criteria will enhance transparency and accountability under the CSP. With respect to the State Entity Grant program, the commenter is correct that the CSP statute prohibits the Department from awarding a grant to a State entity in a State where there is already an active State Entity Grant. The commenter also is correct that the CSP statute does not impose a restriction on the number of CMO Grants that can be awarded in a specific State. Where there is interest from multiple State entities within a State to apply for a State Entity Grant and be responsible for awarding subgrants to eligible applicants, we believe the statutory limit of one active State Entity Grant per State can help encourage partnerships and, thereby, eliminate the need for State entities to compete against each other for a limited pool of prospective high-quality charter school subgrantees. This context does not exist for the CMO Grant program, as CMO grantees generally manage the charter schools that they fund and do not fund their charter schools through subgrants. Likewise, while we appreciate the commenter’s concerns about the possible misuse of CSP funds, we believe that imposing a blanket prohibition against CMOs with active CMO grants that exceed $25 million from receiving new CMO Grants would be counter-productive. For instance, large CMOs that manage multiple high-quality charter schools and have demonstrated that they have the capacity and resources to administer their CMO grant effectively and efficiently could be prevented from receiving the funds they need to implement their projects successfully.

Furthermore, prior to awarding a grant to any entity—particularly, an entity that has an existing grant—the Department takes appropriate steps to mitigate the risk of program funds being misspent, including conducting a risk analysis and ensuring that the applicant is in compliance with all program requirements and has the capacity and resources to administer the grant effectively and efficiently.

Regarding State freedom of information and open meetings laws, under the CSP statute, applicants for State Entity Grants are required to describe how charter schools are addressed in the open meetings and open records laws in their State. In addition, this NFP requires applicants for Developer Grants to hold or participate in a public hearing to obtain information and feedback on the impact of the proposed project and, in the case of an applicant for a State Entity Grant or CMO Grant, each charter school that it funds must hold or participate in such a hearing. We do not address State freedom of information laws in these final priorities, requirements, definitions, and selection criteria because that issue is outside the scope of this regulatory action. Further, Assurance (c) of the Final Assurances, Assurances Applicable to State Entity Grants, CMO Grants, and Developer Grants requires applicants to provide an assurance that they will post on their websites information regarding any management contract between the charter school and a for-profit management organization, and the Final Assurance Applicable to State Entity Grants and CMO Grants requires applicants to post on their websites information regarding the charter schools slated to receive CSP funds.

Regarding comments that charter schools that do not operate as classroom-based entities should be barred from receiving CSP funds, we presume that the commenters were referring to virtual charter schools.

Although the CSP statute does not specifically prohibit virtual charter schools from receiving CSP funds, the Department typically awards direct grants to ‘‘brick and mortar’’ charter schools and not to virtual charter schools. Because virtual charter schools in a few states may have received CSP funds indirectly through State educational agency (SEA) or State entity grantees, however, the Department has issued nonregulatory guidance to ensure that SEA and State entity grantees understand the inherent risks associated with the use of CSP funds by virtual charter schools and implement appropriate safeguards to mitigate the risks, particularly in the areas of student attendance and assessments. Finally, for-profit entities are ineligible to receive direct grants or subgrants under the CSP, although CSP grantees and subgrantees may enter into contracts with for-profit entities for the provision of goods and services. A grantee or subgrantee that enters into a contract for goods or services with any entity, including a for-profit management organization, must comply with the Federal procurement standards at 2 CFR 200.317–200.327, and applicable conflict of interest requirements.

Further, Requirement 2 applicable to CMO Grants and Developer Grants and Requirement 2 applicable to State Entity Grants in the Final Application Requirements section of this notice require CSP grantees and subgrantees to provide detailed information about any management contracts they enter with for-profit management organizations, and Assurances (a) and (b) applicable to State Entity Grants, CMO Grants, and Developer Grants in the Final

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Assurances section of this notice require applicants to provide assurances that they will not relinquish full or substantial administrative control of their CSP grants or subgrants to a for-profit management organization and that any management contract with a for-profit management organization will contain specific provisions to mitigate the risks associated with such contracts.

Changes: None.

Comments: Numerous commenters strongly recommended the continued use of the priorities, requirements, definitions, and selection criteria established in the CMO NFP published in the Federal Register on November 30, 2018 (83 FR 61532), and the Developer NFP published in the Federal Register on July 3, 2019 (84 FR 31726). These commenters stated that these regulations are critical to the success of charter schools and the inclusion of all students in charter schools.

Discussion: We agree that the priorities, requirements, definitions, and selection criteria established in the CMO NFP and Developer NFP should remain available for use in future competitions. Accordingly, as stated in the Executive Summary section of this notice and in the NPP, these regulations supplement, and do not supersede, the CMO NFP and the Developer NFP.

Changes: None.

Comments: Some commenters requested that the Department delay publishing the NFP or withdraw the actions proposed in the NPP to allow additional time for the Department to engage in meaningful discussions with the charter school community about the proposed changes to the programs.

Discussion: The Department received recommendations prior to the publication of the notice from numerous organizations and provided a public comment period to support further engagement with the field. As demonstrated by the significant number of comments, the Department has had the opportunity to hear directly from those who would be most impacted by this regulatory action. The Department carefully reviewed each of these comments. As stated in the Purpose of Regulatory Action section of this notice, we believe these final priorities, requirements, definitions, and selection criteria are critical to ensuring that CSP funds support the creation, replication, and expansion of high-quality charter schools that are fiscally and operationally transparent and accountable. Given the Biden-Harris Administration’s commitment to ensuring that all students attending charter schools have access to a high-quality education, we decline to delay publishing the NFP or to withdraw the

NPP.

Changes: None.

Priorities Applicable to CMO Grants and Developer Grants

Priority 1—Promoting High-Quality Educator- and Community-Centered Charter Schools To Support Underserved Students

Comments: A number of commenters expressed support for Priority 1 and its focus on creating community-centered charter schools and consideration of community assets. One commenter stated that there is value in having parents, educators, and community members take an active role in the creation and governance of charter schools, but recommended making the priority a competitive preference priority rather than an absolute priority.

The commenter also recommended broadening the parameters for educator involvement and removing the requirement for a timetable with milestones to reflect that a community-centered approach should be an ongoing effort.

Discussion: We agree that community involvement in the creation and governance of charter schools should be considered a best practice and increases the likelihood of a charter school’s success. The priority is not intended to limit the ways educators can be involved in the development of high-quality charter school models, and we are revising the priority to clarify this.

We also are removing the requirement for a ‘‘timetable with milestones’’ to clarify that we do not believe efforts to engage the community should have an end date. Rather, we seek a timeline for the applicant’s plans to implement key activities under the priority. Further, when establishing a priority for use in a program, we generally do not identify the priority as absolute, competitive preference or invitational, to allow the Department flexibility to determine how the priority should be used in any future competition.

Changes: In paragraph (a)(1) of Priority 1, we clarified that applicants may propose educator involvement in activities other than the enumerated activities. Additionally, in paragraph (b), we revised the requirement to require applicants to provide a timeline to clarify that while there should be milestones, a grantee’s community engagement efforts and community-centered approach should be ongoing.

We also made corresponding changes to the language in Requirement 6 applicable to State Entity Grants to align with the changes to paragraph (a)(1) of Priority 1.

Priority 2—Charter School and Traditional Public School or District Collaborations That Benefit Students and Families

Comments: Many commenters expressed support for Priority 2 given its goal to foster greater collaboration between traditional public schools and public charter schools. One commenter stated that it is important for organizations and stakeholders, particularly those responsible for ensuring school quality, to listen and learn from one another to develop improved practices for implementing community-responsive schooling. While supportive of the priority, the commenter recommended making Priority 2 an invitational priority as opposed to a competitive preference priority, noting that the proposed priority might discourage applications from charter schools that are not able to engage in such collaborations, such as rural charter schools.

Another commenter expressed support for Priority 2 but requested that we require all applicants to certify that they will not use nondisclosure agreements or noncompete agreements at their schools and will void any such existing agreements during the grant period. The commenter asserted that nondisclosure agreements and noncompete agreements create barriers to fostering charter-district collaborations because such agreements prohibit teachers in charter schools from taking jobs in traditional public schools for a fixed period of time or within a specific geographic area that is close to the charter school following the termination of employment.

Several commenters recommended making the priority less prescriptive by allowing applicants to determine the nature of their collaborations with traditional school districts rather than including a menu of activities. These commenters also recommended allowing applicants to provide evidence of an existing collaboration or an intent to collaborate with a traditional school district if such collaboration is not already underway. Another commenter suggested that the Department add services to meet the needs of students with disabilities and English learners to the list of services on which the applicant may propose to collaborate with a traditional public school or school district.

One commenter recommended that we require grantees to provide evidence of the collaboration within 180 days of receiving a CSP grant award.

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3 See e.g., Putting Students First: Profiles of District-Charter Collaborations in the District of Columbia and Massachusetts, Mid-Atlantic Comprehensive Center, WestEd, Putting Students First: Profiles of District-Charter Collaboration in the District of Columbia and Massachusetts (wested.org), 2019; Passing Notes: Learning from Efforts to Share Instructional Practices Across District-Charter Lines, CRPE, Passing Notes:

Learning from Efforts to Share Instructional Practices Across District-Charter Lines—Center on Reinventing Public Education (crpe.org), February 2018.

4 DC Public School and DC Public Charter School Collaboration, EdSight, EdSight Cross Sector Collaboration FINAL.pdf (dc.gov), October 2019.

5 Improving Outcomes for Students with Disabilities: Negotiating Common Ground for District and Charter School Collaboration, Center for American Progress, Improving Outcomes for Students with Disabilities—Center for American Progress, January 2017.

6 A Secondary Analysis of the Most Recent Civil Rights Data Collection to Inform Policy and Practice, Center for Learner Equity, A Secondary Analysis of the Most Recent Civil Rights Data Collection to Inform Policy and Practice—The Center for Learner Equity, November 2021.

A relatively large number of commenters opposed this priority for varying reasons. Some commenters noted that while they are generally supportive of school collaborations and the sharing of best practices between charter schools and traditional public schools, they are skeptical that this priority will lead to true partnerships between charter schools and traditional public schools and school districts because of the tensions that exist between charter schools and traditional public schools in some communities.

Other commenters expressed concern that many eligible applicants may be blocked from receiving funding and opening new charter schools and, thus, may be discouraged from applying for a grant or subgrant if traditional public schools and school districts are unwilling to partner with charter schools; these commenters argued that traditional school districts often resist attempts to foster cooperation and collaboration with charter schools. One commenter stated that this priority has the potential to give traditional school districts additional leverage to reject the creation of new charter schools if the priority is implemented as an absolute priority or competitive preference priority.

Another commenter stated that requiring the district to sign a memorandum of understanding (MOU) could be labor-intensive, with significant legal fees, and noted that a newly elected school board could revoke the MOU in a subsequent year.

Other commenters stated that requiring State entities to give priority to eligible applicants that propose charter-district collaborations would diminish the role of states in the development and administration of their charter school programs by forcing states to re-orient grant-awarding priorities in their subgrant application process for peer review.

Discussion: We agree that charter schools and traditional public schools and school districts should listen and learn from one another to develop improved practices for implementing programs and services that are responsive to student, family, and community needs, which we believe can lead to improved academic outcomes for all students. We also agree that applicants should have flexibility regarding not only whether they respond to the priority, but also, how they respond to this priority, particularly if they have an existing collaboration with a traditional public school or school district. Likewise, we recognize that significant benefit could derive from collaborations between character schools and traditional public schools or school districts (also referred to as ‘‘charter-traditional collaborations’’ in this notice) focused on supporting students with disabilities and English learners. In response to these comments, we have revised the priority to clarify that applicants have flexibility to choose the collaborations they propose, modified elements of the description of the collaboration to reflect that collaborations may be proposed or existing, and added collaborations focused on serving students with disabilities and English learners to the list of examples of collaborations that applicants may choose to propose. We also acknowledge that it may take significant time for applicants to establish such collaborations, and that implementing the priority as an absolute priority could make it more difficult for some charter schools to qualify for CSP subgrants. To be clear, the purpose of this priority is to encourage, but not require, collaborations between charter schools and traditional public schools or school districts in ways that benefit students and families in charter schools and traditional public schools. Some of the most successful charter school networks have collaborated with traditional public schools and school districts, and there is evidence that these types of collaborations can improve the quality of educational opportunities and outcomes for students in charter schools and traditional public schools, including by sharing instructional materials, creating joint professional learning opportunities, developing principal pipeline programs, and more.3

For example, an analysis of collaborations between charter schools and traditional public schools in the District of Columbia identified over 60 examples of how charter schools and traditional public schools were able to partner in mutually beneficial ways.4 These collaborations included shared professional development, scaling innovative practices, and research development. A similar collaboration exists in Boston, Massachusetts, where a compact among traditional public schools, charter schools, and Catholic schools was created to coordinate and share best practices.

Perhaps more importantly, these types of partnerships can help improve services and supports for educationally disadvantaged students, including students with disabilities and English learners, enrolled in charter schools. For example, according to a report by the Center for American Progress (CAP),5 developing the expertise to successfully serve students with disabilities can be particularly challenging for charter schools that may not enroll many students with low-incidence disabilities and who require highly specialized services and supports. Collaboration with the district can help charter schools access expertise that would help improve student services and outcomes.

CAP also published a report with the Center for Learner Equity (CLE) that profiled examples of districts and charter schools pursuing similar efforts.6 Such partnerships can provide charter schools with additional expertise and supports to help meet the needs of all students, particularly students with disabilities and English learners.

The CAP report also found that these partnerships can improve economies of scale for small charter school operators, as many charter schools are not able to access the same pricing for curricula, supplies, support services, and technology as larger districts and networks. This frees up resources for charter schools to invest elsewhere in their programs to ensure that they are meeting the needs of their students.

We also know that charter schools often foster innovation in public education, which is a major purpose of the CSP. These kinds of partnerships can provide opportunities for charter schools to share their best practices with traditional public schools that can learn from these efforts.

This priority reflects the research on how these mutually beneficial partnerships can improve educational opportunities for students enrolled in charter schools as well as traditional public schools. We have seen successful outcomes for students and communities

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40412 Federal Register / Vol. 87, No. 128 / Wednesday, July 6, 2022 / Rules and Regulations when there is collaboration between charter schools and traditional public schools and hope to encourage more of

it. Under no circumstances should this priority be implemented in a manner that creates barriers for eligible applicants seeking to obtain approval of a charter application or an application for CSP funding to support the creation, replication, or expansion of a high-quality charter school.

In response to the commenter’s concerns about the use of noncompete and nondisclosure agreements in charter schools, we agree that the use of such agreements could impede charter-district collaborations to the extent that they restrict a teacher’s ability to work at, or to share best practices with, another public school, and that non-compete agreements undermine the ability of all students to have access to qualified teachers. The issue of noncompete and nondisclosure agreements in charter schools, however, is outside the scope of this regulatory action. Nevertheless, the Department will explore options for collecting data in this area that might inform future activities.

Finally, while the Department has discretion to designate the priority as invitational, competitive preference, or absolute in any given competition, for the reasons noted above, we do not intend to use this priority as an absolute or competitive preference priority in FY 2022, and it is unlikely that we would use the priority as an absolute priority in future years. Therefore, in the FY 2022 CSP CMO Grant and Developer Grant competitions, applicants will not be required to collaborate with a traditional public school or school district to be eligible for funding.

Further, as discussed below, we have revised Priority 2 to clarify the Department’s intent and to help ensure that this priority is not implemented in a manner that would make it more difficult for eligible applicants to obtain charter approval or to qualify for CSP funding. Also, as discussed below, we have amended Requirement 6 applicable to State Entity Grants to require State entity applicants to describe how they will ‘‘encourage, but not require,’’ eligible applicants to propose projects that include charter-traditional collaborations.

We also acknowledge the commenter’s concern that requiring the district to sign an MOU could be labor-intensive and result in significant legal fees, only to be revoked at a later date.

Putting in place an MOU is not required in order for applicants to address this priority but is one example of the various types of information that may be provided. Nevertheless, to avoid confusion, we have removed the reference to an MOU in the priority. In addition, as discussed below, we have extended the time period within which an applicant must provide evidence of the existence of a collaboration. Having an MOU in place, or having a traditional public school or district ‘‘sign off’’ on the application, is not a requirement of this priority.

Changes: We changed the name of this priority to Collaborations between Charter Schools and Traditional Public Schools or Districts that Benefit Students and Families across Schools.

In paragraph (a) of Priority 2, we clarified…