[Federal Register Volume 84, Number 128 (Wednesday, July 3, 2019)]
[Rules and Regulations]
[Pages 31726-31738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14263]



[[Page 31726]]

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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 School Developers for the Opening of New 
Charter Schools and for the Replication and Expansion of High-Quality 
Charter Schools

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

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

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
announces priorities, requirements, definitions, and selection criteria 
for 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) under the Expanding Opportunity Through 
Quality Charter Schools Program (CSP). 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 opening of new charter schools, Catalog of 
Federal Domestic Assistance (CFDA) number 84.282B, and the replication 
and expansion of high-quality charter schools, CFDA number 84.282E, 
throughout the Nation.

DATES: These priorities, requirements, definitions, and selection 
criteria are effective August 2, 2019.

FOR FURTHER INFORMATION CONTACT: Katherine Cox, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3E207, Washington, DC 20202. 
Telephone: (202) 453-6886.
    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\ or schools previously designated as persistently 
lowest-achieving schools or priority schools; experience serving 
concentrations of students who are individuals from low-income 
families; plans to expand their reach into new 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.
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    \1\ Italicized terms are defined in the Final Definitions 
section of this document.
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    Second, these final priorities, requirements, definitions, and 
selection criteria are designed to increase the likelihood that 
Developer 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 of Education 
(Department) to give priority to applications that propose to open new 
charter schools or replicate or expand high-quality charter schools 
that serve a meaningful proportion of students who are individuals from 
low-income families, high school students, students in rural 
communities, and Native American students. Further, in order to meet 
the final requirements announced in this document, Developer grant 
applicants must describe how the schools they intend to newly open, 
replicate, or expand would recruit and enroll educationally 
disadvantaged students and support such students in mastering State 
academic standards.
    Costs and Benefits: The Department believes that the benefits of 
this regulatory action outweigh any associated costs, which we believe 
will be minimal. While this action imposes cost-bearing requirements on 
participating Developers, 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 Developers 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.
    Developer grants are intended to support charter schools that serve 
early childhood, elementary school, or secondary school students by 
providing grant funds to eligible applicants for the opening of new 
charter schools (CFDA number 84.282B) and for the replication and 
expansion of high-quality charter schools (CFDA number 84.282E).
    Program Authority: Title IV, part C of the Elementary and Secondary 
Education Act of 1965, as amended (ESEA).
    We published a notice of proposed priorities, requirements, 
definitions, and selection criteria for this program in the Federal 
Register on April 4, 2019 (84 FR 13204) (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). We have revised Priority 1--Spurring Investment in 
Opportunity Zones to clarify that each subpart can be used separately 
as its own priority. Second, we have added Priority 8--Promoting 
Diversity to enable the Department to target for funding applications 
from Developers that are taking active steps to promote 
socioeconomically diverse student bodies. We have also revised the 
Requirements to clarify statutory parameters regarding the use of 
weighted lotteries. Finally, we have revised the Definitions to clarify 
and

[[Page 31727]]

expand the rural community definition. 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, 19 
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: Two commenters suggested that we include a priority 
focused on improving outcomes for students with disabilities. One 
commenter encouraged the Department to create a competitive preference 
or invitational priority for developers that propose to open, 
replicate, or expand schools that are intentionally designed to address 
achievement gaps that exist for students with disabilities. Another 
commenter noted that the charter sector presents an opportunity to 
leverage parental choice and school autonomy to develop innovative 
approaches to educating students with disabilities.
    Discussion: We agree that students with disabilities face unique 
educational challenges, and the charter sector presents an opportunity 
to improve outcomes for students with disabilities.\2\
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    \2\ Public charter schools are required to comply with 
applicable laws, including Part B of the Individuals with 
Disabilities Education Act (IDEA), Section 504 of the Rehabilitation 
Act of 1973 (Section 504), and Title II of the Americans with 
Disabilities Act of 1990 (ADA). 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 a free appropriate public education (FAPE).
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    To help facilitate this goal, 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. 
For example, Priority 3--High School Students requires an applicant to 
propose one or more performance measures that will provide information 
on the applicant's progress in preparing students, including 
educationally disadvantaged students, for enrollment in postsecondary 
education institutions.
    Additionally, 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, which are 
available for use in all of the Department's discretionary grant 
programs, including the Developer grant competition. Included are two 
priorities that focus on the needs of students with disabilities and 
could be used in future Developer 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 did not include a specific priority for students with 
disabilities.
    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. We 
believe it is important to retain the flexibility to designate each 
priority as invitational, competitive preference, or absolute in order 
to ensure that program funds are used to address the most pressing 
programmatic concerns for competitions in FY 2019 and later years. 
Therefore, in accordance with 34 CFR 75.105(c), we will designate 
specific priorities as invitational, competitive preference, or 
absolute priorities for the FY 2019 competition, and competitions in 
later years, through a notice inviting applications (NIA) published in 
the Federal Register.
    Changes: None.
    Comments: Four commenters encouraged the Department to include a 
priority that focuses on promoting diversity. Three commenters 
suggested adding a diversity priority comparable to the CSP Charter 
Management Organization (CMO) grant competition to help support the 
creation of new diverse-by-design charter schools focusing on racial 
and socioeconomic diversity, with one commenter encouraging the scope 
to include students with disabilities and other educationally 
disadvantaged students. One commenter noted that it is important to 
support the growth of charter schools that aim to increase diversity, 
encouraging the use of a priority and technical assistance focused on 
student diversity.
    Discussion: We agree that students can benefit from attending high-
quality charter schools with a student body reflecting a broad 
socioeconomic spectrum. To avoid potential Constitutional questions, we 
are adding a priority focused just on promoting recruitment of students 
from diverse socioeconomic backgrounds. In addition, the Department 
will consider how we can support efforts to reach children from broad 
and diverse socioeconomic backgrounds in a legally compliant way 
through technical assistance and the dissemination of information 
beyond rulemaking.
    Changes: We have added Priority 8--Promoting Diversity, under which 
applicants must propose to open a new charter school, or replicate or 
expand a high-quality charter school, that has an intentional focus on 
recruiting students from diverse socioeconomic backgrounds and 
maintaining socioeconomically diverse student bodies in that charter 
school.
    Comments: One commenter asserted that the Department did not comply 
with the requirement in Executive Order 13563 that, in choosing among 
regulatory alternatives, an agency ``select those approaches that 
maximize net benefits including potential economic, environmental, 
public health and safety, and other advantages; distributive impacts; 
and equity'' because the Department did not provide a comprehensive 
definition of ``equity.''
    Discussion: Executive Order 13563 requires that the Department 
consider regulatory approaches that maximize benefits, including with 
respect to equity. The Executive Order does not define equity, nor does 
it require an agency to adopt a specific definition for the term. As 
noted in the Regulatory Impact Analysis in the NPP, the Department 
assessed the potential benefits of this regulatory action and concluded 
that the proposal ``would strengthen accountability for the use of 
Federal funds by helping to ensure that the Department awards CSP 
grants to Developers that are most capable of expanding the number of 
high-quality charter school available to our Nation's students.'' 
Therefore, we disagree with the commenter's assertion that the 
Department failed to comply with the Executive order.
    Changes: None.

[[Page 31728]]

Priority 1--Spurring Investment in Opportunity Zones

    Comments: One commenter expressed concern about the impact that 
this priority may have on racial and socioeconomic segregation in and 
around an opportunity zone. The commenter recommended that the 
Department instead encourage the use of grant funds for transportation 
of children in families of low economic status to schools of choice.
    Discussion: As noted in the NPP, this priority is focused 
specifically on harnessing the power of opportunity zones to increase 
educational choices for students in distressed communities. The 
Economic Innovation Group found that ``[n]early a quarter of Americans 
living in distressed communities have not completed high school, and 
more than one-third have no education beyond a high school diploma or 
equivalent.'' \3\ This priority is focused on the connection between 
students living in distressed communities and their academic 
achievement and long-term outcomes. Therefore, it is not specifically 
intended to address racial and socioeconomic segregation. In addition, 
as noted above, we have added a priority focused on recruiting and 
maintaining a socioeconomic diverse student body.
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    \3\ Economic Innovation Group Distressed Communities Index, 
2017. Available at https://eig.org/wp-content/uploads/2017/09/2017-Distressed-Communities-Index.pdf.
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    With respect to the transportation of students, we believe the 
statute already includes requirements that adequately address this 
issue. Specifically, under section 4303(f)(1)(E) of the ESEA, an 
applicant must describe how it will ensure that each charter school 
receiving CSP funds has considered and planned for the transportation 
needs of the school's students. In addition, under section 4303(h)(4) 
of the ESEA, grantees are authorized to use CSP funds to provide one-
time start-up costs associated with providing transportation to 
students to and from school.
    Changes: None.
    Comments: One commenter inquired about what criteria the Department 
would use to determine if a school to be opened in an opportunity zone 
is high quality.
    Discussion: Developer grants support the opening of new charter 
schools and the replication and expansion of ``high-quality charter 
schools,'' which is defined in section 4310(8) of the ESEA. 
Accordingly, the Department will apply that definition when considering 
applications for replication and expansion.
    Changes: None.
    Comments: Two commenters expressed support for the priority as a 
way to attract charter schools to areas lacking a sufficient number of 
high-quality seats. One commenter supported the possibility of the 
Department giving applicants additional time to provide evidence of 
partnership with a qualified opportunity fund after the application 
deadline. The other commenter also supported the priority but did not 
believe that meeting both subparts of the priority should be required 
for an applicant to fully meet the priority. The commenter suggested 
removing subpart (b) of the priority.
    Discussion: We agree that using the opportunity zone priority can 
attract charter schools to areas lacking a sufficient number of high-
quality seats. We also believe that having the flexibility to grant 
additional time to enable an applicant to formalize a relationship with 
an opportunity fund could be merited. The Department anticipates that 
we would provide additional time for this purpose especially if the 
priority area focused on opportunity funds is used in an absolute 
priority.
    With respect to the commenter's concerns about meeting both parts 
of the priority, we believe that as opportunity zones and opportunity 
funds mature, the ability to promote either or both subparts maximizes 
the Department's flexibility. To this end, we believe a slight 
modification is necessary to ensure that the Department has flexibility 
to use either or both subparts, which may include using the subparts as 
different types of priorities in a competition (e.g., using subpart (a) 
as an absolute priority and subpart (b) as a competitive preference 
priority).
    Changes: We have revised the priority to clarify that the 
Department may use each subpart as its own priority by removing the 
semicolon as well as the ``and'' connector between the two subparts.

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

    Comments: Several commenters recommended that we use Priority 2 
cautiously because available research on charter school performance is 
mixed. One commenter urged the Department to ensure that any restart 
efforts intentionally include evidence-based, effective, and innovative 
strategies.
    Discussion: We agree that, where possible, Federal funding should 
be used primarily to support strategies that are based on research or 
otherwise have promise of or have been shown to be effective. For this 
reason, to meet this priority, applicants must demonstrate past success 
working with one or more academically poor-performing public schools or 
schools previously designated as persistently lowest-achieving schools 
or priority schools. In addition, under the final requirements, all 
applicants, regardless of whether they address this priority, must 
provide a complete logic model that includes the applicant's objectives 
for implementing a new charter school or replicating or expanding a 
high-quality charter school with funding under this competition. 
Applicants for grants under CFDA number 84.282E, regardless of whether 
they address this priority, may be required to disclose compliance 
issues and describe student assessment results, attendance rates, and 
student retention rates for charter schools they currently operate or 
manage. This program specifically supports the opening of new charter 
schools and 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.
    Comments: Several commenters expressed support for Priority 2. One 
commenter requested that we clarify whether an applicant could address 
the priority by proposing to partner with a school district to open a 
new charter school and prioritize enrollment of students attending the 
academically poor-performing public school or a recently closed school, 
rather than to reopen an academically poor-performing public school as 
a charter school. Another commenter requested clarity on what 
constitutes the reopening of an academically poor-performing public 
school as a charter school. One commenter encouraged the Department to 
ensure that applications addressing this priority be evaluated with the 
context that the authorization process may be different for a school 
that is reopening versus a replication or expansion school. This 
commenter also suggested that the Department update its nonregulatory 
guidance to clarify that Developers who intend to reopen 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. The commenter 
also recommended that the Department use the priority as a competitive, 
but not absolute, priority.

[[Page 31729]]

    Discussion: We agree with the commenter that the purpose of this 
priority--to ``reopen'' academically poor-performing public schools--
should be clear. Therefore, an applicant proposing only to open a new 
charter school, 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).
    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 Developers that propose to reopen academically 
poor-performing public schools as charter schools.
    With respect to the parameters around reopening an academically 
poor-performing public school as a charter school, we note that 
applicants are required to demonstrate past success working with one or 
more academically poor-performing public school or schools that 
previously were designated as persistently lowest-achieving schools, or 
priority schools under the former School Improvement Grant program or 
in States that exercised ESEA flexibility, respectively, under the 
ESEA, as amended by the No Child Left Behind Act of 2001 (NCLB), 
including but not limited to direct experience reopening academically 
poor-performing public schools as charter schools. As outlined in our 
final priority, the applicant must target a demographically similar 
student population in the replicated charter school as was served by 
the academically poor-performing public school, consistent with 
nondiscrimination requirements contained in the U.S. Constitution and 
Federal civil rights laws.
    Additionally, when evaluating applications, the Department will use 
selection criteria that focus on the quality of the eligible 
applicants, the significance of the contributions in assisting 
educationally disadvantaged students, and the quality of the 
continuation plans. 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.
    While the differences in authorization processes for a school that 
is reopening is a factor that the applicant can describe in the 
application, the Department will not evaluate that factor as part of 
the determination whether to fund an applicant. 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, 
beyond having the flexibility to apply this priority, we decline to 
evaluate applications differently based on whether the proposed school 
will be a reopened school.
    Regarding admissions lotteries, under section 4303(c)(3) of the 
ESEA, charter schools receiving funds under a Developer grant 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.\4\
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    \4\ As stated above, under section 4305(c) of the ESEA, 
Developer grantees generally are subject to the same terms and 
conditions as State entity grantees funded under section 4303.
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    Further, the Department issued its most recent update to the CSP 
nonregulatory guidance in January 2014.\5\ Although that guidance was 
issued prior to enactment of the Every Student Succeeds Act (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 reopened as a charter 
school. The Department may update this guidance to address changes to 
the CSP made by the ESSA. In the meantime, Developer 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.
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    \5\ See http://www2.ed.gov/programs/charter/fy14cspnonregguidance.doc.
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    Finally, we appreciate the recommendation on use of the priority. 
As previously stated, this NFP establishes the priorities that we may 
choose to use in the Developer grant competition in FY 2019 and later 
years. We do not designate whether a priority will be invitational, 
competitive preference, or absolute in this NFP but, rather, retain the 
flexibility to designate each priority as invitational, competitive 
preference, or absolute in order to ensure that program funds are used 
to address the most pressing programmatic concerns for competitions in 
FY 2019 and later years. When inviting applications for a competition 
using one or more of these priorities, we will designate the type of 
each priority through the NIA.
    Changes: None.
    Comments: One commenter expressed that there is a 
disproportionately high percentage of students with disabilities in 
turnaround schools and suggested that we require Developers 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. Developer grantees, and the 
charter schools they operate, 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: One commenter expressed concern that reopening an 
academically poor-performing public school as a charter school would 
lead to higher-achieving students abandoning their traditional public 
school in order to attend the charter, leading to an increase in 
traditional public schools being academically poor-performing.
    Discussion: The Department appreciates the opportunity to provide 
clarity in response to the comment. The intent of this priority is to 
promote high-quality educational options in areas where traditional 
public schools have not been producing high-quality outcomes and 
encourage the creation of high-quality options in those areas that have 
traditionally been underserved. The priority included in this 
competition is almost identical to the final priority under the CMO 
grant competition. We believe that the restart model (i.e., reopening a 
low-performing traditional public school under the management of a 
charter school developer, or reopening a low-performing public charter 
school under the management of a different charter school developer) 
holds promise as a school improvement strategy, but data suggest that 
it has been underutilized.\6\

[[Page 31730]]

Accordingly, Priority 2 is intended to help increase the frequency of 
implementation of the restart model. In future Developer grant 
competitions that include this priority, we would encourage applicants 
to review CSP technical assistance materials pertaining to how an 
applicant may design an admissions lottery for an academically poor-
performing public school that the applicant is proposing to reopen. 
Under the most recent version of the CSP nonregulatory guidance, for 
example, a charter school receiving CSP funds could, if permissible 
under applicable State law, exempt from its lottery students who are 
enrolled in the academically poor-performing public school at the time 
it is reopened. Additionally, in order to meet this priority, 
applicants must target a demographically similar student population in 
the replicated charter school as was served by the academically poor-
performing public school, consistent with nondiscrimination 
requirements contained in the U.S. Constitution and Federal civil 
rights laws.
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    \6\ Hurlburt, S., Therriault, S.B., and Le Floch, K.C. (2012). 
School Improvement Grants: Analyses of State Applications and 
Eligible and Awarded Schools (NCEE 2012-4060). Washington, DC: 
National Center for Education Evaluation and Regional Assistance, 
Institute of Education Sciences, U.S. Department of Education.
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    Changes: None.

Priority 3--High School Students

    Comments: One commenter encouraged the Department to consider 
supporting charter schools at the elementary and middle school level, 
concerned that programs that begin at the high school level may be too 
late to close education gaps and ensure a quality education.
    Discussion: Developer grants are intended to support charter 
schools that serve early childhood, elementary school, and secondary 
school students. This priority is not intended to preclude the 
development of charter schools at the elementary and middle school 
level, but rather promote high-quality charter school options for the 
entire elementary and secondary sector, including high school. Data 
from the Department's National Center for Education Statistics (NCES) 
in the 2015-2016 school year demonstrated that over half of all charter 
schools were elementary schools (56%). Approximately 23 percent of 
charter schools in the 2015-2016 school year were secondary schools, 
with the remaining 21 percent representing a combination elementary/
secondary or not classified by grade span. While research comparing the 
outcomes of students who participated in a charter school only for high 
school versus students who attended a charter school at the elementary 
and middle school levels is limited, evidence does demonstrate that the 
long-term impact of attending a charter school is positive. One study 
found that ``students attending charter high schools had a 
substantially higher chance of graduation and college enrollment 
(relative to students that attended charter middle schools but regular 
public high schools).'' \7\ In an effort to increase the number of 
high-quality educational options for high school students, the 
Department added the priority for high school students.
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    \7\ Booker, Kevin, et al. ``The Effects of Charter High Schools 
on Educational Attainment.'' Journal of Labor Economics, vol. 29, 
no. 2, 2011, pp. 377-415. JSTOR, www.jstor.org/stable/10.1086/658089.
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    With respect to concerns about closing education gaps in high 
school and ensuring a quality education, section 4303(f)(1)(A)(x) of 
the ESEA requires that all applicants, regardless of whether they 
address this priority, describe how they will ensure that charter 
schools receiving funds under this program meet the educational needs 
of their students. Under the final requirements, the applicant must 
also describe the educational program that will be implemented in the 
charter school, including how the program will enable all students to 
meet the challenging State academic standards.
    Changes: None.
    Comments: Two commenters supported the priority focused on high 
school students, with one commenter noting that the priority should be 
used as invitational or competitive preference, rather than absolute. 
The other commenter requested that the Department ensure that any 
application focused on high school students include strategies to 
support transition planning for students with disabilities.
    Discussion: As stated above, the NFP establishes the priorities 
that we may choose to use in the Developer grant competition in FY 2019 
and later years. When inviting applications for a competition using one 
or more of these priorities, we will designate the type of each 
priority through the NIA.
    We agree with the commenter 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, the priority language 
includes specific references to educationally disadvantaged students, 
including students with disabilities, where appropriate. Also, 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.\8\ 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. Further, 
the previously described application requirements are designed to 
ensure that an applicant is meeting the needs of all its students, 
including those students with disabilities that require transitional 
support. As children with disabilities are included in the definition 
of ``educationally disadvantaged students,'' we do not specifically 
need to identify this subgroup in a separate application requirement. 
Therefore, 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 disabilities.
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    \8\ 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.
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    Changes: None.

Priority 4--Rural Community

    Comments: Two commenters requested clarity around the use of this 
priority. One commenter expressed support for the priority if used as a 
competitive preference or invitational priority, rather than an 
absolute priority based on the concern that use as an absolute priority 
may unduly prevent developers in largely urban or suburban areas from 
competing for grant funds. Another commenter requested that the 
Department clarify how this priority would operate if the entire 
priority is used in a competition.
    Discussion: According to NCES, 28 percent of public elementary and 
secondary schools are in rural areas, serving 19 percent of the 
Nation's students enrolled in public elementary and secondary 
schools.\9\ Additionally, according to the Department's Section 5005 
Report on Rural Education: Final Report, ``Rural schools and LEAs often 
face unique challenges, including fewer

[[Page 31731]]

career options and apprenticeship options for students, the inability 
to attract, train, and retain teachers and principals, and the 
inability to offer advanced courses that better prepare students for 
college and careers.'' Additionally, the report revealed that ``rural 
schools and LEAs often see themselves at a distinct disadvantage 
compared to their urban and suburban counterparts during grant 
competitions. While many large districts may have dedicated grant-
writing staff, many rural districts (due to small staffs and frequent 
turnover) lack personnel with the knowledge and experience to complete 
complex grant applications. In addition, more often than their 
counterparts in other locales, rural districts lack access to reliable 
broadband internet access, causing additional difficulties in applying 
for grants, providing classroom instruction, and administering 
programs.'' \10\ For these reasons, we are interested in prioritizing 
applications that seek to increase high-quality educational options in 
rural areas. We do not believe that use of this priority as an absolute 
priority would prevent urban and suburban districts from competing for 
funds; rather, it would allow rural applicants a comparable opportunity 
to compete with those with similar resources. As written, this priority 
gives the Department flexibility to establish an absolute or 
competitive preference priority for applications that propose to open a 
new charter school, or to replicate or expand a high-quality charter 
school, in a rural community or non-rural community, depending on the 
Department's policy objectives in a given year. Additionally, in a 
competition in which this priority is established as an absolute 
priority, we would expect to use both the rural and the non-rural parts 
of this priority in order to create two funding slates. We believe the 
priority is clear and, therefore, decline to revise it.
---------------------------------------------------------------------------

    \9\ Public elementary and secondary school enrollment, number of 
schools, and other selected characteristics, by locale: Fall 2012 
through fall 2015, https://nces.ed.gov/programs/digest/d17/tables/dt17_214.40.asp.
    \10\ U.S. Department of Education, Office of Communications and 
Outreach, Section 5005 Report on Rural Education: Final Report, 
Washington, DC, 2018, https://www2.ed.gov/about/inits/ed/rural/rural-education-report.pdf
---------------------------------------------------------------------------

    Changes: None.

Proposed Priority 5--Opening a New Charter School or Replicating or 
Expanding a High-Quality Charter School To Serve Native American 
Students

    Comments: Two commenters expressed support for the priority. One 
commenter requested clarification on the relative importance of this 
priority in relation to other priorities.
    Discussion: We believe it is important to retain the flexibility to 
designate each priority and its importance in any given year in order 
to ensure that program funds are used to address the most pressing 
programmatic concerns for competitions in FY 2019 and later years. 
Therefore, in accordance with 34 CFR 75.105(c), we will designate 
specific priorities as invitational, competitive preference, or 
absolute priorities for the FY 2019 competition, and competitions in 
later years, through an NIA published in the Federal Register.
    Changes: None.

Proposed Priority 6--Low-Income Demographic

    Comments: Several commenters expressed support for the priority but 
suggested various refinements. Two commenters suggested that we revise 
the priority to require Developers to demonstrate that the schools 
serve a proportion of low-income students that is within a defined 
range of the demographics of the community that they are serving, 
rather than a determined percentage of individuals from low-income 
families. Another commenter suggested that if the Department uses more 
than one percentage, a tiered approach to competitive preference 
priority points be used in scoring (e.g., one point for an applicant 
that can demonstrate its schools have at least 40 percent students who 
are individuals from low-income families, two points for an applicant 
that can demonstrate its schools have at least 50 percent students who 
are individuals from low-income families, and three points for an 
applicant that can demonstrate its schools have at least 60 percent 
students who are individuals from low-income families).
    Discussion: The priority is written in a manner that gives the 
Department flexibility to apply one, two, or all three poverty 
standards in a single competition. We believe it is important to retain 
the flexibility to designate each priority as invitational, competitive 
preference, or absolute and specify the point values when applicable in 
order to ensure that program funds are used to address the most 
pressing programmatic concerns for competitions in FY 2019 and later 
years. Therefore, in accordance with 34 CFR 75.105(c), we will 
designate specific priorities as invitational, competitive preference, 
or absolute priorities for the FY 2019 competition, and competitions in 
later years, through an NIA published in the Federal Register.
    We require an applicant receiving points for this priority to 
maintain the same, or a substantially similar, poverty threshold 
throughout the life of the grant. We recognize that the percentage of 
students who are individuals from low-income families may fluctuate on 
an annual basis and, for this reason, believe the priority should focus 
on all schools operated by a Developer, when applicable, and not just 
the charter school being opened, replicated, or expanded as part of the 
grant project.
    Likewise, we understand that use of community demographics may 
provide useful data in areas in which the district school enrollment 
differs considerably from the demographics of the school-age 
population; however, 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 meet 
the requisite percentage of students who are individuals from low-
income families across all the charter schools the applicant operates 
or manages, and ensure that the applicant will maintain the same, or a 
substantially similar, percentage of such students across all of its 
charter schools during the grant period. In addition, applicants must 
establish one or more project-specific 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.

Proposed Priority 7--Single School Operators

    Comments: Several commenters requested clarity on the use of the 
single school operator priority. One commenter felt that charter school 
operators with multiple schools may be able to meet student needs more 
immediately, while two other commenters preferred that the preference 
be given to single school operators to allow smaller start-up schools 
an opportunity to demonstrate their capabilities that otherwise would 
not exist.
    Discussion: The Department appreciates the opportunity to provide 
clarity on this priority. The single school operator priority is 
intended only for replication and expansion grants (CFDA 84.282E). The 
intent of this priority is to focus funding for replication and 
expansion grants under CFDA 84.282E on developers who

[[Page 31732]]

currently operate a single school, considering the availability of 
funds for replication and expansion for entities that operate more than 
one school under the CMO grant competition. This priority, by itself, 
is not intended to assess quality with respect to the size of the 
applicant. In any year in which we announce a competition, we will 
select a combination of priorities, requirements, and selection 
criteria that meet the requirements of the Developer grant program and 
are aligned with the Secretary's policy objectives. Generally, the 
single-school priority as it relates to CFDA 84.282E and the novice 
priority in 34 CFR 75.225 as it relates to CFDA 84.282B are intended to 
encourage applications from novice applicants within the parameters of 
each grant program.
    Changes: None.

Requirements

    Comments: One commenter urged the Department to ensure that any 
grantee using a weighted lottery meet all relevant statutory 
requirements and 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.
    Discussion: As stated above, under section 4303(c)(3) of the ESEA, 
charter schools receiving funds under a Developer grant 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. In addition, as described in 
the January 2014 CSP Nonregulatory Guidance, the Department strongly 
encourages charter schools to use weighted lotteries as part of a 
broader strategy of outreach, recruitment, and retention for all 
students, including educationally disadvantaged students.
    To help ensure compliance with the weighted lottery requirement, an 
applicant must describe its lottery and enrollment procedures, 
including how any weighted lottery complies with section 4303(c)(3)(A) 
of the ESEA. As such, the Department believes it has taken steps to 
ensure compliance with this requirement and declines to expand on the 
statutory requirements for weighted lotteries as they apply to 
Developer grants. The Department does believe, however, that modifying 
the application requirements related to lottery and enrollment 
procedures, including weighted lotteries, to be a separate and distinct 
element would add clarity regarding the statutory requirement on 
weighted lotteries.
    Changes: To provide clarity regarding the statutory requirement on 
the use of weighted lotteries, we modified the application requirements 
to include a separate application requirement focused on lottery and 
enrollment procedures. Specifically, we separated proposed requirement 
(c) into two distinct requirements--(c) and (d). While Final 
Requirement (c) requires an applicant to address how it will ensure the 
charter school that receives funding will recruit, enroll, and retain 
educationally disadvantaged students, Final Requirement (d) requires an 
applicant to address the lottery itself, including how the weighted 
lottery (if used) complies with section 4303(c)(3)(A) of the ESEA.
    Comments: One commenter urged the Department to clarify through 
these final priorities, requirements, definitions, and selection 
criteria that applicants proposing to open or expand virtual/online 
charter schools must ensure that all students, particularly students 
with disabilities, can access virtual and online content. The commenter 
requested that we require all virtual public schools, including virtual 
charter schools, to demonstrate compliance with the Web Content 
Accessibility Guidelines (WCAG).
    Discussion: Section 4310(2)(G) of the ESEA requires charter schools 
receiving CSP funds to comply with various laws, including Section 504, 
the ADA, and Part B of 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 FAPE in accordance with the requirements of Part B of 
the IDEA.\11\ To meet this obligation, these schools must provide 
instructional materials to students with disabilities in accessible 
formats, in accordance with the requirements of Part B of the IDEA, 
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 Part B of the IDEA, 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.
---------------------------------------------------------------------------

    \11\ 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.
---------------------------------------------------------------------------

    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.
    Changes: None.

Definitions

    Comments: One commenter asked the Department to reconsider the 
proposed definition of ``rural community,'' raising concerns that our 
use of the Small Rural School Achievement (SRSA) program and the Rural 
and Low-Income School (RLIS) determinations could potentially restrict 
otherwise eligible applicants. The commenter additionally encouraged 
the Department to use consistent definitions across all Department 
grant programs to the extent possible.
    Discussion: We consulted with other programs across the Department, 
including the Rural Education Achievement Program (REAP) and the 
Education Innovation Research (EIR) program, and obtained additional 
data on updated methods to determine geographic boundary assignments. 
After discussions, we agree that there is an opportunity to improve the 
definition of ``rural community'' as well as align it with other agency 
programs. The EIR program uses locale classifications pulled from the 
NCES Education Demographic and Geographic Estimates (EDGE) program, 
which has categorized the United States into four types of areas: City, 
Suburban, Town, and Rural. These areas are further categorized as 
Fringe, Distant, or Remote based on distance from a major urban 
cluster. We believe that use of NCES EDGE data will be a more accurate 
method of

[[Page 31733]]

determining a locale classification and will remove restrictions for 
applicants opening schools in areas that would otherwise have been 
eligible to meet the definition of ``rural community.'' Accordingly, 
the Department will revise our definition to align more closely with 
the one used in the EIR program. The revised definition is more 
flexible than the previous definition, may allow for additional 
applicants to meet any proposed priorities associated with the 
definition, and takes advantage of an opportunity to improve a 
definition through the public feedback process.
    Changes: We have revised the definition of ``rural community'' to 
be a community served by one or more LEAs (a) with a locale code of 32, 
33, 41, 42, or 43; or (b) that include a majority of schools with a 
locale code of 32, 33, 41, 42, or 43. The revised definition notes that 
applicants are encouraged to retrieve locale codes from the NCES School 
District search tool (https://nces.ed.gov/ccd/districtsearch/), to look 
up an LEA individually to retrieve locale codes, and Public School 
search tool (https://nces.ed.gov/ccd/schoolsearch/), to look up 
individual schools and retrieve locale codes.

Selection Criteria

    Comments: One commenter expressed strong support for the selection 
criteria, specifically Selection Criterion (b)--Significance of 
contribution in assisting educationally disadvantaged students and 
Selection Criterion (c)--Quality of the continuation plan. Another 
commenter shared support for use of Selection Criterion (a)--Quality of 
the eligible applicant and the distinction that it is only for 
applicants under CFDA 84.282E. A third commenter expressed support for 
all three selection criteria but requested that the Department weigh 
the selection criteria in such a way that an applicant would be unable 
to receive a grant award if they receive inadequate scores on these 
criteria.
    Discussion: We appreciate the commenters' support for the various 
selection criteria and the opportunity to provide clarification. First, 
it should be noted that Selection Criterion (a)--Quality of the 
eligible applicant, is intended only for replication and expansion 
grants (CFDA 84.282E). In addition, two major purposes of the CSP are 
to expand educational opportunities for educationally disadvantaged 
students and to assist such students in meeting State academic content 
and performance standards. The final selection criteria (a) and (b) 
enable the Department to evaluate the quality of an application with 
respect to achieving these two objectives.
    Furthermore, the maximum possible score for addressing each 
selection criterion will be indicated in the NIA. The rank order list 
for applicants will be generated based on the average raw score each 
application receives on the selection criteria and the average number 
of competitive preference priority points the application receives. The 
maximum possible score an application will be able to receive will be 
based on the selection criteria and the competitive preference points 
assigned to the application. Each application's total score for the 
selection criteria will be calculated, and the competitive preference 
priority points assigned to the application will be added to each 
application's score, as appropriate. A rank order list will be 
prepared, based on the resulting scores.
    Changes: None.

Final Priorities

Priority 1--Spurring Investment in Opportunity Zones

    Under this priority, an applicant must address one or both of the 
following priority areas:
    (a) Propose to open a new charter school or to replicate or expand 
a high-quality charter school in a qualified opportunity zone as 
designated by the Secretary of the Treasury under section 1400Z-1 of 
the Internal Revenue Code, as amended by the Tax Cuts and Jobs Act 
(Pub. L. 115-97).
    (b) Provide evidence in its application that it has received or 
will receive an investment from a qualified opportunity fund under 
section 1400Z-2 of the Internal Revenue Code, as amended by the Tax 
Cuts and Jobs Act, for one or more of the following, as needed to open 
or to replicate or expand the school:
    (1) The acquisition (by purchase, lease, donation, or otherwise) of 
an interest (including an interest held by a third party for the 
benefit of the school) in improved or unimproved real property;
    (2) The construction of new facilities, or the renovation, repair, 
or alteration of existing facilities;
    (3) The predevelopment costs required to assess sites for purposes 
of subparagraph (1) or (2); and
    (4) The acquisition of other tangible property.
    In addressing paragraph (a) of this priority, an applicant must 
provide the census tract number of the qualified opportunity zone in 
which it proposes to open a new charter school or replicate or expand a 
high-quality charter school. A list of qualified opportunity zones, 
with census tract numbers, is available at www.cdfifund.gov/Pages/Opportunity-Zones.aspx.
    In addressing paragraph (b) of this priority, an applicant must 
identify the qualified opportunity fund from which it has received or 
will receive financial assistance. The Department may, at its 
discretion, give applicants additional time to provide evidence of such 
assistance after the deadline for transmittal of applications. If the 
Department elects to give applicants additional time, we will announce 
in the NIA the deadline by which such evidence must be provided.

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

    Under this priority, applicants must:
    (a) Demonstrate past success working with one or more academically 
poor-performing public schools or schools that previously were 
designated as persistently lowest-achieving schools or priority schools 
under the former School Improvement Grant program or in States that 
exercised ESEA flexibility, respectively, under the ESEA, as amended by 
the No Child Left Behind Act of 2001 (NCLB), including but not limited 
to direct experience reopening academically poor-performing public 
schools as charter schools; and
    (b) Propose to use grant funds under this program to reopen an 
academically poor-performing public school as a charter school during 
the project period by:
    (1) Replicating a high-quality charter school based on a successful 
charter school model for which the applicant has provided evidence of 
success; and
    (2) Targeting a demographically similar student population in the 
replicated charter school as was served by the academically poor-
performing public school, consistent with nondiscrimination 
requirements contained in the U.S. Constitution and Federal civil 
rights laws.

Priority 3--High School Students

    (a) Under this priority, applicants must propose to:
    (1) Open a new charter school or replicate or expand a high-quality 
charter school to serve high school students, including educationally 
disadvantaged students;
    (2) Prepare students, including educationally disadvantaged 
students, in that school for enrollment in postsecondary education 
institutions through activities such as, but not limited to, 
accelerated learning

[[Page 31734]]

programs (including Advanced Placement and International Baccalaureate 
courses and programs, dual or concurrent enrollment programs, and early 
college high schools), college counseling, career and technical 
education programs, career counseling, internships, work-based learning 
programs (such as apprenticeships), assisting students in the college 
admissions and financial aid application processes, and preparing 
students to take standardized college admissions tests; and
    (3) Provide support for students, including educationally 
disadvantaged students, who graduate from that school and enroll in 
postsecondary education institutions in persisting in, and attaining a 
degree or certificate from, such institutions, through activities such 
as, but not limited to, mentorships, ongoing assistance with the 
financial aid application process, and establishing or strengthening 
peer support systems for such students attending the same institution.
    (b) Applicants must propose one or more project-specific 
performance measures, including aligned leading indicators or other 
interim milestones, that will provide valid and reliable information 
about the applicant's progress in preparing students, including 
educationally disadvantaged students, for enrollment in postsecondary 
education institutions and in supporting those students in persisting 
in and attaining a degree or certificate from such institutions. An 
applicant addressing this priority and receiving a Developer grant must 
provide data that are responsive to the measure(s), including 
performance targets, in its annual performance reports to the 
Department.
    (c) For purposes of this priority, postsecondary education 
institutions include institutions of higher education, as defined in 
section 8101(29) of the ESEA, and one-year training programs that meet 
the requirements of section 101(b)(1) of the Higher Education Act of 
1965, as amended (HEA).

Priority 4--Rural Community

    Under this priority, applicants must propose to open a new charter 
school or to replicate or expand a high-quality charter school in one 
of the following:
    (a) A rural community.
    (b) A community that is not a rural community.

Priority 5--Opening a New Charter School or Replicating or Expanding a 
High-Quality Charter School To Serve Native American Students

    Under this priority, applicants must:
    (a) Propose to open a new charter school, or replicate or expand a 
high-quality charter school, that--
    (1) Utilizes targeted outreach and recruitment in order to serve a 
high proportion of Native American students, consistent with 
nondiscrimination requirements contained in the U.S. Constitution and 
Federal civil rights laws;
    (2) Has a mission and focus that will address the unique 
educational needs of Native American students, such as through the use 
of instructional programs and teaching methods that reflect and 
preserve Native American language, culture, and history; and
    (3) Has or will have a governing board with a substantial 
percentage of members who are members of Indian Tribes or Native 
American organizations located within the area to be served by the new, 
replicated, or expanded charter school;
    (b) Submit a letter of support from at least one Indian Tribe or 
Native American organization located within the area to be served by 
the new, replicated, or expanded charter school; and
    (c) Meaningfully collaborate with the Indian Tribe(s) or Native 
American organization(s) from which the applicant has received a letter 
of support in a timely, active, and ongoing manner with respect to the 
development and implementation of the educational program at the 
charter school.

Priority 6--Low-Income Demographic

    Under this priority, applicants must demonstrate one of the 
following:
    (a) That at least 40 percent of the students across all of the 
charter schools the applicant operates or manages are individuals from 
low-income families, and that the applicant will maintain the same, or 
a substantially similar, percentage of such students across all of its 
charter schools during the grant period.
    (b) That at least 50 percent of the students across all of the 
charter schools the applicant operates or manages are individuals from 
low-income families, and that the applicant will maintain the same, or 
a substantially similar, percentage of such students across all of its 
charter schools during the grant period.
    (c) That at least 60 percent of the students across all of the 
charter schools the applicant operates or manages are individuals from 
low-income families, and that the applicant will maintain the same, or 
a substantially similar, percentage of such students across all of its 
charter schools during the grant period.

Priority 7--Single School Operators

    Under this priority, applicants must provide evidence of one or 
more of the following:
    (a) The applicant currently operates one, and only one, charter 
school.
    (b) The applicant currently operates more than one charter school.

Priority 8--Promoting Diversity

    Under this priority, applicants must propose to open a new charter 
school, or replicate or expand a high-quality charter school, that has 
an intentional focus on recruiting students from socioeconomically 
diverse backgrounds and maintaining socioeconomically diverse student 
bodies in those charter schools.

Types of Priorities

    When inviting applications for a competition using one or more 
priorities, we designate the type of each priority as invitational, 
competitive preference, or absolute through a notice in the Federal 
Register. The effect of each type of priority follows:
    Absolute priority: Under an absolute priority, we consider only 
applications that meet the priority (34 CFR 75.105(c)(3)).
    Competitive preference priority: Under a competitive preference 
priority, we give competitive preference to an application by (1) 
awarding additional points, depending on the extent to which the 
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) 
selecting an application that meets the priority over an application of 
comparable merit that does not meet the priority (34 CFR 
75.105(c)(2)(ii)).
    Invitational priority: Under an invitational priority, we are 
particularly interested in applications that meet the priority. 
However, we do not give an application that meets the priority a 
preference over other applications (34 CFR 75.105(c)(1)).

Final Requirements

    Application Requirements: Applicants for funds under this program 
must address one or more of the following application requirements:
    (a) Describe the applicant's objectives in running a quality 
charter school program and how the program will be carried out.
    (b) Describe the educational program that the applicant will 
implement in the charter school receiving funding under this program, 
including--
    (1) Information on how the program will enable all students to meet 
the challenging State academic standards;
    (2) The grade levels or ages of students who will be served; and

[[Page 31735]]

    (3) The instructional practices that will be used.
    (c) Describe how the applicant will ensure that the charter school 
that will receive funds will recruit, enroll, and retain students, 
including educationally disadvantaged students, which include children 
with disabilities and English learners.
    (d) Describe the lottery and enrollment procedures that the 
applicant will use for the charter school if more students apply for 
admission than can be accommodated and, if the applicant proposes to 
use a weighted lottery, how the weighted lottery complies with section 
4303(c)(3)(A) of the ESEA.
    (e) Provide a complete logic model (as defined in 34 CFR 77.1) for 
the grant project. The logic model must include the applicant's 
objectives for implementing a new charter school or replicating or 
expanding a high-quality charter school with funding under this 
competition.
    (f) Provide a budget narrative, aligned with the activities, target 
grant project outputs, and outcomes described in the logic model, that 
outlines how grant funds will be expended to carry out planned 
activities.
    (g) If the applicant proposes to open a new charter school (CFDA 
number 84.282B) or proposes to replicate or expand a high-quality 
charter school (CFDA number 84.282E) that provides a single-sex 
educational program, demonstrate that the proposed single-sex 
educational programs are in compliance with title IX of the Education 
Amendments of 1972 (20 U.S.C. 1681, et seq.) (``Title IX'') and its 
implementing regulations, including 34 CFR 106.34.
    (h) Provide the applicant's most recent available independently 
audited financial statements prepared in accordance with generally 
accepted accounting principles.
    (i) For each charter school currently operated or managed by 
applicants under CFDA 84.282E for replication and expansion, provide--
    (1) Information that demonstrates that the school is treated as a 
separate school by its authorized public chartering agency and the 
State, including for purposes of accountability and reporting under 
title I, part A of the ESEA;
    (2) Student assessment results for all students and for each 
subgroup of students described in section 1111(c)(2) of the ESEA;
    (3) Attendance and student retention rates for the most recently 
completed school year and, if applicable, the most recent available 
four-year adjusted cohort graduation rates and extended-year adjusted 
cohort graduation rates; and
    (4) Information on any significant compliance and management issues 
encountered within the last three school years by the existing charter 
school being operated or managed by the eligible entity, including in 
the areas of student safety and finance.
    (j) Provide--
    (1) A request and justification for waivers of any Federal 
statutory or regulatory provisions that the eligible entity believes 
are necessary for the successful operation of the charter school to be 
opened or to be replicated or expanded; and
    (2) A description of any State or local rules, generally applicable 
to public schools, that will be waived or otherwise not apply to the 
school that will receive funds.
    (k) Describe how each school that will receive funds meets the 
definition of charter school under section 4310(2) of the ESEA.
    Eligibility: Eligibility for a grant under this competition is 
limited to charter school developers in States that do not currently 
have a CSP State Entity grant (CFDA number 84.282A) under the ESEA. 
Eligibility in a State with a CSP State Educational Agency (SEA) grant 
(CFDA 84.282A) under the ESEA, as amended by NCLB, is limited to grants 
for replication and expansion \12\ (CFDA 84.282E) and only if the 
Department has not approved an amendment to the SEA's approved grant 
application authorizing the SEA to make subgrants for replication and 
expansion.\13\
---------------------------------------------------------------------------

    \12\ The list of eligible States will be included in the NIA for 
this competition and will be updated at the time of publication of 
that notice.
    \13\ The list of these States will be included in the NIA for 
this competition and will be updated at the time of publication of 
that notice.
---------------------------------------------------------------------------

    Funding Restriction: An applicant may propose to support only one 
charter school per grant application.

Final Definitions

    Academically poor-performing public school means:
    (a) A school identified by the State for comprehensive support and 
improvement under section 1111(c)(4)(D)(i) of the ESEA; or
    (b) A public school otherwise identified by the State or, in the 
case of a charter school, its authorized public chartering agency, as 
similarly academically poor-performing.
    Educationally disadvantaged student means a student in one or more 
of the categories described in section 1115(c)(2) of the ESEA, which 
include children who are economically disadvantaged, children with 
disabilities, migrant students, English learners, neglected or 
delinquent students, homeless students, and students who are in foster 
care.
    High proportion, when used to refer to Native American students, 
means a fact-specific, case-by-case determination based upon the unique 
circumstances of a particular charter school or proposed charter 
school. The Secretary considers ``high proportion'' to include a 
majority of Native American students. In addition, the Secretary may 
determine that less than a majority of Native American students 
constitutes a ``high proportion'' based on the unique circumstances of 
a particular charter school or proposed charter school, as described in 
the application for funds.
    Indian Tribe means a federally-recognized or a State-recognized 
Tribe.
    Individual from a low-income family means an individual who is 
determined by a State educational agency or local educational agency to 
be a child from a low-income family on the basis of (a) data used by 
the Secretary to determine allocations under section 1124 of the ESEA, 
(b) data on children eligible for free or reduced-price lunches under 
the Richard B. Russell National School Lunch Act, (c) data on children 
in families receiving assistance under part A of title IV of the Social 
Security Act, (d) data on children eligible to receive medical 
assistance under the Medicaid program under title XIX of the Social 
Security Act, or (e) an alternate method that combines or extrapolates 
from the data in items (a) through (d) of this definition.
    Institution of higher education means an educational institution in 
any State that--
    (a) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate, or persons who meet the 
requirements of section 484(d) of the HEA;
    (b) Is legally authorized within such State to provide a program of 
education beyond secondary education;
    (c) Provides an educational program for which the institution 
awards a bachelor's degree or provides not less than a 2-year program 
that is acceptable for full credit toward such a degree, or awards a 
degree that is acceptable for admission to a graduate or professional 
degree program, subject to review and approval by the Secretary;
    (d) Is a public or other nonprofit institution; and
    (e) Is accredited by a nationally recognized accrediting agency or 
association, or if not so accredited, is an institution that has been 
granted

[[Page 31736]]

preaccreditation status by such an agency or association that has been 
recognized by the Secretary for the granting of preaccreditation 
status, and the Secretary has determined that there is satisfactory 
assurance that the institution will meet the accreditation standards of 
such an agency or association within a reasonable time.
    Native American means an Indian (including an Alaska Native), as 
defined in section 6132(b)(2) of the ESEA, Native Hawaiian, or Native 
American Pacific Islander.
    Native American language means the historical, traditional 
languages spoken by Native Americans.
    Native American organization means an organization that--
    (a) Is legally established--
    (1) By Tribal or inter-Tribal charter or in accordance with State 
or Tribal law; and
    (2) With appropriate constitution, by-laws, or articles of 
incorporation;
    (b) Includes in its purposes the promotion of the education of 
Native Americans;
    (c) Is controlled by a governing board, the majority of which is 
Native American;
    (d) If located on an Indian reservation, operates with the sanction 
or by charter of the governing body of that reservation;
    (e) Is neither an organization or subdivision of, nor under the 
direct control of, any institution of higher education; and
    (f) Is not an agency of State or local government.
    Rural community is a community served by one or more local 
educational agencies (LEAs) (a) with a locale code of 32, 33, 41, 42, 
or 43; or (b) that include a majority of schools with a locale code of 
32, 33, 41, 42, or 43. Applicants are encouraged to retrieve locale 
codes from the National Center for Education Statistics School District 
search tool (https://nces.ed.gov/ccd/districtsearch/), where LEAs can 
be looked up individually to retrieve locale codes, and Public School 
search tool (https://nces.ed.gov/ccd/schoolsearch/), where individual 
schools can be looked up to retrieve locale codes.

Final Selection Criteria

    (a) Quality of the eligible applicant.
    In determining the quality of the eligible applicant, the Secretary 
considers one or more of the following factors:
    (1) The extent to which the academic achievement results (including 
annual student performance on statewide assessments and annual student 
attendance and retention rates and, where applicable and available, 
student academic growth, high school graduation rates, postsecondary 
enrollment and persistence rates, including in college or career 
training programs, employment rates, earnings, and other academic 
outcomes) for educationally disadvantaged students served by the 
charter school(s) operated or managed by the applicant have exceeded 
the average academic achievement results for such students served by 
other public schools in the State.
    (2) The extent to which one or more charter schools operated or 
managed by the applicant have closed; have had a charter revoked due to 
noncompliance with statutory or regulatory requirements; or have had 
their affiliation with the applicant revoked or terminated, including 
through voluntary disaffiliation.
    (3) The extent to which one or more charter schools operated or 
managed by the applicant have had any significant issues in the area of 
financial or operational management or student safety, or have 
otherwise experienced significant problems with statutory or regulatory 
compliance that could lead to revocation of the school's charter.
    (4) The extent to which the schools operated or managed by the 
applicant demonstrate strong results on measurable outcomes in non-
academic areas such as, but not limited to, parent satisfaction, school 
climate, student mental health, civic engagement, and crime prevention 
and reduction.
    (b) Significance of contribution in assisting educationally 
disadvantaged students.
    In determining the significance of the contribution the proposed 
project will make in expanding educational opportunity for 
educationally disadvantaged students and enabling those students to 
meet challenging State academic standards, the Secretary considers the 
quality of the plan to ensure that the charter school the applicant 
proposes to open, replicate, or expand will recruit, enroll, and 
effectively serve educationally disadvantaged students, which include 
children with disabilities and English learners.
    (c) Quality of the continuation plan.
    In determining the quality of the continuation plan, the Secretary 
considers the extent to which the eligible applicant is prepared to 
continue to operate the charter school that would receive grant funds 
in a manner consistent with the eligible applicant's application once 
the grant funds under this program are no longer available.
    This document does not preclude us from proposing additional 
priorities, requirements, definitions, or selection criteria, subject 
to meeting applicable rulemaking requirements.

    Note:
     This document does not solicit applications. In any year in 
which we choose to use one or more of these priorities, 
requirements, definitions, and selection criteria, we invite 
applications through a notice in the Federal Register.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined whether this 
regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive order and subject to review by the Office 
of Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order. This final regulatory action is not a significant 
regulatory action subject to review by OMB under section 3(f) of 
Executive Order 12866. Pursuant to the Congressional Review Act (5 
U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not a ``major rule,'' as defined by 5 U.S.C. 
804(2).
    Under Executive Order 13771, for each new rule that the Department 
proposes for notice and comment or otherwise promulgates that is a 
significant regulatory action under Executive Order 12866, and that 
imposes total costs greater than zero, it must identify two 
deregulatory actions. For Fiscal Year 2019, any new incremental costs 
associated with a new regulation must be fully offset by the 
elimination of existing costs through deregulatory actions. Because the 
proposed regulatory action is not

[[Page 31737]]

significant, the requirements of Executive Order 13771 do not apply.
    We have also reviewed this final regulatory action under Executive 
Order 13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final priorities, requirements, definitions, 
and selection criteria only on a reasoned determination that their 
benefits justify their costs. In choosing among alternative regulatory 
approaches, we selected those approaches that maximize net benefits. 
Based on the analysis that follows, the Department believes that this 
regulatory action is consistent with the principles in Executive Order 
13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, and Tribal governments in the exercise of 
their governmental functions.
    In accordance with these Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.

Discussion of Potential Costs and Benefits

    The Department believes that this regulatory action does not impose 
significant costs on eligible entities, whose participation in this 
program is voluntary. While this action does impose some requirements 
on participating Developers that are cost-bearing, the Department 
expects that applicants for this program will include in their proposed 
budgets a request for funds to support compliance with such cost-
bearing requirements. Therefore, costs associated with meeting these 
requirements are, in the Department's estimation, minimal.
    This regulatory action strengthens accountability for the use of 
Federal funds by helping to ensure that the Department selects for CSP 
grants the Developers that are most capable of expanding the number of 
high-quality charter schools available to our Nation's students, 
consistent with a major purpose of the CSP as described in section 
4301(3) of the ESEA. The Department believes that these benefits to the 
Federal government outweigh the costs associated with this action.

Regulatory Alternatives Considered

    The Department believes that the priorities, requirements, 
definitions, and selection criteria are needed to administer the 
program effectively. As an alternative to the selection criteria 
announced in this document, the Department could choose from among the 
general selection criteria in 34 CFR 75.210. We do not believe that 
these criteria provide a sufficient basis on which to evaluate the 
quality of applications. In particular, the criteria do not 
sufficiently enable the Department to assess an applicant's past 
performance with respect to the operation of high-quality charter 
schools or with respect to compliance issues that the applicant has 
encountered.

Paperwork Reduction Act of 1995

    The final priorities, requirements, and selection criteria contain 
information collection requirements that are approved by OMB under OMB 
control number 1894-0006; the final priorities, requirements, and 
selection criteria do not affect the currently approved data 
collection.
    Regulatory Flexibility Act Certification: The Secretary certifies 
that this proposed regulatory action would not have a significant 
economic impact on a substantial number of small entities. The U.S. 
Small Business Administration (SBA) Size Standards define proprietary 
institutions as small businesses if they are independently owned and 
operated, are not dominant in their field of operation, and have total 
annual revenue below $7,000,000. Nonprofit institutions are defined as 
small entities if they are independently owned and operated and not 
dominant in their field of operation. Public institutions are defined 
as small organizations if they are operated by a government overseeing 
a population below 50,000.
    Participation in this program is voluntary and limited to charter 
school developers seeking funds to help open a new charter school or 
replicate or expand a high-quality charter. The Department anticipates 
that approximately 50 developers will apply for Developer grants in a 
given year and estimates that approximately half of these developers 
will be small entities. For this limited number of small entities, any 
cost-bearing requirements imposed by this regulatory action can be 
defrayed with grant funds, as discussed in the Regulatory Impact 
Analysis.
    Intergovernmental Review: This program is subject to Executive 
Order 12372 and the regulations in 34 CFR part 79. One of the 
objectives of the Executive order is to foster an intergovernmental 
partnership and a strengthened federalism. The Executive order relies 
on processes developed by State and local governments for coordination 
and review of proposed Federal financial assistance.
    This document provides early notification of our specific plans and 
actions for this program.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the program contact person 
listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of the Department published in 
the Federal Register, in text or Portable Document Format (PDF). To

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use PDF you must have Adobe Acrobat Reader, which is available free at 
the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: June 28, 2019.
Frank T. Brogan,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2019-14263 Filed 7-2-19; 8:45 am]
 BILLING CODE 4000-01-P