Federal Register, Volume 72 Issue 202 (Friday, October 19, 2007)

[Federal Register Volume 72, Number 202 (Friday, October 19, 2007)]
[Notices]
[Pages 59266-59279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20613]

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DEPARTMENT OF EDUCATION

Final Guidance on Maintaining, Collecting, and Reporting Racial
and Ethnic Data to the U.S. Department of Education

AGENCY: U.S. Department of Education.

ACTION: Final guidance.

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SUMMARY: The Secretary is issuing final guidance to modify the
standards for racial and ethnic data used by the Department of
Education (Department). This guidance provides educational institutions
and other recipients of grants and contracts from the Department with
clear and straightforward instructions for their collection and
reporting of racial and ethnic data.

DATES: This guidance is effective December 3, 2007.

FOR FURTHER INFORMATION CONTACT: Patrick J. Sherrill, U.S. Department
of Education, 400 Maryland Avenue, SW., room 6C103, Washington, DC
20202-0600, telephone: (202) 708-8196 or Edith K. McArthur, U.S.
Department of Education, National Center for Education Statistics, 1990
K Street, NW., room 9115, Washington, DC 20006, telephone: (202) 502-
7393.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to one of the contact persons listed under FOR
FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: On August 7, 2006, the Secretary published a
Notice of Proposed Guidance on Maintaining, Collecting, and Reporting
Data on Race and Ethnicity to the U.S. Department of Education in the
Federal Register (71 FR 44866).
In the proposed guidance, the Secretary discussed on pages 44866
through 44868 the major elements of how the Department proposed to
modify standards and aggregation categories for collecting racial and
ethnic data. As explained in the proposed guidance, these changes are
necessary in order to implement the Office of Management and Budget's
(OMB) 1997 Standards for Maintaining, Collecting, and Presenting
Federal Data on Race and Ethnicity (1997 Standards).\1\ The 1997
Standards instituted a number of changes for how Federal agencies
should collect racial and ethnic data.
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\1\ See OMB, Revisions to the Standards for the Classification
of Federal Data on Race and Ethnicity, 62 FR 58782-58790 (October
30, 1997); http://www.whitehouse.gov/omb/fedreg/1997standards.html.
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This guidance directly addresses three sets of issues:
(1) How educational institutions and other recipients will collect
and maintain racial and ethnic data from students and staff;
(2) How educational institutions and other recipients will
aggregate racial and ethnic data when reporting those data to the
Department; and
(3) How data on multiple races will be reported and aggregated
under the Elementary and Secondary Education Act of 1965 (ESEA), as
reauthorized by the No Child Left Behind Act of 2001 (NCLB).
In addition, this final guidance provides information regarding the
implementation schedule for these changes.

[[Page 59267]]

Substantive Changes From the Proposed to the Final Guidance

The following is a summary of the substantive changes in this final
guidance from the proposed guidance.
We have clarified that when collecting racial and ethnic data at
the elementary and secondary school level, the identification of a
student's race and ethnicity is to be primarily made by the parents or
guardians of the student rather than the student.
In the proposed guidance, we stated that educational institutions
and other recipients could use a combined one question format when
Hispanic ethnicity is included in the list of options with the racial
categories if observer-collected data was used. In the final guidance,
we are removing this exception to the general requirement that
educational institutions and other recipients use the two-part question
(i.e., a question on Hispanic/non-Hispanic ethnicity and a question on
race) \2\ for collecting racial and ethnic data.
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\2\ The two part question is sometimes refereed to as the ``two-
question format.''
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We are extending the final implementation date for reporting school
year data under the final guidance from the 2009-2010 school year to
the 2010-2011 school year.

Analysis of Comments and Changes

In response to the invitation in the proposed guidance, more than
150 parties submitted comments on the proposed guidance. An analysis of
the comments and of the changes in the final guidance since publication
of the proposed guidance follows. The analysis generally does not
address (a) minor changes, including technical changes, made to the
language published in the proposed guidance, and (b) comments that
express concerns of a general nature about the Department or other
matters that are not directly relevant to this guidance.

I. Background

A. Why publish the guidance?

Comment: Many commenters supported the proposed guidance while
others expressed opposition to it. Generally the commenters opposed to
the proposed guidance asserted that the changes would undermine the
Department's collection of reliable statistical data, have a
detrimental impact on statistical trend data, and make it more
difficult for the Department to carry out enforcement and oversight
efforts. Other commenters objected to collecting any individual racial
and ethnic data because they viewed the collection of racial and ethnic
data as being contrary to the principle of racial equality.
Discussion: The Department's final guidance satisfies OMB's
requirement to establish consistent government-wide guidance at the
Federal level for collecting and reporting racial and ethnic data. In
particular, it is designed to obtain more accurate information about
the increasing number of students who identify with more than one
race--a key reason OMB initiated the review and modification of the
government-wide standards. The racial and ethnic categories set forth
in this final guidance are designed to measure more accurately the race
and ethnicity for the general population of students, including the
population of students identifying themselves as being members of more
than one racial or ethnic group. A part of the Department's mission is
``ensuring equal access'' to education for all students. This includes
collecting racial and ethnic data about the educational progress of
students from various racial and ethnic groups in our nation's schools.
Changes: None.

B. What is the difference between collecting data and reporting data?

Comment: Some commenters expressed confusion about the requirement
to collect data from individuals using the two-part question and the
requirement to report data using seven aggregate reporting categories
including the ``two or more races'' category.
Discussion: The collection of data requires the gathering of
information from individuals by educational institutions and other
recipients, whereas the reporting of data requires the provision of
aggregate information to the Department by educational institutions and
other recipients based on the information that has been collected from
individuals.
Educational institutions and other recipients will be required to
collect racial and ethnic data using a two-part question. The first
question is whether the respondent is Hispanic/Latino. The second
question is whether the respondent is from one or more races using the
following five racial groups: American Indian or Alaska Native, Asian,
Black or African American, Native Hawaiian or Other Pacific Islander,
and White. Respondents will not be offered the choice of selecting a
``two or more races'' category.
The process for reporting the data collected to the Department is
different than the process for the collection of data from individuals.
When reporting data to the Department, educational institutions and
other recipients will report aggregated racial and ethnic data in the
following seven categories:
(1) Hispanic/Latino of any race; and, for individuals who are non-
Hispanic/Latino only,
(2) American Indian or Alaska Native,
(3) Asian,
(4) Black or African American,
(5) Native Hawaiian or Other Pacific Islander,
(6) White, and
(7) Two or more races.
The following examples may be helpful in understanding how the
reporting will work.

Example 1: A respondent self-identifies as Hispanic/Latino and
as Asian. This respondent is reported only in the Hispanic/Latino
category.
Example 2: A respondent self-identifies as Hispanic/Latino and
as Asian and Black or African American. This respondent is reported
only in the Hispanic/Latino category.
Example 3: A respondent self-identifies as non-Hispanic/Latino
and as Native Hawaiian or Other Pacific Islander. This respondent is
reported in the Native Hawaiian or Other Pacific Islander category.
Example 4: A respondent self-identifies as non-Hispanic/Latino
and as American Indian or Alaska Native and White. This respondent
is reported in the two or more races category.

Through this system, there will be no double reporting of persons
identifying with multiple races. Similarly, while educational
institutions and other recipients will collect both racial and ethnic
data using the two-part question for collecting data, they will report
only ethnic data for individuals who self-identify as being Hispanic/
Latino, even though the individuals will have had the opportunity to
designate racial information--in addition to Hispanic/Latino
ethnicity--under the two-part question. In this way, there will be no
double reporting of individuals who have self-identified as having
Hispanic/Latino ethnicity and who also have provided racial information
in response to the second question about race. Additionally, these
reporting categories will minimize paperwork burden because they are
the same reporting categories used by other Federal agencies to which
educational institutions and other recipients report aggregate data,
such as the Equal Employment Opportunity Commission (EEOC).
Changes: None.

[[Page 59268]]

II. Collecting Data

A. Should We Add New Racial and Ethnic Categories or Clarify the
Proposed Categories?

Comment: Many of the commenters recommended one or more changes to
the proposed racial and ethnic categories. Some commenters suggested
adding categories such as Middle Eastern, Southeast Asian, African (as
a different category from African American), Indian/Pakistani (as a
different category from Asian), Filipino, and Cape Verdean (as a
different category from African American). Other commenters suggested
adding a multiracial category. Some commenters suggested that the
categories generally are not clear. For example, a commenter asked
whether people from Spain or other Spanish cultures should identify as
Hispanic/Latino or White.
Discussion: We do not think it would be appropriate to make the
changes suggested by the commenters. This final guidance conforms the
Department's data collection and aggregate reporting categories to
those used by other Federal agencies that require educational
institutions and other recipients to collect and report data. At the
same time, it imposes the least possible data collection and reporting
burden on the education community. The issues raised by these
commenters concerning additional categories or clarifications of
existing categories were previously addressed by OMB when it announced
its ``Revisions to the 1977 Standards for the Classification of Federal
Data on Race and Ethnicity'' in its notice in the Federal Register,
published on October 30, 1997 (62 FR 58782-58790). The history of the
research, meetings, and reasoning that produced OMB's Federal guidance
on this issue is available electronically at http://www.whitehouse.gov/omb/fedreg/1997standards.
In response to the commenter's question, OMB's guidance provides
that individuals from Spain may select ``Hispanic/Latino'' because of
their Spanish cultural heritage. When selecting a race they may select
``White'' for their European origin or any other race with which they
identify.
Changes: None.

B. Should the Two-Part Question Be Required or Made Optional?

Comment: Some commenters supported and some opposed using the two-
part question. One commenter argued that it is difficult and confusing
to implement use of the two-part question. Some commenters suggested
that the Department change the guidance to only recommend use of the
two-part question rather than require its use. Others requested
instructions for using the collection form that would encourage
individuals to answer both questions in the two-part question.
Discussion: The Department will require educational institutions
and other recipients to use the two-part question when collecting
racial and ethnic data from individuals. This approach will ensure
consistency in the categories of data reported to the Department and
also assist the Department in carrying out its mission to collect,
analyze, and report educational information and statistics that are
relevant and useful to practitioners, researchers, policy makers, and
the public.\3\
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\3\ 20 U.S.C. 9541.
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We also note that the Department routinely uses the two-part
question when collecting racial and ethnic data from individuals
directly and the two-part question is routinely used by a number of
Federal agencies, including the EEOC, when collecting data from
individuals.
The Department will provide instructions that educational
institutions and other recipients can include on their data collection
forms in the future. These instructions will be designed to eliminate
any confusion when using the form and to encourage individuals to
answer both questions.
Additionally, the final guidance permits each educational
institution and other recipient to create sub-categories of these seven
categories if it desires additional information for its own purposes.
In our review of the proposed guidance, we determined that
providing an exception to the use of the two-part question for
collecting racial and ethnic data for observer-collected data using a
combined one-question format could be confusing for educational
institutions and other recipients. Accordingly, we are eliminating that
exception and requiring the consistent use of the two-part question for
self-identification and (as a last resort) observer-collected data. We
hope that this change will help to minimize confusion for educational
institutions and other recipients when collecting racial and ethnic
data.
Changes: We have revised the guidance in Part IV.A.2 to delete the
provision that would have allowed possible use of a combined one-
question format when observer identification is used as a last resort.

C. Identification of Racial and Ethnic Categories and Missing Data

Comment: Some commenters objected to the Department's decision to
continue its current requirement for ``observer identification'' of the
race and ethnicity of elementary and secondary school students when
self-identification or identification by the parents does not occur.
Some commenters suggested that elementary and secondary school students
should be treated like postsecondary students and that observer
identification should not be used under any circumstances. Others
suggested that observer identification for elementary and secondary
school students only be used as a last resort and requested additional
guidance about steps to be taken before observer identification is
used. Commenters also emphasized that student self-identification is
inaccurate at the elementary and secondary school level.
Finally, several commenters suggested that parents, students, and
other individuals should be informed about how aggregate data will be
reported before completing the two-part question.
Discussion: The Department will continue to require the use of
observer identification at the elementary and secondary school level,
as a last resort, if racial and ethnic data are not self-identified by
the students --typically the students' parents or guardians.
As a general matter, while educational institutions and other
recipients are required to comply with this guidance, individuals are
not required to self-identify their race or ethnicity. If respondents
do not provide information about their race or ethnicity, educational
institutions and other recipients should ensure that respondents have
refused to self-identify rather than simply overlooked the questions.
If adequate opportunity has been provided for respondents to self-
identify and respondents still do not answer the questions, observer
identification should be used.
While the Department recognizes that obtaining data by observer
identification is not as accurate as obtaining data through a self-
identification process, places some burden on school district staff,
and may be contrary to the wishes of those refusing to self-identify,
it is better than the alternative of having no information.
Additionally, this approach should assist in discouraging refusals to
self-identify because respondents are informed that if they fail to
provide the racial and ethnic information someone from the school
district will provide it on their behalf. In some instances, this may
result in

[[Page 59269]]

self-identification. This approach should also provide useful data for
carrying out Department monitoring and enforcement responsibilities,
and enable the Department to continue ``trend'' analysis of data. The
Department emphasizes that observer identification should only be used
as a last resort when a respondent does not self-identify race and
ethnicity. It does not permit any representative of an educational
institution or other recipient to tell an individual how that
individual should classify himself or herself.
In a subsequent document, the Department will provide examples and
suggested steps that may be taken before observer identification is
used at the elementary and secondary school levels as a last resort and
provide examples of statements that educational institutions and other
recipients may use with individuals when collecting racial and ethnic
data.
The Department agrees that the self-identification by students at
the elementary and secondary school level may not reflect what their
parents or guardians might have selected, and has changed this final
guidance to state that at the elementary and secondary school level,
the identification of a student's racial and ethnic categories is to be
made primarily by parents or guardians.
Educational institutions and other recipients are free to inform
the public about how the aggregate data will be reported to the
Department before the respondents complete the two-part question and we
encourage educational institutions and other recipients to disseminate
this information. We do not believe it is necessary to require
dissemination of this information because of the additional burden that
it would add for educational institutions and other recipients.
Unlike elementary and secondary institutions, generally,
postsecondary institutions and Rehabilitation Services Administration
(RSA) grantees use self-identification only and do not use observer
identification. As discussed elsewhere in this notice, postsecondary
institutions and RSA grantees will also be permitted to continue to
include a ``race and ethnicity unknown'' category when reporting data
to the Department. This category is being continued in the Integrated
Postsecondary Education Data System (IPEDS) because the National Center
for Education Statistics' experience has shown that (1) a substantial
number of college students have refused to identify a race and (2)
there is often not a convenient mechanism for college administrators to
use observer identification. RSA grantees have had similar experiences
with RSA program beneficiaries.
Changes: We have revised the guidance to clarify that at the
elementary and secondary school level, parents or guardians typically
identify the racial and ethnic categories of students.

D. Can States Use Their Own System for Collecting State Level Data
Solely for State--not Federal--Reporting Requirements?

Comment: Some commenters questioned whether States can request that
individuals provide racial and ethnic data that are not included in the
two-part question, if the additional data are used solely for State
level reporting requirements.
Discussion: Nothing prohibits States (or other entities collecting
data from individuals) from requesting more racial and ethnic
information solely for State level purposes than is collected using the
minimum Federal categories in the two-part question. While educational
institutions and other recipients may collect additional information
for their own purposes, they must collect the data for the Department
using the two-part question and must use the seven categories required
by this final guidance when reporting aggregate racial and ethnic data
to the Department. Thus, for example, a State could choose to collect
information using racial subcategories such as Japanese, Chinese, or
Korean for State purposes, but would have to report such students to
the Department using only the Asian racial category. Similarly, if a
State wanted to collect information on subcategories of the Hispanic/
Latino ethnic category, such as Puerto Rican and Mexican, it could do
so, but would need to report each of the students in the subcategories
as Hispanic/Latino to the Department. When collecting data solely for
the educational institution's or other recipient's purposes, the
accuracy of the Federal data collection cannot be compromised.
Changes: None.

E. Recordkeeping--Length of Time for Maintaining Original Responses

Comment: Some commenters expressed concern about our proposal that
States and school districts be required to maintain data collected on
the two-part question for the period of time specified in the
instructions to the information collection rather than a longer time
period. The commenters were concerned that the data will not be
available if needed for the resolution of issues that arise in the
future. Other commenters suggested that the original responses should
be made available electronically for longer than a three-year period
and suggested that the Department ask Congress for money to do so.
Discussion: When the Department requests racial and ethnic data
from educational institutions and other recipients, the Department
indicates in the instructions for the collection how long the original
individual responses must be kept. Under 34 CFR 74.53 and 80.42,
generally, a Department grantee or sub-grantee must retain for three
years all financial and programmatic records, supporting documents,
statistical records, and other records that are required to be
maintained by the grant agreement or Department regulations applicable
to the grant, or that are otherwise reasonably considered as pertinent
to the grant agreement or Department regulations. These records include
the individual responses to the two-part question. 5 CFR 1320.4(c). One
exception to the general three-year period is when there is litigation,
a claim, an audit, or another action involving the records that has
started before the three-year period ends; in these cases the records
must be maintained until the completion of the action.
In addition to the record keeping requirement discussed above, we
also note that if further racial or ethnic information about a
respondent is needed for the Department to perform its functions fully
and effectively, the Department will request this information directly
from educational institutions and other recipients, such as when the
Department's Office for Civil Rights (OCR) requests information to
investigate a complaint or undertake a compliance review under 20
U.S.C. 3413(c)(1) and 34 CFR 100.6(b).
The three-year requirement generally used by the Department allows
the government to verify information whenever a question about accuracy
is brought up. Nothing in this guidance precludes educational
institutions and other recipients from maintaining records for longer
periods of time than required by the Department. However, we do not
believe it is appropriate to require retention of records for longer
periods of time because the burden, i.e., costs of record keeping,
would exceed the expected benefits from having the records.
Changes: None.

[[Page 59270]]

III. Reporting Aggregate Data Using Seven Categories

A. Hispanic/Latino Reporting

Comment: Some commenters opposed counting any individual as
Hispanic/Latino who selected the Hispanic/Latino category and one or
more of the race categories, suggesting that this approach will result
in over-counting individuals who are Hispanic/Latino. Other commenters
stated that they do not have enough information to understand whether
the proposed process allows for more accurate reporting of individuals
who are Hispanic/Latino. Some commenters suggested that individuals who
are Hispanic/Latino should also be reported by race and others
suggested that individuals who are mixed race Hispanic/Latino should be
counted twice.
Discussion: We do not agree that use of the two-part question in
collecting racial and ethnic data will result in over-counting of
individuals who have responded affirmatively to the question about
Hispanic/Latino ethnicity and also have provided racial information
when responding to the two-part question. When educational institutions
report data to the Department using the seven reporting categories,
they will only report ethnic data from individuals who report being
Hispanic/Latino. Institutions will not report any information on the
race of those individuals to the Department, if the Hispanic/Latino
individuals have identified a race as well.
The approach we are adopting also is very likely to result in more
accurate reporting of data on individuals who are Hispanic/Latino. The
most frequent cases of an individual not reporting race occur for
individuals who identify themselves as Hispanic/Latino. Research
conducted by Federal agencies has shown that a two-part question
typically results in more complete reporting of Hispanic/Latino
ethnicity, provides flexibility, and helps to ensure data quality.
Under this approach, individuals who are Hispanic/Latino are asked to
identify a race too.
This approach is also part of a longstanding Federal effort to
obtain accurate ethnic data. In 1976, in response to an apparent under-
count of Americans of Spanish origin or descent in the 1970 Census,
Congress passed Public Law 94-311 calling for the collection, analysis,
and publication of Federal statistics on persons of Spanish origin or
decent. In 1977, OMB issued the ``Race and Ethnic Standards for Federal
Statistics and Administrative Reporting,'' adding Hispanic ethnicity to
Federal reports. (Subsequently reissued as Statistical Policy Directive
No. 15, ``Race and Ethnic Standards for Federal Statistics and
Administrative Reporting.'' 43 FR 19269 (May 6, 1978). In a further
effort to enhance accuracy, OMB's 1997 Revised Standards recommended
that Federal forms ask two questions: The first about ethnicity, and
the second about race. This decision stemmed, in part, from research
sponsored by the Bureau of Labor Statistics showing that significantly
more people appropriately identified as Hispanic/Latino or Latino when
they were asked separately about Hispanic or Latino origin. (See
Recommendations from the Interagency Committee for the Review of the
Race and Ethnic Standards to the Office of Management and Budget
Concerning Changes to the Standards for Ethnicity, 62 FR 36874 (July 9,
1997) (Recommendations from the Interagency Committee) Appendix 2,
Chapter 4.7). The Department's decision to adopt a two-part question is
part of this ongoing effort to design Federal reports that yield more
accurate counts of individuals who are Hispanic/Latino. See Standards
for Classification of Federal Data on Race and Ethnicity, 60 FR 44674,
44678-44679 (August 28, 1995); See also Recommendations from the
Interagency Committee, Appendix 2, Chapter 4 (detailing various effects
and data quality concerns stemming from the use of combined and/or
separate questions on race and Hispanic/Latino origin.)
With respect to the commenters' suggestions that individuals who
are Hispanic/Latino should also be reported by race and that
individuals who are of more than one race and Hispanic/Latino should be
counted twice, the Department has determined that the best approach for
racial and ethnic information to be reported by educational
institutions and other recipients is to include individuals who are
Hispanic/Latino of any race only in the ethnic category. The Department
wants to minimize the reporting burdens for educational institutions
and other recipients. We recognize that in most instances the
Department will not need to know the race identified by individuals who
are Hispanic/Latino. However, in some instances in the exercise of the
Department's monitoring and enforcement responsibilities, it may become
necessary for the Department to know the race identified by individuals
who are Hispanic/Latino. Therefore, it is necessary for educational
institutions and other recipients to collect these data from
individuals and maintain the records for the timeframe announced by the
Department in each information collection.\4\
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\4\ The Department also notes that the increase in the number of
minority students enrolled in our nation's schools largely reflects
the growth in the proportion of students who are identified as
Hispanic/Latino--from six percent in 1972 to 20 percent in 2005.
During the same period, White enrollment declined to 58 percent of
the school population in 2005, from 78 percent in 1972. African
American enrollment changed little: Blacks were 14.8 percent of all
students in 1972 and 15.6 percent of all students in 2005. (The
Condition of Education http://nces.ed.gov/programs/coe/2007/section/indicator05.asp)
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Changes: None.

B. Two or More Races Category Reporting

1. Addition of the two or more races category will change
population counts in single race categories.
Comment: A number of commenters suggested that using the two or
more races category will result in longitudinal data falsely showing
declining minority populations in current single race categories. Some
commenters suggested that this approach will reflect a significant
reduction in Black and White student populations at State and Federal
levels, changes in the reported populations of Asians and American
Indians in certain States, and significantly reduced counts of Native
Hawaiians and Other Pacific Islanders. Some commenters suggested that
this category be changed to report more information about the multiple
races identified by individuals.
Discussion: In most instances, the Department anticipates that the
size of the two or more races category will not be large enough to
cause significant shifts in student demographics. Clearly, there will
be changes causing reductions in the numbers of students reported in
some categories when aggregate reporting shifts from using five
categories to using seven. However, the change in categories will
result in more accurate data. We also note that the former ``Asian/
Pacific Islander'' category will now be divided into two different
categories--Asian and Native Hawaiian or Other Pacific Islander. The
Department plans to monitor the data trends reported. If necessary, we
will request access to the specific racial and ethnic data provided in
response to the two-part question by individual respondents.
We also note that OMB's bridging guidance \5\ describes methods to
accurately report trend data over a time

[[Page 59271]]

span that encompasses this change. We encourage educational
institutions and other recipients to refer to the bridging guidance
when preparing multi-year reports utilizing education data before and
after implementing the changes required in the final guidance. (See
discussion in III.D. in this notice regarding bridging.)
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\5\ OMB, Provisional Guidance on the Implementation of the 1997
Standards for Federal Data on Race and Ethnicity, December 15, 2000,
available on the Internet at: http://www.whitehouse.gov/omb/inforeg/re_appctables.pdf
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Changes: None.
2. Two or more races category's implication for civil rights
enforcement and research purposes.
Comment: Some commenters suggested that reporting two or more races
will have a detrimental impact on compliance with, and enforcement of,
civil rights laws; ignores OMB guidance for aggregation and allocation
of multiple race responses for purposes of civil rights reporting; and
limits public access to important information by civil rights
advocates, parents, and others. Some commenters suggested that this
approach will preclude full disclosure of information relating to
government programs. Other commenters also suggested that subgroup data
will be difficult to request from the State, and that it will be
difficult to bridge longitudinal data.
Discussion: The Department's final guidance, which is consistent
with OMB guidance, is designed to ensure that OCR and other offices in
the Department have access to all necessary racial and ethnic
information about all individuals participating in federally-funded
programs for monitoring, enforcement, and research purposes. If any
Department office needs additional racial and ethnic information about
individuals, the final guidance requires educational institutions and
other recipients to maintain the original responses from staff and
students for a specific length of time announced at the time of the
data collection. In addition to being required to maintain this
detailed information for the Department, States, educational
institutions and other recipients are encouraged to continue to make
such data and information available to the public, civil rights
advocates, parents, and other members of the public, within the
constraints permitted under applicable privacy and other laws. When
reporting racial and ethnic data, these entities are also encouraged to
make public their methods used to bridge or allocate the data
longitudinally. Accordingly, we do not believe any modification or
change with respect to the two or more races category is necessary.
Changes: None.
3. Alternatives proposed for reporting data.
Comment: Some commenters suggested reporting the number of
individuals selecting each racial category plus an unduplicated total.
Others suggested that every category selected by a respondent in the
two-part question should be reported. Some commenters suggested that
students who selected more than one race should be put in the minority
category identified, rather than in the two or more races category.
Other commenters questioned why the Department's reporting differs from
the reporting of the Census Bureau and suggested that the final
guidance highlight for States the differences between Department and
Census collections so that States can collect their data in a way that
allows them to generate reports that allow comparisons with Census
data.
Discussion: Reporting racial and ethnic data using the seven
aggregate categories provides the Department with more accurate
information reflecting the growing diversity of our nation while
minimizing the implementation burden placed on educational institutions
and other recipients. Under this approach individuals are given the
opportunity to select more than one race and ethnicity. If they desire
to do so, educational institutions and other recipients remain free to
determine when and how they might use and report these data not
reported in the aggregate to the Department in other contexts.
Reporting of the data in the manner suggested by the commenters,
however, would create additional burden on education institutions and
other recipients and would not be necessary for Department purposes.
We recognize that there may be differences in how different Federal
agencies collect racial and ethnic data. The Department will continue
to study the similarities and differences between the data received by
the Department and data received by other Federal agencies and will
consider providing any appropriate guidance to the public on this
matter, in the future.
Changes: None.

C. Reporting Additional Racial or Ethnic Data

Comment: Several commenters suggested that the proposed guidance
limits publicly available racial and ethnic data and should be expanded
to report additional categories of racial and ethnic data. Another
commenter suggested that the Department should not follow the same
approach as the Equal Employment Opportunity Commission (EEOC) because
the objectives of the Department in collecting data are different from
those of the EEOC.
Discussion: Under the Paperwork Reduction Act, the Department is
required to weigh the costs of collecting any additional data against
the benefits expected from having that data. The Department has
determined that the expected costs to those educational institutions
and other recipients of collecting and reporting additional data
outweigh the informational and other benefits. Under the final
guidance, the public continues to be permitted to request access to
publicly available racial and ethnic data from educational institutions
and other recipients.
The Department, like all other Federal agencies, including the
EEOC, is similarly situated when collecting data needed to carry out
each agency's mission. In accordance with the high standards
established by OMB, respect for individual dignity has guided the
process and methods for collecting racial and ethnic data at the same
time that an effort has been made to minimize the burden placed on
those entities providing the data. To do this, the Department must
weigh the costs imposed on those who must provide the data with the
benefits to those who could use more extensive information. For
example, in addition to serving students, educational institutions and
other recipients are also employers required to report racial and
ethnic data to the EEOC. The Department repeatedly has heard from
educational institutions and other recipients that they would prefer
that the various Federal agencies involved in data collection all use
the same aggregate categories so that the burden of implementing
changes is minimized and they are not forced to provide different or
inconsistent racial and ethnic data to Federal agencies. Our adoption
of this final guidance reflects our efforts and other agencies' efforts
to alleviate these concerns and help to achieve consistency across
different agencies' data collections.
Changes: None.

D. Bridging and Other Allocation Methods

Comment: Some commenters suggested that more guidance is needed
about bridging and allocation measures and suggested that the
Department encourage States to share bridging information when final
guidance is published. Some commenters viewed bridging as impossible.
Other commenters agreed that specific bridging should not be required
for NCLB.
Discussion: The Department does not agree that bridging is
impossible or that

[[Page 59272]]

bridging should not be required under NCLB. Further guidance on
bridging the data collected before and after these changes take effect
can be found in OMB's December 15, 2000 Provisional Guidance on the
Implementation of the 1997 Standards for Federal Data on Race and
Ethnicity, available at the following Internet address: http://www.whitehouse.gov/omb/inforeg/re_app-ctables.pdf. The OMB Guidance
discusses eight techniques that can be used for bridging data in the
two or more races category back to the five single-race groups.
Additionally, guidance on how to allocate multiple race responses
to a single race response category are found in OMB's March 9, 2000,
Guidance on Aggregation and Allocation of Data on Race for Use in Civil
Rights Monitoring and Enforcement available at the following Internet
address: http://www.whitehouse.gov/omb/bulletins/b00-02.html. For
example, multiple race responses that combine one minority race and
White could be allocated to the minority race.
Changes: None.

IV. No Child Left Behind (NCLB) Reporting

Comment: Some commenters suggested that counting all individuals
identifying themselves as being Hispanic/Latino and another race only
as Hispanic/Latino without identifying any race and using the two or
more races category to report all individuals identifying as non-
Hispanic/Latino and two racial groups will result in longitudinal data
falsely showing declining minority populations in current ``major
racial groups'' used by States when making NCLB adequate yearly
progress (AYP) determinations.
Discussion: Under NCLB, States will continue to have discretion in
determining which racial groups are ``major'' for the purposes of
fulfilling NCLB accountability requirements for making AYP
determinations and issuing State and local report cards. Using data
collected at the school level, States will continue to be able to count
individual students as a part of the same ``major'' racial groups for
AYP purposes in the same manner that they do currently. States
implementing this final guidance are not required to change the racial
and ethnic categories used for AYP determinations. Nor are they
required to change the manner in which individual students are
identified at the school level for the purposes of making AYP
determinations. For example, if a State currently uses the Asian/
Pacific Islander group for AYP determinations it can continue to use
this category as a ``major'' racial group rather than using the two new
categories of (1) Asian, and (2) Native Hawaiian or Other Pacific
Islander.\6\ Additionally, if a student is currently identified as
African American for AYP purposes at the school level when the student
has one African American parent and one Hispanic parent, the school may
continue to identify the student as African American for AYP
determinations. For all other aggregate Federal data collections,
however, the school and State will be required to identify this student
as Hispanic under this final guidance.
---------------------------------------------------------------------------

\6\ However, if a State does not change its ``major'' racial and
ethnic groups for AYP determinations, it is possible that the racial
and ethnic categories it is required to collect using the two-part
question may be different from the racial and ethnic categories
previously used by States and districts to collect data for AYP
determinations. Therefore, it may be necessary for States or
districts to ensure that once the data are collected, students
continue to be identified using the same criteria used in the past.
For example, if a State or school district continues to use ``Asian/
Pacific Islander'' as a ``major'' racial group for AYP
determinations, it will be necessary for the State or district to
add the numbers of students collected using the two-part question
for the ``Asian'' and ``Native Hawaiian and Other Pacific Islander''
categories together in order to continue to identify all ``Asian/
Pacific Islander'' students.
---------------------------------------------------------------------------

States will also have the discretion to change the ``major'' racial
groups used to make AYP determinations. For example, a State may change
the ``major'' racial groups used to aggregate students for AYP purposes
to the same seven categories required by this final guidance for all
other aggregate reporting to the Department.
If a State chooses to make changes to the racial and ethnic data
categories it will use under NCLB, the State will be required to submit
an amendment to its Consolidated State Accountability Workbook to the
Department. If the manner in which students are aggregated into major
racial and ethnic groups is changed for AYP purposes, then States may
want to use bridging and allocation methods to ensure that
accountability determinations accurately account for possible shifts in
demographics and are not due to the change in the manner in which
students are included in the major racial and ethnic groups.
During the Department's routine monitoring of Title I programs, we
expect to ask States among other things about performance or
accountability trends and the extent to which they may relate to any
changes in the demographic measurements that may have been brought
about by the changes in the final guidance.
Changes: None.

V. Individuals With Disabilities Education Act (IDEA)

Comment: Some commenters suggested that like NCLB accountability
determinations, determinations about disproportional representation by
minorities in special education required under the IDEA will be
seriously undermined by the proposed reporting categories.
Discussion: Among other required data, IDEA requires that States
report data to the Secretary on the number and percentage of children
by race, ethnicity, and disability category, who are receiving special
education and related services under the IDEA. IDEA also requires that
States report these data disaggregated for children being served in
particular types of educational settings, and receiving certain types
of discipline. 20 U.S.C. 1418(a)(1)(A). IDEA further requires that
States examine data to determine if significant racial and ethnic
disproportionality is occurring in the State and in local educational
agencies (LEA) of the State with respect to the identification of
children as children with disabilities, including the identification of
children in specific disability categories; the placement of children
in particular educational settings; and the incidence, duration, and
type of disciplinary actions, including suspensions and expulsions. 20
U.S.C. 1418(d); 34 CFR 300.646. As a part of their State Annual
Performance Report under section 616 of the IDEA, 20 U.S.C. 1416,
States also are required to determine whether disproportionate racial
and ethnic representation in special education and related services is
occurring in LEAs of the State, and whether that disproportionate
racial and ethnic representation is the result of inappropriate
identification.
There is no requirement in IDEA that States either report
longitudinal data to the Department or conduct longitudinal analyses of
the data. However, we encourage States to bridge and/or use one of the
data allocation measures in their transition to the new racial and
ethnic reporting categories, as appropriate. For example, States that
are using a longitudinal analysis as a part of identifying LEAs with
significant disproportionality or disproportionate representation that
is the result of inappropriate identification will, if they continue to
employ a longitudinal analysis in making one of these determinations,
need to use one of these bridging and/or allocation methods as they
transition to using new categories.
Changes: None.

[[Page 59273]]

VI. Postsecondary Data Collections

A. Postsecondary Institutions and RSA Grantee Handling of Missing Data

Comment: Some commenters asked how postsecondary institutions and
RSA grantees should report missing data in the aggregate.
Discussion: The option to report a race/ethnicity unknown category
will continue to be permitted for postsecondary institutions and RSA
grantees. This category (``unknown'') will not appear on the individual
data collection forms provided to the individual students, staff, or
RSA clients, but rather on the aggregate data reporting forms used for
reporting the aggregate data to the Department. An RSA grantee or
postsecondary education institution that does not use the race/
ethnicity unknown category is required to report the racial and ethnic
data about 100% of the participants in their program using seven
categories.
Changes: None.

B. Can IPEDS data be reported before 2009?

Comment: Some commenters asked whether the data reported to the
Department from institutions of higher education under the Integrated
Postsecondary Education Data System (IPEDS) can be reported before
2009.
Discussion: Yes. Although not required to do so, educational
institutions and other recipients, including institutions of higher
education reporting IPEDS data that collect individual-level data using
the two-part question are encouraged to immediately begin reporting
aggregate data to the Department in accordance with this final
guidance.
Changes: None.

VII. Guidance on Data Storage and Coding

Comment: A number of commenters asked for guidance concerning data
storage and coding and additional clarification of definitions to
promote data consistency across States on current State-defined
voluntary questions. Others expressed concern that current education
information systems are not designed to collect data with multiple
self-selection options, as is required by the two-part question. Some
commenters expressed concern that the Department was dictating the set
of codes to be used in the databases containing this information which
would require them to change their current codes and be unable to keep
valuable information about their students.
Discussion: The final guidance does not dictate the methods for
educational institutions and other recipients to use when developing
``choice for codes'' or ``coding structure'' for the data maintained by
such entities. Educational institutions and other recipients are
permitted to design their own coding structure, provided that they are
able to report the racial and ethnic data using the seven aggregate
categories set forth in this final guidance, and maintain the
individual reports so that the data can be tabulated with more
specificity, if needed. (See discussion elsewhere in this notice
regarding use of the two-part question.)
The Department recognizes that there are numerous education
information systems that will need to be adjusted to receive, store,
and report the racial and ethnic data using the new categories. There
are many strategies for making this system development transition
simple and direct. The Department will separately provide information
compiling many of these strategies.
Changes: None.

VIII. Implementation Timeline--Delay

Comment: A number of commenters expressed support of the proposed
guidance and their desire to begin reporting using the proposed seven
categories immediately. Some individuals and organizations responding
to the proposed guidance recommended that the Department delay the
issuance of any final guidance until uncertainties about the effects of
the change could be resolved and further studies made. However, other
commenters suggested that the three-year implementation timeline was
sufficient.
Discussion: The Department will change the final implementation
date of this final guidance from reporting data beginning with data
from the 2009-2010 school year to reporting data beginning with data
from the 2010-2011 school year. However, the Department will not delay
issuing final guidance or commission additional research.
The Department believes that this extension of time of one year
will give educational institutions and other recipients adequate time
to make the changes required by this final guidance. Educational
institutions and other recipients desiring to collect and report racial
and ethnic data in accordance with this final guidance before the fall
of 2010 may do so.
Changes: We have revised the final guidance to require educational
institutions and other recipients to collect and report racial and
ethnic data in accordance with this final guidance with implementation
required to be completed by the fall of 2010 for the 2010-2011 school
year.

Final Guidance

I. Purpose

This final guidance is provided to the public on how the U.S.
Department of Education (the Department) is modifying standards and
aggregation categories for collecting and reporting racial and ethnic
information. These changes are necessary in order to implement the
Office of Management and Budget's (OMB) 1997 Standards for the
Classification of Federal Data on Race and Ethnicity (1997
Standards).\7\ The 1997 Standards instituted a number of changes for
how Federal agencies should collect and report racial and ethnic data.
---------------------------------------------------------------------------

\7\ See OMB, Revisions to the Standards for the Classification
of Federal Data on Race and Ethnicity, 62 FR 58781 (October 30,
1997); http://www.whitehouse.gov/omb/fedreg/1997standards.html.
---------------------------------------------------------------------------

This final guidance is designed to be straightforward and easy to
implement. Whenever possible, we have developed a Department-wide
standard. However, in certain situations, we have tailored the standard
to the different needs of the institutions collecting the data.\8\ The
Department recognizes that implementing changes to improve the quality
of racial and ethnic data may result in an additional burden to
educational institutions. In developing this final guidance, we have
sought to minimize the burden of implementation on local and State
educational agencies (LEAs and SEAs), schools, colleges, universities
(hereinafter collectively referred to as ``educational institutions''),
and other recipients of grants and contracts from the Department
(hereinafter referred to as ``other recipients''), while developing
guidance that would result in the collection of comprehensive and
accurate racial and ethnic data that the Department needs to fulfill
its responsibilities. We have done so by using the same reporting
categories used

[[Page 59274]]

by the Equal Employment Opportunity Commission (EEOC), so that
educational institutions and other recipients can use the same
reporting requirements for students and staff.
---------------------------------------------------------------------------

\8\ For example, for the purposes of determining adequate yearly
progress under the No Child Left Behind Act of 2001, States are
allowed to define major racial and ethnic groups using reporting
categories that may be different than the seven categories announced
in this guidance. These differences may reflect the State's use of
more categories than the seven, fewer categories than the seven, or
subsets of the seven categories announced in this guidance.
Additionally, in the Integrated Postsecondary Education Data Systems
and Rehabilitation Services Administration data collections,
grantees are permitted to use a race unknown category when reporting
data to the Department, although in elementary and secondary
programs use of a race unknown category is not permitted. (See
discussion elsewhere in this guidance.)
---------------------------------------------------------------------------

This final guidance applies to the collection of individual-level
data and to aggregate racial and ethnic data reported to the
Department. Aggregate data are the total racial and ethnic data that
are reported to the Department by educational institutions and other
recipients. The data are collected by educational institutions and
other recipients and reported by each recipient in the aggregate to the
Department. This final guidance directly addresses three sets of
issues:
(1) How educational institutions and other recipients will collect
and maintain racial and ethnic data from students and staff;
(2) How educational institutions and other recipients will
aggregate racial and ethnic data when reporting those data to the
Department; and
(3) How data on multiple races will be reported and aggregated
under the Elementary and Secondary Education Act of 1965 (ESEA), as
reauthorized by the No Child Left Behind Act of 2001 (NCLB).
In addition, this final guidance provides information regarding the
implementation schedule for these changes.

II. Background

In October 1997, OMB issued revised standards for the collection
and reporting of racial and ethnic data. A transition period was
provided in order for agencies to review the results of Census 2000,
the first national data collection that implemented the revised
standards. (See the discussion in Part IV.) The Department will begin
the process of implementing all necessary changes, with the
implementation required to be completed by the fall of 2010 for the
2010-2011 school year.\9\
---------------------------------------------------------------------------

\9\ Although not required to do so, educational institutions and
other recipients already collecting individual-level data in the
manner specified by this notice are encouraged to immediately begin
reporting aggregate data to the Department in accordance with this
notice.
---------------------------------------------------------------------------

The 1997 Standards include several important changes:
A. OMB revised the minimum set of racial categories by separating
the category ``Asian or Pacific Islander'' into two separate
categories--one for ``Asian'' and one for ``Native Hawaiian or Other
Pacific Islander.'' Therefore, under the 1997 Standards, there are a
minimum of five racial categories:
(1) American Indian or Alaska Native,
(2) Asian,
(3) Black or African American,
(4) Native Hawaiian or Other Pacific Islander, and
(5) White.
B. For the first time, individuals have the opportunity to identify
themselves as being of or belonging to more than one race. In the 2000
Census, 2.4 percent of the total population (or 6.8 million people)
identified themselves as belonging to two or more racial groups. For
the population under 18 years old, 4.0 percent (or 2.8 million
children) selected two or more races.\10\
---------------------------------------------------------------------------

\10\ See United States Census Bureau, The Two or More Races
Population: 2000, Census 2000 Brief, at p. 9 (November 2001)
(hereinafter ``The Two or More Races Population''); this information
is on the Internet at the following address: http://www.census.gov/prod/2001pubs/c2kbr01-6.pdf.
---------------------------------------------------------------------------

C. In an effort to allow individuals--rather than a third party--to
report their race and ethnicity, the 1997 Standards strongly encourage
``self-identification'' of race and ethnicity rather than third party
``observer identification.''
D. Under the 1997 Standards, OMB strongly encouraged the use of a
two-part question when collecting racial and ethnic data; i.e.,
individuals should first indicate whether or not they are of Hispanic/
Latino ethnicity; then, individuals should select one or more races
from the five racial categories.

III. Summary of Guidance

The Department is modifying its standards for the collection and
reporting of racial and ethnic data in the following manner:
A. Educational institutions and other recipients will be required
to collect racial and ethnic data using a two-part question on the
educational institution's or other recipient's survey instrument. The
first question would be whether or not the respondent is Hispanic/
Latino.
Hispanic or Latino means a person of Cuban, Mexican, Puerto Rican,
South or Central American, or other Spanish culture or origin,
regardless of race. The term ``Spanish origin'' can be used in addition
to ``Hispanic/Latino or Latino.''
The second question would ask the respondent to select one or more
races from the following five racial groups:
(1) American Indian or Alaska Native. A person having origins in
any of the original peoples of North and South America (including
Central America), and who maintains a tribal affiliation or community
attachment.
(2) Asian. A person having origins in any of the original peoples
of the Far East, Southeast Asia, or the Indian subcontinent including,
for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan,
the Philippine Islands, Thailand, and Vietnam.
(3) Black or African American. A person having origins in any of
the Black racial groups of Africa.
(4) Native Hawaiian or Other Pacific Islander. A person having
origins in any of the original peoples of Hawaii, Guam, Samoa, or other
Pacific Islands.
(5) White. A person having origins in any of the original peoples
of Europe, the Middle East, or North Africa. See 1997 Standards, 62 FR
58789 (October 30, 1997).
(See the discussion in Part IV.A.1 and 2 of this notice.)
B. Educational institutions and other recipients should allow
students, parents, and staff to ``self-identify'' race and ethnicity
unless self-identification is not practicable or feasible. (See the
discussion in Part IV.A.3 of this notice.)
C. The Department encourages educational institutions and other
recipients to allow all students and staff the opportunity to re-
identify their race and ethnicity under the 1997 Standards. (See the
discussion in Part IV.A.4 of this notice.)
D. Educational institutions and other recipients will be required
to report aggregated racial and ethnic data in seven categories:
(1) Hispanic/Latino of any race; and, for individuals who are non-
Hispanic/Latino only,
(2) American Indian or Alaska Native,
(3) Asian,
(4) Black or African American,
(5) Native Hawaiian or Other Pacific Islander,
(6) White, and
(7) Two or more races. (See the discussion in Part IV.B.1 of this
notice.)
E. The Department will continue its current practice for handling
the reporting of individuals who do not self-identify a race and/or an
ethnicity. Elementary and secondary educational institutions will
continue to use observer identification when a respondent--typically a
parent or guardian at the elementary and secondary school level--
refuses to self-identify the student's race and/or ethnicity. The
Department will not include a ``race and/or ethnicity unknown''
category for its aggregate elementary and secondary reporting of racial
and ethnic data. The Integrated Postsecondary Education Data System
(IPEDS) will continue to use the category of ``nonresident alien'' as
an alternative to collecting race/ethnicity from nonresident aliens
(information that is not needed for civil rights reporting purposes).
IPEDS will also continue to include a ``race and/or ethnicity unknown''
category for reporting aggregate data from postsecondary institutions.
Similarly,

[[Page 59275]]

the Rehabilitation Services Administration (RSA) grantees will continue
to use a ``race and/or ethnicity unknown'' category for reporting
aggregate data. The ``race and/or ethnicity unknown'' category should
not appear on forms provided to postsecondary students and staff or to
clients and staff of RSA recipients. (See the discussion in Part IV.B.2
of this notice.)
F. When the Department asks educational institutions and other
recipients to report racial and ethnic data, the Department indicates
in the instructions to the collection how long educational institutions
and other recipients are required to keep the original individual
responses from staff and students to requests for racial and ethnic
data. In addition, at a minimum, generally, a Department grantee or
sub-grantee must retain for three years all financial and programmatic
records, supporting documents, statistical records, and other records
that are required to be maintained by the grant agreement or the
Department regulations applicable to the grant or that are otherwise
reasonably considered as pertinent under the grant or Department
regulations. One exception is when there is litigation, a claim, an
audit, or another action involving the records that has started before
the three-year period ends; in these cases the records must be
maintained until the completion of the action. (See the discussion in
Part IV.A.5 of this notice.)
G. States will continue to have discretion in determining which
racial and ethnic groups will be used for accountability and reporting
purposes under the ESEA. (See the discussion in Part IV.C of this
notice.)
H. Educational institutions and other recipients will be required
to implement this guidance no later than the fall of 2010 with data for
the 2010-2011 school year, and are encouraged to do so before that
date, if feasible. (See the discussion in Part VI. of this notice.)

IV. The Department's Implementation of OMB's 1997 Standards for
Maintaining, Collecting, and Presenting Federal Data on Race and
Ethnicity

The Department has carefully examined its options for implementing
the 1997 Standards. Department staff met or spoke with a variety of
individuals and organizations representing educational institutions to
ascertain their needs and interests. The Department has heard
consistently that major revisions to the collection of racial and
ethnic data would impose a substantial burden on educational
institutions and other recipients as they adopt new data systems or
modify existing systems, prepare new forms, and train staff at all
levels to implement these changes. Furthermore, the Department's
implementation plan had to be effective for the Department's diverse
uses for racial and ethnic data, such as research and statistical
analysis, measuring accountability and student achievement, civil
rights enforcement, and monitoring of the identification and placement
of students in special education.
Finally, the Department repeatedly heard from educational
institutions that they would prefer that the various Federal agencies
involved in data collection all use the same aggregate categories so
that the burden of implementing changes is minimized and educational
institutions are not forced to provide different and/or inconsistent
racial and ethnic data to Federal agencies. In response to these
repeated requests, the Department waited until after the EEOC announced
its final implementation plan, which was published in November 2005,
because the EEOC collects racial and ethnic data for staff in
elementary and secondary schools and districts.\11\
---------------------------------------------------------------------------

\11\ See EEOC, Agency Information Collection Activities: Notice
of Submission for OMB Review; Final Comment Request (EEO-1), 70 FR
71294-71303 (November 28, 2005) (hereinafter ``EEOC Notice''); this
notice is on the Internet at the following address: http://www.eeoc.gov/eeo1/See also EEOC, Agency Information Collection
Activities: Revision of the Employer Information Report (EEO-1)
Comment Request, 68 FR 34965, 34967 (June 11, 2003).
---------------------------------------------------------------------------

A. How Educational Institutions and Other Recipients Will Be
Required To Collect Racial and Ethnic Data From Students and Staff.
This portion of the final guidance, Part A, explains how educational
institutions and other recipients will collect racial and ethnic data;
Part B, which follows, explains how racial and ethnic data will be
reported to the Department.
1. Educational Institutions and Other Recipients Will Be Required
To Allow Students and Staff To Select One or More Races From Five
Racial Groups. Educational institutions and other recipients will be
required to allow students and staff to select one or more races from
the following five racial groups:
(1) American Indian or Alaska Native;
(2) Asian;
(3) Black or African American;
(4) Native Hawaiian or Other Pacific Islander; and
(5) White.
This is the minimum number of categories that educational
institutions and other recipients will be required to use for purposes
other than NCLB reporting. Any additional categories that educational
institutions and other recipients choose to use to collect information
must be subcategories of these categories (such as Japanese, Chinese,
Korean, and Pakistani--subcategories of Asian). Students and staff will
then be able to select one or more of these subcategories.
2. Educational Institutions and Other Recipients Will Be Required
To Use a Two-part Question When Collecting Racial and Ethnic Data.
Educational institutions and other recipients will be required to
collect racial and ethnic data using a two-part question. Using the
two-part question, the first question asks whether or not the
respondent is Hispanic/Latino. The second question allows individuals
to select one or more races from the five racial groups listed in
paragraph 1 of this Part, and Hispanic/Latino is not included in the
list of racial categories. A two-part question provides flexibility and
ensures data quality. In particular, a two-part question typically
results in more complete reporting of Hispanic/Latino ethnicity;
however, the most frequent cases of an individual not reporting a race
occur for individuals who identify themselves as Hispanic/Latino.
Therefore, educational institutions and other recipients should include
instructions that encourage students and staff to answer both
questions.
3. Educational Institutions and Other Recipients Should Allow
Students and Staff To Self-Identify Their Race and Ethnicity Unless
Self-Identification Is Not Practicable or Feasible. Educational
institutions and other recipients should allow students--at the
elementary and secondary level, typically the students' parents or
guardians, on behalf of the students--and staff to self-identify their
race and ethnicity unless self-identification is not practicable or
feasible. If a respondent does not provide his or her race and
ethnicity, educational institutions and other recipients should ensure
that the respondent is refusing to self-identify rather than simply
overlooking the question.
At the elementary and secondary level, if the educational
institution or other recipient has provided adequate opportunity for
the respondent to self-identify and he or she still leaves the items
blank or refuses to complete them, observer identification should be
used. It will typically be more appropriate for students' parents or
guardians to self-identify the student's race and ethnicity. In all
other instances, it will be more

[[Page 59276]]

appropriate for the individuals to self-identify.
4. The Department Encourages Educational Institutions and Other
Recipients To Allow All Current Students and Staff to Re-Identify Their
Race and Ethnicity Using the 1997 Standards. Students are typically
asked to provide racial and ethnic information upon entrance or
application to an educational institution or other recipient's program.
Staff members typically provide this information upon employment or
application for employment. The Department encourages educational
institutions and other recipients to allow all students and staff, and
other individuals from whom data are collected, the opportunity to re-
identify their race and ethnicity under the 1997 Standards.\12\ Re-
identification will provide all students, staff, and other individuals
the opportunity to select more than one race and to report both their
ethnicity and their race separately, and will allow all individuals who
previously identified themselves as within the Asian or Pacific
Islander category the opportunity to select either ``Asian'' or
``Native Hawaiian or Other Pacific Islander,'' thereby conforming all
racial and ethnic information to the 1997 Standards. If all individuals
are not provided the opportunity to identify their race and ethnicity
in a manner that is consistent with the 1997 Standards, data within
schools, school districts, and States will not accurately reflect the
diversity of the population; and data on those who were permitted to
identify their race and ethnicity under the 1997 Standards will not be
easily comparable with data on those who were not permitted to identify
their race and ethnicity under the 1997 Standards.
---------------------------------------------------------------------------

\12\ This recommendation is consistent with the recommendations
of the Education Information Advisory Committee of the Council of
Chief State School Officers and the Policy Panel on Racial/Ethnic
Data Collection, a panel sponsored by the National Postsecondary
Education Cooperative of the National Center for Education
Statistics and the National Science Foundation in April 1999. Both
have recommended that all respondents be permitted to identify their
race and ethnicity under the 1997 Standards.
---------------------------------------------------------------------------

The Department's final guidance does not mandate re-identification
because we recognize the considerable one-time cost that re-
identification would entail. Also, the 1997 Standards do not require
existing records to be updated. However, the Department's final
guidance reflects our expectation that most educational institutions
and other recipients will provide all respondents the opportunity to
re-identify their race and ethnicity under the 1997 Standards.
The final guidance requires educational institutions and other
recipients to provide students and staff who enter an educational
institution or other recipient program on or after the implementation
deadline the opportunity to identify their race and ethnicity in a
manner that is consistent with this final guidance. Thus, those
educational institutions and other recipients that do not conduct a re-
identification will transition to the new standards over time as new
staff and students enter.
5. Maintaining the Original Responses from Staff and Students to
Support Requests for Racial and Ethnic Data. When the Department
requests racial and ethnic data from educational institutions and other
recipients, the Department indicates in the instructions to the
collection how long each office asks, or requires, educational
institutions and other recipients to keep the original individual
responses to the request.
At a minimum, under 34 CFR 74.53 and 80.42, generally, a Department
grantee or sub-grantee must retain for three years all financial and
programmatic records, supporting documents, statistical records, and
other records that are required to be maintained by the grant agreement
or the Department regulations applicable to the grant or that are
otherwise reasonably considered as pertinent to the grant agreement or
Department regulations. These would include records on racial and/or
ethnic data and the individual responses. One exception is when there
is litigation, a claim, an audit, or another action involving the
records that has started before the three-year period ends; in these
cases the records must be maintained until the completion of the
action.
If additional information on the race or ethnicity of a respondent
is needed for the Department to perform its functions fully and
effectively, the Department will request this information from
educational institutions and other recipients, such as when OCR
requests information to investigate a complaint or undertake a
compliance review under 20 U.S.C. 3413(c)(1) and 34 CFR 100.6(b).
B. The Aggregate Categories Educational Institutions and Other
Recipients Will Be Required To Use To Report Racial and Ethnic Data to
the Department and How To Handle Missing Data. In contrast to the
discussion in Part IV.A of this notice, which addressed how educational
institutions and other recipients will collect racial and ethnic data,
this section will examine how educational institutions and other
recipients will report these racial and ethnic data to the Department.
1. The Aggregate Categories Educational Institutions and Other
Recipients Will Be Required To Use To Report Racial and Ethnic Data to
the Department. The Department will require educational institutions
and other recipients to report aggregated racial and ethnic data in the
following seven categories:
(1) Hispanic/Latino of any race; and, for individuals who are non-
Hispanic/Latino only,
(2) American Indian or Alaska Native,
(3) Asian,
(4) Black or African American,
(5) Native Hawaiian or Other Pacific Islander,
(6) White, and
(7) Two or more races.
The definitions in the 1997 Standards will be used for each
category. (See the discussion in Part III.A of this notice.)
The Department requires aggregate reports to use these seven
aggregate categories for several reasons. Reporting these seven
aggregate categories allows an appropriate balance of racial and ethnic
data reporting that reflects the growing diversity of our Nation while
minimizing the implementation and reporting burden placed on
educational institutions and other recipients. The growing diversity is
illustrated by the fact that in the 2000 Census, children and youth
reported being of more than one race at more than twice the rate of
adults.\13\
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\13\ For individuals 18 and over, 1.9 percent (3,969,342 in the
2000 Census) of individuals reported more than one race; while 4
percent (2,856,886) of individuals under 18 reported more than one
race. See The Two or More Races Population.
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Finally, this approach provides for reporting the race and
ethnicity of individuals in a manner that permits effective analysis of
data by agencies that are responsible for civil rights monitoring and
enforcement. In those instances in which more detailed information is
needed by civil rights monitoring and enforcement agencies or other
offices in the Department about individuals in the ``two or more
races'' category, educational institutions and other recipients will be
contacted directly for more detailed information about the individuals.
The Department's aggregate reporting categories do not separately
identify the race of Hispanic/Latino. The Department's final guidance
reflects its assessment that the inclusion of individuals who are
Hispanic/Latino of any race in one category is appropriate in light of
both the implementation

[[Page 59277]]

burden and cost that these changes will place on educational
institutions and other recipients and the Department's need to adopt an
approach that provides the Department sufficient information to fulfill
its various functions. If the Department required the reporting of the
same racial categories for individuals who are Hispanic/Latino as for
individuals who are non-Hispanic/Latino, six additional aggregate
categories would be reported to the Department.
The cost and burden of these six additional categories would be
substantial because each racial and ethnic category is often cross
tabulated with other relevant information, such as the individual's
sex, disability category, or educational placement, thereby multiplying
the number of categories in which information must be reported. The
Department has determined that it can effectively fulfill its
responsibilities that involve racial and ethnic information if
individuals who are Hispanic/Latino of any race are reported in one
category. The Department notes that its approach not to separately
aggregate individuals who are Hispanic/Latino by race is consistent
with the final implementation plan of the EEOC.
Finally, the Department's requirement for reporting individuals who
are Hispanic/Latino as a single category without also disaggregating
the Hispanic/Latino category by race is different from the Department's
collection requirements discussed in Part IV.5 of this notice, which
requires educational institutions and other recipients to maintain
information on the racial identification of Hispanics/Latinos. As
discussed above, the Department will require educational institutions
and other recipients to keep the original individual responses using
the two-part question from staff and students for the length of time
indicated in the instructions to the collection. If the Department
determines that additional information will be needed to perform its
functions effectively in a specific instance, the Department will
request this additional information from educational institutions and
other recipients.
The EEOC published a notice in November 2005 that provided for the
use of seven categories to collect racial and ethnic data from private
employers. These seven categories are:
(1) Hispanic/Latino of any race; and, for individuals who are non-
Hispanic/Latino,
(2) American Indian or Alaska Native,
(3) Asian,
(4) Black or African American,
(5) Native Hawaiian or Other Pacific Islander,
(6) White, and
(7) Two or more races.
It is the Department's understanding that EEOC uses these seven
categories to collect racial and ethnic data from LEAs, SEAs, and other
educational institutions and other recipients about their employees.
The adoption of seven categories for the Department collections would
mean that the Department and EEOC would collect the same categories of
racial and ethnic data from educational institutions and other
recipients.
2. Reporting on Individuals Who Do Not Self-Identify a Race or
Ethnicity. Some individuals will refuse to self-identify their race
and/or their ethnicity. The Department currently has a different
approach for how educational institutions and other recipients may
handle such respondents at the elementary and secondary level as
compared with the postsecondary level and with adults served under the
RSA programs. Currently, elementary and secondary institutions must use
observer identification if a student (through his or her parents or
guardians) does not self-identify a race, and postsecondary
institutions also may use observer identification. In addition, since
1990, postsecondary institutions have been permitted to report
aggregate information on students or staff members who do not identify
a race for the IPEDS in a ``race unknown'' category. Similarly, RSA
recipients have been permitted to report aggregate information on their
clients and staff using a ``race unknown'' category when clients or
staff do not identify a race.
The Department continues its current practice for handling missing
data.\14\ Elementary and secondary institutions and other recipients
are required to use observer identification when a respondent,
typically a student's parent or guardian, leaves blank or refuses to
self-identify the student's race and/or ethnicity. The Department will
not include a ``race and/or ethnicity unknown'' category in its
aggregate elementary and secondary collections of racial and ethnic
data. IPEDS will continue to include a ``race and/or ethnicity
unknown'' category for reporting aggregate data from postsecondary
institutions. Similarly, RSA will continue to use a ``race and/or
ethnicity unknown'' category for reporting aggregate data. The ``race
and/or ethnicity unknown'' category will not appear on collection forms
provided to postsecondary students and staff or RSA recipients' clients
and staff.
---------------------------------------------------------------------------

\14\ The Department continues to include a ``race unknown''
category in IPEDS because the experience of the National Center for
Education Statistics has shown that (1) a substantial number of
college students have refused to identify a race and (2) there is
often not a convenient mechanism for college administrators to use
observer identification. RSA grantees have had similar experiences.
---------------------------------------------------------------------------

C. Multiple Race Responses under the No Child Left Behind Act of
2001. The creation of a multiple race aggregation category has
implications for several requirements under the ESEA as reauthorized by
NCLB regarding race and ethnicity. First, States, school districts, and
schools are held accountable for making AYP based, among other factors,
on the percent of students proficient in reading/language arts and
mathematics in each of the major racial and ethnic groups of
students.\15\ Neither ESEA nor the ESEA regulations define what a
``major'' racial or ethnic group is. States have this responsibility
and the Department checks to ensure that States carry it out.
---------------------------------------------------------------------------

\15\ 20 U.S.C. 6311(b)(2)(B) and 6311(b)(2)(C)(v)(II)(bb); 34
CFR 200.13.
---------------------------------------------------------------------------

Second, each State and school district that receives ESEA Title I,
Part A funds must issue a report card that includes information on
student achievement at each proficiency level on the State assessment,
disaggregated by race and ethnicity, among other factors, at the State,
school district, and school levels.\16\ The same racial and ethnic
groups that are used to determine AYP are typically the groups reported
in State report cards.\17\
---------------------------------------------------------------------------

\16\ 20 U.S.C. 6311(h)(1) and (2).
\17\ 20 U.S.C. 6311(h)(1)(C)(i).
---------------------------------------------------------------------------

Finally, the creation of a ``two or more races'' category will
affect two provisions that require comparisons to prior years' data.
State report cards must report the most recent two-year trend in
student achievement by racial and ethnic group.\18\ In addition, to
take advantage of the ``safe harbor'' provision (where a school or
school district can be considered to have made AYP if the percent of
students who are not proficient decreased by at least 10 percent from
the previous year), a State must compare a group's current assessment
data to the prior year's data, and must examine the group's performance
on the State's additional indicator.\19\
---------------------------------------------------------------------------

\18\ 20 U.S.C. 6311(h)(1)(C)(iv).
\19\ 20 U.S.C. 6311(b)(2)(I)(i); 34 CFR 200.20(b).
---------------------------------------------------------------------------

States will continue to have discretion in determining what racial
and ethnic groups will be deemed ``major'' for purposes of fulfilling
these ESEA requirements. States vary substantially in the number and
distribution of

[[Page 59278]]

multiple race individuals and are in the best position to decide how
these requirements should be applied to their populations. States
implementing this new guidance will not necessarily be changing the
racial and ethnic categories used for AYP purposes. If a State makes
changes to the racial and ethnic categories it will use under the ESEA,
the State must submit an amendment to its Consolidated State
Accountability Workbook to the Department.
D. Bridging Data to Prior Years' Data. States, educational
institutions, and other recipients also may propose to ``bridge'' the
``two or more races'' category into single race categories or the new
single race categories into the previous single race categories.
Bridging involves adopting a method for being able to link the new data
collected using the two-part question with data collected before the
publication of this guidance by the Department. If States, educational
institutions, and other recipients do bridge data, the bridging method
should be documented and available for the Department to review, if
necessary.
One method is to redistribute the new data collected under this
guidance using the new racial and ethnic categories and relate them
back to the racial and ethnic categories used before the publication of
this guidance. For example, if a State's new data collection results in
200 students falling in the ``two or more races'' category at the same
time that there is a combined drop in the number in the two single race
categories of Black or African American students and White students,
the State can adopt a method to link the 200 students in the ``two or
more races'' category to the previously used Black and White
categories.
Another method is assigning a proportion of the ``two or more
races'' respondents into the new five single-race categories. If
educational institutions or other recipients choose to bridge, they may
use one of several bridging techniques. For example, they may select
one of the bridging techniques in OMB's Provisional Guidance on the
Implementation of the 1997 Standards for Federal Data on Race and
Ethnicity.\20\ Educational institutions and other recipients also may
choose to use the allocation rules developed by OMB in its Guidance on
Aggregation and Allocation of Data on Race for Use in Civil Rights
Monitoring and Enforcement.\21\ If a bridging technique is adopted, the
same bridging technique must be used when reporting data throughout the
educational institution or other recipient. For example, the same
bridging technique should be used by the entire State for the purposes
of NCLB.
---------------------------------------------------------------------------

\20\ See OMB, Provisional Guidance on the Implementation of the
1997 Standards for Federal Data on Race and Ethnicity, December 15,
2000; http://www.whitehouse.gov/omb/inforeg/statpolicy.html#dr
(Appendix C).
\21\ For civil rights monitoring and enforcement purposes, OMB
issued guidance in March 2000 on how Federal agencies can allocate
multiple race responses to a single race response category. Multiple
race responses that combine one minority race and White, for
example, are to be allocated to the minority race. OMB, Bulletin 00-
02, Guidance on Aggregation and Allocation of Data on Race for Use
in Civil Rights Monitoring and Enforcement, (March 9, 2000); http://www.whitehouse.gov/omb/bulletins/b00-02.html (OMB 2000 Guidance).
(See discussion in Part IV of this notice.)
---------------------------------------------------------------------------

V. OMB Guidance on Aggregation and Allocation of Multiple Race
Responses for Use in Civil Rights Monitoring and Enforcement

OMB issued guidance in March 2000 for how Federal agencies will
aggregate and allocate multiple race data for civil rights monitoring
and enforcement. The guidance was issued to ensure that, as the 1997
Standards are implemented, Federal agencies maintain their ``ability to
monitor compliance with laws that offer protections for those who
historically have experienced discrimination.'' Furthermore, OMB sought
to ensure consistency across Federal agencies and to minimize the
reporting burden for institutions such as businesses and schools that
report aggregate racial and ethnic data to Federal agencies.
This OMB guidance encourages Federal agencies to collect aggregated
information on a given population using the five single race categories
and the four most common double race combinations. These four double
race combinations are: (1) American Indian or Alaska Native and White,
(2) Asian and White, (3) Black or African American and White, and (4)
American Indian or Alaska Native and Black or African American. In
addition to these categories, the March 2000 OMB guidance also
encourages the aggregation of data on any multiple race combinations
that comprise more than one percent of the population of interest to
the Federal agency. OMB's guidance also encourages the reporting of all
remaining multiple race data by including a ``balance'' category so
that all data sum to 100 percent.
The OMB guidance also addresses how Federal agencies, including the
Department, should allocate multiple race responses for the purpose of
assessing and taking action to ensure civil rights compliance. The
Department believes that requiring educational institutions and other
recipients to report these four most common double race reporting
combinations or information on multiple race individuals who represent
more than one percent of the population on a state-by-state basis or
other geographical basis would impose a substantial burden on
educational institutions and other recipients without a corresponding
benefit for recurring, aggregate data collections. However, in order to
ensure that the Department has access to this information when needed
for civil rights enforcement and other program purposes, the Department
will require educational institutions and other recipients to keep the
original individual responses using the two-part question for racial
and ethnic data. This approach will provide the Department with access
to this important information when needed. (See discussion in Part
IV.A.5. of this notice.)

VI. The Implementation Schedule

Educational institutions and other recipients have consistently
informed the Department that they will need three years from the time
that the Department provided them final guidance to implement the new
racial and ethnic standards.
Educational institutions and other recipients will be required to
implement this guidance by the fall of 2010 in order to report data for
the 2010-2011 school year. Although not required to do so, educational
institutions and other recipients already collecting individual-level
data in the manner specified by this notice are encouraged to
immediately begin reporting aggregate data to the Department in
accordance with this notice.
Many educational institutions and other recipients have already
taken significant steps to develop and implement new data systems for
collecting, aggregating, and reporting racial and ethnic data. Since
the mid-1990s and certainly subsequent to the October 30, 1997,
issuance of the 1997 Standards, the Department has been meeting with
educational agencies and organizations regarding the need for changes
to the collection of racial and ethnic data to be consistent with the
1997 Standards. The opportunity for students and parents on their
behalf to report their multiple race identity is vitally important.
Multiple race children and their families were one of the primary
impetuses for initiating the review of and modifying the standards.
Also, with increasing automation of educational data systems, the
Department believes that less than three

[[Page 59279]]

years should be needed to implement data systems consistent with
guidance in this area.
The Department recognizes that its delay in issuing final guidance,
including its decision to delay issuing guidance until after EEOC
issued its guidance in final form as discussed in Part IV of this
notice, may result in implementation difficulties for some educational
institutions and other recipients. The Department regrets any
inconvenience that its delay in issuing guidance may cause.
Nevertheless, given the vital importance of collecting racial and
ethnic data under the 1997 Standards and the fact that educational
institutions and other recipients are being provided a considerable
amount of time to comply with the 1997 Standards, the Department
expects that all educational institutions and other recipients will
meet this deadline.

Electronic Access to This Document

You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
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the Washington, DC, area at (202) 512-1530.

Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.

Dated: October 15, 2007.
Margaret Spellings,
Secretary of Education.
[FR Doc. E7-20613 Filed 10-19-07; 8:45 am]
BILLING CODE 4000-01-P