Final Guidance on Maintaining, Collecting, and Reporting Racial and Ethnic Data to the U.S. Department of Education, 59266-59279 [E7-20613]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 72, Number 202 (Friday, October 19, 2007)]
[Notices]
[Pages 59266-59279]
From the Federal Register Online via the Government Printing 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); https://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 https://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 https://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: https://www.whitehouse.gov/omb/inforeg/
re_appctables.pdf
_____________________________________-

 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: https://
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: https://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); https://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: https://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'' categ