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Weighted Lotteries: Bringing Federal Rules in Line with State Charter School Laws

For years, charter schools across the country have been trying to give preferences to underserved students in their lotteries, only to find themselves barred from federal funding by the Department of Education. In an issue brief published in May 2012, titled “A Mission to Serve: How Public Charter Schools Are Designed to Meet the Diverse Demands of Our Communities,”the National Alliance identified this federal barrier as a major obstacle for the charter school community and urged the department to reconsider its position. Now, they have. On January 29th, the department released new non-regulatory guidance permitting the targeted use of weighted lotteries. Randomized lotteries still will be used to enroll students on waitlists;, however, a slight preference may be given to certain groups of students – for instance, students with special needs, those who are low-income, homeless or neglected, or those who are learning English.  The updated guidance establishes that a charter school may give a slightly better chance of admission to these educationally disadvantaged students and still be eligible for federal dollars. The department is not requiring, encouraging, or discouraging schools to use weighted lotteries; this new guidance simply offers charter schools an additional tool to better serve these students. The use of weighted lotteries remains completely voluntary. So, what does this mean for a school interested in conducting weighted lotteries?  The impact of the new guidance will hinge on state law. Specifically, according to the revised language, a charter school may use a weighted lottery only if such lottery is permitted under state law. The guidance details several ways in which state law may articulate such permission:  either expressly in statute, policy or regulation, or in a written opinion by the state attorney general. Moreover, if state law provides permission, additional criteria must be satisfied in order for the Department to sign off on a grantee’s eligibility to receive federal dollars. Such additional criteria include whether there is an oversight entity (such as an authorizer) monitoring the use of weighted lotteries, whether such lotteries serve the approved mission of the school, and whether the weights assigned through the lottery are reasonable. This new guidance brings the federal government in line with existing state statutes and policies and offers another tool to charter schools to enroll a greater number of educationally disadvantaged students. Renita Thukral is the vice president of legal affairs at the National Alliance for Public Charter Schools.