School districts can open cyber charter schools to fulfill parents' school-choice requests, especially in cases where there is no room for additional students at the district's high-performing schools, the U.S. Department of Education (ED) said regarding its final regulations for implementing the No Child Left Behind Act of 2001 (NCLB).

The final rules—which are more stringent than expected—say school districts must offer transferability options to students from failing schools, regardless of issues such as overcrowding or class-size limits.

"In situations where it is a real challenge to offer school choice to a child—where all the schools in the district are full—the Undersecretary has said school districts need to be creative, and cyber charter schools or distance-learning [programs] are options they can offer," ED spokeswoman Melinda Malico said.

The final regulations, called "Title I—Improving the Academic Achievement of the Disadvantaged: Final Rule," were published in the Dec. 2 Federal Register, eleven months after NCLB was enacted. The rules are meant to clarify how states and school districts should implement NCLB and address state accountability systems, adequate yearly progress, school improvement, teacher qualifications, and more.

In August, ED asked the public to submit comments on regulations proposed for Part A of Title I, which is a $10.4 billion federal education program designed to close the achievement gap between disadvantaged students and their peers.

ED received more than 700 comments from approximately 140 groups and individuals. The changes to the proposed regulations reflect those comments, ED said.

The most significant change concerns school choice. School districts must "take measures to overcome capacity issues" and offer transferability options to students from schools labeled for improvement, corrective action, or restructuring—despite existing challenges such as class-size limits, overcrowding, and health and safety requirements.

In earlier discussions of the law, ED officials had said a lack of capacity would be an acceptable reason for denying a parent's transfer request.

The new interpretation could force school districts to add more classes and hire additional teachers so they can comply with school-choice requirements while adhering to class-size restrictions. Health and safety factors can play a role in determining which schools students may transfer to, ED said, but this issue should not remove a school district's obligation to accommodate a parent's choice.

In summary, a school district "may not use the lack of capacity to deny an eligible student the opportunity to transfer to another school not identified for improvement."

While cyber charter schools might help ease the school-choice burden, some education experts fear this new obligation—coupled with existing accountability and achievement pressures and state budget shortfalls—could hamper investments in school technology. The concern is heightened because NCLB allows school officials to transfer federal technology funds to other programs.