EDUCATION EDITION
February 2015
DOE/DOJ Joint Guidance Requires ELL Students Receive
Equal Access--The U.S. DOJ and
the DOE recently issued joint guidance to remind SEAs, school districts, and all public schools of their
legal obligation to ensure that English Language Learner (ELL) students participate meaningfully and
equally in educational programs and
services.
This is the first piece of guidance to
address the array of federal laws that
govern schools and SEAs’ obligations to ELL students. The guidance
provides an outline of legal obliga-
tions for school districts and SEAs
under civil rights laws, addresses
compliance issues, discusses the federal obligation owed to limited English proficient (LEP) parents and
guardians, and includes how Title III
funding can be implemented in a
manner consistent with these obligations.
In determining compliance of ELL
programs with the civil rights laws,
the DOJ and DOE utilize the standards established by Castaneda v.
Pickard, which assess whether the
educational theory of the program is
recognized
or
considered
a
Continued on Page 2
Reminders & Notes
Consumer Price Index
Percent change for the month of December  Remember your statutory and CBA
deadlines for reductions-in-force or
2014, for the urban wage earners and clerical
end-of-year dismissals of teacher or
indices as reported by the Bureau of Labor
educational support employees.
Statistics.
Contact Ellen Rothenberg, Terry
All Urban
Workers
Hodges, or Jeff Goelitz with your
(CPI-U)
(CPI-W)
evaluation, dismissal, or RIF inquirChicago Mthly -0.4
-0.6
ies. Timelines begin as early as Feb12 Mth
1.5
1.2
ruary 1.
St. Louis, 2nd Half 2014
6 Mth
-0.2
12 Mth
0.7
-0.3
0.4
U.S. Mthly
12 Mth
-0.7
0.3
-0.6
0.8

____________________________________
January CPI figures will be released
February 20, 2015. For the most recent CPI,
visit our website at: www.hlerk.com.
The Extra Mile is intended solely to provide
information to the school community. It is
neither legal advice nor a substitute for legal counsel. The Extra Mile is intended as
advertising but not as a solicitation of an
attorney/client relationship.

Review the need for nonrenewal of
employment contracts or administrative reclassifications to teaching
positions for tenured administrators.
Be aware of possible impact on the
RIF process.
Remember to complete Principal
and Assistant Principal evaluations
by March 1 and give any reclassification notices to Principals and Assistant Principals by April 1.
1
Amended Illinois Eavesdropping Act in Effect--As we previously reported, last March the
Illinois Supreme Court struck
down the Illinois Eavesdropping
Act as unconstitutional for being
overly broad, finding that it
criminalized a wide range of innocent conduct and burdened
substantially more speech than
necessary to serve a legitimate
state interest in protecting conversational privacy. (See April
2014, Extra Mile). Effective December 30, 2014, P.A. 98-1142
revised the Eavesdropping Act in
an attempt to address the court’s
concerns.
The former version of the Act
made it a felony to record any
conversation without all-party
consent, which the Court found
to be overbroad.
The revised Act defines eavesdropping as an individual’s surreptitious use of a device for the
purpose of:
1) overhearing, transmitting or
recording any part of a “private
conversation” without the consent of all parties, regardless of
whether the individual is a party
to that private conversation, or
2) intercepting or recording a
“private electronic communication” to which the individual is
not a party.
The amendment defines “private
conversation” and “private electronic
communication”
as
Continued on Page 2
Offices
Arlington Hts. 847-670-9000
O’Fallon
618-622-0999
Peoria
309-671-9000
Eavesdropping Cont. conversations in which at least
one of the parties involved had a reasonable expectation that the conversation was private. A “reasonable
expectation” is then defined as any expectation recognized by state or federal statute, common law, or Supreme Court rule.
low the recording of most police interactions under
the reasonable expectation of privacy standard of the
revised Act.
Further, the penalty for recording such officers in violation of the Act has been reduced. Recording of
meetings in school districts, especially in the special
education context, has been a controversial issue. Remember, however, that the Open Meetings Act specifically allows recording of board meetings.
One high profile effect of the previous version of the
Act was its use to prohibit the recording of interactions with police officers. While the revised statute
continues to include a penalty for the recording of a
law enforcement officer, state’s attorney or judge, it
would appear that prior court rulings finding that police officers have no reasonable expectation of privacy in the public performance of their duties would al-
Contact Bennett Rodick or Michelle Todd with your
inquiries regarding the impact of the new eavesdropping legislation on your school district/cooperative.
(7) remedying academic deficits they incur while in
language-assistance programs;
(8) moving students out of language-assistance programs when they become proficient while monitoring those removed prematurely;
(9) evaluating the effectiveness of ELL programs; and
(10)providing LEP parents with resources in a language they can understand.
ELL Equal Access Cont. legitimate experimental
strategy by experts; whether the program and practices used are reasonably calculated to implement the
educational theory; and ultimately, whether the program’s efforts have resulted in students’ language barriers being overcome within a reasonable period of
time.
In investigations conducted by the DOJ and DOE,
several areas of frequent noncompliance were identified for school districts and SEAs when attempting to
meet their federal obligations to ELL students.
With respect to LEP parents, school districts and
SEAs are obligated to ensure meaningful communication is maintained in a language these families can
understand and enables them to meaningfully participate in the provision of services for their student.
These areas of noncompliance include:
It remains the responsibility of the school district to
ascertain whether parents are to be considered LEP
and what their language needs are, and develop a plan
accordingly. The guidance provides several approaches a school district may use, such as utilizing a homelanguage survey to guide further communication efforts with the parent(s).
(1) identifying ELL students in a timely, valid, and
reliable manner, including those who qualify under IDEA or Section 504;
(2) offering them an educationally sound languageassistance program;
(3) providing qualified staff and sufficient resources
for instruction;
(4) ensuring they have equitable access to school programs and activities;
(5) avoiding the unnecessary segregation of ELL students;
(6) monitoring their progress in learning and gradelevel work;
CONTACT US:
[email protected]
ELL programs are a key enforcement area for the
U.S. Department of Education. Contact any of our
student/special education practice group attorneys
with questions regarding the Guidance or other aspects of ELL requirements under Illinois and federal law.
3030 Salt Creek Lane . Suite 202 . Arlington Heights, Illinois 60005
804 West US Highway 50 . Suite 220 . O’Fallon, Illinois 62269
401 SW Water Street . Suite 106 . Peoria, Illinois 61602
2
OSEP and OSERS Issue Joint “Dear Colleague”
Letter Urging School Districts to Work With Jails
to Ensure Pupils are Located and Evaluated--The
Office of Special Education Programs and the Office
of Special Education and Rehabilitative Services recently issued another joint “Dear Colleague” letter,
urging school districts to work with jails to ensure students are located and evaluated. The letter reinforces
the need for LEAs and other public agencies responsible for students and responsible to parents of students
who reside in correctional and detention facilities,
jails, and prisons, to be provided with the rights guaranteed to them under IDEA.
collaboration that exists between the LEA responsible
for implementing the state’s child-find duties and the
agencies responsible for providing the students with
FAPE.
Outside a specific exception, all procedural and substantive IDEA protections apply to these students and
their parents. These protections include being appropriately and adequately identified for the provision of
special education and related services and to consistently be provided FAPE.
LEAs, public agencies, correctional facilities, and other noneducational public agencies also have accountability to these students under federal law. These responsibilities include ensuring that they have child
find policies and procedures in place to identify and
evaluate students in need of services who are in correctional facilities, and that this process is extended to
students who have never been identified with a disability before entering the facility.
The responsibilities that fall on the SEA include ensuring: (1) that annual performance determinations
are made on correctional facilities operating as their
own LEAs; (2) ensuring that students with disabilities
in these facilities are included in district-wide assessments; and (3) ensuring that personnel providing special education and related services are appropriately
and adequately prepared and trained.
Additionally, these students are guaranteed the disciplinary safeguards under IDEA, which entitle them to
the right to a manifestation determination upon 11
days of disciplinary exclusion. This applies regardless
of whether the student is disciplined in the facility or
removed to a more restrictive setting.
The letter strongly encourages SEAs, LEAs, and other
public agencies and correctional facilities serving students with disabilities to review their policies, procedures, and practices to verify that they are in compliance with IDEA requirements and, if not, to ensure
that such noncompliance is corrected in a timely manner.
The letter discusses the responsibilities placed on varying levels of agencies that serve these students, while
also acknowledging that attaining compliance with
IDEA requirements for these agencies is complicated:
Contact any of our student/special education practice group attorneys with your inquiries regarding
application of the DCL to your school district.
(1) by the fluid nature of these children transferring in
and out of such facilities, and (2) given the absence of
CONTACT US:
[email protected]
3030 Salt Creek Lane . Suite 202 . Arlington Heights, Illinois 60005
804 West US Highway 50 . Suite 220 . O’Fallon, Illinois 62269
401 SW Water Street . Suite 106 . Peoria, Illinois 61602
3
portation from home to school and back for
school-aged children with an Individualized Education Program (IEP) or an Individualized Family Services Plan (IFSP) established pursuant to the Individuals with Disabilities Education Act (IDEA).”
Rule Eliminating Certain School-based Medicaid
Funding Rescinded by HHS--Department of Health
and Human Services (HHS) recently announced that
the Department would reverse a December 2007 proposed rule issued by the Centers for Medicare and
Medicaid Services (CMS) that would have limited
access to school district Medicaid reimbursement. The
2007 proposed rule would have eliminated schoolbased Medicaid reimbursement for certain transportation and administrative healthcare services provided
to students.
These services had been found by the Secretary to not
meet the statutory test under section 1903(a)(7) of being “necessary . . . for the proper and efficient administration of the State plan.”
Had the rule gone into effect, approximately $3.6 billion in school reimbursements over the course of five
years would have been impacted.
The particular services noted in the rule for which reimbursements would have been eliminated include:
“administrative activities performed by school employees or contractors, or anyone under the control of
a public or private educational institution, and trans-
Contact Barb Erickson or Rupa Ramadurai with
your Medicaid reimbursement inquiries.
volved two tenured teachers who fell into Group 2 of
the district’s Sequence of Honorable Dismissal List.
They were honorably dismissed as part of a RIF and
were subsequently not recalled when vacancies arose.
The court upheld the district’s actions because it was
a legitimate RIF, and Group 2 teachers had no recall
rights at the time. As a reminder, P.A. 98-0648 has
since granted limited recall rights to certain Group 2
teachers.
Illinois Supreme Court Declines to Hear Plaintiffs’
Appeal in Appellate Court Decision Upholding
RIFs Under SB7--The Illinois Supreme Court recently declined to hear the only published reduction-inforce case under the new SB 7 RIF statute, leaving
intact the appellate court victory for the Peoria School
District and all Illinois school districts.
The case, Frakes v. Peoria School District 150, 2014
IL App (3d) 130306, was successfully defended by
Stan Eisenhammer and Jeff Goelitz. As reported in
more detail in the July 2014 Extra Mile, the case in-
Please contact Ellen Rothenberg or Jeff Goelitz with
your RIF inquiries.
the “expedited” briefing schedule requested by the
defendants, it would deny requests of non-parties to
state their views to the court.
Illinois Supreme Court Denies Motions to Allow
“Friends of Court” to File Briefs in Pension Litigation--As promised, we have been actively following
the pension reform litigation that is now in the Illinois
Supreme Court. On January 22nd, the Illinois Supreme Court denied the motions of a variety of organizations and individuals to file “friends of the court”
briefs with the court. The court found that, in light of
CONTACT US:
[email protected]
We will continue to follow the pension reform litigation. Contact Heather Brickman or Barb Erickson
with your TRS inquires.
3030 Salt Creek Lane . Suite 202 . Arlington Heights, Illinois 60005
804 West US Highway 50 . Suite 220 . O’Fallon, Illinois 62269
401 SW Water Street . Suite 106 . Peoria, Illinois 61602
4