A federal court in Washington has held that the school district is not required to conduct a manifestation determination regarding a student’s conduct until the student is removed for disciplinary reasons for more than 10 school days in a school year. This is a case in which the parents alleged numerous IDEA violations, including that the district did not conduct a manifestation determination when it should have.

The court counted up the days of disciplinary removal and they fell well short of the 10-day standard. In fact, the student was suspended for only a total of six school days over a two-year span. The court noted that the school could have conducted a manifestation, but was not required to do so.

This case, Avila v. Spokane School District #81, is a good illustration of what we call THE FAPE-FREE ZONE. The general rule is that long term disciplinary removals of kids with disabilities require a careful review by the ARD Committee in the form of a “manifestation determination.” Short term removals, on the other hand, can be imposed at administrator discretion. The line of demarcation is 10 days—and that is a cumulative total, meaning that you have to keep track of the days. If a student has been suspended three times, each time for three days, you have used up 90% of your FAPE-FREE ZONE.

The Avila case was decided by the Eastern District of Washington on November 3, 2014. We found it at 64 IDELR 171.

DAWG BONE: YOUR FAPE-FREE ZONE IS TEN SCHOOL DAYS IN THE SCHOOL YEAR, CUMULATIVE. COUNT THOSE DAYS!