OPINION

THE BOARD OF EDUCATION FOR THE CLIFTON

SCHOOL DISTRICT, ET AL.,

Defendants.

N.C. Minor, Individually, by and through her parent and

Guardian Ad Litem, D.C., and BRANDON COLOMBO,

Plaintiffs,

V.

THE BOARD OF EDUCATION FOR THE CLIFTON

SCHOOL DISTRICT, ET AL.,

Defendants.

CECCHI, District Judge.

I. INTRODUCTION

This matter comes before the Court upon the motions of Defendants Jimmie Warren

(“Warren”), and the Clifton Board of Education, Members of the Clifton Board of Education,

Clifton High School, Richard Tardalo, Antony Presley, Pasquale Orsini, John Lopez, Peter Cumba,

and Pat DeLotto (collectively, the “Board Defendants,”t and collectively with Warren, the

“Defendants”) to dismiss the Amended Complaint of Plaintiffs N.C. and Brandon Colombo

See ECF No. 129 (clarifying for the Court that the following defendants filed the motion to dismiss at ECF No. 104: “(1) Clifton Board of Education; (2) Members of the Clifton Board of

Education; (3) Clifton High School; (4) Richard Tardalo; (5) Antony Presley; (6) Pasquale Orsini; (7) John Lopez; (8) Peter Cumba; and (9) Pat DeLotto.”
II. BACKGROUND

In the fall of 2008, Brandon began his freshman year at Clifton High School. (ECF No. 91

¶ 20). “Brandon was a special education student with an Individualized Education Program

(“IEP”),” who was repeating his freshman year for the second time. (Id. ¶ 38). Shortly after

beginning school, Brandon “experienced disciplinary problems and was suspended.” (Id. ¶ 20).

Upon receiving notice of Brandon’s suspension, his mother (“Colombo”) contacted Warren, the

principal of Clifton High School, (id. ¶ 21), and set up an appointment to meet with Warren the

following day. (Id. ¶ 22).

Plaintiffs allege that during Warren and Colombo’s appointment, “Warren agreed to

withdraw Brandon’s suspension” and thereafter “engaged in a continuing pattern of extremely

inappropriate, unwelcome, harassing and sexually suggestive communications with [Colombo],”

including “inappropriate sexual touching.” (Id. flJ 23-24). Plaintiffs contend that althoughColombo “sought to legitimately discuss her son’s academic performance, his behavior issues at

the High School, and his overall social education well-being in school,” Warren’s actions

persisted. (Id. ¶ 25). Plaintiffs maintain that when Colombo refused Warren’s requests, such as

asking Colombo to bring Warren food or coffee, “Warren stated to [Colombo] not to call [him]

2 The Court notes that Defendants also filed separate motions to dismiss Plaintiffs’ mother’s

claims, which were granted in part and denied in part on October 31, 2016. (ECF No. 90).

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(Id.). Plaintiffs further allege that “Warren deliberately changed some of Brandon’s grades.. . to

misleadingly demonstrate that Brandon had successfully completed his [f]reshman academic

requirements.” (Id. ¶ 28). In return, and to ensure Brandon would face no disciplinary problemsin the future, Warren allegedly told Colombo to “perform a sexual act upon him.” (Id. ¶ 29).

Despite Colombo’s refusal, Warren’s actions purportedly continued, including “insisting

on having a meeting to discuss a disciplinary action against Brandon in a hotel room,”“inappropriate touching,” “requests for several sexual favors,” and “exposing himself to

[ColomboJ.” (Id. ¶ 30). Plaintiffs allege that on one occasion, Warren gave Colombo “a Louis

Vuitton purse worth approximately $1,000,” because Warren “felt bad about what he had done”and did not want Colombo to tell anyone. (Id. ¶ 31).

According to Plaintiffs, “Members of the Board of Education, administrators within the

District.. . and other agents and employees of Defendants were aware of Warren’s activities and

took no action in response.” (Id, ¶ 32). Colombo allegedly: (1) called the superintendent ofCliftonHigh School to discuss Warren’s conduct, but her calls went unreturned; and (2) informed the dean

of students about Warren’s conduct, but the dean ofstudents took no action. (Id. ¶J 32-33).

In the fall of 2010, Plaintiffs maintain that “Warren alleged that Brandon was under the

influence of alcohol and/or drugs and insisted that he be sent for testing.” (Id. ¶ 41). Plaintiffs

further allege that Warren demanded “Brandon be placed in an in-patient program” but the “center

refused and Brandon tested negative for drugs and alcohol.” (Id). Shortly thereafter, Plaintiffs

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approach Brandon to ask him questions about the incidents” and “made constant confrontational

comments to Brandon as a result of the allegations.” (Id. ¶J 44-45). “Brandon no longer felt

comfortable leaving his classroom,” and was allegedly at no time contacted by Clifton High School

“to help him navigate through this difficult period in school,” (Id. ¶J 46-48), despite Colombo’s

reporting ofthe harassment to various administrators. (Id. ¶ 50). Ultimately, Brandon completed“his high school education at the Board of Education in Clifton (“Home Education”).” (Id. ¶ 49).

Plaintiffs allege that N.C. experienced the same hostility at school. (Id. ¶ 51). “N.C. was

consistently approached by various students and teachers and treated in a hostile manner. The

students would consistently make negative comments to N.C. about her mother and negative

comments about N.C.” (Id. ¶ 52). Plaintiffs further contend that Colombo’s “pleas for help to the

administration went unanswered” and the “school took little or no action to address the

harassment.” (Id. ¶ 53, 56). “As a result, N.C. began to have anxiety and panic attacks” and “has

been to the hospital over ten (10) times as a result of the panic attacks.” (Id. ¶ 55).

According to Plaintiffs, as “a direct result ofthe hostility N.C. faced at school,” she “missed

a number of school days during her spring semester.” (Id. ¶ 57). N.C.’s request to make up her

missed exams was allegedly denied, forcing N.C. to repeat her freshman year. (Id. ¶J 57-58).

Plaintiffs contend that subsequently, N.C. was “pushed’ through school,” completing “her

sophomore year, her junior year[,] and senior year in one (1) school year.” (Id. ¶ 59). Despite

failing her proficiency examination on two occasions, N.C. passed on her third try and “received

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been duly considered by the Court.III. LEGAL STANDARD

A. Rule 12(b)(1)

Courts must grant a motion to dismiss under federal Rule of Civil Procedure 12(b)(l) if

the court determines that it lacks subject-matter jurisdiction over a claim. See In re Schering

Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012).

“Generally, where a defendant moves to dismiss under Rule 1 2(b)( 1) for lack of subject-matter

jurisdiction, the plaintiff bears the burden of proving by a preponderance of the evidence that the

Court has subject matterjurisdiction.” The Connelly Firm, P.C. v. US. Dep ‘t ofthe Treasury, No.

15-2695, 2016 WI 1559299, at *2 (D.N.J. Apr. 18, 2016) (citing Gould Elecs. Inc. v. United

States, 220 f.3d 169, 178 (3d Cir. 2000)).

The first step in evaluating a 12(b)(1) motion is determining whether the 12(b)(1) motion

presents a facial attack or a factual attack. See Constitution Party ofPa. v. Aichele, 757 F.3d 347,

357-58 (3d Cir. 2014). for facial attacks, “the court must consider the allegations ofthe complaint

as true.” Mortensen v. First Fed. Say, & Loan Ass ‘n, 549 f.2d 884, 891 (3d Cir. 1977). For factualattacks, however “the trial court is free to weigh the evidence and satisfy itself as to the existenceofits power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations

[and] the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Id.

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570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded

factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. See Phillips v. Cty. ofAllegheny, 515 F.3d 224, 234 (3d Cir. 2008). “Factual

allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550

U.S. at 555. Furthermore, “[a] pleading that offers ‘labels and conclusions’ . . . will not do. Nor

does a complaint suffice ifit tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.”

Iqbal, 556 U.S. at 678 (citations omitted).

IV. DISCUSSION

A. Fourteenth Amendment Equal Protection

1. Count One

Count One of Plaintiffs’ Amended Complaint alleges that Defendants violated Plaintiffs’

rights to equal protection under the law as guaranteed by the Fourteenth Amendment, which

provides that “[nb state shall. . . deny to any person within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV, § 1. To bring a successful claim under 42 U.S.C. § 1983 for

a denial of equal protection, Plaintiffs “must demonstrate that [they] received different treatment

than other similarly situated persons and that the disparate treatment was based on [their] protected

class status.” Kasper v. Cty, ofBucks, 514 F. App’x 210, 214 (3d Cir. 2013) (citing Andrews v.

City ofPhila., 895 F.2d 1469, 1478 (3d Cir. 1990)). “Thus, to survive a motion to dismiss, the

complaint must allege facts that would establish that the plaintiff is ‘(1) a member of a protected

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a claim for § 1983 liability based on a violation of the equal protection clause. (ECF Nos. 103-2

at 11-14, 104-1 at 9-1 1). The Amended Complaint alleges that “Plaintiffs were afforded a lower

level of protection as opposed to other students at Clifton High School as a result ofN.C.’s gender,

and as a result of Brandon’s disabilities.” (ECF No. 91 ¶ 66). Although the Amended Complaint

identifies N.C.’s gender and Brandon’s disability as their purported protected classes, the

Amended Complaint identifies no similarly situated members of unprotected classes (i.e., similarly

situated male students and non-disabled students). further, the Amended Complaint does not

identify how female students or disabled students were treated differently from similarly situated

male students or non-disabled students based on being members ofthose classes.

Although Plaintiffs argue that on a motion to dismiss, their contention that “Plaintiffs

received a lower level of protection that was motivated by disability and gender” suffices, (ECF

Nos. 111-1 at 11, 111-5 at 7), this argument fails. See D ‘Altllio v. Dover Twp., No. 06-1931, 2007

WL 2845073, at *8 (M.D. Pa. Sept. 26, 2007) (“To avoid dismissal, a plaintiff must allege both

protected-class status and differential treatment of similarly situated non-class members.” (citing

Keenan v. City ofPhila., 983 F.2d 459, 465 (3d Cir. 1992)); see also id. (“Mere harassment based

on protected-class status without identification of similarly situated individuals outside the class

will not support an equal protection violation.” (citing Hudson v. Coxon, 149 F. App’x 118, 121

(3d Cir. 2005)).

When alleging the existence of individuals outside the protected class, a plaintiff

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violation, and their claim will be dismissed.

2. Count Two

Count Two of Plaintiffs’ Amended Complaint also alleges that Defendants violated

Plaintiffs’ rights to equal protection under the law as guaranteed by the Fourteenth Amendment.

Unlike Count One, however, Count Two does not allege Plaintiffs were treated differently from

members of unprotected classes, but rather argues:

The above enumerated actions by Defendants and actions which Defendants havestated they intend to engage in violate the plaintiffs’ right to be free from

intimidation by other students, the right to be free from physical intrusions as wellas psychological attacks that cause students to question their self-worth and their

rightful place in society.

(ECF No. 91 ¶ 75). On the face of Plaintiffs’ Amended Complaint, it is unclear how this contention

gives rise to an equal protection violation. Read liberally, however, the Court construes Plaintiffs’

contention as a “class of one” equal protection claim.

“An Equal Protection claim can in some circumstances be sustained ifthe plaintiff ‘claims

that she has been irrationally singled out as a so-called “class of one.” Allen v. Baylor, No. 13-

4386, 2014 WL 146478$, at *3 (D.N.J. Apr. 15, 2014) (quoting Engquist v. Or. Dep’t ofAgric.,

553 U.S. 591, 601 (2008)). “To state a ‘class-of-one’ equal protection claim, a plaintiff needs to

‘allege[] that he has been intentionally treated differently from others similarly situated and that

there is no rational basis for the difference in treatment.” Turner v. Doe, No. 15-5942, 2015 WL

5455669, at *3 (D.N.J. Sept. 15, 2015) (alteration in original) (quoting Viii. of Willowbrook v.

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Here, Plaintiffs do not allege the existence of any similarly situated students. As such,

Plaintiffs have not pled facts sufficient to allege a “class of one” equal protection claim. See id.

(finding that plaintiff failed to state a claim upon which relief may be granted when plaintiff did

not allege the existence of similarly situated individuals); Mann v. Brenner, 375 F. App’x 232,

238-39 (3d Cir. 2010) (noting that although plaintiffs are not required to “identify in the complaint

specific instances where others have been treated differently,” without any allegation regarding

other similarly situated individuals, plaintiffs “class of one” equal protection claim failed to state

a claim (citations omitted)); see also Ragland v. Lanigan, No. 14-045 8, 2014 WL 253492$, at *5

(D.N.J. June 4, 2014) (“Plaintiffs sole allegation in the complaint with respect to this claim is that

he was treated differently than similarly situated [individuals]. This amounts to nothing more than

a thread-bare recital of the first element of stating a ‘class-of-one’ equal protection claim without

any further factual allegations. This is insufficient to state an equal protection claim.”).

Accordingly, Plaintiffs’ Fourteenth Amendment equal protection claim is dismissed.

B. Due Process -Education

1. Substantive Due Process

Count Three of Plaintiffs’ Amended Complaint alleges that Plaintiffs “were deprived of a

property right to a free public education.” (ECF No. 91 ¶ $7). To the extent that Plaintiffs argue

that such deprivation constitutes a substantive due process violation, their argument is without

merit.

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Hilt v. Borough ofKutztown, 455 f.3d 225, 234 n.12 (3d Cir. 2006) (citations omitted). “If theinterest is not ‘fundamental’ .. . the governmental action is entirely outside the ambit ofsubstantive

process and will be upheld so long as the state satisfies the requirements of procedural due

process.” Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d Cir. 2000). The Third Circuit has

explicitly held that education is not a fundamental right entitled to substantive due process

protection. See Bowers v. Nat ‘1 Collegiate Athletic Ass ‘11, 475 f.3d 524, 553 (3d Cir. 2007) (citing

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973)). Thus, Plaintiffs’ claim that

their substantive due process rights were violated fails.3

2. Procedural Due Process

Plaintiffs further argue that “Plaintiffs were deprived of [the property right to a free public

education] without due process.” (ECF No. 91 ¶ 8$). Construing Plaintiffs’ Amended Complaint

liberally, Plaintiffs seem to raise a procedural due process argument.

To state a claim under § 1983 for deprivation of procedural due process rights, a

Although the Court recognizes that courts have applied rational basis review to substantive due

process claims related to public education rights, see, e.g., MG. v. Crisfield, 547 F. Supp. 2d 399,

408 (D.N.J. 200$); Bell v. Pennsbury Sch. Dist., No. 09-5967, 2011 WL 292241, at *5 (E.D. Pa.Jan. 31, 2011), the Third Circuit holds that “when a plaintiff challenges the validity of a legislative

act, substantive due process typically demands that the act be rationally related to some legitimategovernment purpose. In contrast, when a plaintiff challenges a non-legislative state action. .

[i]f the interest is not ‘fundamental’ . . . the government action is entirely outside the ambit of

substantive due process and will be upheld so long as the state satisfies the requirements of

procedural due process.” Nicholas v. Pa. State Univ., 227 f.3d 133, 142 (3d Cir. 2000) (emphasis

added). Because the instant case does not involve a legislative act, the Court finds application of

rational basis review unwarranted. See id.

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Nicholas, 227 f.3d at 140.

In New Jersey, the right to a free, public education is recognized as a legitimate property

interest. See MG. v. Crisfield, 547 F. Supp. 2d 399, 408 (D.N.J. 2008) (“New Jersey law clearly

provides . . . the right to a free public education.”). As such, Plaintiffs have sufficiently alleged

the first element of a procedural due process claim. (See ECF No. 91 at ¶J 84, 87-88).

As to the second requirement:In order to state a claim for failure to provide due process, a plaintiff must have

taken advantage of the processes that are available to him or her, unless those

processes are unavailable or patently inadequate. “[Al state cannot be held to have

violated due process requirements when it has made procedural protection availableand the plaintiff has simply refused to avail himself of them.” A due process

violation “is not complete when the deprivation occurs; it is not complete unless

and until the State fails to provide due process.” Ifthere is a process on the books

that appears to provide due process, the plaintiff cannot skip that process and usethe federal courts as a means to get back what he wants.

Alvin v. Suzuki, 227 f.3d 107, 116 (3d Cir. 2000) (alteration in original) (citations omitted). Here,

Plaintiffs have not provided any information in their Amended Complaint about what processes

were available to them, whether they took advantage of those processes, or why those processeswere unavailable or patently inadequate.4 Rather, Plaintiffs argue that they “were deprived oftheir

right to a ‘free public education’ without any proceedings at all. No hearing(s) was/were held or

Conversely, the Board Defendants note that Plaintiffs could have “fil[ed] a petition with the N.J.

Department of Education as required by N.J.A.C. 6A:3-l.1 et seq.” (ECF No. 104 at 23).

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Plaintiffs allege in Count Four oftheir Amended Complaint:

Plaintiffs had a right to be free from unjustified intrusions on personal activity, such

as the pervasive harassment Plaintiffs suffered from both staff and students. This

pervasive harassment was a direct and logical result of Principal Warren’s actions

against [Colombo]. The Defendants created this danger by hiring Principal Warrenand ignoring complaints of his unprofessional behavior, and further, Defendants

had a special relationship with the Plaintiffs, and a duty to protect them as their

educators. The above enumerated actions by Defendants are in violation of

Plaintiffs’ substantive due process rights as Warren’s conduct shocks the

conscience or otherwise offends judicial notions of fairness.

(ECF No. 91 ¶J 98-101).

“The Third Circuit has recognized that ‘[i]ndividuals have a constitutional liberty interest

in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth

Amendment.” Bridges ex rel. D.B. v. Scranton $ch. Dist., 66 F. Supp. 3d 570, 580 (M.D. Pa.2014) (alteration in original) (citations omitted), aff’d, 644 F. App’x 172 (3d Cir. 2016). Plaintiffscontend that this liberty interest was violated as a result of “pervasive harassment. . . from bothstaff and students.” (ECF No. 91 ¶ 98). Because Plaintiffs’ claims of harassment against staff andstudents implicate different issues, each will be addressed in turn.

a) Staff

“The Third Circuit has developed a four-part test for analyzing claims of physical abuse

against a school official.” L.H. v. Pittston Area $ch. Dist., 130 F. Supp. 3d 918, 929 (M.D. Pa.

2015), aff’d, 666 F. App’x 213 (3d Cir. 2016). Here, Plaintiffs have only alleged verbal abuse byClifton High School staff. (ECF No. 91 ¶ 98). “However, as with claims of physical abuse, claims

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Here, Plaintiffs allege that “teachers. . . treat[ed Brandon] differently and alienat[ed] him,”

“teachers . . . acted hostile toward N.C.,” and “N.C. was consistently approached by various

teachers and treated in a hostile manner.” (ECF No. 91 ¶J 47, 51-52). Under the standard set forthabove, the Court cannot find that Plaintiffs sufficiently alleged conduct which rises to the level of

“conscience-shocking” to support a substantive due process claim. See LH, 130 F. Supp. 3d at

929 (citing cases that found plaintiffs failed to state substantive due process claims where teachers

called students prostitutes, bimbos, fatsos, retarded, and stupid). As such, Plaintiffs have failed tostate a claim upon which relief may be granted.

b) Students

Regarding the conduct of Plaintiffs’ classmates, “[g]enerally, the Due Process Clause does

not impose an affirmative duty upon the state to protect citizens from the acts of private

individuals.” Sanford v. Stiles, 456 F.3d 298, 303-04 (3d Cir. 2006). The Third Circuit, however,

has “explicitly recognized two exceptions to this general rule. First, the state has a duty to protect

or care for individuals when a ‘special relationship’ exists. Second, the state has a duty when a

‘state-created danger’ is involved.” Id. at 304. Plaintiffs argue that both ofthese exceptions apply.

Although Plaintiffs’ Amended Complaint alleges Warren’s conduct shocks the conscience, the

relevant inquiry before the Court is whether the “pervasive harassment Plaintiffs suffered” shocks

the conscience. See L.H v. Pittston Area $ch. Dist., 130 F. Supp. 3d 918, 929 (M.D. Pa. 2015),

aff’d, 666 F. App’x 213 (3d Cir. 2016).

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school may have a duty to protect students from private actors if a special relationship exists

between them. See Sanford, 456 F.3d at 304.

[A] special relationship [may ariseJ between a particular school and particular

students under certain unique and narrow circumstances. However, any such

circumstances must be so significant as to forge a different kind of relationship

between a student and a school than that which is inherent in the discretion afforded

school administrators as part of the school’s traditional in toco parentis authority

or compulsory attendance laws.

Morrow, 719 f.3d at 171. Here, Plaintiffs allege that “Defendants had a special relationship withthe Plaintiffs, and a duty to protect them as their educators.” (ECF No. 91 ¶ 100). Plaintiffs point

to no facts as to how Defendants’ relationship with Plaintiffs differed from the inherent

relationship between public schools and their students, and therefore Plaintiffs have failed to

sufficiently plead that a special relationship existed. See Morrow, 719 F.3d at 171-72 (“The

circumstances . . . under the facts alleged here are not ‘certain narrow’ circumstances at all.

Instead, they are endemic in the relationship between public schools and their students. . . . The

fact that ‘the specific threat at issue in this case’ was ‘a violent bully subject to two restraining

orders,’ does not necessarily give rise to a special relationship.” (citations omitted)); Bridges, 66

F. Supp. 3d at 582 (holding that school district and elementary school student did not have a special

relationship, so as to give rise to constitutional duty under Due Process Clause to protect student

from being bullied by other students).

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creating a danger to an individual in certain circumstances.” Henry v. City ofErie, 72$ F.3d 275,

281 (3d Cir. 2013). Under this theory, “liability may attach where the state acts to create or

enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to

substantive due process.” Morrow, 719 F.3d at 177. To prevail on this theory, Plaintiffs must

show:

1) [T]he harm ultimately caused was foreseeable and fairly direct; 2) a state actor

acted with a degree of culpability that shocks the conscience; 3) a relationship

between the state and the plaintiff existed such that the plaintiff was a foreseeable

victim ofthe defendant’s acts, or a member of a discrete class of persons subjected

to the potential harm brought about by the state’s actions, as opposed to a member

of the public in general; and 4) a state actor affirmatively used his or her authority

in a way that created a danger to the citizen or that rendered the citizen morevulnerable to danger than had the state not acted at all.

Id. Here, Plaintiffs argue that the “pervasive harassment [that they sufferedJ was a direct and

logical result of Principal Warren’s actions against [ColomboJ” and that the “Defendants created

this danger by hiring Principal Warren.”6 (ECF No. 91 ¶J 99-100). Plaintiffs further state “[u]pon

information and belief, the [Board D]efendants knew that Jimmie Warren had been accused of

sexual harassment in the past, while in a position of authority at another school in the Clifton

District.” (Id. ¶ 37). The Court must first consider whether the harm Plaintiffs suffered was

foreseeable.

6 Although Plaintiffs do not say so explicitly, it is clear to the Court that this allegation applies to

the Board Defendants, and not to Warren. As such, this argument will only be considered as tothe Board Defendants.

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ifthe Board Defendants were informed ofWarren’s alleged history ofsexual harassment, the Court

would likely find that the Board Defendants had an awareness of the risk that by hiring Warren,students may fall victim to sexual harassment at the hands of Warren.

Here, however, it was Colombo, Plaintiffs’ mother, not Plaintiffs, that purportedly suffered

sexual harassment from Warren. Plaintiffs, conversely, suffered teasing and bullying from otherstudents resulting from the following series of events: (1) Warren was hired as principal of Clifton

High School; (2) Brandon suffered disciplinary problems, resulting in an appointment between

Warren and Colombo; (3) thereafter, Warren allegedly engaged in a pattern of sexual misconduct

towards Colombo; (4) Colombo reported Warren’s conduct to the police; and (5) after an

investigation and media coverage, students at Clifton High School learned of Warren’s purported

misconduct against Colombo. (ECF No. 91).

The Court finds that the teasing and bullying Plaintiffs suffered was too attenuated to

constitute a foreseeable or fairly direct consequence of hiring Warren. See Graham v. Huevel, No.

10-1268, 2011 WL 1256607, at *5 (D.N.J. Mar. 28, 2011) (finding plaintiff could prove no set of

facts to establish foreseeability when defendant’s conduct was “too attenuated to have caused”

plaintiffs harm); see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 909 (3d Cir. 1997)

(holding that “defendants, as a matter oflaw, could not have foreseen. . . the tragic harm [because

it] was too attenuated from defendants’ actions to support liability”). Accordingly, Plaintiffs’contention fails.

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in terms of exposure to danger. It is misuse of state authority, rather than a failure

to use it, that can violate the Due Process Clause.”

Bridges, 66. F. Supp. 3d at 583 (citations omitted). “Accordingly, to establish the fourth element,

Plaintiffs must identify ‘an affirmative action, rather than inaction or omission.” Id. (citations

omitted). Because ignoring complaints of Warren’s unprofessional behavior constitutes passive

inaction, it is not sufficient to state a cause of action under the state-created danger exception. See

Morrow, 719 F.3d at 179; Bridges, 66 F. Supp. 3d at 584. As such, Plaintiffs’ claim that their

substantive due process rights were violated is dismissed.

2. Procedural Due Process

Although Plaintiffs argue in Count four of their Amended Complaint that the “above

enumerated actions, and the Defendants’ failure to provide the Plaintiffs with a hearing, are in

violation of Plaintiffs’ procedural due process rights,” (ECF No. 91 ¶ 102), only the substantive

component of the Due Process Clause is at issue here. See Bridges, 66 F. Supp. 3d at 580

(explaining that where “Plaintiffs assert[ed] that [D.B.J was deprived of his liberty interest and

right to bodily integrity as a result of student-on-student bullying in first grade and teacher-on

student bullying in second grade,” “[o]nly the substantive component of the Due Process Clause

[waYs at issue”). Indeed, Plaintiffs clarify in their briefing that their procedural due process claim

relates to Plaintiffs’ purported property right to a free, public education, (ECF Nos. ill-i at 21,

111-5 at 18), as discussed in Section W.B.2, supra. As such, the Court dismisses any claim of

procedural due process violations arising from Count Four of Plaintiffs’ Amended Complaint.

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plaintiffs because of and based upon N.C.’s gender.” (ECF No. 91 ¶ 111). Because “Plaintiffs

voluntarily agree[d] to withdraw Count [Five] of the Amended Complaint alleging claims underTitle IX ofthe Education Amendments of 1972” against Warren, (ECF No. 111-1 at 22), the Court

will only consider Plaintiffs’ argument as against the Board Defendants.

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of’ or be subjected to discrimination underany education program or activity receiving federal financial assistance[.]” 20 U.S.C. § 1681(a).

To survive a motion to dismiss on a Title IX claim, “it is true that [a] plaintiff does not need to

provide detailed factual support for its allegations. . . [but] the plaintiffs allegations must amount

to more than mere conclusory allegations.” Butler v. Mountain View $ch. Dist., No. 12-2038, 2013

WL 4520839, at *7 (M.D. Pa. Aug. 26, 2013); see also Winter v, Pa. State Univ., 172 F. Supp. 3d

756, 775 (M.D. Pa. 2016) (“A plaintiff alleging racial or gender discrimination by a university

[under Title IX] must do more than recite conclusory assertions.” (alteration in original) (citations

omitted)).

Here, the Board Defendants argue that “N.C. has not pled a harassment claim under Title

IX” because “[t]here is no allegation in the Amended Complaint that the harassment and teasing

was motivated by N.C.’s gender. Rather, the pleading makes clear that the alleged harassment andhostile environment was caused by the alleged relationship between . . . Colombo and Warren.”

(ECF No. 104-1 at 24-25). Plaintiffs maintain, however, that their assertion that “Defendant’s

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sexual harassment and a hostile learning environment “because of and based upon N.C.’s gender”

is wholly conclusory. Plaintiffs provide no facts in support of this allegation and as such, their

claim is dismissed. See Tafuto v. N.J Inst. ofTech., No. 10-4521, 2011 WL 3163240, at *3 (D.N.J.

July 26, 2011) (“Plaintiffs minimal effort—an attempt to provide ‘threadbare recitals of [the]

cause of action’s elements, supported by mere conclusory statements’—convinces this Court to

dismiss Plaintiffs Title IX. . . claim.” (alteration in original) (citations omitted)); Harris v. Saint

Joseph’s Univ., No. 13-3937, 2014 WL 1910242, at *4 (E.D. Pa. May 13, 2014) (“A plaintiff

alleging racial or gender discrimination by a university [under Title IX] must do more than reciteconclusory assertions.” (alteration in original) (citations omitted)).

E. Individuals with Disabilities Education Act and Rehabilitation Act

Count Six of Plaintiffs’ Amended Complaint is brought pursuant to the Individuals with

Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act (“Section 504”).

Through the IDEA, 20 U.S.C. § 1400, et seq., the federal government provides funding to assist

states in educating children with disabilities living within their borders. 20 U.S.C. § 14l2(a)(1)(A).

The IDEA requires that a state receiving federal education funding provide a “free appropriate

public education” (“FAPE”) to disabled children. Id. Section 504 prohibits disability

discrimination by school districts receiving federal financial assistance, providing that:

No otherwise qualified individual with a disability in the United States . . . shall,

solely by reason of his or her disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under any program or

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pursuant to the requirements of the IDEA. (ECF Nos. 103-2 at 23-25, 104-1 at 26-30). Plaintiffs

do not dispute that their administrative remedies under the IDEA remain unexhausted; rather, they

respond that “there is no need to exhaust administrative remedies” because such exhaustion would

be futile. (ECF Nos. 111-1 at 22-24, 111-5 at 19-2 1). Plaintiffs further argue that their Section

504 claim is not subject to the IDEA exhaustion requirements. (ECF Nos. 111-1 at 24-25, 111-5

at 21-22).

1. The Exhaustion Requirement

Pursuant to the IDEA, a district court has subject matter jurisdiction over civil actions

seeking relief available under the IDEA only after the plaintiffs exhaust their administrative

remedies. 20 U.S.C. § 1415(1) (“[B]efore the filing of a civil action under such laws seeking relief

that is also available under this subchapter, the procedures under subsections (f) and (g) shall be

exhausted to the same extent as would be required had the action been brought under this

subchapter.”). The Third Circuit has held that this provision applies to claims brought under

Section 504 ofthe Rehabilitation Act. See Batchelor v. Rose Tree Media $ch. Dist., 759 f.3d 266,

272 (3d Cir. 2014) (holding that the IDEA “bars plaintiffs from circumventing [the] IDEA’s

exhaustion requirement by taking claims that could have been brought under IDEA and

repackaging them as claims under some other statute—e.g., . . . section 504 of the Rehabilitation

Act” (alteration in original) (citations omitted)).

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administrative process.” Id. at 273. Thus, because “[t]he IDEA affords parents of a disabled child

the opportunity to present a complaint ‘with respect to any matter relating to the identification,evaluation, or educational placement of the child, or the provision of a free appropriate public

education to such child{,J” the relevant inquiry is whether the Plaintiffs’ claims “relate” to the

identification, evaluation, or educational placement of a disabled student. Id. at 274 (citing 20

U.S.C. § 1415(b)(6)(A)).

Plaintiffs allege that Defendants violated Section 504 by failing “to protect Brandon from

severe, pervasive[,J and objectively offensive harassment.” (ECF No. 91 ¶ 120). The alleged

result of Defendants’ failure was, inter alia, exclusion “from participation in . . . educationalbenefits and . . . discrimination.” (Id. ¶ 128). The Court finds that Plaintiffs’ claim relates to the

identification, evaluation, and educational placement of a disabled student. See MS. v. Marple

Newtown Sch. Dist., 635 F. App’x 69, 72 (3d Cir. 2015) (holding that the parents of a high school

student were required to exhaust the IDEA administrative remedies before bringing a Section 504

claim against the school district because a claim arising out of harassment by two fellow students

intrinsically concerned the student’s educational placement under the IDEA and related to thedistrict’s duty to provide an appropriate public education to the student under the IDEA); MM v.

Tredyffrin/Easttown $ch. Dist., No. 06-1966, 2006 WL 2561242, at *8 (E.D. Pa. Sept. 1, 2006)

(“Furthermore, Plaintiffs’ Section 504 claim is within the ambit of the IDEA administrative

process because Plaintiffs assert that Defendants’ discrimination, based on M.’s handicap,

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subject to the IDEA’s exhaustion requirement” (citations omitted)).

3. Exceptions to the IDEA’s Exhaustion Requirement

Having found that Plaintiffs’ Section 504 claim is subject to the IDEA’s exhaustion

requirement, the Court must still consider whether an exception to the IDEA’ s exhaustion

requirement applies to Plaintiffs’ IDEA and Section 504 claims. Plaintiffs do not dispute that their

administrative remedies under the IDEA remain unexhausted, but rather argue that any such

requirement would be futile because Brandon has already graduated from high school and is

seeking monetary damages. (ECF Nos. 111-1 at 22-24, 111-5 at 19-21).

Previously, courts in this circuit have held actions seeking compensatory damages to be

exempt from exhaustion. See, e.g., D.G. v. Somerset Hilts Sch. Dist., 559 F. $upp. 2d 484, 495

n.3 (D.N.J. 2008). However, in a July 2014 decision, the Third Circuit Court of Appeals clarified

that whether a claim is subject to exhaustion does not depend on the form of relief, but whether

the underlying cause of action is so related to the provision of a free appropriate public education

that it should first be addressed by the administrative process. See Batchelor, 759 F.3d at 273-74.

Such is the case here.

In Batchetor v. Rose Tree Media School District, the Third Circuit observed that “the

theory behind [Plaintiffs’] grievance may activate the IDEA’s process, even if the [Plaintiffs]

want[] a form ofrelief that the IDEA does not supply.” Id. at 276 (citations omitted). Thus:

In response to a school district’s alleged bad behavior, the educational harms

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Preliminarily, the Court notes that, like the plaintiffin Batchetor, Plaintiffs’ requested relief

is not confined to compensatory damages. In addition to compensatory damages, plaintiffs also

request “pecuniary damages,” “punitive damages,” “reasonable attorneys’ fees,” and “such further

reliefwhich the Court may deem just and equitable.” (ECF No. 91 at 24). In an IDEA due process

hearing, an administrative law judge (“AU”) may grant relief in the form of attorneys’ fees,

compensatory education, and reimbursement. See Shore Reg’? High Sch. Bd. ofEduc. v. P.S., 381

F.3d 194, 197 (3d Cir. 2004) (affirming an administrative law judge’s order for a school district

“to reimburse [the student] for the out-of-district tuition and related costs, including [the student’]s

reasonable attorneys’ fees”). Thus, Plaintiffs do, in fact, seek relief available under the IDEA.

The Court next turns to whether the allegations underlying the Plaintiffs’ causes of action

“activate the IDEA’s process.” The alleged result ofDefendants’ IDEA and Section 504 violations

is that Brandon was “deprived. . . of access to educational opportunities and benefits provided by

the school,” and was “excluded from participation in . . . educational benefits and subject to

discrimination.” (ECF No. 91 ¶J 120, 128). Deficiencies in the provision of a free appropriate

public education are the very grievances upon which the IDEA’s administrative process was built

to address. 20 U.S.C. § 1400(d)(1)(A) (“The purpose[] of [the IDEA is] to ensure that all children

with disabilities have available to them a free appropriate public education that emphasizes special

education and related services designed to meet their unique needs[.]”). If the allegations in the

Amended Complaint had been proven before an AU, Brandon and Colombo would have had

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Educ., 694 F.3d 488, 498-99 (3d Cir. 2012) (citations omitted). Thus, the nature of Plaintiffs’

educational harms are such that they could have found effective reliefthrough the administrative

process.

Plaintiffs also argue that they should be excused from exhaustion because Brandon has

already graduated. Plaintiffs’ argument fails. At the time Plaintiffs filed their original complaint,

November 16, 2012, (Dkt. 12-7132, ECF No. 1), Brandon was under the age oftwenty-one. (ECF

No. 31 at 1 (“Brandon Colombo (D.O.B. 08/31/1992”))). Pursuant to the IDEA, a school district’s

obligation to provide a free appropriate public education does not terminate until the child reaches

the age oftwenty-one. 20 U.S.C. § 1412(a)(1)(A); see also Batchelor, 759 F.3d at 278 n.14 (noting

that IDEA remedies were “available even though [the student] ha[d] sincegraduated from high

school” because “[u]nder the IDEA, a school district’s obligation to provide a FAPE terminates

when the child reaches the age of twenty-one”); R.D. v. Souderton Area Sch. Dist., No. 11-2995,

2015 WL 2395156, at *3 n.3 (E.D. Pa. May 19, 2015) (noting that “based on informationprovided

in the original, verified Complaint,” the student “is in fact nineteen-years-old. . . . [but] retain[s]

her IDEA-based rights through age 21”). Brandon, at the age oftwenty, was therefore within the

scope of the IDEA at the time Plaintiffs’ original complaint was filed, and could have received

various remedies via the administrative process, including financial reimbursement, compensatory

education, and a more developed factual record.

Even taking all inferences in Plaintiffs’ favor, the present action falls within the ambit of

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Preliminarily, the Court notes that the consolidation of Plaintiffs’ case, (Dkt. 12-7132),

with Colombo’s case, where, through separate motion practice, the Court denied in part and

granted in part Defendants’ motions to dismiss, (Dkt. 11-785), did not create a single case for

jurisdictional purposes. See Deluxe Bldg. Sys., Inc. v. Constructamax, Inc., 94 F. Supp. 3d 601,

607 (D.N.J. 2013) (“[T]he order consolidating these two cases did not create a single case for

jurisdictional purposes.”); see also Id. (“The Third Circuit . . . prohibit[sJ the treatment of

consolidated cases as a single action where doing so would diminish or enlarge the rights of a

party. That includes cases in which consolidated treatment would implicate the court’s

jurisdiction.”).

As to Plaintiffs’ remaining state law claims, the Court declines to exercise supplemental

jurisdiction. The basic statutory grant of federal court subject-matter jurisdiction provides for

federal-question jurisdiction and for diversity of citizenship jurisdiction. Arbaugh v. Y&H Corp.,

546 U.S. 500, 513 (2006) (citing 28 U.S.C. § 1331, 1332). “A plaintiff properly invokes § 1331

jurisdiction when she pleads a colorable claim ‘arising under’ the Constitution or laws of the

United States.” Id. Here, as Plaintiffs failed to state a cognizable federal claim, the Court does

not have federal question jurisdiction. To invoke § 1332, Plaintiffs must state “a claim between

parties of diverse citizenship that exceeds the required jurisdictional amount, currently $ 75,000.”

Id. Here, as Plaintiffs cannot plead complete diversity of citizenship, the Court cannot consider

their claims under diversity jurisdiction, Further, the Court declines to exercise supplemental

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For the reasons set forth above, Defendants’ motions to dismiss are granted. To the extent

the pleading deficiencies identified by this Court can be cured by way of amendment, Plaintiffs

are hereby granted thirty (30) days to file an amended pleading. An appropriate Order

accompanies this Opinion.

DATED: 7/ )-O K

CLAIRE C. CECCHI, U.S.D.J.

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