The opinion of the court was delivered by: O'neill, J.
Plaintiffs M.S. and her parents have filed suit against defendants the Marple Newtown School District and the Marple Newtown Board of School Directors, alleging that defendants violated the Rehabilitation Act and the Americans with Disabilities Act by failing to accommodate M.S.'s educational needs and by retaliating against M.S. and her parents. I now have before me defendants' motion to dismiss and plaintiffs' opposition thereto. For the reasons that follow I will grant defendants' motion.
Plaintiffs allege the following facts in their Complaint. M.S. attended middle school in the Marple Newtown School District. Compl. ¶ 7. When M.S. was in the eighth grade, the School District identified her has a student with a disability and entered into an agreement specifying M.S.'s particular educational needs. Id. ¶ 8. During the same school year, in November of 2007, M.S.'s sister was molested by B.C., a minor who lived near M.S.'s family. Id. ¶ 9. B.C. was arrested in June of 2008 and convicted two months later. Id. ¶ 11. The families of M.S. and B.C. continued to live near each other and tensions between them rose "to a fever pitch." Id. ¶ 12.
M.S. started high school in September of 2008. Id. ¶ 16. Around that time, M.S.'s mother learned that B.C. would be attending the same school as M.S. and that B.C.'s brother, J.C., would be in the same class as M.S. Id. ¶ 17. The presence of B.C. and J.C. reminded M.S. of her sister's molestation and of the animosity between the two families. Id. ¶ 15. Additionally, J.C. harassed M.S. by "staring, leering" and engaging in other disruptive behavior. Id. ¶ 21. B.C. harassed M.S. by "point[ing] cameras at" her in school. Id. M.S.'s academic performance declined and she experienced disciplinary problems at school. Id. ¶ 24.
Starting around August of 2008, M.S.'s mother attempted to persuade school officials to separate M.S. from J.C. and B.C. Id. ¶ 22. She also related her concerns to a local newspaper, who published a story on the situation in April of 2009. Id. But these efforts failed: when M.S. started the tenth grade, she was again placed in the same class as J.C. Id. ¶ 26. She continued to experience academic and disciplinary problems. Id. ¶ 27. A psychotherapist diagnosed M.S. with "anxiety disorder and post-traumatic stress syndrome" and recommended that she be separated from J.C. Id. ¶ 28. The School District ignored this recommendation and kept M.S. and J.C. in the same class. Id. ¶ 30.
M.S. started the eleventh grade in September of 2010 and was again assigned to the same class as J.C. Id. ¶¶ 31-32. M.S.'s mother continued trying to convince the School District to separate M.S. and J.C., but to no avail. Id. ¶ 35. M.S.'s physician recommended that M.S. receive homebound instruction in order to avoid J.C. Id. ¶ 36. On December 20, 2010, M.S. "became hysterical because of the situation" and at that point the School District agreed to provide homebound instruction starting the following month. Id. ¶ 37.
At some unspecified time, M.S.'s mother filed complaints with the Marple Newtown Board of School Directors. Id. ¶ 38. The Board referred the complaints to the Delaware County Solicitor, who hired an outside law firm to investigate the matter. Id. ¶ 39. The Solicitor's wife worked at that firm and "played a major role in" the investigation. Id. ¶ 40. Without interviewing M.S., M.S.'s mother, J.C. or B.C., the law firm cleared the School District and the Board of any wrongdoing. Id. ¶ 42. The firm's report, which casts M.S.'s mother "in a bad light," was sent to J.C., B.C. and certain unidentified individuals "who had no need to know about" the details of the investigation. Id. ¶ 56.
The Complaint contains three causes of action. The first is for harassment in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Id. ¶¶ 43-52. The second is for retaliation in violation of the same statute. Id. ¶¶ 53-61. The third alleges harassment and retaliation in violation of Section 202 of the Americans with Disabilities Act, 42 U.S.C. § 12132. Plaintiffs seek damages, attorney fees and costs and expert witness fees and costs. Id. ¶¶ 52, 61 & 65. Additionally, they seek injunctive relief for their claims under the Rehabilitation Act. Id. ¶ 52 & 61.
Defendants move for dismissal under Federal Rule of Civil Procedure 12(b)(6) or for a more definite statement under Rule 12(e). Defendants argue that the Complaint fails to state a claim and that the Individuals with Disabilities Education Act*fn1 requires plaintiffs to exhaust administrative remedies prior to filing suit in federal court.
Defendants proceed under Rule 12(b)(6). But the IDEA's exhaustion requirement is "jurisdictional in nature." W.B. v. Matula, 67 F.3d 484, 493 (3d Cir. 1995), abrogated on other grounds by A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3d Cir. 2007). If plaintiffs were required to exhaust and failed to do so, the Court would lack subject matter jurisdiction and I would have to dismiss the action under Rule 12(b)(1).
Although the parties devote their briefs to arguing whether the Complaint states a claim upon which relief can be granted, they need not file supplemental briefs addressing whether I must dismiss the Complaint for lack of subject matter jurisdiction. Instead, I will simply construe defendants' motion as a facial attack on the Complaint under Rule 12(b)(1). Under this approach, I "accept as true . . . the plaintiff's factual allegations." Petruska v. Gannon Univ., 462 F.3d 294, 299 (3d Cir. 2006). In this sense, "the facial attack [under Rule 12(b)(1)] . . . offer[s] similar safeguards to the plaintiff [as a motion under Rule 12(b)(6)]." Mortensen v. First Fed. Sav. & Loan Ass'n., 549 F.2d 884, 891 (3d Cir.1977). See also Falzett v. Pocono Mountain Sch. Dist., 150 F. Supp. 2d 699, 701-02 (M.D. Pa. 2001) (construing a Rule 12(b)(6) motion to dismiss IDEA claim for failure to exhaust as a facial challenge to subject matter jurisdiction under ...