The opinion of the court was delivered by: WOLFSON,United States District Judge
Presently before the Court are the motions of Warren Township Board of Education (the "Board"), James A. Crisfield, Laura Weitzman, Joseph Palumbo, and Pamela Coley (collectively "Defendants") to dismiss the federal and state law claims brought by M.G. and L.G., individually and on behalf of their child, A.G. (collectively "Plaintiffs") for lack of subject matter jurisdiction. In the alternative, Defendants move to dismiss certain federal claims for failure to state a claim upon which relief can be granted. Specifically, Plaintiffs bring Section 1983 claims against the Defendants for violating their rights to procedural due process, substantive due process, equal protection of the laws and the right to privacy under the Fourteenth Amendment. Plaintiffs also bring, on behalf of A.G., claims against the Board under Section 504 of the Rehabilitation Act. Finally, Plaintiffs bring claims under the New Jersey Constitution and New Jersey statutes and regulations.
For the foregoing reasons, the Court decides the present motions as follows. The Court dismisses without prejudice, Plaintiffs' Section 1983 substantive due process, right to privacy and equal protection claims as well as claims based on unspecified New Jersey laws and regulations. These foregoing claims are dismissed with the right to re-plead as described herein. The Court grants Defendants' motion to dismiss Plaintiffs' Section 504 claim based on Defendants' failure to provide a manifestation determination for lack of subject matter jurisdiction. The Court grants Defendants' motion to dismiss Plaintiffs' claims for punitive damages with respect to the Board. Defendants' motion to dismiss Plaintiffs' Section 1983 procedural due process and Section 504 "regarded as" claims for lack of subject matter jurisdiction is denied. Defendants' motion to dismiss Plaintiffs' Section 504 "regarded as" claim for failure to state a claim is also denied. As to Defendants' motion to dismiss Plaintiffs' claim based on the "thorough and efficient education" clause of the New Jersey Constitution for lack of subject matter jurisdiction, the Court finds that Plaintiffs' opposition brief failed to address the matter, and thus the Court grants Plaintiffs thirty days to address the Court's jurisdiction over this state constitutional claim, or it will be dismissed.
I. Background and Procedural History
Plaintiffs' claims arise out of the initial ten day suspension, and subsequent indefinite suspension, of A.G. from the Mt. Horeb School ("Mt. Horeb"), an elementary school operated by Warren Township. A.G. attended a regular third grade class from September 2005 through January 13, 2006, when he was indefinitely suspended. Amended Complaint ("Compl."), ¶13. Because Defendants move (i) to dismiss Plaintiffs' claims for lack of subject matter jurisdiction through a facial attack on the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1), and (ii) to dismiss certain claims pursuant to Fed. R. Civ. P. 12(b)(6), the following version of events assumes Plaintiffs' allegations to be true. Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)("The facial attack [for lack of subject matter jurisdiction] . . . offer[s] similar safeguards to the plaintiff [as the motion to dismiss for failure to state a claim]: the court must consider the allegations of the complaint as true").
On September 27, 2005, the Mt. Horeb child study team and Plaintiffs met and determined that A.G. was not a "child with a disability" and was not eligible for special education and related services under the Individuals with Disabilities Education Act (IDEA). Compl., ¶14. At some later time, Plaintiffs allege that A.G. was suspended for ten days without receiving any instruction, Id. at ¶ ¶15-16, and that on January 13, 2006, defendant Palumbo, the principal of the Mt. Horeb, suspended A.G. from Mt. Horeb indefinitely. Id. at ¶17. Significantly, Plaintiffs allegedly were not provided with due process rights, i.e., written notification of any charges against A.G. or a hearing before the Board of Education. Id. at ¶ ¶18-20. On January 20, 2006, defendant Weitzman, the Director of Student Personnel Services for Warren Township School District, and Palumbo informed Plaintiffs that A.G. would not be allowed to return to Mt. Horeb. Id. at ¶21. Defendants provided no instruction to A.G. from January 13, 2006 through January 26, 2006, when Defendants began to provide five hours a week of home instruction. Id. at ¶¶39-40.
By indefinitely suspending A.G. from Mt. Horeb, Plaintiffs claim that Defendants tried to "coerce" them into classifying A.G. under the IDEA and accepting special education and related services. Plaintiffs allege that Weitzman and Palumbo told Plaintiffs that "in order for A.G. to receive educational services from Defendant Board, Plaintiffs must consent to classify A.G. under the IDEA in which case, he would be sent to a special education program in another school district." Id. at ¶22. Plaintiffs were told that, if they refused to consent to classify A.G. under the IDEA, he would be placed in Somerset Academy. Id. at ¶23. According to the New Jersey Department of Education's Schools Directory, Somerset Academy is a special elementary school for handicapped students operated by the Somerset County Educational Services Commission. Id. at ¶26. Further, Palumbo barred A.G. from any school activities unless Plaintiffs consented to classification of A.G. and an out-of-district placement. Id. at ¶25.
On February 2, 2006, M.G. met with defendant Crisfield, Superintendent for the Warren Township School District, and informed him of the actions taken by Weitzman and Palumbo. Id. at ¶ ¶29-31. Crisfield allegedly told M.G. "that if he didn't consent to classification of his son, Defendants would send A.G. to Somerset Academy without his parents' consent," Id. at ¶33, and further, threatened to report A.G. as truant if he remained out of school. Id. at ¶34. He allegedly stated, "You really have no choice but to classify A.G." Id. at ¶35. Crisfield refused M.G.'s request to have A.G. placed in another school within the district, stating that it would be against school policy. Id. at ¶¶36-37. When asked about this alleged policy, Warren Township's attorney allegedly stated that there was no such written policy. Id. at ¶38.
On February 14, 2006, Palumbo told Plaintiffs that A.G.'s home instruction would be discontinued as of March 3, 2006, and that A.G. would be placed in Somerset Academy starting on March 6, 2006. Id. at ¶41. This was allegedly "an alternative placement to suspension and further discipline." Id. at ¶42. Defendants' position put the parties at an impasse: Plaintiffs refused to place A.G. in Somerset Academy*fn1 and Defendants refused to allow A.G. to return to a Warren Township school. Id. at ¶¶43-44. On May 15, 2006, Plaintiffs placed A.G. in a private school. Id. at ¶45.
On June 13, 2006, M.G. explained the situation to Pamela Coley, President of the Warren Township Board of Education, and requested copies of records of board minutes relating to A.G. and that disciplinary action be taken against Crisfield, Weitzman and Palumbo. Id. at ¶¶49-51. M.G. was told by Crisfield, Weitzman and Coley that his concerns were being investigated by the Board, however M.G. was never provided with documentation that such an investigation took place. Id. at ¶¶52-53.
Defendants refused to allow A.G. to return to any Warren Township elementary school in the following 2006-2007 school year. Id. at 57. Although Plaintiffs visited several out-of-district placements for A.G. that were suggested by Defendants, Plaintiffs still refused either to consent to classify A.G. under the IDEA or place A.G. at Somerset Academy. Id. at ¶56. On August 27, 2006, M.G. went to an alleged "scheduled meeting" with Crisfield and Weitzman to discuss A.G.'s educational placement in 2006-2007, but they refused to meet with him. Id. at ¶¶58-59.
On August 30, 2006, Crisfield informed Plaintiffs that A.G. must attend Berkeley Heights School District on the following terms: "He would not need to be classified but his parents would have to agree to conditions set by Berkeley Heights School District which include consenting to the use of a behavior plan to be developed by the Berkeley Heights School District and a one-on-one aide." Id. at ¶61. M.G. visited the program and "found that it was the same special education program initially proposed by Defendants," Id. at ¶62, and rejected the placement.
Plaintiffs filed the present lawsuit on October 24, 2006, alleging violations of Plaintiffs' rights under the federal constitution, the New Jersey Constitution and various New Jersey statutes and regulations, as well as A.G's rights under Section 504 of the Rehabilitation Act, 29 U.S.C.A. § 794. Plaintiffs seek the following relief: a declaration that A.G's rights have been violated under the above laws; an injunction requiring the Board to grant A.G. access to the Warren Township schools without requiring Plaintiffs to consent to A.G.'s classification under the IDEA; the expungement of Defendants' allegedly "unlawful" actions from A.G.'s school records; compensatory and punitive damages; and attorneys' fees. Id. at ¶96.
II. Claims Insufficiently Plead Under Rule 8(a)(2): Counts Four and Eight
Fed. R. Civ. P. 8(a)(2) provides:
"A pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." "This rule requires not merely a short and plain statement, but instead mandates a statement 'showing that the pleader is entitled to relief.' That is to say, there must be some showing sufficient to justify moving the case beyond the pleadings to the next stage of litigation." Phillips v. County of Allegheny, F.3d , Docket No. 06-2869, 2008 WL 305025, *7 (3d Cir. Feb. 5, 2008). Further, "the Supreme Court [has] explained that the concept of a 'showing' requires only notice of a claim and its grounds, and distinguished such a showing from 'a pleader's bare averment that he wants relief and is entitled to it.'" Id. at *6 (quoting Bell Atlantic Corp v. Twombly, 127 S.Ct. 1955, 1965 n. 3 (2007)).
A court can dismiss a claim sua sponte if it is insufficiently plead under Rule 8(a)(2). See Hines v. Rimtec Corp., Docket No. 07-966, 2007 WL 2332193, *1 (D.N.J. Aug. 13, 2007) ("However, to the extent that such a claim exists, the Court will dismiss it sua sponte because it is insufficient under Rule 8(a)(2)"); Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980) (holding that a "district court may on its own initiative enter an order dismissing the action provided that the complaint affords a sufficient basis for the court's action").
Two counts of the Amended Complaint fail to meet this threshold. Count four re-alleges the factual summary provided above, and then asserts that Defendants "violated Plaintiffs' rights to equal protection of the law as guaranteed by the 14th Amendment." Compl., ¶81. While it is not difficult to understand how Plaintiffs' allegations (1) that Plaintiffs were denied procedural protections and (2) that A.G. was indefinitely suspended from Mt. Horeb, and thereby "coerced" into classification and special services under the IDEA, relate to Plaintiffs' claims under the due process clause, it is unclear how these factual allegations relate to a violation of the equal protection clause.*fn2 Without a specification of which facts provide the grounds for Plaintiffs' equal protection claim, this count fails to make the "showing" required by Rule 8(a)(2), and is not sufficiently distinct from a "bare averment that [Plaintiffs] want relief and [are] entitled to it." Phillips, 2008 WL 305025, at *6 (quoting Twombly, 127 S.Ct. 1955 at 1965 n. 3).
Count eight re-alleges the factual summary described herein and then states that the Board's "actions and omissions violated Plaintiffs' rights under New Jersey Statutes and Regulations." Compl., ¶96. This obviously falls short of providing adequate notice to Defendants of which statutes and regulations they have violated and why, and therefore also falls short of the "showing" required by Rule 8(a)(2).
Thus, the Court finds that counts four and eight fail to provide the "showing" required under Rule 8(a)(2), and therefore they are dismissed without prejudice. Plaintiffs may move to amend their Amended Complaint within thirty days to re-plead and further specify the grounds for counts four and eight.
III. Plaintiffs' Federal Claims
Defendants argue that the Court lacks subject matter jurisdiction over Plainitffs' federal claims because Plaintiffs have not exhausted their administrative remedies. However, the validity of Defendants' argument turns on the precise nature of such claims. Because the Court finds that consideration of Defendants' motion to dismiss Plaintiffs' Section 1983 substantive due process claim will force Plaintiffs to clarify the claim, and thereby facilitate the Court's ability to ascertain whether or not the Court has subject matter jurisdiction over the claim, I find it appropriate to consider Defendants' motion to dismiss Plaintiffs' substantive due process claim at the outset.
A. Motion to Dismiss Plaintiffs' Substantive Due Process Claim
Defendants argue that Plaintiffs' Section 1983 substantive due process claim should be dismissed for failure to state claim pursuant to Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss on the pleadings, a Court must take all allegations in the complaint as true, viewed in the light most favorable to Plaintiffs. See Gomez v. Toledo, 446 U.S. 635, 636 n. 3 (1980); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984).
Recently, in Twombly, the Supreme Court clarified the Rule 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim, which would entitle him to relief." Twombly, 127 S.Ct. at 1968 (citing Conley, 355 U.S. at 45-46). Instead, the Supreme Court instructed that "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965. Thus, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65 (citations omitted). "After Twombly, it is no longer sufficient to allege mere elements of a cause of action; instead 'a complaint must allege facts suggestive of [the proscribed] conduct.'" Phillips, 2008 WL 305025 at *5 (citing Twombly, 127 S.Ct. at 1969 n. 8). The "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a possibility requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Id. at *6 (citing Twombly, 127 S.Ct. at 1965).
2. Substantive Due Process
Plaintiffs allege that Defendants attempted to "coerce" A.G. into classification and the receipt of special education services under the IDEA by demanding that Plaintiffs choose between classification under the IDEA and placement in Somerset Academy or Berkeley Heights. Plaintiffs cast this "coercion" as a Section 1983 substantive due process claim. Essentially, Plaintiffs claim that by indefinitely suspending A.G. from Mt. Horeb, Defendants attempted to "coerce" Plaintiffs into classifying A.G. under the IDEA, and thereby interfered with M.G. and L.G.'s constitutional liberty interest in making important decisions about A.G.'s education.
This "coercion" argument relies on an implicit premise: that Defendants were obligated to continue to provide general education services to A.G. at Mt. Horeb or some other Warren Township elementary school, rather than an alternative education program at Somerset Academy or in Berkeley Heights. If Defendants were not so obligated, i.e., there was a legitimate reason to indefinitely suspend A.G., see N.J.S.A. 18A: 37-2 ("Causes for suspension or expulsion of pupils"), then Defendants were merely following state regulations by providing A.G. with an alternative educational placement pursuant to N.J.A.C. 6A:16-9 et seq., and any "coercion" would be illusory. See N.J.A.C. 6A:16-7.3(a) ("In each instance of long-term suspension, the district board of education shall . . . provid[e] the following: . . . 9. Educational services . . . which may include a public education program provided in accordance with the provisions of N.J.A.C. 6A:16-9"). To put things another way, the alleged "coercion" at issue in this case is Defendants' alleged unlawful deprivation of general education services within Warren Township, and the use of that deprivation to pressure Plaintiffs into classifying A.G. under the IDEA. It follows that, if there was no wrongful deprivation of educational services within Warren Township, then there was no "coercion." The essence of Plaintiffs' substantive due process claim, then, is that Defendants lacked a legal basis to indefinitely suspend A.G. and deprive him of educational services within the Township. Conversely, if there was an adequate legal basis for A.G.'s indefinite suspension, then the Township was within its rights to propose an alternative education program pursuant to N.J.A.C. 6A: 16-9, et seq.
Defendants argue that Plaintiffs' Section 1983 substantive due process claim fails as a matter of law because Plaintiffs have not set forth a fundamental right that has been violated by Defendants. Defendants are correct that there is no fundamental right to education protected under the federal constitution: "We have carefully considered each of the arguments supportive of the District Court's finding that education is a fundamental right or liberty and have found those arguments unpersuasive." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 37 (1973);*fn3 see also Bowers v. National Collegiate Athletic Ass'n, 475 F.3d 524, 553 (3d Cir. 2007)("[T]he Supreme Court has held that there is no fundamental right to public education")(citing Rodriguez, 411 U.S. at 35).But that does not end the matter.
Plaintiffs respond that the due process clause of the Fourteenth Amendment protects a right to parental independence in making educational decisions regarding children:
"In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the 'liberty' specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925)."
Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (emphasis added).
More specifically, Plaintiffs contend that Plaintiffs' constitutional right "to direct the education and upbringing of one's children" was violated by Defendants' attempt to "coerce" Plaintiffs into classifying A.G. under the IDEA. As explained above, this argument turns on the legality of A.G.'s indefinite suspension from Mt. Horeb.
Even though there is no fundamental right to education under the federal constitution, that does not mean the due process clause of the Fourteenth Amendment has nothing to say about a public school administrator's decision to indefinitely suspend a student from a public school. "State law determines what constitutes 'property' for due process purposes," Seal v. Morgan, 229 F.3d 567, 574 (6th Cir. 2000), and New Jersey law clearly provides A.G. the right to a free public education. See N.J.S.A. 18A: 38-1 ("Public schools shall be free to the following persons over five and under 20 years of age: . . . a. Any person who is domiciled within the school district"). Thus, government infringement on that interest is subject to rational basis review under the due process clause. "Government actions that do not affect fundamental rights or liberty interests and do not involve suspect classifications will be upheld if  they are rationally related to a legitimate state interest." Seal, 229 F.3d at 575 (citing Vacco v. Quill, 521 U.S. 793, (1997)(applying the rational basis standard of review to uphold New York's statutes outlawing assisted suicide, which neither infringe fundamental rights nor involve suspect classifications)).
"Courts are reluctant to become embroiled in the wisdom of and the manner in which educational institutions apply their policies. Rather, courts examining substantive due process violations in this context have only considered whether the punishment imposed is rationally related to a legitimate purpose." Marsh v. Delaware State University, Docket No. 05-0087, 2006 WL 141680, *5 (D. Del. Jan. 19, 2006) (citations omitted); Brian A. v. Stroudsburg Area School Dist., 141 F. Supp. 2d 502, 510 (M.D. Pa. 2001) ("In the context of school discipline a substantive due process claim will succeed only in the 'rare case' when there is 'no rational relationship between the punishment and the offense'") (quoting Seal, 229 F.3d at 575). A.G.'s indefinite suspension was a form of discipline imposed on A.G. Indeed, Plaintiffs allege that they were informed by Palumbo that A.G.'s placement at Somerset Academy was "an alternative ...