                                        PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                     No. 15-1804
                    _____________

   S.D., a minor, by his parents and natural guardians,
               A.D. and R.D.; A.D.; R.D.,
                          Appellants

                            v.

   HADDON HEIGHTS BOARD OF EDUCATION
              ______________

  APPEAL FROM THE UNITED STATES DISTRICT
                        COURT
      FOR THE DISTRICT OF NEW JERSEY
                    (1:14-cv-01880)
    District Judge: Honorable Jerome B. Simandle
                   ______________

               Argued: January 20, 2016
                   ______________

Before: JORDAN, HARDIMAN, and GREENAWAY, JR.,
                 Circuit Judges.

           (Opinion Filed: August 18, 2016)




                            1
Judith A. Gran, Esq.
Sarah E. Zuba, Esq. [ARGUED]
Catherine Merino Reisman, Esq.
Reisman, Carolla & Gran
19 Chestnut Street
Haddonfield, NJ 08033

             Counsel for Appellants

Joseph F. Betley, Esq.
Capehart Scatchard
8000 Midlantic Drive
Laurel Corporate Center, Suite 300
Mount Laurel, NJ 08054

William S. Donio, Esq. [ARGUED]
Cooper Levenson
1125 Atlantic Avenue, 3rd Floor
Atlantic City, NJ 08401

             Counsel for Appellee

                     _________________

                 OPINION OF THE COURT
                   __________________

GREENAWAY, JR., Circuit Judge.

       A.D. and R.D., individually and on behalf of their son
S.D. (collectively, “Appellants”), filed suit against Haddon
Heights Board of Education (“Appellee”), alleging violations
of the Rehabilitation Act, 29 U.S.C. § 794(a) (“Section 504”),
the Americans with Disabilities Act (“ADA”), 42 U.S.C.




                              2
§§ 12101–12213, the First and Fourteenth Amendments of
the Constitution of the United States pursuant to 42 U.S.C.
§ 1983, and New Jersey’s Law Against Discrimination, N.J.
Stat. Ann. § 10:5–1 et seq. The District Court dismissed
Appellants’ claims pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction
because Appellants failed to exhaust the administrative
process provided for by the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400–1482. In doing
so, the District Court relied on our opinion in Batchelor v.
Rose Tree Media School District, 759 F.3d 266 (3d Cir.
2014), in which we held that claims that a school district
retaliated against a child and/or the child’s parents for
enforcing the child’s rights under the IDEA, although brought
pursuant to non-IDEA statutes, were subject to the IDEA
exhaustion requirement.

        The narrow question before us here is whether claims
that a board of education discriminated against a student
and/or the student’s parents based on his disability, and
retaliated against them for enforcing the child’s rights under a
non-IDEA statute, are subject to the IDEA exhaustion
requirement.     Because Appellants’ alleged injuries are
educational in nature and implicate services within the
purview of the IDEA, we conclude that Appellants’ claims
must be exhausted under the IDEA.




                               3
I.          BACKGROUND1

     A.     The 2012–13 School Year

            S.D. suffers from “multiple medical problems
     including chronic sinusitis with frequent acute exacerbations,
     allergic rhinitis, and intermittent asthma.” Am. Compl., Ex.
     C at 2. Appellants allege that these medical “impairments []
     substantially limit him in . . . the life activity of learning.” Id.
     ¶ 12. S.D.’s doctor concluded that these medical problems
     “make it likely that he will have frequent school absence[s]
     due to acute [and] underlying chronic illness,” and suggested
     that S.D. “should qualify for [Section] 504 plan modifications
     for school.” Id. ¶¶ 25–26; Ex. C at 2.

             During the 2012–13 school year, when S.D. was in
     ninth grade at Haddon Heights Junior/Senior High School in
     New Jersey, Appellee developed a student accommodation
     plan for S.D. pursuant to Section 504 (“Section 504 Plan”).
     Id. ¶ 29, Ex. A. This initial Section 504 Plan, dated October
     25, 2012, provided S.D. with “extra time for assignments,
     tests, and quizzes” and required Appellants to “communicate”
     with S.D.’s teachers about “any missed work” and absences.
     Id. ¶¶ 29–30; Ex. A at 2. Appellants allege that the initial
     Section 504 Plan “was not properly implemented or
     effective” because it “did not impose any enforceable
     obligation on [Appellee] and its teachers” and “did not give
     S.D. any way to be instructed in and learn the material that he
     missed while absent.” Id. ¶¶ 31–32.

     1
      The following facts are taken from Appellants’ Amended
     Complaint and exhibits. As explained infra Part II, we accept
     Appellants’ allegations as true.




                                      4
       After S.D.’s parents met with Appellee and expressed
their concerns, Appellee amended S.D.’s Section 504 Plan.
The amended Section 504 Plan, dated April 19, 2013:
required teachers to send weekly updates about S.D.’s
missing assignments and to provide class notes; required S.D.
to complete his assignments within two weeks of any
absence; allowed teachers to reduce S.D.’s assignments at
their discretion; and required S.D. to create a “to do” list,
keep folders of complete and incomplete work, and
communicate with teachers, the guidance counselor, and
school nurse. Id. ¶ 39, Ex. B.

       Appellants allege that these Section 504 Plans failed to
“provide a mechanism . . . for S.D. to obtain homebound
instruction or other supplemental instruction to enable him to
keep up with the curriculum . . . and otherwise enjoy the
benefits of the educational program to the same extent as his
non-disabled peers.” Id. ¶ 41. As a result, S.D. had “to teach
himself the curriculum and try to identify and understand
assignments that had been explained when he was absent.”
Id. ¶ 45. Therefore, according to Appellants, S.D. fell
“further and further behind.” Id.

        The attendance policy in effect during the 2012–13
school year prohibited a student from earning credit for a
year-long course in which the student had accrued more than
fifteen absences, unless the student provided certain
documentation to excuse the excess absences, including, inter
alia, a “[m]edical note from a physician.” Id., Ex. D. During
the 2012–13 school year, S.D. accrued “over 33 absences[,] . .
. most of [which] related to S.D.’s disabilities.” Id. ¶¶ 48–49.
Nevertheless, he passed his courses and earned the requisite
number of credits for promotion to the tenth grade. Id. ¶ 50.




                               5
B.   New Attendance Policy for the 2013–14 School
Year

       In the summer of 2013, Appellee enacted a new
attendance policy for the 2013–14 school year that required
students to be retained if they accrued more than 33 absences
in a school year—regardless of whether the absences were
“excused, approved, [or] unexcused.” Id. ¶ 53; Ex. E.2
Students with more than fifteen unexcused absences were
required to attend a “Saturday Credit Reinstatement Program”
in order to obtain credit sufficient to pass their courses. Id.
¶ 60; Ex. E.

       Appellants allege that Appellee “made a deliberate
choice to enact the Policy,” despite Appellee’s knowledge
that it was “substantially likely” that the new attendance
policy would harm S.D.’s ability to advance in school, in
order to “target” students like S.D. who had frequent excused
absences. Id. ¶¶ 54–55. Appellants assert that, because the

2
    The Policy reads in full:

      STUDENTS ARE LIMITED TO A TOTAL OF 33
      ABSENCES IN A SCHOOL YEAR.                   THIS
      INCLUDES       ANY    ABSENCE        (INCLUDING
      EXCUSED, APPROVED, AND UNEXCUSED). The
      only exception is home instruction approved by the
      district. STUDENTS WITH MORE THAN 33 DAYS
      ABSENT WILL BE RETAINED.

Id. ¶ 53.




                                6
new attendance policy allowed students with unexcused
absences to make up credits and progress to the next grade
through the Saturday Credit Reinstatement Program, but
offered no such mechanism for students with absences
excused by, for example, a disability, to make up credits, the
policy had an impermissible discriminatory effect. Id. ¶¶ 61–
62.

C.    The 2013–14 School Year

       Appellee readopted S.D.’s amended Section 504 Plan
for the 2013–14 school year without reference to, or
accommodation for, the new attendance policy. Id. ¶¶ 40, 70.
By March 2014, S.D. had accumulated thirty-seven absences
due to his disability, all of which were excused by medical
notes. Id. ¶ 76.3 In a letter dated March 13, 2014, the
principal of S.D.’s school informed S.D.’s parents that S.D.
would be retained pursuant to the new attendance policy. Id.
¶¶ 73–75. After S.D.’s parents received the principal’s letter,
they filed a complaint with the Office of Civil Rights, but
then decided to pursue litigation to try to prevent S.D. from
being retained for the 2014–15 school year. Id. ¶ 83–84.
Appellants commenced the instant federal action on March
25, 2014 by filing a two-count complaint alleging violations
of Section 504 and the ADA.

       On April 11, 2014, Appellants filed a motion for a
preliminary injunction, seeking to enjoin Appellee from
retaining S.D. based on his number of absences. On April 15,

3
 S.D. accrued fifty-eight absences during the 2013–14 school
year, fifty-six of which were excused by a doctor’s note. Id.
¶¶ 66–67.




                              7
2014, Appellee notified S.D.’s parents that it had revised
S.D.’s Section 504 Plan to require him to make up absences
excused by his disability by attending “Saturday school for
credit reinstatement.” Id. ¶ 85. The new Section 504 Plan
also provided for “make-up attendance with homebound
instruction for absences related to” S.D.’s disability. Id.

       Appellants allege that the April 2014 Section 504 Plan
was insufficient because it required S.D. to “log[] time in the
school building” and failed to “appropriately compensate for
instruction S.D. missed for earlier absences.” Id. ¶¶ 91–92.
Appellants assert that the requirement for S.D. to attend the
Saturday credit reinstatement program was “punitive rather
than educational” because S.D. had to “serve” Saturdays with
students who had unexcused absences and the program did
not “provide a means of obtaining instruction missed.” Id.
¶ 94.

       In June 2014, the parties reached a settlement
agreement that resolved Appellants’ motion for a preliminary
injunction. S.D.’s parents paid for him to complete a summer
driver’s education course in order to be promoted to eleventh
grade. Id. ¶ 96. However, Appellants now allege that this
requirement was “punitive and retaliatory” because it
“serve[d] no educational purpose.” Id. ¶ 99.

D.    Appellants’ Amended Complaint and the District
Court’s Opinion

       In August 2014, the District Court granted Appellants
leave to file an amended complaint that alleged six counts of
discrimination and retaliation by Appellee based on S.D.’s
disability and assertion of his rights under Section 504. The
Amended Complaint attached several exhibits, including two




                              8
      letters from S.D.’s doctor, S.D.’s four Section 504 Plans, and
      the Board’s two attendance policies. Appellants sought
      thirteen forms of relief, including, inter alia, compensatory
      education and compensatory and punitive damages. Id. at
      27–28.

              Appellee subsequently filed a motion to dismiss for
      lack of subject matter jurisdiction and for failure to state a
      claim, pursuant to Federal Rules of Civil Procedure 12(b)(1)
      and 12(b)(6), respectively. The District Court concluded that
      Appellants’ claims required compliance with the IDEA’s
      administrative process and dismissed the claims without
      prejudice for lack of subject matter jurisdiction. See A.D. v.
      Haddon Heights Bd. of Educ., 90 F. Supp. 3d 326, 341–43
      (D.N.J. 2015).4 Upon dismissing Appellants’ federal claims,
      the District Court declined to exercise supplemental
      jurisdiction over Appellants’ state law claims, and dismissed
      those as well. Id. at 342 n.14.

            This timely appeal followed.

II.         JURISDICTION AND STANDARD OF REVIEW

              Appellants invoked federal jurisdiction pursuant to 28
      U.S.C. §§ 1331 and 1343; however, the District Court’s
      jurisdiction is squarely at issue in this case. We have
      jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.



      4
        It is undisputed that Appellants have not exhausted the
      IDEA administrative process.




                                    9
        We exercise plenary review over a district court’s
order dismissing a complaint for lack of subject matter
jurisdiction. Batchelor, 759 F.3d at 271. We construe
Appellee’s motion as a facial challenge to the District Court’s
subject matter jurisdiction, and, therefore, we apply the same
standard of review in considering a motion to dismiss under
Rule 12(b)(6)—i.e., we view the alleged facts in favor of
Appellants, the non-moving party. See Constitution Party of
Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014).5

5
   Challenges to subject matter jurisdiction under Rule
12(b)(1) may be “facial” or “factual,” and the “distinction
determines how the pleading must be reviewed.” Aichele,
757 F.3d at 357. “Facial attacks . . . contest the sufficiency of
the pleadings, and the trial court must accept the complaint’s
allegations as true.” Taliaferro v. Darby Twp. Zoning Bd.,
458 F.3d 181, 188 (3d Cir. 2006) (quoting Turicentro, S.A. v.
Am. Airlines, 303 F.3d 292, 300 n.4 (3d Cir. 2002)). In
contrast, a factual challenge “concerns the actual failure of a
plaintiff’s claims to comport factually with the jurisdictional
prerequisites,” and permits the district court to independently
evaluate all the evidence to resolve disputes over
jurisdictional facts. Aichele, 757 F.3d at 358 (quoting CNA v.
United States, 535 F.3d 132, 139 (3d Cir. 2008))); see S.R.P.
ex rel. Abunabba v. United States, 676 F.3d 329, 332 (3d Cir.
2012). Here, the District Court construed Appellee’s motion
to dismiss as a factual attack. Because Appellee neither
answered Appellants’ Amended Complaint, nor offered any
factual averments in support of its motion to dismiss, we
conclude that the District Court erred. See Aichele, 757 F.3d
at 358 (“The Commonwealth filed the [jurisdictional] attack
before it filed any answer to the Complaint or otherwise
presented competing facts. Its motion [to dismiss] was




                               10
III.          ANALYSIS

       A.     The IDEA Statutory Scheme

              Congress enacted the IDEA 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 . . . .” 20
       U.S.C. § 1400(d)(1)(A). States receive federal education
       funding upon complying with several requirements, including
       making available a free appropriate public education
       (“FAPE”) to children with disabilities and ensuring that such
       children and their parents are provided with due process.
       Batchelor, 759 F.3d at 271–72. If a child’s parents believe
       that a school has not fulfilled its statutory obligations, the
       IDEA provides them an avenue to file a complaint and obtain
       an administrative hearing “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.” 20 U.S.C. § 1415(b)(6)(A); see also
       id. § 1415(f). After exhausting this administrative hearing
       process, “[a]ny party aggrieved by the findings and
       decision[s]” made during the hearing may seek judicial
       review in federal court. Id. § 1415(i)(2)(A). “In the normal
       case, exhausting the IDEA’s administrative process is
       required in order for the statute to ‘grant subject matter

       therefore, by definition, a facial attack.”). However, at oral
       argument, both parties conceded that any error was harmless.
       We agree. The District Court stated that it accepted
       Appellants’ allegations as true for purposes of the motion to
       dismiss, and only considered the Amended Complaint and
       attached exhibits.




                                     11
jurisdiction to the district court.’” Batchelor, 759 F.3d at 272
(quoting Komninos v. Upper Saddle River Bd. of Educ., 13
F.3d 775, 778 (3d Cir 1994)).

       Section 1415(l) of the IDEA requires exhaustion of the
administrative hearing process not only in actions brought
directly under the IDEA, but also “in non-IDEA actions
where the plaintiff seeks relief that can be obtained under the
IDEA.” Id. Section 1415(l) provides:

   Nothing in this chapter shall be construed to restrict or
   limit the rights, procedures, and remedies available
   under the Constitution, the Americans with Disabilities
   Act of 1990 [42 U.S.C. § 12101 et seq.], title V of the
   Rehabilitation Act of 1973 [29 U.S.C. § 791 et seq.],
   or other Federal laws protecting the rights of children
   with disabilities, except that before 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.

20 U.S.C. § 1415(l). “This provision bars plaintiffs from
circumventing [the] IDEA’s exhaustion requirement by
taking claims that could have been brought under [the] IDEA
and repackaging them as claims under some other statute.”
Batchelor, 759 F.3d at 272 (quoting Jeremy H. v. Mount
Lebanon Sch. Dist., 95 F.3d 272, 281 (3d Cir. 1996)).

       In Batchelor, we explained that “determining if the
IDEA’s administrative process must be exhausted before
bringing claims in federal court turns on whether the parties




                               12
could have asserted the claims under the IDEA.” Id. at 273.
“Intertwined with this inquiry is whether the claim could have
been remedied by the IDEA’s administrative process.” Id.
We reiterate here that the ultimate question is whether a non-
IDEA claim falls within the scope of a complaint
contemplated by the IDEA—i.e., whether the non-IDEA
claim “relate[s] to the identification, evaluation, or
educational placement of the child, or the provision of a free
appropriate public education to such child.”              Id. at
274 (quoting 20 U.S.C. § 1415(b)(6)(A)). To answer this
question, a court must evaluate the nature of a plaintiff’s
claims and the “theory behind the grievance.” Id. at 276
(quoting Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98
F.3d 989, 992 (7th Cir. 1996)).

B.   Batchelor and the Scope of Section 1415(l) of the
IDEA

        In Batchelor, a mother (“Ms. Batchelor”) sued a
school district individually and on behalf of her son, Ryan
(collectively, “plaintiffs”). When Ryan was diagnosed with
attention deficit hyperactivity disorder in his freshman year of
high school, the school district developed an educational plan
pursuant to Section 504. Id. at 269. By Ryan’s sophomore
year, however, he was struggling and Ms. Batchelor
complained to the school district that it was not providing
Ryan with the support services required by the Section 504
plan. Id. At that time, Ryan was tested and diagnosed with
an additional math disability and the school district developed
an individualized education plan (“IEP”) for Ryan pursuant to
the IDEA. Id. Ms. Batchelor and the school district also
entered into a settlement agreement. Id. at 270.




                              13
        However, plaintiffs alleged that, during Ryan’s junior
and senior years, the school district engaged in retaliatory acts
against them, such as changing Ryan’s tutor, assigning Ryan
to a teacher who was known to be a bully, and refusing to
allow Ryan to participate in extracurricular activities. See id.
at 270, 274. The plaintiffs then sued, asserting three federal
claims: (1) retaliation/failure to provide a FAPE, in violation
of the IDEA; (2) retaliation in violation of Section 504; and
(3) retaliation in violation of the ADA. Id. at 270.

        We concluded that the Section 504 and ADA
retaliation claims “relate[d] unmistakably” and “palpably
relate[d]” to the school district’s provision of a FAPE to
Ryan. Id. at 273–74 (quoting Rose v. Yeaw, 214 F.3d 206,
210 (1st Cir. 2000)). In other words, there was “a logical path
to be drawn from [plaintiffs’ non-IDEA] claims of retaliation
to the District’s failure to provide, and Ms. Batchelor’s effort
to obtain for, Ryan” a FAPE pursuant to the IDEA. Id. at
274–75. Because the plaintiffs’ Section 504 and ADA
retaliation claims “relate[d] to . . . the provision of a [FAPE],”
they could have been brought and remedied under the IDEA,
and, pursuant to § 1415(l), had to be administratively
exhausted. Id. at 274.

        In so holding, we invoked the “strong policy reason
[for] requiring exhaustion of remedies available under the
IDEA.” Id. at 275. Exhaustion “develop[s] the record for
review on appeal,” “encourag[es] parents and the local school
district to work together to formulate an IEP for a child’s
education,” and “allow[s] the education agencies to apply
their expertise and correct their own errors.” Id. (internal
quotation and citation omitted). Thus, based on “the plain
language and structure of the IDEA, . . . the purpose of the




                               14
IDEA’s exhaustion requirement and the policy concerns
supporting it,” we concluded that “retaliation claims related to
the enforcement of rights under the IDEA must be exhausted
before a court may assert subject matter jurisdiction.” Id.

C.     Appellants’ Non-IDEA Claims

        Although Appellants’ non-IDEA claims do not, as in
Batchelor, arise from their enforcement of rights explicitly
under the IDEA, we nevertheless conclude, based on the
nature of Appellants’ allegations, that their discrimination and
retaliation claims are subject to the IDEA exhaustion
requirement. Our holding here is a narrow extension of
Batchelor, but we continue to focus on whether a plaintiff’s
alleged injuries could be remedied through the IDEA
administrative process because they relate to the “the
identification, evaluation, or educational placement” of a
child or to “the provision of a free appropriate public
education to such child,” as defined by the IDEA, 20 U.S.C.
§ 1415(b)(6)(A).

       Here, Counts I and II of the Amended Complaint
assert discrimination claims under Section 504 and the ADA,
respectively. Am. Compl. ¶¶ 102–113. The District Court
succinctly summarized the relevant allegations as: “whether
[Appellee] appropriately identified S.D. as a student with a
disability; [] what constitutes a [FAPE] for S.D.; and whether,
and to what extent, the various accommodations sufficiently
addressed S.D.’s right to a FAPE.” A.D., 90 F. Supp. 3d at
341. Importantly, Appellants’ discrimination claims arise
from educational harm to S.D.; Appellants allege that the
Section 504 Plans developed by Appellee were deficient such
that S.D. was denied “educational opportunities” and “fell
further and further behind” regarding his progress with the




                              15
curriculum. Am. Compl. ¶¶ 41–46; see Batchelor, 759 F.3d
at 278 (“It is clear that [b]oth the genesis and the
manifestations of the problem[s] are educational.”) (quotation
marks and citation omitted).

        We conclude that Appellants’ alleged education
injuries in Counts I and II of their Amended Complaint relate
to the provision of a FAPE, as defined by the IDEA. The
IDEA defines “FAPE” to include “special education and
related services” that are free, include an “appropriate”
education, and are provided in conformity with an IEP. 20
U.S.C. § 1401(9). Under the IDEA, “special education”
means “specially designed instruction . . . to meet the unique
needs of a child with a disability.” Id. § 1401(29). Central to
Appellants’ discrimination claims is that Appellee should
have provided alternative or supplemental instruction to S.D.
See, e.g., Am. Compl. ¶ 41 (Appellee “did not provide . . .
homebound instruction or other supplemental instruction” to
S.D.); id. ¶ 46 (Appellee failed “to offer any alternative
instruction to S.D.”); id. ¶ 56 (referencing homebound
instruction); id. ¶ 80 (Appellee failed to “offer S.D. any way
to recoup the instruction he missed”); id. ¶ 92 (“[I]t is critical
that arrangements for [S.D.] to make up educational time he
has missed focus on the instruction he needs most.”). The
theory behind Appellants’ grievance is that Appellee failed to
provide instruction tailored to meet S.D.’s special needs
resulting from his disability. Their claims therefore relate to
the provision of a FAPE to S.D.              Thus, Appellants’
discrimination claims in Counts I and II could have been
remedied through the IDEA’s administrative process.

       Appellants’ retaliation claims in Counts III and IV
challenge the appropriateness of Appellee’s initial decision to




                               16
retain S.D. in the tenth grade, its enactment of the revised
attendance policy to retain students based on a total number
of absences, and its choice of make-up courses to allow S.D.
to progress to the eleventh grade. See id. ¶¶ 120–123, 129–
132. Appellants allege that Appellee’s revised attendance
policy “prevent[ed] S.D. from making educational progress”
and that Appellee took “retaliatory actions” and “adverse
actions” against them as a result of “their efforts to vindicate
S.D.’s right to a FAPE.” Id. ¶¶ 9, 119–23, 129–32. These
claims also arise from educational harm and challenge the
provision of a FAPE to S.D. Here, as in Batchelor, there is a
“logical path to be drawn from [Appellants’] claims of
retaliation to [Appellee’s] failure to provide, and
[Appellants’] effort to obtain for,” S.D. a FAPE. 759 F.3d at
274–75. Moreover, because the revised attendance policy
forms the basis for all the retaliation claims, and because that
policy made express exception for “home instruction
approved by the district,” Am. Compl. ¶ 53; Ex. E, those
claims too “could have been remedied by the IDEA’s
administrative process,” Batchelor, 759 F.3d at 273.

       Accordingly, Appellants’ claims asserted pursuant to
the ADA, Section 504, and § 1983 fall within the ambit of the
IDEA and, because Appellants have not exhausted the IDEA
administrative process, must be dismissed without prejudice.
Again, we invoke the “strong policy” encouraging exhaustion
of administrative remedies in these types of cases. Where
parents challenge a school’s provision of a FAPE and allege
educational harm to a child, remediation of the alleged




                              17
educational deficiencies is best addressed in the first instance
by educational professionals, rather than a court.6

      Appellants offer several arguments against dismissal,
none of which are availing.

       First, Appellants argue that S.D. is ineligible for IDEA
services and therefore relief is not “available” to them under
the IDEA. (Appellants’ Br. at 17–20.) We, however, agree
with the District Court that Appellants’ allegations about
S.D.’s disability and its effect on his education “potentially
implicate[] the statutory entitlements of the IDEA.” See A.D.,
90 F. Supp. 3d at 338. For a student to be eligible for IDEA
services, the student must both: (1) have a disability that falls
into one or more of the statute’s enumerated categories; and
(2) because of that disability, need “special education and
related services.” 20 U.S.C. § 1401(3). Asthma is an
enumerated disability. 34 C.F.R. § 300.8(c)(9). The IDEA
also requires that asthma or any other health impairment
“[a]dversly affect[]” the student’s educational performance.
Id. Here, Appellants’ Amended Complaint alleges that S.D.’s
medical problems “impact[] his ability to attend school and to
learn,” Am. Compl. ¶ 3, and “substantially limit him in major
life activities, specifically the life activity of learning,” id.
¶ 12.     Further, as we explained above, Appellants’
allegations—in particular Appellants’ complaint that S.D.
never received supplemental instruction—implicate a
potential need for “special education and related services.”


6
   Because we conclude that the District Court lacked
jurisdiction over Appellants’ federal claims, we will affirm
the District Court’s dismissal of Appellants’ state law claims.




                               18
Therefore, we cannot conclude at this time that S.D. is
ineligible for relief under the IDEA.

        Second, Appellants argue that a FAPE under the ADA
and Section 504 differs from the FAPE defined by the IDEA
and, therefore, their ADA and Section 504 claims cannot be
remedied through the IDEA administrative process.
(Appellants’ Br. at 33–40.) Although the statutes are not
identical, we have previously recognized that the IDEA’s
substantive protections overlap with those of Section 504 and
the ADA. See D.K. v. Abington Sch. Dist., 696 F.3d 233, 253
n.8 (3d Cir. 2012) (“[O]ur finding that the School District did
not deny D.K. a FAPE [under the IDEA] is equally
dispositive of Plaintiffs’ §504 claim.”); P.P. ex rel Michael P.
v. W. Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir.
2009) (stating that “[t]he IDEA and § 504 of the
Rehabilitation Act do similar statutory work,” reviewing
similar provisions of the two statutes, and concluding that the
IDEA’s statute of limitations applies to plaintiffs’ Section 504
claims); see also 34 C.F.R. § 104.33(b)(2) (Section 504
regulation providing that “[i]mplementation of an [IEP under
the IDEA] is one means of meeting the standard” for a FAPE
under Section 504). Moreover, as we have concluded above,
the theory behind Appellants’ grievances focuses in large part
on Appellee’s failure to provide special instruction to meet
S.D.’s educational needs arising from his disability, so that
their claims relate to the provision of a FAPE as defined by
the IDEA.

       Third, Appellants contend that the conclusion that
S.D.’s educational injuries could be remedied through the
IDEA administrative process assumes that Appellee violated
its “Child Find” duty imposed by the IDEA. (Appellants’ Br.




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      at 20.) We disagree. “School districts have a continuing
      obligation under the IDEA and § 504—called ‘Child Find’—
      to identify and evaluate all students who are reasonably
      suspected of having a disability under the statutes.” D.K.,
      696 F.3d at 249 (emphasis omitted) (quoting P.P., 585 F.3d at
      738). We offer no opinion here as to whether Appellee
      violated its Child Find duty. We simply decline to equate our
      finding that Appellants’ alleged educational harms could be
      remedied through the IDEA administrative process with a
      finding that Appellee violated its Child Find duty.

             Our decision here does not foreclose future litigation
      arising from S.D.’s education. See Batchelor, 759 F.3d at 278
      n.15 (“This is not to say that Appellants will not be entitled to
      compensatory damages for their retaliation claims after they
      exhaust the IDEA administrative process. . . . Appellants may
      very well file a complaint containing virtually identical
      claims as asserted in the Complaint before us today.”). We
      only hold that Appellants must first exhaust their claims
      through the IDEA administration process. The District Court
      correctly determined that the Amended Complaint should be
      dismissed for lack of subject matter jurisdiction.

IV.          CONCLUSION

             For the foregoing reasons, we will affirm the judgment
      of the District Court.




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