ORDER ON MOTION TO DISMISS
Before the Court is a Motion to Dismiss (Clerk’s No. 15), filed on February 29, 2008 by Defendants Heartland Area Education Agency 11 (“Heartland”), Dr. Barbara Rankin (“Rankin”), and Monica McKevitt (“McKevitt”). On the same date, the Waukee Community School District (“Waukee School”), Patti Brinkmeyer (“Brinkmeyer”), Deb Snider (“Snider”), Kindra Sweeney (“Sweeney”), Roxanne Cumings (“Cumings”), Jason Sanders (“Sanders”), and Mirranda Krohn (“Krohn”) filed a Joinder in the Motion to Dismiss. Clerk’s No. 16. After receiving two extensions of time, Plaintiffs, D.L., E.L., and I.L. (collectively “Plaintiffs”) filed a resistance to the Motion to Dismiss on April 24, 2008. Clerk’s No. 21. Heartland, Rankin, and McKevitt filed a Reply on May 6, 2008 (Clerk’s No. 30), and amended the Reply on May 20, 2008 (Clerk’s No. 35).
I. FACTUAL BACKGROUND
Plaintiffs filed a Complaint in the above-captioned action on October 4, 2007. Clerk’s No. 1. Plaintiffs filed an Amended Complaint and Jury Demand on January 25, 2008. Clerk’s No. 2. The Amended Complaint alleges that I.L. is the minor child of D.L. and E.L. Am. Compl. ¶ 5. Prior to the summer of 2004, Plaintiffs resided in Castle Rock, Colorado. Id. ¶ 11. In December 2001, I.L. was referred to the Child Development Unit of Children’s Hospital in Denver for a cognitive and emotional assessment. Id. ¶ 12. The psychologist performing the assessment recommended that I.L. be placed on a “clear behavior plan,” as she had experienced difficulty with aggression continuing from age two through her kindergarten year. Id. Individual Education Plans (“IEPs”) were developed for I.L. for the 2002-2004 school years at Buffalo Ridge Elementary in Castle Rock. Id. ¶ 13. An IEP developed for I.L. on May 5, 2004, prior to the family’s move to Iowa, identified her as having significant social and emotional needs. Id. ¶ 14.
When I.L.’s family moved to Iowa in 2004, they met with representatives of Waukee School to discuss I.L.’s special education program. Id. ¶ 15. Teachers from the Waukee School explained to I.L.’s parents that a student in a functional skills classroom would ordinarily participate in the following: daily oral language; daily oral math; a science-discovery class; lunch; recess; and “specials,” including art, music, physical education, and library. Id. ¶ 16. After five days, teachers decided that I.L. would need a more advanced program for children with higher academic skills, so I.L. was transferred to Krohn’s functional skills classroom. Id. ¶ 17.
On September 15, 2004, an interim IEP was developed, pending the results of an
On December 14, 2004, I.L. was transferred to a new program, though no parental input was solicited before the change. Id. ¶ 22. According to the Amended Complaint, the educational program and services specified in I.L.’s IEP were not implemented in the new classroom. Id. Data regarding I.L.’s behavior showed increasing difficulties from December 2004 through February 2005, which resulted in five “applications of the hand-over-hand interventions.”
On November 18, 2005 a reevaluation IEP was developed. Id. ¶ 31. D.L. and E.L. wrote a letter to Principal Snider and Special Educator Brinkmeyer expressing concern over various proposed provisions of the November 18 IEP. A meeting was held on December 2, 2005, and a finalized IEP was developed. Id. ¶ 33. On December 7, 2005, I.L. was uncooperative in completing some work and was put into “timeout.”
E.L. and D.L. filed a complaint and had an administrative hearing conducted in accordance with the procedures provided by the Individuals with Disabilities Education Act (“IDEA”). Pis.’ Br. at 17. At this hearing, the administrative law judge provided educational remedies. Id. Plaintiffs concede that they received a favorable ruling from the administrative judge. Id. at 18. Defendants have appealed the administrative ruling to this Court.
Plaintiffs claim that Defendants’ conduct toward and treatment of I.L. caused various damages. The Amended Complaint asserts eleven causes of actions: (1) violation of 20 U.S.C. §§ 1414-15,
II. STANDARDS OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
In order for the Court to dismiss a claim under Federal Rule of Civil Procedure 12(b)(1), the opposing party must successfully challenge the claim “on its face or the factual truthfulness of its averments.” Titus v. Sullivan,
In addressing a motion to dismiss under Rule 12(b)(6), this Court must follow the standard of review articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombly,
Under Twombly, as was the case under Conley, the complaint must be liberally construed in the light most favorable to the plaintiff and should not be dismissed simply because the court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations. See id. at 1964-65; Parnes v. Gateway 2000, Inc.,
III. LEGAL ANALYSIS
A. Count I — IDEA
Defendants have moved for dismissal of Count I, claiming that Plaintiffs’ IDEA claim requests only unavailable relief. In Winkelman v. Parma City School District, the Supreme Court recently described the basic functions and procedures of IDEA.
The Supreme Court also described the procedural recourse available “[w]hen a party objects to the adequacy of the education provided, the construction of the IEP, or some related matter,” as follows:
[IDEA] requires that a State provide “[a]n opportunity for any party 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.” § 1415(b)(6). By presenting acomplaint a party is able to pursue a process of review that, as relevant, begins with a preliminary meeting “where the parents of the child discuss their complaint” and the local educational agency “is provided the opportunity to [reach a resolution].” § 1415(f)(l)(B)(i)(IV). If the agency “has not resolved the complaint to the satisfaction of the parents within 30 days,” § 1415(f)(l)(B)(ii), the parents may request an “impartial due process hearing,” § 1415(f)(1)(A), which must be conducted either by the local educational agency or by the state educational agency, ibid., and where a hearing officer will resolve issues raised in the complaint, § 1415(f)(3).
Id. Where the due process hearing is before a local educational agency, rather than the state educational agency, “any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency.” 20 U.S.C. § 1415(g)(1). Once the state educational agency reaches a decision, “any party aggrieved” may bring suit in federal court. See Winkelman,
Finally, the Court addressed the cost recovery available under IDEA, as follows:
First, in certain circumstances [IDEA] allows a court or hearing officer to require a state agency “to reimburse the parents [of a child with a disability] for the cost of [private school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child.” § 1412(a)(10)(C)(ii). Second, it sets forth rules governing when and to what extent a court may award attorney’s fees. See § 1415(i)(3)(B). Included in this section is a provision allowing an award “to a prevailing party who is the parent of a child with a disability.” § 1415(i)(3)(B)(i)(I).
Id. at 2001-02. IDEA provides for the payment of attorney’s fees as follows: “ ‘In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorney’s fees as part of the costs’ to the parents of ‘a child with a disability’ who is the ‘prevailing party.’ ” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
The Eighth Circuit has endorsed and adopted the Sixth Circuit’s view that general and punitive damages are not available under IDEA. Hoekstra v. Indep. Sch. Dist. No. 283,
B. Counts II and III — 1*2 U.S.C. § 1983
Defendants move to dismiss Counts II and III because IDEA and the RA (collectively, “the Acts”) preclude Plaintiffs’ § 1983 claims. Alternatively, they move to dismiss these counts against Heartland and Waukee School (collectively “Institutional Defendants”) because the Amended Complaint fails to allege facts sufficient to support liability.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. However, the Supreme Court emphasized, in City of Rancho Palos Verdes v. Abrams, that § 1983 “does not provide an avenue for relief every time a state actor violates a federal law.”
1. The Preclusionary effect of the Rehabilitation Act.
The RA provides, in pertinent part:
No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794(a). A “program or activity” includes “a local educational agency ..., system of vocational education, or other school system.” 29 U.S.C. § 794(b)(2)(B). To enforce its rules and regulations, the RA adopts the remedial scheme provided by Title VI of the Civil Rights Act of 1964. See generally 29 U.S.C. § 794a. The Eighth Circuit has held that “the comprehensive enforcement mechanisms provided under [29 U.S.C. § 794] suggest Congress did not intend violations of those statutes to be also cognizable under § 1983.” Davis v. Francis Howell Sch. Dist.,
2. The Preclusionary effect of IDEA
In Smith v. Robinson, the Supreme Court held that the Education of the Handicapped Act (“EHA”), the predecessor to IDEA, provided the exclusive remedy for violations of rights guaranteed by EHA. Smith,
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.
20 U.S.C. § 1415(i). Section 1415(i) does not state whether the rights created under IDEA are enforceable under § 1983. See 20 U.S.C. § 1415.
Since Congress’ intent is not found directly in IDEA, the courts must discern its intent by evaluating whether Congress created a “comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” See City of Rancho Palos Verdes,
However, the Eighth Circuit later denied a similar § 1983 claim in Heidemann v. Rother,
Defendants argue that Plaintiffs’ § 1983 claims are wholly unavailable because the same conduct gave rise to the IDEA claim and the constitutionally based § 1983 claims. In support of their argument, Defendants rely on Grey, in which the Eighth Circuit addressed claims under § 1983 claims, the ADA, and the RA, but not under IDEA. See Grey,
In City of Rancho Palos Verdes, the Supreme Court emphasized that, absent a clear statement of congressional intent, the presumption favoring a § 1983 claim may only be rebutted “by demonstrating that Congress did not intend [the § 1983] remedy for a newly created right.”
The Court must now determine, with respect to Plaintiffs’ constitutionally based § 1983 claims, whether the preclu-sive effect of the RA claim “trumps” the non-preclusive effect of the IDEA claim. The Court answers this question in the negative for purposes of the present motion. A contrary decision would allow the Eighth Circuit’s interpretation of the RA to undermine Congress’ intent, as demonstrated by section 1415(i), to preserve rights and remedies available under the IDEA and RA, as well as under the Constitution.
3. Sufficiency of the Amended Complaint.
In light of the Court’s finding that Plaintiffs’ § 1983 claim is not precluded, it must determine whether Plaintiffs have sufficiently stated their claim. To prove a constitutionally based § 1983 claim against either Institutional Defendant, Plaintiffs must demonstrate that the constitutional violation resulted from an action taken pursuant to either “official policy” or “governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision making channels.” Monell v. Dept. of Social Serv. of New York,
Applying Twombly, this Court must deny Defendants’ motion under Rule 12(b)(6) if Plaintiffs included in their complaint “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly,
C. Count TV — Rehabilitation Act
Defendants move to dismiss Count IV, alleging that: (1) the Court lacks subject-matter jurisdiction over the RA claim because Plaintiffs failed to plead exhaustion of administrative remedies;
IDEA permits RA claims arising from IDEA violations. 20 U.S.C. § 1415(i). However, such RA claims cannot proceed to the federal district courts until the parties have exhausted the administrative remedies, as required under IDEA. See id. The Eighth Circuit has recognized three exceptions where: (1) exhaustion would be futile; (2) exhaustion would be inadequate; and (3) “an agency policy or practice of general applicability that is contrary to law” has been established. Blackmon v. Springfield R-XII Sch. Dist.,
The Supreme Court has indicated that a statute requiring plaintiffs to exhaust administrative remedies before coming into federal court may be either jurisdictional in nature or non jurisdictional, depending on the intent of Congress as evinced by the language used. See Weinberger v. Salfi, 422 U.S. 749 ,95 S.Ct. 2457 ,45 L.Ed.2d 522 (1975). Under a jurisdictional statute, exhaustion of administrative remedies cannot be excused or waived and the failure by a party to exhaust is a jurisdictional bar. In contrast, a non jurisdictional statute codifies the common law exhaustion principle under which exhaustion of administrative remedies is favored, but may be excused by a limited number of exceptions to the general rule. Id. at 765-66,422 U.S. 749 ,95 S.Ct. 2457 ,45 L.Ed.2d 522 .
Ace Prop. & Cas. Ins. Co. v. Federal Crop Ins. Corp.,
Defendants also contend that the RA claim should be dismissed for want of remedy because the RA provides no greater remedy than IDEA. As discussed, with respect to Count I of the Amended Complaint, Plaintiffs are entitled to no relief in this action under IDEA. The Eighth Circuit has held that money damages are an available remedy under the RA. Rodgers v. Magnet Cove Pub. Sch.,
Finally, Defendants contend that Plaintiffs have failed to state an RA claim against Heartland for which relief can be granted because Plaintiffs have only alleged that Waukee School, not Heartland and its agents, participated in the conduct that purportedly violated the RA. They also note, “Under Iowa law ... area education agencies[, like Heartland,] provide special education services to local school districts, not directly to their pupils.” Def.’s Br. in Support of Mot. at 13. The Court must deny the Motion if the complaint includes “[f]actual allegations [sufficient] to raise a right to relief above the speculative level.” See Twombly,
D. Count V — Disability Discrimination
Defendants argue that Plaintiffs’ claim in Count V, for disability discrimination in violation of the Iowa Civil Rights Act (“ICRA”), Iowa Code § 216.9, fails as a matter of law because Plaintiffs have failed to exhaust their administrative remedies prior to bringing suit. The ICRA provides: “A person claiming to be aggrieved by an unfair or discriminatory practice must initially seek an administrative relief by filing a complaint with the commission in accordance with section 216.15.” Iowa Code § 216.16(1) (2005).
While Plaintiffs disagree that the present Motion to Dismiss is the proper vehicle for determining the exhaustion of administrative remedies question, they nonetheless “concede the issue” of exhaustion under the ICRA “in the interests of judicial efficiency.” Pis.’ Resistance at 3. Accordingly, Defendants’ Motion to Dismiss is GRANTED with respect to Count V of the Amended Complaint.
E. Counts VI (Assault & Battery) and VII (False Imprisonment)
Defendants contend that the state-law torts alleged in Counts VI and VII fail against all defendants, alleging that the state-law tort remedies are preempted by the ICRA’s remedies and, further, that the torts have been subsumed in the educational context by Iowa Code § 280.21, which governs corporal punishment in schools. Alternatively, they argue that Plaintiffs have failed to allege any act or omission made by either party related to Counts VI and VII. Defendants’ first argument fails because, given the Court’s determination that the ICRA claim should be dismissed for failure to exhaust administrative remedies, Plaintiffs no longer seek damages under the ICRA in this action. Accordingly, the basis for Defendants’ preemption argument is no longer present in this case. The Court addresses only the two remaining arguments here.
The Court must first determine whether the Iowa corporal punishment statute subsumes Plaintiffs’ tort claims. The statute, Iowa Code § 280.21, provides generally, “An employee of an accredited public school district, accredited nonpublic school, or area education agency shall not inflict, or cause to be inflicted, corporal punishment upon a student.” Iowa Code § 280.21(1). Section 280.21(2) provides a safe-harbor to shield teachers from liability, as follows:
A school employee who, in the reasonable course of the employee’s employment responsibilities, comes into physical contact with a student shall be granted immunity from any civil or criminal liability which might otherwise be incurred or imposed as a result of such physical contact, if the physical contact is reasonable under the circumstances and involves the following:
a. Encouraging, supporting, or disciplining the student.
b. Protecting the employee, the student, or other students.
c. Obtaining possession of a weapon or other dangerous object within a student’s control.
d. Protecting employee, student, or school property.
e. Quelling a disturbance or preventing an act threatening physical harm to any person.
f. Removing a disruptive student from class or any area of the school premises, or from school-sponsored activities off school premises.
g. Preventing a student from the self-infliction of harm.
h. Self-defense.
i. Any other legitimate educational activity.
Iowa Code § 280.21(2) (emphasis added). The reference in the statute to “any civil or criminal liability” demonstrates the legislature’s intent to provide certain safe-harbors within which a teacher may have physical contact with a student. However, it leaves undisturbed the underlying body of law which could give rise to liability absent the safe-harbors. Accordingly, the Court finds that § 280.21 does not subsume the torts alleged in Counts VI and VII but rather may serve as an affirmative defense to the torts alleged. Whether such affirmative defense is available in the present case turns on whether the alleged contact was made “in the reasonable course of the employee’s employment responsibilities.” At this point, the Court is without sufficient information to determine whether the contact was reasonable as a matter of law.
Finally, the Court must address whether these allegations state a claim against Heartland and its agents. Plaintiffs, in reply to the Motion, contend that Heartland could be liable because Heartland or its agents engaged in the conduct alleged in the Amended Complaint. Plaintiffs, in their brief, emphasize their Amended Complaint’s allegation that Heartland or its agents actually engaged in the conduct giving rise to the torts alleged in Counts VI and VII.
F. Counts VIII (Intentional Infliction of Emotional Distress) and IX (Negligent Infliction of Emotional Distress)
Defendants repeat their argument that the ICRA has subsumed the state-law torts, with respect to Counts VIII and IX. It fails here for the reasons described in the discussion of Counts VI and VII, above. However, Defendants further argue that the tort alleged in Count IX is not recognized under Iowa law as a viable claim in the context of a student in an educational environment. It is well-settled law in Iowa that, “[u]nder the tort theory of negligence, there is no general duty of care to avoid causing emotional harm to another.” Clark v. Estate of Rice,
G. Counts X (Negligence — Bystander) and XI (Intentional or Reckless Infliction of Emotional Distress• — Bystander)
In Count X of Plaintiffs’ Amended Complaint, Plaintiffs allege that D.L. and E.L. witnessed some of the Defendants’ actions either in person or through videotape, that the Defendants’ actions were negligent, and that D.L. and E.L. experienced serious emotional distress as a result. In Count XI of the Amended Complaint, Plaintiffs allege that D.L. and E.L. witnessed some of the Defendants’ actions either in person or through videotape, that the Defendants’ actions were willful or unlawful, and that D.L. and E.L. experienced serious emotional distress as a result. It appears that Plaintiffs’ claims in both counts arise from two separate factual scenarios. First, E.L. purportedly witnessed, in person, “the final minutes” of a “handover-hand intervention,” wherein she saw that “some of the Defendants were restraining I.L. and that her eyes were glazed, she was screaming and yelling and had urinated during the restraint.” Am. Compl. ¶ 24. Second, D.L. and E.L. both allegedly witnessed some actions of Defendants in dealing with I.L. on videotape, after their occurrence. For Plaintiffs to succeed on their claim of emotional distress to a bystander caused by witnessing peril to a victim proximately caused by the negligence or intentional actions of another, they must establish:
1. The bystander was located near the scene of the accident.
2. The emotional distress resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
3. The bystander and the victim were husband and wife or related within the second degree of consanguinity or affinity.
4. A reasonable person in the position of the bystander would believe, and the bystander did believe, that the direct victim of the accident would be seriously injured or killed.
5. The emotional distress to the bystander must be serious.
Barnhill v. Davis,
With regard to Plaintiffs’ claim that E.L. personally witnessed the restraint of I.L., Defendants argue that Plaintiffs cannot satisfy the fourth element of the prima facie case, that is, Plaintiffs cannot demon
To the extent that the claims in Counts X and XI arise from E.L. and D.L. witnessing a videotape of I.L. being restrained, however, the Court agrees with Defendants that Plaintiffs cannot satisfy the first and second elements of a prima facie case. Defendants point out that the first two elements of the prima facie case require that the bystander be “located near the scene” and that any emotional harm result from the “sensory and contemporaneous observance” of the tortfeasor’s act, and that a videotaped observation cannot satisfy either of these requirements. Plaintiff argues that these two elements are designed to address foreseeability of harm, and that in circumstances such as the present ones, “where an educator actually showed a parent the video tape of the abusive restraint, the likelihood of emotional harm to the viewer is highly foreseeable.” Pis.’ Br. at 66. Thus, Plaintiffs argue that a videotape of the incident “simulates” the requirements of the first two prima facie elements, and that the Court should permit the claims to stand.
Iowa courts have “strictly limited” bystander claims for emotional distress to situations where the “plaintiff [is] a bystander and witness[es] the peril of the related victim, and ... the emotional distress result[s] ‘from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.’ ” Fineran v. Pickett,
TV. CONCLUSION
For the reasons discussed above, Defendants’ Motion to Dismiss (Clerk’s No. 15) is GRANTED with respect to Counts I, V, and IX of the Amended Complaint; DE
IT IS SO ORDERED.
Notes
. It appears that the Reply as originally filed was missing pages.
. The precise contours of a "hand-over-hand intervention” are not defined in the record presently before the Court.
. According to the Amended Complaint, for purposes of I.L.’s "timeouts,” she was placed into a room that had the furniture and other materials removed and the door was closed. Am. Compl. ¶ 36. Additional details of the "timeouts” are not clear from the limited record now before the Court.
.Defendants state the following:
Although Plaintiffs' amended complaint contains no allegations concerning the initiation and exhaustion of administrative remedies, Plaintiffs in fact requested a pre-ap-peal conference on January 24, 2006 and requested a due process hearing on August 21, 2006. Those proceedings resulted in an administrative law judge's decision filed on March 29, 2008 in Iowa Department of Education Docket # SE-320 that was favorable to Plaintiffs and was appealed by the Waukee Community School District and Heartland AEA to this court and docketed as Case No. 4:07-cv-00278-REL-CFB.
Defs.' Br. in Support of Mot. at 5-6 n. 2.
. Plaintiffs have since moved for recoveiy of attorneys fees, pursuant to section 1415(f)(3)(B)(i) of IDEA. See Case No. 4:07-cv-00278.
. Plaintiffs' Amended Complaint incorrectly references 42 U.S.C. §§ 1414-15, rather than 20 U.S.C. §§ 1414-15.
. With regard to exhaustion of administrative remedies issues, Defendants launch a facial challenge, but in their briefs appear to suggest that there is a factual challenge to the Court's basis for jurisdiction as well. The Court deals with this “factual challenge” in more detail infra.
. No injunction is needed as this Court has already affirmed an administrative decision favoring Plaintiffs. See Case. No. 4:07-cv-00278.
. The First, Third, Fourth, Ninth, and Tenth Circuits have held that violations of IDEA cannot be redressed under 42 U.S.C. § 1983. See Diaz-Fonseca v. Puerto Rico,
. Defendants cite Fitzgerald v. Barnstable Sch. Comm.,
. Since Sellers, IDEA has been amended; what was 20 U.S.C. § 1415(1) is now 20 U.S.C. § 1415(1).
. At various times, Defendants have suggested that Plaintiffs failed to exhaust administrative remedies as a matter of fact. Section 1415(i)(2) of IDEA provides the exhaustion requirement, which applies equally to Plaintiffs and Defendants. Defendants have conceded this Court’s subject-matter jurisdiction as a matter of fact when they appealed the administrative decision to this Court. See Case No. 4:07-cv-00278. Accordingly, their argument is limited to Plaintiffs’ failure to plead exhaustion of administrative remedies, a facial challenge to the Court’s jurisdiction.
. The Second Circuit has consistently held that where a plaintiff fails to exhaust administrative remedies, the court lacks subject-matter jurisdiction. See Cave v. East Meadow Union Free Sch. Dist.,
. Alternatively, because it is clear to the Court that the parties have exhausted administrative remedies as a matter of fact, as discussed in footnote 8, supra, the Court hereby grants Plaintiffs leave to amend their complaint to plead exhaustion of administrative remedies.
. Iowa Code § 280.21(3) provides in pertinent part: “Any school employee determined in a civil action to have been wrongfully accused under this section shall be awarded reasonable monetary damages, in light of the circumstances involved, against the party bringing the action.” Defendants suggest that the Court should interpret Plaintiffs' Amended Complaint so as to remove allegations that could give rise to a counterclaim under § 280.21(3). While the Court cannot alter Plaintiffs’ clear allegations based on the assumption that Plaintiffs would not risk a counterclaim, it notes here the possibility of such a claim under § 280.21(3) if a school employee is found to have been “wrongfully accused.”