The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Plaintiffs, Linda King-Cowser, as mother and best friend of Pharon Cowser and Abrianna Cowser, and Micheline Evans, as mother and best friend of Dwight Jackson and Deanna Jackson (collectively, the "Plaintiffs"), filed a four-count complaint alleging violations of their due process and equal protection rights. The defendant, School District 149 (the "School District"), moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court granted the motion of individual defendants, April Isabelle ("Isabelle"), Dr. Bridgette Garth-Young ("Garth-Young") and Traci J. Brown ("Brown"), to join the motion to dismiss. Thus, before the court is a joint motion to dismiss filed by defendants the School District, Isabelle, Garth-Young, and Brown (collectively, the "Defendants"). For the reasons stated below, the motion is denied.
At the time of filing the complaint, Pharon Cowser ("Pharon") was thirteen years old, his sister, Abrianna Cowser ("Abrianna") was nine, his cousin Dwight Jackson ("Dwight") was seven, and his cousin Deanna Jackson ("Deanna") was eight. In early September 2007, Pharon was admitted to the hospital. It was discovered that he had contracted Methicillin-Resistant Staphylococcus Aureus ("MRSA").*fn2 Over the course of 47 days, he underwent nine surgeries and several other medical procedures.
On or about October 20, 2007, Linda King-Cowser, Pharon's mother, spoke with school representatives to discuss home schooling for Pharon. The school representatives were: Brown, who is the Superintendent of School District 149; Garth-Young, who is the principal of Dirksen Middle School, where Pharon attends; and Isabelle, who is the principal of Dickman Elementary School, where Abrianna, Dwight, and Deanna attend. Pharon's mother was told that no teacher would come to Pharon's house for home schooling because Pharon had MRSA. The school representatives required that Abrianna, Dwight, and Deanna be picked up from school immediately because they had been in close contact with Pharon. They said none of the children could return to school until they had received a "clean bill of health" from a physician, despite the fact that Dwight, Deanna, and Abrianna did not have MRSA or even have symptoms of MRSA and that Pharon had been released from the hospital after completing his treatment.
Dwight, Deanna, and Abrianna did not have a doctor and Pharon's doctor provided only informational literature on MRSA that stated children should not be excluded from school because of MRSA, an opinion with which the Centers for Disease Control and Prevention and the Illinois Department of Public Health concur. Because the children were unable to obtain suitable statements from doctors, Dwight, Deanna, and Abrianna were excluded from school and Pharon was unable to be home schooled. Through their mothers, the children filed a four-count complaint alleging violations of their due process and equal protection rights and seeking reinstatement at school (or home schooling in the case of Pharon)*fn3 as well as monetary damages.
The Plaintiffs allege that: (1) the children have a right to a free public education and that the Defendants excluded the children from school without reasonable notice and an opportunity to be heard in violation of their procedural due process rights; (2) the Defendants arbitrarily and capriciously denied the Plaintiffs their substantive due process rights by excluding the children from school without reasonable bases; and (3) the children were not treated equally to similarly situated students, namely those with contagious diseases and/or those who live with or in close proximity to those with contagious diseases, and that the Defendants had no rational basis for excluding the children from school. The Defendants argue that the Plaintiffs fail to state a claim upon which relief can be granted and that, therefore, the complaint must be dismissed.
Rule 12(b)(6) permits a defendant to assert by motion that the plaintiff's claim for relief fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The court must accept as true the allegations of the complaint and draw all reasonable inferences in favor of plaintiff. Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (internal citation omitted). "The [defendant's] attack is on the sufficiency of the complaint, and the defendant cannot set or alter the terms of the dispute, but must demonstrate that the plaintiff's claim, as set forth by the complaint, is without legal consequence." Gomez v. Ill. State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987).
To survive a Rule 12(b)(6) motion, "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). The allegations must provide the defendant with "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1964 (2007). The plaintiff need not plead particularized facts, but the factual allegations in the complaint must be sufficient to suggest a right to relief above the speculative level. Id. at 1973-74 & n.14; Erickson v. Pardus, __ U.S. __, 127 S.Ct. 2197, 2200 (2007); Concentra Health Servs., Inc. 496 F.3d at 776 (citing Twombly, 127 S.Ct. at 1965, 1973 n.14).
As an initial matter, the parties dispute the appropriate depth of analysis required to decide this motion to dismiss. The Plaintiffs note that, under Rule 8, they need only provide a short and plain statement of their claims to survive dismissal and that the Defendants' arguments are misplaced as they go to substantive issues of the case and the ultimate likelihood of success, not to whether the Plaintiffs have adequately alleged facts to state a claim. See Moreno v. Town of Cicero, 2002 WL 31017932, at *2 (N.D. Ill. Sept. 5, 2002) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (noting that the issue in reviewing the sufficiency of the complaint is "whether the plaintiff has properly stated a claim upon which relief could be granted, not whether the plaintiff will ultimately prevail on the merits"). They argue that as Plaintiffs, they "need not 'show' anything to survive a motion under Rule 12(b)(6) -- [they] need only allege." Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005).
Typically, such a bare-bones pleading standard is all that is required. See Tamayo v. Blagojevich, 526 F. 3d 1074, 1083 (7th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1973 n.14) (noting that "[a]lthough the opinion contains some language that could be read to suggest otherwise, the Court in [Twombly] made clear that it did not, in fact, supplant the basic notice-pleading standard"). Thus, as the Plaintiffs correctly point out, to state a claim under 42 U.S.C. § 1983, a plaintiff need only allege that he or she "was (1) deprived of a federal right, privilege or immunity (2) by any person acting under color of state law." Brown, 398 F.3d at 908 (citing Gomez v. Toledo, 446 U.S. 635, 638 (1980)). Moreover, the Defendants do not dispute that the Plaintiffs' complaint adequately alleges that the Defendants acted under color of law, which leaves only one element for ...