the emergency removal of Sarah. Accordingly, none of the defendants violated a due process right of any of the plaintiffs. That being the case, James and Williams, as well as all of the other defendants are entitled to summary judgment on this, the first prong of the plaintiffs' procedural due process claim.
Before proceeding to the question of whether plaintiffs' procedural due process rights were compromised by the manner in which Sarah was subjected to a medical examination, qualified immunity -- as an alternate ground for granting summary judgment to James, Williams, Flowers and Trent will be discussed. Even if, arguendo, a material issue of fact were to be gleaned from the materials before the court, thereby precluding an award of summary judgment to all defendants vis-a-vis Sarah's removal, the caseworkers, together with Flowers and Trent would still be entitled to such relief under the doctrine of qualified immunity.
To partially reiterate, qualified immunity is available to defendant if his or her conduct, inter alia, was objectively reasonable or if "officers of reasonable competence could disagree on whether the probable cause test was met." Robinson, 821 F.2d at 921. Measured against the second part of that standard, which recognizes the "Hobson's choice" often confronting those involved in the investigation of child abuse charges, van Emrik v. Chemung County Dep't of Social Servs., 911 F.2d 863, 866 (2d Cir. 1990), James, Williams, Flowers and Trent may not legitimately be called upon to answer in damages for the events of January 1990. A juxtapositioning of the previously explained activities of James and Williams against the doctrine of qualified immunity compels that conclusion.
2. Interference with Right to Choose Medical Treatment
The Tenenbaums also assert that defendants unconstitutionally interfered with their parental rights by having a pediatrician and gynecologist at Coney Island Hospital examine Sarah. Given the highly intrusive nature of this particular examination, which was solely for investigative purposes, the Court agrees.
Although Sarah's removal was based on probable cause to believe that an emergency existed, that circumstance ceased upon her custody being temporarily vested in CWA. She was then no longer in what was perceived to be harm's way. Thereafter, procedural due process required notice to the parents and judicial authorization before Sarah could be subjected to an inspection of her vagina and surrounding area. See van Emrik v. Chemung County Dep't of Social Servs., 911 F.2d 863, 867 (2d Cir. 1990) ("we believe the Constitution assures parents that, in the absence of parental consent, x-rays of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances"); cf. Chayo v. Kaladjian, 844 F. Supp. at 169 ("The instant case [Chayo] is distinguishable . . . [from van Emrik] because the x-ray examinations [of the Chayo child] were ordered not by the caseworkers but by Doctor Ibrahm Ahmed, a pediatric resident at St. Vincent's Hospital, and for medical rather than investigative purposes.").
Defendants argue that van Emrik is "factually distinguishable from the case at bar and is, therefore, inapplicable to this case." (Defs.' Mar. 5, 1993 Mem. at 19-20.) Granted, the medical examination of Sarah did not involve any physical risk, unlike the long-bone x-rays in van Emrik which did entail some possible risk of physical harm. But that fact does not render the rationale and holding of van Emrik irrelevant for present purposes. Here, as in van Emrik, time -- following the emergency removal -- permitted parental and judicial involvement prior to the medical examination being conducted. Harm to a child cannot legitimately be defined to exclude significant, and objectively reasonable emotional trauma. As noted in Doe v. Renfrow, "it does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity." 631 F.2d 91, 92-93 (7th Cir. 1980) (emphasis added), cert. denied, 451 U.S. 1022, 101 S. Ct. 3015, 69 L. Ed. 2d 395 (1981); see generally Shatz, Donovan & Hong, The Strip Search of Children and the Fourth Amendment, 26 U.S.F. L. Rev. 1, 11-14 (1991) (a strip search, for a child, is "akin to sexual abuse.").
Sarah was subjected to intrusive bodily examinations by two strangers, in a strange location, in the absence of a parent or other reassuring figure. While the child in van Emrik faced the possibility of physical injury, Sarah, almost certainly, did, in fact, experience psychological injury on January 9, 1990.
Defendants maintain that the expedited procedure employed by CWA on that date actually benefited plaintiffs by abbreviating the interval between Sarah's removal and return to her family. (Defs.' Mar. 5, 1993 Mem. at 20-21.) This argument trivializes the constitutional implications of the State subjecting a person to an investigatory, intrusive medical examination without notice, and an opportunity to be heard, within the context of a judicial proceeding.
In sum, plaintiffs have established, as a matter of law, that their procedural due process rights were violated by the manner in which Sarah was subjected to a medical examination on January 9, 1990. However, in van Emrik, the Second Circuit found the individual defendants immune because the law was not settled at the time the events in that case occurred. The events at issue in the present case also occurred when the law establishing this right was not settled, prior to the Second Circuit's decision in van Emrik. The individual defendants here, as in van Emrik, are therefore immune from suit. Accordingly, Williams, James, Flowers and Trent are entitled to summary judgment on this claim. The City of New York, however, not having the benefit of the qualified immunity defense, may still be liable to the Tenenbaums under the principles of municipal liability previously discussed.
IV. Fourth Amendment Claims
A. Seizure of the Child from School
The Tenenbaums also allege that defendants' removal of Sarah from school violated her Fourth Amendment right to be free from unreasonable seizures because defendants lacked probable cause to believe she had been abused.
While at least one court has questioned whether taking custody of a minor is violative of the child's liberty interest (on the theory that custody is merely transferred from the parent to the state), see Lossman v. Pekarske, 707 F.2d 288 (7th Cir. 1983), the sounder view, and apparently the law in this Circuit, is that the state's assumption of custody is a seizure under the Fourth Amendment. See van Emrik, 911 F.2d at 867 ("That interest [viz. the parents' decision-making role concerning medical procedures for child] assumes special significance when the procedures undertaken at the initiative of a state official serve primarily an investigative function; in such circumstances, Fourth Amendment and bodily integrity interests of the child are implicated, interests the parents are entitled to assert on the child's behalf.") (citations omitted); cf. Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993) ("'Although confinement of the mentally ill by state action is generally analyzed under the due process clause of the fourteenth amendment, we analyze the distinct right to be free from an unreasonable government seizure of the person for whatever purpose'") (quoting Maag v. Wessler, 960 F.2d 773 (9th Cir. 1991)). The seizure of Sarah, then, implicates her Fourth Amendment rights.
The same may not be said of her parents to the extent that they have sued individually, as well as on Sarah's behalf. Neither Marc nor Mary Tenenbaum has been the subject of a search or a seizure. See Donald v. Polk County, 836 F.2d 376 (7th Cir. 1988) (the "removed" child, her parents and her siblings sued the Polk County Department of Social Services under 42 U.S.C. § 1983, claiming, inter alia, a violation of their Fourth Amendment rights; court held that "none of the plaintiffs in this case have [sic] been the object of a search and seizure, with possible exception of . . . [the child]," thereby impliedly rejecting the notions that a parent suffers derivative harm, and that a child constitutes an "effect," for Fourth Amendment purposes.). Moreover, the Court is not aware -- based on its own research and the submissions of counsel -- of any federal decision which has held that a parent may legitimately assert an individual, as distinct from representative, Fourth Amendment claim based upon the seizure of a child.
A parent's protection under such circumstances is to be found elsewhere in the Constitution, often in the due process clause of the Fourteenth Amendment. That is the situation with respect to Marc and Mary Tenenbaum.
Given that defendants' conduct falls within the ambit of the Fourth Amendment as to Sarah, this court must consider what standard to apply in judging the constitutionality of the seizure. The Supreme Court has not had occasion to answer the question of whether probable cause, or some lesser standard, governs the removal of children in cases of suspected abuse or neglect, and the Second Circuit has written little on the subject.
Searches and seizures effected by police for law enforcement purposes may occur only pursuant to a warrant
supported by probable cause unless within "a few specifically established and well-delineated exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971) (citations omitted).
Outside the realm of criminal law, however, the Supreme Court has approved searches and seizures on less than probable cause where the government has "'special needs, beyond the normal need for law enforcement.'" O'Connor v. Ortega, 480 U.S. 709, 720, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987) (quoting Blackmun, J., concurring in New Jersey v. T.L.O., 469 U.S. 325, 351, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985)). In such cases, searches and seizures remain subject to the general reasonableness requirement of the Fourth Amendment. T.L.O., 469 U.S. at 341.
The Supreme Court has used special needs to justify departure from the requirements of probable cause and a warrant when special needs "'make the warrant and probable-cause requirements impracticable.'" O'Connor, 480 U.S. at 720 (quoting Blackmun, J., concurring in T.L.O., 469 U.S. at 351 (emphasis added)). Alternatively, the Court has stated that it will dispense with a warrant and probable cause when they are "'likely to frustrate the governmental purpose behind the search.'" O'Connor, 480 U.S. at 720 (quoting Camara, 387 U.S. 523, 533 (1967) (emphasis added)). In another case, the Court held that a warrant was not required where it would "interfere to an appreciable degree" with the government scheme. Griffin v. Wisconsin, 483 U.S. 868, 876, 878, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987).
Should a lesser standard than probable cause and a warrant be utilized in child abuse cases, due to special needs making the requirements "impracticable," or likely to "frustrate the governmental purpose" behind the search, or likely to "interfere to an appreciable degree" with the government goal involved?
Before endeavoring to answer that question, it may be helpful to try and determine the likely impact of the application of the probable cause/warrant standard on society's efforts to combat abuse and neglect of its children. That process should shed light on whether any one or more of the above mentioned grounds for relaxing those requirements is applicable in the present context. If so, perhaps a lesser standard should control. But if not, no justification exists for a departure from the constitutional norm.
Probable cause requires only that a magistrate "make a practical, commonsense decision whether, given all the circumstances . . . before him [or her] . . . there is a fair probability" that the facts to which the probable cause determination is addressed exist." Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). The application of this standard should not hinder child abuse investigations. Abusive or neglectful conduct witnessed by neighbors and other identified individuals, and signs of abuse in the appearance and behavior of children detected by teachers and child care workers, routinely provide probable cause to believe that a child has been abused or neglected.
The feasibility of a probable cause requirement is supported by the law of New York, which requires that before a child may be removed, in an emergency situation, government officials possess "reasonable cause," the equivalent of probable cause,
to believe the child is in danger of harm. N. Y. Fam. Ct. Act § 1024. Thus, had Williams and James, contrary to the fact, lacked probable cause to believe Sarah was in danger at toe time James removed her from school, they would have violated state law in addition to the Constitution.
One concern of a probable cause requirement is that anonymous reports alone would not justify searches or seizures in furtherance of an investigation. Assuming that such a report were sufficiently corroborated, however, it would pass constitutional muster. Gates, 462 U.S. at 241-43. While uncorroborated, anonymous tips could not provide probable cause, Gates, 462 U.S. at 227, this court does not believe that the seizure of a child based on such tips, possibly motivated by malice, comports with the Fourth Amendment. Even under the lesser standard of reasonable suspicion, which is the sole alternative to probable cause in this case,
an entirely uncorroborated anonymous tip would generally not provide grounds for a search or seizure. Alabama v. White, 496 U.S. 325, 329, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990).
The Supreme Court has rejected probable cause in some cases, in part, to relieve government officials such as school teachers and administrators and public employers of "the necessity of schooling themselves in the niceties of probable cause." T.L.O., 469 U.S. at 343; see also O'Connor, 480 U.S. at 724. Caseworkers investigating child abuse, however, like police officers, routinely conduct investigative seizures and searches. Requiring familiarity with the Fourth Amendment will not, therefore, be unduly burdensome.
In Wyman v. James, 400 U.S. 309, 317-19, 27 L. Ed. 2d 408, 91 S. Ct. 381 (1971), the Supreme Court held that a child welfare visit by a caseworker to the home of a government benefit recipient, if, arguendo, a search, did not require probable cause. In Wyman, however, the court based its decision on the fact that the home visit by the caseworker was primarily rehabilitative, that it was "not forced or compelled," and that the state was entitled to place conditions on the award of benefits to insure their proper use. Id. By contrast, the seizure in the present case was for investigative purposes, plaintiffs had no right or opportunity to oppose it, and no public monies were involved. Wyman does not, therefore, support a standard less than probable cause in the present case. See Investigating Child Abuse: The Fourth Amendment and Investigatory Home Visits, 89 Colum. L. Rev. at 1051-53 (arguing that Wyman is inapposite to child abuse investigation searches and seizures).
Like probable cause, a warrant is unlikely to frustrate the state's attempts to investigate child abuse. New York law mandates judicial authorization to seize a child absent an emergency, and this requirement is complied with on a routine basis without deleterious consequences. See N.Y. Fam. Ct. Act § 1022 (pertaining to court order for temporary removal of child before petition charging abuse or neglect filed) and § 1024 (pertaining to "emergency removal[s] without court order"); see also Besharov, Practice Commentary to N.Y. Fam. Ct. Act § 1022 at 314 (1983).
In sum, upon analysis of the burdens they would impose, it appears that neither probable cause, nor a warrant in the sense of prior oral or written judicial authorization (see discussion supra at 25 n.7), is "impracticable," or likely to "frustrate the governmental purpose" or "interfere to an appreciable degree" with the government goal of effectively addressing the child abuse problem. Therefore, the court concludes that the probable cause and warrant requirements apply to child abuse searches and seizures under the Fourth Amendment.
Returning to the present case, probable cause existed for Sarah's emergency removal on January 9, 1990 and accordingly, her Fourth Amendment rights were not violated by the removal.
Alternatively, the individual defendants in this case are entitled to qualified immunity because the application of the probable cause and warrant requirements to child abuse investigations by caseworkers was unsettled at the time of defendants' investigation, and still, as noted at pages 22 and 24, supra, is unclear. Even if the general principles of law were sufficiently defined in January 1990 to place potential defendants on notice, the individual defendants here would still be immune from civil liability "because it was objectively reasonable for them to believe they violated no . . . [Fourth Amendment] rights when they seized . . . [Sarah]." Robinson, 821 F.2d at 921.
While the Courts in Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), and Good v. Dauphin County Social Servs., 891 F.2d 1087, 1094 (3d Cir. 1989), held that Fourth Amendment jurisprudence was sufficiently well developed to place persons investigating child abuse on notice of its applicability to their work, those cases involved searches or seizures by or with the participation of police officers, whose conduct is regularly governed by the Fourth Amendment. By contrast, in Landstrom v. Illinois Dep't of Children & Family Servs., 892 F.2d 670, 676-77 (7th Cir. 1990), and Darryl H. v. Coler, 801 F.2d 893, 908 (7th Cir. 1986), the Seventh Circuit held that caseworkers were immune from claims under the Fourth Amendment because its application to child abuse investigations was unsettled.
All defendants are entitled to summary judgment. Sarah's removal was the result of a reasonably perceived emergency, coupled with probable cause, thereby being in full compliance with the requirements of the Fourth Amendment. Alternatively, even if, arguendo, such were not the case, the individual defendants, viz. Williams, James, Flowers and Trent, would be entitled to summary judgment on the basis of qualified immunity. That defense, of course, is not available to the City.
B. "Body Cavity" Examination
The Tenenbaums assert that defendants also violated Sarah's Fourth Amendment rights by arranging for doctors at Coney Island Hospital to conduct what plaintiffs label as a "strip search" and a "body cavity" examination of her. Such examinations in a child abuse context have not been addressed by the Supreme Court, and this issue appears to be one of first impression in this Circuit. Semantics aside, the medical examination of Sarah's vagina and surrounding areas is clearly a search within the meaning of the Fourth Amendment.
The existence of an emergency, coupled with probable cause, justified Sarah's removal. That emergency did not extend, as noted previously, to the invasive, investigatory examination to which Sarah was thereafter subjected.
Therefore, the examination -- done without judicial authorization -- constituted a violation of the Fourth Amendment.
Decisions by other courts support the requirements of both probable cause and a warrant for intrusive examinations of children for evidence of abuse. In Good v. Dauphin County Social Servs., 891 F.2d 1087, 1092-93 (3d Cir. 1989), the Third Circuit held that a strip search of a child as part of an investigation of abuse was constitutional only if conducted pursuant to a warrant issued on probable cause, absent consent or exigent circumstances.
In Franz v. Lytle, 997 F.2d 784, 788 (10th Cir. 1993), the Tenth Circuit held that a warrant issued on probable cause was required before a police officer investigating alleged child abuse could constitutionally probe the child's genitals for evidence of abuse and subject her to a medical examination by a doctor.
In contrast to Good and Franz, the Seventh Circuit in Darryl H. v. Coler held that visual inspections of the unclothed bodies of children for evidence of child abuse could be justified without a warrant or probable cause, upon a showing of reasonableness, "balancing . . . the need for the particular search against the invasion of personal rights that the search entails." 801 F.2d 893, 902-03 (7th Cir. 1986) (citation omitted).
While this court does not necessarily disagree with the holding in Darryl H., it regards the examination in the present case as categorically different from the examination conducted in that case. See Franz v. Lytle, 997 F.2d 784, 790-91 (10th Cir. 1993) (distinguishing visual inspections and inspections involving touching a child's nude body). Requiring a warrant for a mere visual inspection (following an emergency removal based on probable cause) -- particularly of asexual parts of the anatomy -- could frustrate child welfare workers in their efforts to uncover child abuse by converting a quick inspection into a time-consuming procedure.
In sum, the invasive search of Sarah -- given the fact that the emergency which justified her removal no longer existed at the time of the investigatory medical examination -- violated the Fourth Amendment, as well as the procedural due process component of the Fourteen Amendment as previously discussed.
However, as also discussed supra, the application of the Fourth Amendment to child abuse investigations was insufficiently established at the time of defendants' investigation to overcome their defense of qualified immunity. Williams, James, Flowers and Trent are, therefore, entitled to summary judgment. That defense is not available to the City of New York. Accordingly, under the circumstances discussed previously, the City might be liable to plaintiffs for the failure to obtain judicial authorization for the medical examination of Sarah.
V. Right to an Adequate Investigation
Plaintiffs also assert an independent right to an "adequate investigation" prior to "endangerment" of their constitutional rights. The Constitution affords plaintiffs no such right.
Plaintiffs cite several cases in which courts found searches or seizures to be unreasonable based in part on the failure of government officials to adequately investigate the facts of the case prior to conducting the search or seizure. E.g., BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986) (failure to investigate made arrest unreasonable); Williams ex rel. Williams v. Ellington, 936 F.2d 881, 888-89 (6th Cir. 1991) (school officials would be required to investigate an anonymous tip before conducting a search or seizure). As these cases illustrate, allegations of inadequate investigation are a component of plaintiffs' Fourth Amendment right to be free from unreasonable searches and seizures. As stated, supra, however, defendants possessed probable cause to seize Sarah. The constitutional flaw associated with the examination arises from the law of judicial authorizations, not from an inadequate investigation. All defendants are therefore entitled to dismissal of this claim.
VI. Violation of 42 U.S.C. § 671(a)
Plaintiffs assert that defendants' failure to make "reasonable efforts" to provide services to preserve their family violates 42 U.S.C. § 671(a). However, the "reasonable efforts" provision of Section 671(a) does not confer a private right of action, nor may it be enforced in an action pursuant to 42 U.S.C. § 1983. Suter v. Artist M., 118 L. Ed. 2d 1, 112 S. Ct. 1360 (1992). Accordingly, all defendants are entitled to summary judgment on this claim.
VII. Claims by Mary Tenenbaum
Plaintiff Mary Tenenbaum argues that, whatever allegations defendants received regarding abuse by her husband, they had no information implicating her, and they therefore violated her rights by removing and examining Sarah. By plaintiffs' reasoning, however, a caseworker could remove a child only when all adults residing in the household participate in abuse. That is not the law. Sarah was temporarily removed from the home in which she and the suspected abuser resided. The fact that Mary Tenenbaum also was a member of that household and, therefore, incidentally impacted by the removal, is not violative of her constitutional rights.
VIII. Claims Against the Board of Education
Plaintiffs claim that the New York City Board of Education violated their constitutional rights when its employees (1) participated in James' questioning of Sarah on Monday, January 8, 1990, (2) helped James remove Sarah from school on January 9, 1990, and (3) searched Sarah at some time prior to the report of child abuse.
(Pls.' Apr. 23, 1993 Mem. in Opp. at 43-45.)
These activities are said to be the result of Board policies, thereby rendering the Board answerable in damages to the Tenenbaums. More particularly, it is alleged in their complaint that the Board:
1. had a policy of permitting the Department of Social Services to remove children from schools without parental consent, a court order, or the presence of an emergency, and
2. had a policy permitting its employees to conduct strip searches of children in the course of their investigations of child abuse allegations.
As noted earlier, discovery of plaintiffs' Monell claims has been stayed. However, Murphy and James have been extensively deposed concerning a number of subjects, including what transpired at the school on January 8th and January 9th, 1990.
As to the claimed complicity of Board employees in the questioning and removal of Sarah from school, it is true that the Board of Education's employees acted pursuant to its policies in helping James remove Sarah. See Regulation of the Chancellor, No. A750, Reports of Suspected Child Abuse and Maltreatment at 4-6 (May 5, 1989). That assistance, however, did not violate plaintiffs' rights. Plaintiffs argue that the Board of Education should be held liable because its employees conspired with James. To establish a conspiracy to violate a person's civil rights, however, a plaintiff must establish that defendants "'reached an understanding' to violate [plaintiff's] rights." Strength v. Hubert, 854 F.2d 421, 425 (11th Cir. 1988) (citations omitted); see also Dahlberg v. Becker, 748 F.2d 85, 93 (2d Cir. 1984) ("meeting of the minds" must occur for a civil rights conspiracy to exist). In the present case, there is no basis for concluding that the employees of the Board of Education reached an understanding with James to deprive the Tenenbaums of their rights under the Constitution. Rather, the Board of Education's employees merely permitted another state official, James, to perform what she believed to be her duties, after being presented with a form indicating that Sarah was being taken into custody pursuant to New York Social Service Law § 417 and New York Family Court Act § 1024. CWA did not need the approval of the Board's employees to effect the removal, and the Board's employees had no right to obstruct the removal.
Moreover, as to the employees' involvement in both the questioning and removal of Sarah, any implicated Board policies could not have been a proximate cause of the claimed wrongs. The information before the Court indicates the absence of any material fact which calls into question the propriety of what Murphy and the others at the school did, or did not do, regarding Sarah's removal, notwithstanding the previously mentioned depositions of the individual actors which were conducted by plaintiffs' counsel. Plaintiffs' statements are purely conclusory, devoid of factual underpinnings. Moreover, it must be remembered that the removal by CWA was proper, being based on probable cause and a reasonably perceived emergency.
However, plaintiffs' last claim, to wit, that school employees searched Sarah pursuant to Board policy, sometime prior to the CWA investigation, is not subject to summary judgment.
Defendants deny that Sarah was strip-searched by a school employee. Plaintiffs maintain that, at the very least, a factual issue exists as to whether such a search occurred. In support of that proposition, plaintiffs argue the following:
Defendant Williams himself told Mary Tenenbaum that the school teachers had searched her daughter and found a bruise on the vagina. (Decl. of Mary Tenenbaum, P 24.) Sarah Tenenbaum confirmed the statement when she told her mother that the teachers had undressed her. (Decl. of Mary Tenenbaum, P 22.)
Moreover, defendant James testified that kindergarten teacher Mary Murphy knew of the strawberry birthmark's on Sarah Tenenbaum's upper leg. (James Dep. at 25.) Murphy could not have been aware of that mark unless she had undressed Sarah. (Decl. of Mary Tenenbaum, P 21.) Williams also said that Murphy had shown James that birthmark. (Williams Dep. at 70.)
(Pls.' Apr. 23, 1993 Mem. in Opp. at 44-45.)
Rule 56(e) of the Federal Rules of Civil Procedure provides, inter alia, that affidavits "shall set forth facts as would be admissible in evidence . . . ." The question, then, is what information have plaintiffs provided which may be considered in determining whether summary judgment is appropriate, i.e. information that "would be admissible in evidence"? Nothing in Mary Tenenbaum's Declaration meets that standard. Her assertions are clearly hearsay. See Fed. R. Evid. 801. Moreover, what Williams supposedly said concerning teachers searching Sarah could not be received in evidence because his statement, if made, would not be binding on the Board or any of its employees as an admission, id. at 801(d)(2), or otherwise. The daughter's statement similarly is not admissible evidence.
The testimony of James at page 25 of her transcript does not fully dovetail with plaintiffs' representation as to what was said at the deposition. Thus, the transcript, unlike the memorandum of law, never refers to "a strawberry birthmark on Sarah Tenenbaum's upper leg." Rather there is reference to Murphy wanting to show James "something," which Murphy said James had already seen, presumably at the Tenenbaums on the preceding Friday. However, reading that passage in conjunction with page 70 of Williams' deposition suggest that Murphy was talking to James about such a mark. However, there is no evidence in the record to indicate that Murphy ever personally observed the mark. Indeed, she testified that she never did see such a mark. Her testimony on the subject was as follows:
Q When Mrs. James was at the school the day before on Monday, did you have discussion with her about a mark on Sarah's thigh?
A I did mention to her that the gym teacher had seen a red mark on her thigh.