A South Fayette High School sophomore claims to have been bullied all year at his new school located in McDonald, Pennsylvania. In February, the student made an audio recording of one bullying incident during his special education math class. Instead of questioning the students whose voices were recorded, school administrators threatened to charge him with felony wiretapping before eventually agreeing to reduce the charge to disorderly conduct. On Wednesday, March 19, the student, whose name we have agreed to not include in this story, was found guilty of disorderly conduct by District Judge Maureen McGraw-Desmet.
Before the defendant was able to give a statement, McGraw said, “Normally, if there is — I certainly have a big problem with any kind of bullying at school. But normally, you know, I would expect a parent would let the school know about it, because it’s not tolerated. I know that, and that you guys [school administrators] would handle that, you know. To go to this extreme, you know, it was the only alternative or something like that, but you weren’t made aware of that and that was kind of what I was curious about. Because it’s not tolerated, but you need to go through — let the school handle it. And I know from experience with South Fayette School that, you know, it always is. And if there is a problem and it continues, then it is usually brought in front of me.” (emphasis added)
The student and his mother, Shea Love, testified before the magistrate that the boy has been repeatedly shoved and tripped at school, and that a fellow student had even attempted to burn him with a cigarette lighter. The defendant is, according to school records, a well-behaved student with no history of disciplinary action. He was, however, previously diagnosed with a comprehension delay disorder, which is a slower processing speed for information than is normal, ADHD, and an anxiety disorder. He says the bullying treatment is especially harsh and academically disruptive during his special education math class, in which students with behavioral problems are also placed. On February 11, after doing research on several anti-bullying websites, he used his school approved personal iPad to make a seven-minute audio recording of his classroom experience. He played the recording at home for his mother. Outraged, Love, a former Air Force Morse code operator, transcribed the audio before calling school administrators.
According to Love, as the teacher is heard attempting to help her son with a math problem, a student says, “You should pull his pants down!” Another student replies, “No, man. Imagine how bad that (c**t) smells! No one wants to smell that (t**t).” As the recording continues, the teacher instructs the classroom that they may only talk if it pertains to math. Shortly thereafter, a loud noise is heard on the recording, which her son explained was a book being slammed down next to him after a student pretended to hit him in the head with it. When the teacher yells, the student exclaims, “What? I was just trying to scare him!” A group of boys are heard laughing.
The school board’s bullying policy pledges no retribution for reporting suspected bullying. Its policy for abuse of electronic devices is disciplinary action and/or confiscation of the device pending a conference with the parent. South Fayette High School’s policy guidebook on the discipline of disabled students states, “Students with disabilities who engage in inappropriate behavior shall be disciplined in accordance with their Individualized Education Program (IEP), positive behavior support plan in place, each building’s Code of Conduct, and Board policy.”
The School’s Response: “Could Be Charged With Felony Wiretapping”
Love says that upon fielding her complaint, Principal Scott Milburn called South Fayette Township police Lieutenant Robert Kurta to the school to interrogate her son in the presence of Associate Principal Aaron Skrbin and Dean of Students Joseph Silhanek. The defendant testified before Judge McGraw-Desmet that he was forced to play the audio for the group and then delete it. Love says by the time she arrived at the school, her son was surrounded by school officials and the police officer and was visibly distraught. She says
Principal Milburn advised her that her son was “facing felony wiretapping charges” because he made a recording in a place with an expectation of privacy, and that Officer Kurta agreed.
Milburn defended the teacher’s response to the classroom disturbance.
Kurta testified before the magistrate that Milburn requested his presence at the school on February 12 at 8:20 a.m. The officer said, “He believed he had a wiretapping incident.” Upon his arrival, Kurta said Milburn advised him that Silhanek fielded a call that morning from Love notifying him “that she planted a recording device in her son’s backpack to record the activities in one of his classes.” According to Kurta’s testimony, after Milburn consulted with the school district’s attorney, he advised reporting the incident to the police and treating it as a crime. The officer then admitted he did not hear the audio file in question or do an investigation into the recording, presumably because the student was ordered to erase it prior to his arrival at the school. Silhanek testified, “Mr. Milburn asked (the defendant) to delete it (the recording) after we heard it and (the defendant) complied.” The defendant clarified that the recording was still on his iPad when Lt. Kurta arrived at the school. He said of the recording, “Mr. Milburn told me to delete it, and I just felt, like, really pressured to do it. I didn’t want to. I just think that it wasn’t really right. Like, I’m getting prosecuted for trying to seek help…If I had known it was illegal, I wouldn’t have done it.”
Love testified, “ I didn’t believe it (the bullying) was as bad as what it was. And when I heard the recording, I flipped out. He did not want me to say anything to anybody, but I wanted to be able to say something because what I heard was not right. It was not okay.”
In his defense, the student testified as to why he made the recording. “I wanted her (Love) to understand what I went through. Like, it wasn’t like I was overexaggerating it. I wasn’t lying. It was really happening. I was really having things like books slammed upside my head. I wanted it to stop. I just felt like nothing was being done.” Love testified that she was aware of the bullying but, “I did not tell him to record. I did hear the recording. …I’ve emailed her (the special education teacher) several times on this incident with other kids.”
Kurta said, “After I left the school, I wasn’t sure what charge to file so I contacted the district attorney’s office. This would fall under a wiretapping violation, which is a felony.” He later answered as to why he thought the disorderly conduct charge applied to this case by saying, “Because his (the student’s) actions — he engaged in actions which served no legitimate purpose.” He then read the statute as, “Creates a hazardous or physically offensive condition by acts which serve no legitimate purpose.”
Love’s attorney stated during the March 19 proceeding, “I’m not so sure that there wasn’t a crime committed by that evidence being destroyed. There’s no recording here that anybody’s introduced into evidence.” He continued in his closing arguments, “We’ve shown that there’s a legitimate purpose for the recording. And there’s no physically offensive or hazardous condition that was created by this recording. I don’t see how a recording of students that are bullying my client could be physically offensive or dangerous to anyone, other than potentially the people that are bullying my client.”
Disorderly conduct is defined in Pennsylvania as “the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof” such as by engaging in “fighting or threatening, or in violent or tumultuous behavior, unreasonable noise, obscene language, obscene gestures,” or creating “a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”
Convicted of Disorderly Conduct
While Love’s son was never officially charged with felony wiretapping, the magistrate pronounced him guilty of disorderly conduct. This occurred after the administrators gave the student a Saturday detention to serve and he completed it as asked.
The 15-year-old defendant, whose favorite class is Civics, plans to appeal the conviction. His next court appearance is April 29 in Pittsburgh. When asked if she was afraid of retaliation by school officials or harassment by the police, Love said, “I refuse to be threatened. I just want my son to have a chance to bloom and not fall so far behind in a totally disruptive environment.”
The school immediately removed Love’s son from the special education math class. The students whose voices were caught on tape remain enrolled.
Transcripts of the court proceedings were made by a court stenographer hired by the defense team. The school will not comment on the matter.