An Unholy Trinity

There are three players in the school to conviction pipeline: the school. The police. The judge.  When one of the three demonstrates some element of objectivity and reasonableness, issues that arise with regard to students’ conduct manage to get handled without absurd consequences. But when the trinity defers to each other, absurdity ensues, as it did at South Fayette High School.

The underlying story, only touched upon here and the full details of which are provided at the above link, was that a student with an intellectual disability was being bullied in class, and the school failed to address it. He decided to record a day in class for his mother, after which he brought to his principal, Scott Milburn.  The principal heard the audio recording and required him to delete it, then called in the police.

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.

That a principal and police lieutenant demonstrate a dubious grasp of law and use pseudo-legal language to scare a parent and student is nothing unusual.  People generally accept as “common sense” that those in official positions of power must know what they’re talking about, because the reality that authority is placed in the hands of clueless buffoons is too hard to accept.  So the principal made stuff up, and the cop, who does so professionally, nods his head in agreement.

At that moment, it was certainly within Lt. Kurta’s ability to pull the principal aside and tell him, “hey, you scared the crap out of the kid, which should do the job.  You realize that this isn’t a crime of any sort, and so I’m just going to back away slowly, not embarrass you for bringing me here to waste my time, and you can go back to doing whatever it is you do in this big building. Have a nice day.”  But he didn’t.

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.”

There appears to be no thought whatsoever given to the notion that he not “charge” the student at all.  He was the hammer, so the student had to be a nail. Since the recording had been erased at the direction of Principal Milburn, there was no evidence of wiretapping, and Kurta was constrained to charge only disorderly conduct, as there had to be a charge.

At this point, one can be deeply saddened, yet totally credulous, at the pairing of principal and police officer, the direction of the two remaining inexplicably dedicated to the prosecution of the student who was bullied.  Why Milburn felt compelled to go down this road is an unknown.  Kurta makes somewhat more sense, as the principal sought police intervention to put an end to the student’s one-shot crime wave, and Kurta followed orders.  Disappointing from an adult with a seeming capacity for thought, but understandable.

But surely the next party to the trinity, the Judge, would exercise that minimal degree of thought necessary to realize that this was totally, completely, utterly absurd?  Not when she’s party to the trinity.

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)

Ignoring grammar, syntax, word usage and minimal comprehensibility. all of which deflect from the more important pieces of this judge’s point.

If the school sent you here, you deserve to be here.

If the school said you committed a crime, then you committed a crime.

I know the school, and if what you say about bullying was true, the school would have fixed it.

But the school sent you here, so you are guilty. Because I know the school can’t be wrong.

While this may not be a unique reaction, whether with school officials or police, it is decidedly flagrant.  Where a judge’s function is so fundamentally undermined from the outset, that an accuser is so virtuous that it cannot be wrong, the prejudice can neither be ignored nor excused. The die was cast by dint of the school having “brought [the student] in front of” the judge.

In a comment to the story, a former South Fayette student praises the virtues of Dean of Students Joseph Silhanek:

I am a graduate of South Fayette and I can give hours of praise for the kindness, knowledge, professionalism, and dedication of Mr. Silhanek.  I cannot imagine that he would ever tolerate a bully and be so blind to the actual problem.

This is a very common reaction, where someone who thinks well of a person involved in such absurdity will vouch for their virtue.  It happens here regularly, and is generally offered to contend that whatever happened couldn’t be the fault of the virtuous person, because they are, well, virtuous.

There are two reasons why this line of reasoning fails.  First, people are not so one-dimensional that they are horrible in every instance, to every person, under every circumstances.  The cop who beats a man one day may have saved a kitten in a tree the day before.

Second, when we like someone, had a good experience with someone, we attribute positive qualities to that person. And indeed, they may deserve the attribution. But that doesn’t mean they haven’t also engaged in conduct that is worthy of condemnation. Humans are complex, wonderful and foolish creatures.  And for whatever virtues the trinity may have displayed otherwise, they were unholy here.  And for that, they deserve condemnation.

H/T Carlos Miller, Photography is not a crime.

17 comments on “An Unholy Trinity

  1. Brett Middleton

    From the article:

    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.

    This sentence is a bit tortured, but it appears that the cop believes that the attorney told the principle to call the police. Furthermore, it also appears that the cop consulted with the DA before picking the charge to file. If true, then there are more players in the game than your trinity, and the hand-off from school to police to judge was encouraged at each step by those who should have more than a dubious grasp of the law.

    1. SHG Post author

      Perhaps, but I would think not. First, the attorney only answers the questions asked. Without knowing what either principal or the cop told his respective adviser, it’s impossible to know whether the advice was warranted. Second, regardless of what the attorney told either of them, they are responsible for their own decisions and judgment, or lack thereof. Had they exercised reasonable judgment, they never would have called their respective attorneys for advice in the first place.

  2. Michael

    As a non lawyer unhealthily addicted to lawyer blogs, I fear raising this issue as being a “child” ease dropping the conversation at the adult table and not getting the point. As non lawyers are want to do, I’m stuck on little issues and am probably missing the bigger point you are making.

    So a child, reportedly suffering from a learning disability, took it upon themselves to obtain evidence of bullying and as a result encountered the unholy trinity of school to conviction pipeline. I get and am disgusted by that fact.

    But to me, the point I can’t get over is the police and principal’s “dubious” understanding of the law, and the judge ignoring their statements concerning it. Surely there was no intent by this child to break wiretapping laws, and even so the child clearly thought he was collecting evidence of a crime (although bullying may not be a crime where the child resides) and wouldn’t fall under the wiretapping laws anyway. The entire situation falls under the to weird to be true category.

    Except it isn’t. While I would not expand your trilogy, one of the supporting factors has to be the continued use of zero-tolerance policies. School officials are removed from being required to think for themselves, police no longer have to think critically once the policy is “broken” and judges simply nod and say that’s the rule. Really, the only thing I’m surprised at in this post is that a zero-tolerance policy wasn’t cited. Your trinity may be the guides on the road from school to conviction, but usually zero-tolerance is the pavement.

    1. SHG Post author

      There is nothing to suggest that there was a zero tolerance policy involved here. When the justification for conduct is based on a zero tolerance policy, then it is an issue. When there is no basis to assume such a policy is in place or relevant, then it’s not.

  3. Alex Stalker

    I’m surprised you let the prosecutor off the hook for choosing to go after this kid. Then again, quintinity isn’t a word, so your title wouldn’t have been as snappy.

    1. SHG Post author

      The prosecutor got a free ride because there is no information on what, if any role, he/she played here. I can’t make stuff up.

      1. Frank Ney

        Prosecutor’s office is denying that anyone with authority to give legal advice was contacted by the arresting officer. Whether that is true or CYA I’ll leave to you.

  4. John Neff

    Wireless felony charge goes to misdemeanor disorderly conduct charge when it should have gone to no charge. My guess is local politics was a factor because the police had an ongoing relationship with the school officials.

    So they they though they had taught the kid a lesson. No doubt they did but it may not have been the lesson they wanted learned? I guess both parents and schools need lawyers. “America Needs Lawyers”

  5. SPO

    I raise this not as a call to violence, but to make a point. What has happened to this woman and her son is tyranny. The destruction of evidence (let’s not forget that) and the prosecution were appalling abuses and don’t even appear to be technically correct. When people resort to physical force to throw off the yokes of tyrants, we applaud. Yet here, these tyrants will simply get away with it.

    Why isn’t the judge’s law license at risk? Seems like the prosecutor’s should be too.

    I am a law and order guy–through and through.

    1. SHG Post author

      When you throw around words “tyranny,” it’s facile, unhelpful and diminishes any point you may have. You can do it if you want, but then I won’t post your comments.

  6. davefla

    As I read, I remembered Joel ‘Jdog’ Rosenberg saying, “do you own your home?” when relating a tale concerning an administrator who continued to question his daughter after she’d requested that her father and her counsel be present. My own children are not yet school age, but they will similarly attend knowing that authorities are not always our friends. I hope Ms. Love finds good counsel.

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