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Mom goes to federal court to clear her 3rd-grader's record

Updated: Wednesday, October 2 2013, 11:18 AM CDT
Reported by: Kirk Clyatt

HERSHEY -- A Derry Township third-grade boy's family continues to fight to get a weapons violation off his permanent record. A novelty pen that cost less than $5 is now a federal court case.

The story began in January, when the then-second grade boy was suspended from school on a weapons violation for bringing the pen on his school bus. 

CBS 21 first brought you this story May 15 and the legal tug-of-war between young Gabriel's parents and the Derry Township Schools has now escalated to a whole new level.

It is now a federal lawsuit, which challenges the school's weapons policy on Consitutional grounds.

The goal for Kathleen Bertoldi is the same as it was last May, "to get the weapons violations removed from my son's record."

She is worried about the impact on her son's future. 

"Yes, it will be on his record until 12th grade. Twelfth grade says 'weapons violator,' it doesn't say that it was a novelty item, it says that he brought a weapon," she added.

Derry Township police confiscated the actual pen.

"He bought a gag gift pen, that if you push on the top it could shock you. Basically the superintendent wanted to make it sound like it was stun gun," she said.

Last spring, it appeared that Gabriel may be heading for parochial school, but this year he is still at Hershey Elementary, his mother telling CBS 21, "the superintendent resigned, the assistant to the superintendent resigned and those are the two that I was getting nowhere with."

So far, no movement with the new administration.

"The school board hasn't done anything, they just have an acting superintendent, no one has contacted me, they think it is resolved, but it's not. I have a lot of community support," she said.

Tuesday night, CBS 21 caught up with Gabe and his mother at wrestling practice. We learned our story last spring was one of the catalysts for this federal case.

"The lawyer contacted me because of you," she said.

Gabriel's Philadelphia-area based attorney, Aaron Martin, told CBS 21 the key goals of the litigation is to have the third-grader's record expunged of the weapons violation and to have the policy he was charged under ruled unconstitutional under the doctrine of vagueness -- rules so vague that a reasonable person must guess at its meaning and/or rules that lead to arbitrary enforcement.

In Kathleen Bertoldi's view, "anything that causes bodily injury can be a weapon, which is anything."

While the family is not looking for monetary damages from the school district, they are looking to recover their legal fees. 

"So far like $2,500, but that is just step one," she said.

CBS 21 reached out to the school district Tuesday to find out if it had been served with the litigation, but our calls were not returned. Last spring, the district told us it had abandoned "zero tolerance" and now have a discretionary approach to student discipline.Mom goes to federal court to clear her 3rd-grader's record

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