BUFFALO, N.Y. (WIVB) — A federal judge ruled Monday that a lawsuit filed by one Starpoint student and the parents of another must be heard in state supreme court in Niagara County and not federal court, according to court documents.

The confusion in this case continues, though, as there is still a criminal case as well as two civil cases. Earlier this year, two students on the Starpoint Varsity Wrestling team received a notice of emergency removal after allegations of sexual harassment were made against them.

One of those students and the parents of the other filed the suit in state court in February.
That civil case is happening while the students are also facing charges of harassment.

An attorney representing one of the students – who says he’s still waiting for a key piece of the puzzle from the school district.

“To this day, I do not know one way or the other if the alleged victim has specifically identified my client as his assailant or his bully or someone who’s harassed him. I still don’t know that,” Kevin Burke of Gross Shuman P.C. told News 4. “You would think that if the Sheriff’s department concluded that our clients were sexual assaulters or bullies that there would be a criminal charge coming. There wasn’t so you could draw whatever conclusion you want from that.”

Burke says the school district is required to complete a safety and risk assessment in order to remove students from the classroom. He says he doesn’t have that investigation.

“All the factors were considered as far as charging a more serious offense or a crime. With everything involved with the victim, it was determined that a lower charge would be more appropriate,” Niagara County Sheriff Michael Filicetti said.

Attorney Terry Connors is not affiliated with this case but says it is confusing because the school district is alleging sexual misconduct, while the sheriff’s office did not charge the students with any sexual crime.

“On the one hand Ang Dimillo and Kevin Burke want to force the judge to overturn an administrative decision by the school district. They have that right. It’s in Article 78,” Terry Connors said. “On the other hand you have the school district who says we’re following our own rules and regulations and we are going to do what we think is right, but we’re not going to tell you exactly what we’re going to do. We’re not going to tell you the basis for it or what the facts are and that’s what breeds the confusion.”

In the initial lawsuit fled on Feb. 28, the parents of the two wrestlers challenged the district’s “notice of emergency removal” of the two students after allegations of harassment within the team. The team’s season was canceled on Feb. 8 and the students were removed from school the next day.

The two students, both 17, were charged in March with one count of second-degree harassment. One was in the Town of Wheatfield and one was in the Town of Pendleton.

The district removed the case from the Niagara County Supreme Court and requested it be heard at the federal level. Judge Vilardo turned down that request.

Vilardo ruled that the district did not show that the federal court had jurisdiction over the issue. The district argued that Title IX regulations “explicitly preempt conflicting state laws,” but Vilardo said in response that the lawsuit is “not a substantial federal issue. And without a substantial federal issue, this Court lacks federal question jurisdiction.”

Vilardo did so while citing other examples of case law.

Now, the lawsuit will head back to the Niagara County Supreme Court and the case will be heard on April 25. The two accused students will return to court at the end of April to appear for the second degree harassment violation in the Town of Pendleton and Wheatfield.

You can see the full 15 page ruling below.