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High court hears arguments in case involving embarrassing yearbook photo

Updated September 28, 2023 - 2:19 pm

The Nevada Court of Appeals heard oral arguments Tuesday in a case involving a high school yearbook photo that embarrassed the student it depicted.

Justin Smith, the student in the photo, filed a complaint in April 2019 in Clark County District Court alleging negligence by the Clark County School District.

A judge ruled in January 2022 that Smith should receive a damage award of $6,000. The school district filed a notice of appeal the following month with the Nevada Supreme Court.

Oral arguments lasted about 30 minutes Tuesday before three judges, who are taking the matter under advisement and will issue a written decision.

The school district said Tuesday it doesn’t comment on pending litigation.

Attorney Bradley Schrager was appointed by the Supreme Court through its pro bono program to represent Smith.

“The district obviously should have known that this would be demeaning and humiliating to Justin,” Schrager said after the oral arguments, noting the trial court said as much.

Six years later, it’s a shame to have to go through an appeal, he said.

The case is about a 2017 Durango High School yearbook photo showing Smith running track in a school athletic uniform. He attended Beacon Academy of Nevada, a public charter school, but was on Durango’s track team.

The 2019 complaint stated the picture was posted and circulated on social media sites, and that Smith was bullied and sought counseling as a result.

“The problem with the photo is that there appears to be a relatively lengthy protuberance, coming directly out of the middle of the Plaintiff’s crotch area, that cannot be ignored,” District Judge Pro Tempore Thomas Tanksley wrote in a January 2022 finding of facts document.

It had the appearance of a penis, but was actually “a fold” in the shorts or “possibly something in the background,” according to court documents.

“However, the inclusion of this particular photo in the book was inappropriate because it depicts a high school student in an obscene, degrading and even raunchy way, to the eyes of a typical reader of the yearbook, even if that was not intended,” according to the document.

The court found “no proof of intentional malice” on the part of those creating, reviewing or approving the yearbook, but noted that Smith suffered “embarrassment and humiliation.”

Tanksley wrote that he couldn’t order an apology from the school district, but that it seems to be called for.

Smith’s first attorneys, who withdrew after losing the case before an arbitrator, should have seen the case through to the end “with more imagination and flexibility,” the judge wrote.

Oral arguments

During oral arguments Tuesday, Melissa Alessi — assistant general counsel for the school district — argued that a trial judge didn’t apply the correct negligence standard and noted it’s a reversible error.

She said the judge’s decision in finding the district negligent in publishing an innocuous picture caused irreparable harm to the district.

There’s nothing obscene about the picture, Alessi said in response to a question from a justice.

“It’s not a pornographic picture,” she said, and doesn’t show male genitalia.

Schrager said Smith represented himself during a short trial. He said it’s clear from the record that Smith suffered “intense humiliation” as a result of the yearbook photo.

During her rebuttal argument, Alessi said Smith waited nearly a month from when the yearbook was published until he said anything and that a school district investigation found a claim of bullying to be unsubstantiated.

A previous version of this story incorrectly identified the appellate court that heard oral arguments in the case.

Contact Julie Wootton-Greener at jgreener@reviewjournal.com or 702-387-2921. Follow @julieswootton on X.

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