Former Nevada high school student's off-campus speech lawsuit can proceed, judge says

NEVADA — A judge ruled this month to let proceed a lawsuit from a former Nevada high school basketball player who was suspended and then forced to switch schools after posting a series of tweets off-campus.

District Judge James C. Mahan said in an order on July 3 that Juliano Rosario could sue Clark County School District for violation of his First Amendment rights.

Rosario filed a lawsuit in March against the district after he was punished for tweets he posted off-campus while at a local restaurant dining with family, according to court documents.

Rosario’s eight tweets included foul language and cited specific members of the school’s athletic department and coaching staff, according to Mahan’s order. The tweets, filtered in the order, said:

  • “Mr. Issacs is a b*tch too”

  • “I hope Coach brown gets f*ck*d in tha *ss by 10 black d*cks”

  • “Now I can tweet whatever I want and I hope one of y’all m*ther f*ck*rs snitch on me”

  • “F*ck coach browns b*tch *ass”

  • “Finally this b*tch *ss season is over”

  • “Aiight I’m done y’all can go snitch now like before”

  • “Oh yeah and Mr Dinkel’s square *ss”

  • “AND Ms. Evans b*tch ss boyfriend too He a p*ssy *ss n*gg tryna talk sh*t while walking away”

After posting the tweets, Rosario was “charged with ‘cyberbullying’ of a public official,” according to the lawsuit filed in March.

The school cited state definitions of bullying and cyberbullying as well as district policy, according to the lawsuit. The policy prohibits “verbal abuse, intimidation or cyber-bullying,” and says students may be punished for “antisocial student behavior…at any time on or off the school grounds when the conduct has a direct impact on the health, welfare, and safety of students or school employees.”

Rosario’s case went before an expulsion hearing panel, which recommended transferring him to a different high school, according to the lawsuit. Rosario was told he had to fill out a “FERPA Request” form if he wanted to know what his disciplinary records said, the lawsuit states. FERPA, the Family Educational Rights and Privacy Act, is a federal law protecting students’ education records.

In an interview, Rosario’s attorney, Roberta Ohlinger-Johnson said there’s a sense of “shock that anything like this went this far” and that an 18-year-old “could be bullying a grown man.”

At the heart of the case is determining how far school officials’ authority reaches, and whether they can punish Rosario for off-campus speech, she said.

“How far can the state go?” Ohlinger-Johnson said. “That’s really what we’re asking.”

In his lawsuit, Rosario cites a state law that “prohibits ‘bullying, cyber-bullying, harassment or intimidation on the premises of any public school, at an activity sponsored by a public school or on any school bus.’” The statute does not address off-campus speech.

In his order, issued in response to a motion to dismiss the case, Mahan concluded that the matter would have to be determined “on the merits” of the case.

However, he noted that, “The test that has emerged from the circuit courts when considering off-campus student speech, including online social networking speech, is that school officials have the authority to discipline students for off-campus speech that will foreseeably reach the campus and cause a substantial disruption.”

Mahan said that Rosario’s second tweet lacks First Amendment protection because it meets the criteria for obscenity but ultimately determined that Rosario may still sue for First Amendment violations, according to the order.

Ohlinger-Johnson said her client has not yet decided whether he will continue with litigation. Rosario graduated at the end of the school year.

Attorneys for Clark County School District could not be reached despite multiple attempts.

By Sara Tirrito, SPLC staff writer. Contact Tirrito by email or at (703) 807-1904 ext. 124.

Nevada, news, off-campus social-media use, social-media use