By Martin Kidston/MISSOULA CURRENT
The Montana Supreme Court on Wednesday heard oral arguments in a case that pits the public’s right to know against a student’s right to privacy, and whether a lower court erred in granting author Jon Krakauer access to the student’s disciplinary records.
Krakauer is seeking records pertaining to the 2012 disciplinary proceedings of Jordan Johnson, the former starting quarterback for the University of Montana football team.
The proceedings found Johnson guilty of rape and ordered him expelled from school. Commissioner of Higher Education Clayton Christian overturned the decision, however, and Johnson was never expelled. He was later found not guilty in Missoula District Court.
In late 2014, Helena District Court Judge Kathy Seeley granted Krakauer’s motion to access the records, saying the merits of public disclosure outweighed Johnson’s individual right to privacy. Fearing repercussion from the U.S. Department of Education, the Montana University System appealed the ruling to the state’s high court, which heard the issue Wednesday.
“(Judge Seeley) didn’t take into consideration fully what our Montana student privacy statute says,” argued Viv Hammill, an attorney representing the Montana University System. “She didn’t take fully into consideration the Family Education Rights and Privacy Act.”
The act, known as FERPA, was enacted by Congress in 1974 to protect the privacy of student education records. The law applies to all schools that receive federal funding from the Department of Education.
Hammill said state law also charges the Montana University System to keep confidential all education records of past and present students.
“The education records in Mr. Krakauer’s vast (records) request contains personal information, not only about the named student (Johnson), but also about the complainant, student witnesses and student panel holders,” Hammill said. “All those students, including the named student, have a reasonable expectation of privacy in those records.”
While the justices agreed that state and federal law protect a student’s privacy, the law also protects the public’s right to know. That right to know lies at the heart of Krakauer’s case, in particular, what prompted Christian to overturn the university’s findings that Johnson was guilty of rape.
The justices asked Hamill how she interpreted the balance between privacy and access to public information.
“In a right-to-know case, it’s a balance test between whether that right to know harms the student’s right to privacy,” Hammill said. “It’s our position that the policy reasons behind those student privacy statutes weigh in favor of never opening those disciplinary records.”
In recent years, the university system has worked to improve the reporting of campus crimes, in particular sexual assault. Hammill said the guarantee of privacy provides a secure environment in which students can report a crime or testify during a disciplinary hearing.
“We keep those processes closed because we want students and student witnesses to be able to testify outside the public spotlight without peer pressure before or after a hearing,” Hammill said. “We want to keep student confidentiality in the student conduct process because we want students to come forward and seek help.”
Mike Meloy, representing Krakauer, argued that the public’s right to know outweighed Johnson’s expectation of privacy. He said Seeley applied the balance test appropriately and reached the proper decision when she ordered the university system to release Johnson’s records.
Meloy added that the public is entitled to know why Christian overturned the findings of the university’s disciplinary panel, and how the school responded as a consequence.
How campuses respond to allegations of rape is of public interest, he said.
“We don’t care about the behavior of Jordan Johnson, we care about the behavior of the commissioner of higher education and the dean of students who reinstated him,” Meloy argued. “Not only do we deserve to know that under constitutional guarantees, but the public is entitled to know that in this particular case.”
Justices quizzed Meloy on the right to privacy, particularly the right of other students named in the records sought by Krakauer, including the woman who filed the complaint against Johnson. Meloy agreed the students’ names should be redacted if the records were to be released.
It’s the actions of the state and university officials his client is after, he said.
“We’re talking about a decision of the university court to expel him (Johnson), a decision of the president of UM to expel him, and then the commissioner gets it and sends it back, but we don’t know why,” Meloy said. “Those documents will reflect that.”
Meloy said the state’s high court has sided with the public’s right to know in similar cases, though justices acknowledged that federal laws have since strengthened student privacy rights.
Justices also asked if Johnson was entitled to a lesser degree of privacy given his status as collegiate athlete. Meloy said Johnson’s case was highly publicized, both locally and nationally, and the walls of privacy had already been lowered.
“There isn’t any privacy there to protect,” Meloy said. “When a student athlete signs that code of conduct, they acknowledge that because they participate in intercollegiate sports, they’re subjected to pretty intense public scrutiny. They have to expect that’s going to happen, and they have to acknowledge they’re losing some rights when they become a student athlete because of that scrutiny.”
Hammill argued otherwise.
“We’re talking about students who attend our public universities to get an education,” Hammill said. “They’re young people beginning their adult lives, and releasing their records may have a longstanding impact on their future success. Not releasing documents is especially important in cases where there has been no final finding that a serious violation has occurred.”
The Montana Supreme Court will issue a ruling in the next six to eight months.