Supreme Court hearing on Krakauer’s records request holds national implications

MissoulaBy Martin Kidston/MISSOULA CURRENT

The state’s high court this week will hear oral arguments in the Montana University System’s appeal of a District Court decision granting author Jon Krakauer access to records from the 2012 disciplinary hearing of a former University of Montana athlete.

In doing so, the Montana Supreme Court will become one of the first in the nation to weigh the public’s right to information against a federal law intended to protect the identity and education records of students.

The nationally-watched case also places the topic of student safety and campus rape back into the public spotlight.

“This case involves the public’s right to know about matters of paramount public concern – whether colleges take seriously their duty to protect student safety, and whether high-ranking government officials are making decisions honestly and without favoritism,” Montana attorney David Wilson wrote in an amicus brief filed to the case last year.

Krakauer released “Missoula: Rape and the Justice System in a College Town” last year. While writing the book, he sought records he believes pertain to the 2012 UM disciplinary proceedings of Jordan Johnson, the former starting quarterback for the school’s 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.

In 2013, he was found not guilty of rape in Missoula County District Court.

“The reason we’re here is because a book author (Krakauer) has requested the education records of a particular student,” said Kevin McRae, a deputy commissioner with the Montana University System. “State law and federal law prohibits a federal institution from releasing student records without the student’s permission.”

In late 2014, Helena District Court Judge Kathy Seeley granted Krakauer’s motion to access the records, though she ordered portions of the records redacted. In her decision, Seeley said the merits of public disclosure outweighed the student’s individual rights.

After the ruling, the Montana University System sought advise from the U.S. Department of Education in reviewing Seeley’s order and filed an appeal before the state Supreme Court. The state maintains that releasing the records, even if redacted, would violate the Family Education Rights and Privacy Act.

Doing so would also jeopardize the $263 million in federal student grants the state receives each year, the Montana University System believes.

“There’s nobody that practically believes that redacting the student’s name would keep the student’s identity confidential,” McRae said. “We hope the court will provide clarity on what we should do. We want to get it right and have an answer to the question.”

The Department of Education and the U.S. Attorney’s Office have also joined the case. In an amicus brief filed late last year, the parties argue that disciplinary records constitute education records, which are protected by FERPA.

They also believe that redacting such records are insufficient in protecting a student’s identity when a university reasonably believes that the requester – Krakauer in this case – knows the identity of the student.

“If this (Supreme) Court determines that Montana open records laws require disclosure of education records protected by FERPA – thus presenting a conflict between state and federal law – then FERPA controls, because the Montana University System has received federal funds,” the brief states.

Krakauer
Author Jon Krakauer, Commissioner of Higher Education Clayton Christian, and former University of Montana quarterback Jordan Johnson.

But a separate brief filed by Helena attorney David Wilson on behalf of the Student Press Law Center, the Montana Newspaper Association, Reporters Committee for Freedom of the Press and the Society of Professional Journalists, claims that the state is overusing FERPA to block reasonable requests for public information.

Wilson argues that Johnson’s privacy interests in the case are minimal. He also says that Krakauer’s records request likely reflect why Christian overturned the disciplinary sanctions placed upon Johnson in 2012.

“Whether colleges respond effectively to complaints of sexual assault is one of the highest-profile issues of public concern facing America today,” Wilson’s brief states. “Access to records makes a decisive difference in whether the public learns of the shortcomings of government officials and programs in time to take action.”

McRae said the commissioner’s office is eager for the Montana Supreme Court to decide the issue. If the court were to rule against the Montana University System, he said, it would be up to the U.S. Department of Education to appeal to the U.S. Supreme Court.

“To me, the Montana University System would not have any standing in that,” McRae said. “The Department of Education has filed an amicus brief in the case. We don’t know what they’d do. We’re in the middle on this and we want to get it right.”