Montana Supreme Court rules against Jon Krakauer in FERPA open records lawsuit

MONTANA — The Montana Supreme Court has rejected the public release of disciplinary records related to a former University of Montana quarterback who had been accused of rape, ruling that the records of college students are entitled to stringent privacy protection.

The Sept. 19 decision limits the public’s ability to find out how colleges and universities handle the appeals of sexual assault cases, despite a previous district court ruling that deemed the records releasable under Montana’s right to know law.

The case involves a request by noted travel author Jon Krakauer, whose latest book chronicles the handling of sexual-assault complaints at the University of Montana.

In a statement, Frank LoMonte, executive director of the SPLC, wrote, “The consequences of this ruling will make college campuses significantly more hazardous, particularly for women. The harm that comes to future students will be the fault of the U.S. Department of Education, which while giving empty lip service to campus safety has in fact made campuses affirmatively less safe through its FERPA extremism.”

While the justices did not conclusively determine the fate of all of the records Krakauer requested, the ruling makes it more challenging to obtain such records, accepting the word of the state of Montana and the U.S. Department of Education that the documents qualify as “education records” protected by the Family Educational Rights and Privacy Act.

Kevin McRae, deputy commissioner of higher education for the University of Montana, said the commissioner’s office was pleased with the ruling and will comply with any legal orders moving forward.

“We look forward to the district court’s review that will now take place — it’s a review we’ve wanted all along,” he said. “What we’re looking for is guidance — we never had a desire to litigate.”

In 2014, Krakauer, author of “Into the Wild” and “Under the Banner of Heaven,” filed a request seeking the records of Montana quarterback Jordan Johnson for his 2015 book, “Missoula: Rape and the Justice System in a College Town,” which focused on Johnson’s case and the issue of campus sexual assault in a broader context.

Johnson was brought up on disciplinary charges after a fellow student accused him of sexual assault, but a campus disciplinary board’s decision to expel was overturned by the state Higher Education Commissioner, Clayton Christian, for unexplained reasons. Johnson was allowed to remain on the football team and was later acquitted in a criminal trial in Missoula County District Court in 2013.

The state denied Krakauer’s request to review Christian’s files under FERPA, prompting him to file suit under the Montana open records act. The Helena District Court ruled in Krakauer’s favor, ordering the University of Montana to turn over any records involving a football player accused of raping a woman in 2012 — with redactions to the player’s name and identifiers.

Under Montana’s constitution, records requesters have a right to access public documents except when “the demand of individual privacy clearly exceeds the merits of public disclosure.” The district court ruled initially in favor of Krakauer, finding that the documents with redacted names and identifiable information were not protected by FERPA, nor did Christian have the right to withhold or deny the existence of such records.

In its decision, the Montana Supreme Court ordered the district court to perform a confidential review of Johnson’s disciplinary records to determine which — if any — can be released publicly. With the decision, Johnson will be able to argue against the release of his disciplinary records to the public while Krakauer will have the ability to argue that the public has a legitimate interest in the contents of the records.

“The court's decision strikes a devastating blow for the transparency, accountability and safety of college campuses,” LoMonte said. “The justices simply failed to grapple at all with the larger constitutional issues raised by construing FERPA as a financial death penalty for granting public records requests, which is totally irreconcilable with the history and purpose of the law.”

Under Montana state law, FERPA-protected documents may only be released after a student accused of a crime like sexual assault has been tried and found guilty. And because Johnson was not convicted, the university argues, Krakauer is not entitled to the documents.

“The ruling expressly said we could have not complied with Mr. Krakauer’s request or with the prior district court order without violating the law — specifically FERPA,” McRae said. “It’s impossible to correct a privacy violation, but it is possible to prevent one. If it would not be a violation, any and all records would be released.”

LoMonte called the ruling “outrageous,” asserting that it must be reversed by swift congressional action.

“Congress can no longer turn a blind eye to the abuse of FERPA as a 'get out of accountability free card' for secretive colleges. It is long past time to scrap this disastrously broken statute and replace it with one that protects legitimately confidential education records while respecting the public's interest in holding schools and colleges accountable,” he said

Open-government groups, including the Student Press Law Center, have supported Krakauer in hopes that the case may cement the legal principle that FERPA effectively penalizes only a policy or practice which leaves students’ records unsecured — not a decision to fulfill an open-records request for newsworthy documents of public concern.

In November 2015, the SPLC, along with a coalition of press-rights groups, filed a brief with attorney volunteer David “Kim” Wilson of the Montana legal firm Morrison, Sherwood, Wilson & Deola, PLLP supporting Krakauer's case with the Montana Supreme Court. The brief -- filed on behalf of the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and the Montana Newspaper Association -- supported the lower court ruling that Krakauer was entitled to the files he sought from the university.

In the brief, the SPLC explains that granting a journalist’s request for public records cannot result in a punishable FERPA violation, as the state of Montana asserts. The FERPA statute and regulations do not reference state public-records laws and Congress cannot override state law without explicitly conveying its intent to do so.

Further, the SPLC brief argued, the only penalty provided under FERPA is total disqualification of all federal education funding — which, in the case of the Montana university system, would result in a loss of $263 million per year. Congress can only apply FERPA’s “financial death penalty” to an institution for a systematic disregard for student privacy that justifies totally discontinuing federal funding, the brief stated.

Mike Meloy, Krakauer’s attorney, said in an email that the difficult part of the case was proving that the demands of individual privacy did not clearly exceed the merits of public disclosure.

“FERPA forbids a school from disclosing documents if the requestor knows the identity of the student…even in redacted form,” Meloy said. “If the requestor does not know the identity of the student, creating an opportunity for access to records in redacted form, the balancing test must be performed without any input from the requestor.”

According to Meloy, the only participants in the case with any knowledge of whether the privacy demands do exceed the merits of disclosure will be the trial court and the custodian of the documents. But, he said, if a documents’ requester has named the student, then the documents’ custodian can argue that the records cannot be disclosed, even with redactions.

The case now resides in the hands of the court, but Meloy is optimistic the decision will favor disclosure, as it did initially.

SPLC staff writer Mary Tyler March can be reached by email or (202) 478-1926.

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campus sexual assault, FERPA, FOIA, Jon Krakauer, Missoula, news, open-records, recent-news, University of Montana