MISSOULA -- University of Montana President Royce Engstrom agreed that a student accused of rape in 2012 – at the same time, and with identical facts, as the case against former Grizzlies quarterback Jordan Johnson – should be expelled from UM, according to a court document filed Tuesday.
"On June 6th, 2012, President Engstrom completed his review of the University Court proceedings and determined ... that the student violated the Student Conduct Code by committing sexual intercourse without consent and that he should be expelled from the University," reads the brief filed with the Montana Supreme Court.
Helena attorney Mike Meloy filed the brief on behalf of plaintiff Jon Krakauer, a best-selling author and investigative journalist whose book about rapes at UM and in Missoula comes out in April.
Krakauer is suing the state of Montana and its Commissioner of Higher Education to force the release of records related to the disciplinary hearing involving Johnson, whose final season at UM was last year.
In the filing, Krakauer outlines what is known about the disciplinary proceedings, including Engstrom's determination that Johnson should be expelled. Johnson appeals to the Commissioner of Higher Education, and the public record abruptly ends.
The brief alleges the commissioner likely used an inappropriate legal standard in his decision. It also disputes the commissioner's contention that the federal Family Education Rights and Privacy Act prohibits release of further information about the case.
"Not only is the entire incident already a matter of public knowledge, but society has an interest in knowing how a publicly funded university deals with a star quarterback accused of rape, especially when it appears the commissioner reversed the University Court's finding that he committed an act of sexual intercourse without consent," the court document said.
Johnson was never expelled from UM, and continued attending classes while his criminal case was heard in Missoula County District Court.
In March 2013, Johnson was found not guilty of sexual intercourse without consent, following a jury trial.
In the brief filed Tuesday, Krakauer alleges the commissioner likely disregarded a mandate from the U.S. Department of Education to use a legal standard that meets the requirements of Title IX when investigating sexual violence on campus.
It says the agency's Office of Civil Rights issued the dictate to UM in April 2011.
"The 'preponderance of the evidence' standard was dictated ... as a way to help stem the tide of campus sexual assaults occurring across the country," the brief says.
According to Krakauer, both the University Court and the president used the appropriate standard in "determining that a rape had occurred, and mandated the student's expulsion." The student then appealed the decision to the Commissioner of Higher Education.
"It is likely that this decision was reversed by applying a 'clear and convincing' standard forbidden by the (Office of Civil Rights) letter," the court brief said.
The "clear and convincing" standard sets the bar higher than the "preponderance" standard. It sets the bar lower than the standard used in a criminal case of "beyond a reasonable doubt."
According to Krakauer's brief, the series of events played out like this:
UM Dean of Students Charles Couture concluded that a male student raped another student at her apartment in 2012.
The student was advised the sanction was expulsion. He could accept the sanction or appeal to the vice president of student affairs and have a hearing before the University Court.
The student requested a hearing, held May 10, 2012. "The University Court deliberated and concluded ... that the student violated the Student Conduct Code by committing the act of sexual intercourse without consent and that he be disciplined by expulsion from the University."
The decision went to President Engstrom for his review on May 23, 2012. Engstrom agreed with the University Court's conclusion.
On June 13, 2012, the student's attorney appealed the president's decision to the Commissioner of Higher Education. "Under the governance ... of the Board of Regents, the commissioner 'may not substitute his or her judgement for the substantive decision made by the president unless the president's decision was arbitrary and capricious, clearly erroneous based on the facts in the record, or violated some legally protected right of the appellant.' "
On June 19, 2012, an attorney for the commissioner acknowledged the appeal and set a schedule for the matter to be submitted on or before the middle of August. "She advised the parties that the Commissioner would review the submissions and would 'issue a written decision.' Nothing more is publicly known about the subsequent determinations made by the Commissioner or the University as to the student's expulsion from school."
On Tuesday, Engstrom declined to discuss any action his office took subsequently.
Engstrom had fired UM's football coach and athletic director on March 29, 2012. According to the court brief, the first publicity around "Johnson's illicit behavior occurred on March 19, 2012."
Other allegations of mishandled sexual assaults had surfaced earlier.
In the brief, Krakauer points to UM's own student code of conduct as justification for releasing the complete records. It quotes a provision regarding confidentiality:
"The University will also disclose to anyone the final results of a disciplinary proceeding if it determines that the student-athlete is an alleged perpetrator of a crime of violence ... and the student-athlete has committed a violation of the Student Conduct Code."
The court brief notes Johnson would have signed onto the disclosure policy: "Johnson, as a UM athlete, agreed to abide by the Student Athlete Conduct Code, which makes clear to all student athletes that the University will disclose 'to anyone the final results of a disciplinary proceeding' of a student-athlete alleged to have committed a rape or similar violence offense."
The brief also notes the Family Education Rights and Privacy Act doesn't clash with Montana's "open records' jurisprudence," and in fact, the federal law and state open records law "may be compatible." It also argues federal funding is not at stake for individual record releases, as the state has contended, but rather for "systematic disclosures."
U.S. District Court Judge Dana Christensen earlier ruled in favor of Krakauer, and called on the Commissioner of Higher Education to release the missing records. The state appealed to the Supreme Court.
In the brief filed Tuesday, Krakauer concurs that the commissioner has no justification to keep secret its handling of disciplined students.
"The public is entitled to know why the Commissioner, who does hold a position of public trust, rejected the findings of the University Court and the President of the University, somehow resulting in Johnson's reinstatement," read the filing. "The Commissioner's decision and rationale must be made public."