The Montana Supreme Court is scheduled to hear oral arguments Wednesday in Jon Krakauer v. State of Montana and Commissioner of Higher Education Clayton Christian.
Investigative journalist and bestselling author Krakauer is seeking records related to the decision to vacate former University of Montana Grizzlies quarterback Jordan Johnson's expulsion after multiple university proceedings found him guilty of rape.
In 2013, a jury acquitted Johnson of sexual intercourse without consent in Missoula County District Court.
The court has scheduled oral arguments at Montana State University in Bozeman. An introduction is slated to begin at 9:30 a.m. Wednesday in the Strand Union Building, Ballroom A.
The case has drawn attention in Montana because of its high-profile players and also because it involves the topic of campus rape. Last year, Krakauer released a booked called "Missoula: Rape and the Justice System in a College Town" discussing multiple incidents here including the Johnson case.
However, the case also touches on an issue with implications far beyond Montana, said UM journalism associate professor Lee Banville.
"What's important to understand about the national question is there's an ongoing and pretty heated debate between journalists and schools and institutions of higher learning over what information is public versus what is private," said Banville, who teaches media law.
Again and again, he said, universities and colleges are citing FERPA, the Family Educational Rights and Privacy Act, in denying access to information most journalists believe should be public record.
"So this case has been really a lightning rod of this confrontation because it really does highlight what both sides say is a very legitimate argument," Banville said.
In their brief, defendants argue they cannot release student records without jeopardizing their federal money, and they say the law prohibits the systematic disclosure of educational records without consent. The U.S. Department of Education has the authority to cut off federal funds — to the tune of $263 million a year — if it determines the Montana University System is violating FERPA.
"The MUS should not be put in the position of predicting what decisions might be made by the federal government," the state of Montana argues in its brief.
However, the plaintiff argues FERPA does not prohibit the release of records, and that in fact, it "specifically permits disclosure upon a valid state order." In 2014, Helena District Judge Kathy Seeley ordered the commissioner of higher education to allow Krakauer to inspect the documents he had requested.
The author argues the public already has access to many records related to the Johnson case given the public criminal trial and state and local media coverage. The only records that haven't been opened are the ones related to the commissioner's actions, so their release would not constitute a "systematic" disclosure.
"Indeed, the court correctly concluded that disclosure of individual records pursuant to court order made under Montana state open records requirements would not constitute a 'policy or practice' which would offend the terms under which the university accepts federal funds," the plaintiff said in his brief.
As a practical matter, the state of Montana's argument has problems, Banville said.
"In the history of FERPA, no university has ever been defunded," he said. "Now there have been rulings that universities have violated FERPA by doing a certain thing, but nobody has ever had the hammer fall on them in the way the (Montana University System) says it might if they lose this case."
Historically, the Montana Supreme Court has landed on the side of openness, Banville said.
In an amicus brief, the Student Press Law Center, Montana Newspaper Association, Reporters Committee for Freedom of the Press and Society of Professional Journalists note their members rely on open records laws "to scrutinize the conduct of public officials and the public's business."
"To that end, they have an ongoing stake in ensuring such laws are not abused to conceal public safety hazards or official misdeeds from scrutiny," the parties said.
The parties said one of the most frequent requests to the Student Press Law Center hotline is about sexual assaults on campus, "attesting to the enormous public interest in campus safety."
A series of stories in 2014 in a collaboration between the center and the Columbus Dispatch showed "the nationwide problem of deceptive and inaccurate information about campus sexual assaults, including the widespread misuse of FERPA to obstruct accountability."
In their brief, the parties also note the Montana Supreme Court will be among the first courts nationally to interpret FERPA following the U.S. Supreme Court's decision over the Affordable Care Act in the National Federation of Independent Business v. Sebelius in 2012.
In part of that ruling, justices said Congress' threat to withhold money from states for failing to expand Medicaid was coercive.
That decision "requires a deep re-examination of statutes that, like FERPA, are capable of misapplication as a federal 'gun to the head' ... compelling states to abide by federal standards under threat of financial ruin."
"As such, this court's decision will be influential not just in Montana but throughout the country," the brief said.