The Montana State Supreme Court has ordered a lower court to review the disciplinary records related to a former University of Montana student and determine which, if any, can be released to author Jon Krakauer.

In an opinion released Monday, the court both affirmed in part and reversed in part a previous order by Lewis and Clark County District Court that all the records be released. The Montana Supreme Court said that while the District Court had correctly ruled Krakauer, who lives in Colorado, could make the request under Montana’s right to know law, the student’s education records have a heightened level of privacy protection that the lower court needed to balance with that right.

The investigative journalist made a records request after claiming the Commissioner of Higher Education vacated campus decisions to expel former University of Montana Grizzlies quarterback Jordan Johnson after UM proceedings found he raped a fellow student. Johnson was acquitted of a criminal charge of sexual intercourse without consent after a 2013 trial in Missoula County District Court.

In February, the Montana University System (MUS) reached a settlement with Johnson, agreeing to pay him $245,000 to resolve claims that UM’s investigation of the rape accusation against him was mishandled.

Krakauer's 2015 book, "Missoula: Rape and the Justice System in a College Town," dealt in part with the case. The Montana Supreme Court heard oral arguments in the Krakauer case in April.

In remanding the case to District Court Judge Kathy Seeley, the high court ordered it to conduct a confidential review of the records before deciding which, if any, should be released.

"I feel pretty good about it. This outcome is almost exactly what Mike Meloy predicted would happen, based on statements made by the justices at the hearing last April,” Krakauer wrote in an email Monday. Meloy, of Helena, is his attorney.

According to records from a 2012 federal court case in which an unnamed student sought to stop UM’s disciplinary proceedings against him, the school’s former Dean of Students Charles Couture found the student had raped a female student at an off-campus apartment.

Couture’s recommendation for expulsion was upheld by the UM University Court, comprising faculty and students, as well as President Royce Engstrom. But the recommendation was appealed to Commissioner of Higher Education Clayton Christian. The federal court records do not show what happened after the final appeal.

Krakauer, under the assumption the student in the case is Johnson, requested documents about Christian’s decision, believing that since Johnson continued to attend UM and play on the football team, his expulsion must have been overturned by the commissioner. MUS denied the request and would not say if such records even existed.

In 2014, Krakauer filed a lawsuit seeking the documents.

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Among the issues raised in a subsequent appeal of a District Court order to release the documents, MUS claimed Krakauer could not ask for such records because he is not a citizen of Montana. In its opinion Monday, written by Justice Jim Rice, the Montana Supreme Court said he is allowed to ask for such records under Montana’s right to know law.

The university system argued that releasing personally identifying records would violate the federal Family Education Rights and Privacy Act (FERPA) and thus result in the loss of federal funds. Krakauer had responded that FERPA “prohibits nothing” about the release of records; it only ties funding to complying with privacy regulations. The Supreme Court sided with Christian’s office.

“FERPA is more than mere words in the wind,” Rice wrote. “Whether or not FERPA explicitly prohibits state action, the financial risk it imposes upon MUS for violation of the statue is a real one.”

He added that although the records could be redacted to remove a student’s name, because Krakauer had specifically requested documents pertaining to Johnson, redaction would largely be futile to protect the person’s identity.

Chief Justice Mike McGrath, along with Justices Mike Wheat, Beth Baker, James Shea, and District Court Judge John Brown, sitting for Justice Patricia Cotter, concurred with Rice's opinion.

In a dissent, Justice Laurie McKinnon wrote Christian has said on multiple occasions that a FERPA exception that could release the final disciplinary results when a violation was found does not apply in the case Krakauer is interested in.

“Indeed, it is apparent that the reason Krakauer is interested in obtaining all of the student's records is that the Commissioner found no violation,” she wrote.

She also challenged the high court’s opinion that the student whose records Krakauer seeks has a diminished expectation of privacy because of the public exposure the case received, in which all matters apart from the action taken by Christian were part of public record.

“The occurrence of a criminal proceeding, which must be public, does not serve to strip a student’s privacy interests from his confidential education files,” she wrote. “The laws protecting a student’s education records are neither limited nor lessened because a student has been charged with a criminal offense or is being scrutinized by the media.”

Christian was not available for comment Monday, but deputy commissioner for communications Kevin McRae said the confidential, or in camera, review the Supreme Court ordered is something MUS wanted to see done all along, and that Monday’s decision upheld its choice not to simply hand the documents over to “an author who wants to sell them.”

“We’re very pleased with the Supreme Court’s decision because it confirms that the university system has managed this right,” he said. “The high court at least agreed with us that the balance of student’s privacy rights and Mr. Krakauer’s demands must be more thoughtful than Mr. Krakauer thought.”

McRae said despite the lower court’s order to release the documents, MUS had sought the guidance of a “court of competent jurisdiction” like the Montana Supreme Court to weigh in on the matter. Until the District Court issues a new ruling after reviewing the documents, it’s too early to say how MUS will respond.

“If we believe it’s an order we can comply with we will comply with it,” he said.

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