BOZEMAN — Wednesday, a Montana Supreme Court Justice asked a lawyer for the Commissioner of Higher Education to contemplate losing the case that bestselling author Jon Krakauer filed against the university system and State of Montana.
The investigative journalist made a records request to learn the reason the commissioner’s office vacated campus decisions to expel former University of Montana Grizzlies quarterback Jordan Johnson after UM proceedings found him guilty of rape.
In hearing arguments, Justice Mike Wheat asked the commissioner's lawyer, Vivian Hammill, what she would recommend if the state high court rejected the commissioner's argument that the records should be shielded to protect student privacy.
In that instance, Hammill said she would recommend the judge privately review the file in question for a document outlining the final decision and then redact as necessary.
In a packed ballroom Wednesday at Montana State University, the Montana Supreme Court heard arguments in Krakauer v. State of Montana and Commissioner Clay Christian. Justices grilled the lawyers on how federal law played into the case, whether a plaintiff who isn’t a Montana citizen could hold the state accountable, and how student privacy should be weighed against the public's right to know.
In 2014, Helena District Judge Kathy Seeley ordered the commissioner to allow Krakauer to inspect the records he requested, but the commissioner’s office appealed the decision.
At the hearing, lawyer Hammill requested a complete reversal of the district court’s order. She said state and federal laws protect student privacy, and the Montana Legislature prohibits the disclosure of student records.
“Athletes don’t lose privacy rights by enrolling in the university system,” Hammill said.
However, lawyer Mike Meloy, representing Krakauer, asked the justices to uphold UM’s motto, “Lux et Veritas,” and shed light and truth on the case by revealing the reason the commissioner’s office made its decision.
“I think the public deserves to know why he (Johnson) was reinstated,” Meloy said.
A jury in Missoula County District Court acquitted Johnson in 2013 of sexual intercourse without consent.
At one point, Chief Justice Mike McGrath said the case was frustrating to the court because the documents at issue weren’t in the record, so justices were in the dark as to the contents.
“We don’t know what we’re talking about,” McGrath said of the records in question.
In her argument, Hammill said the Montana University System is obligated by state and federal laws to protect student privacy, and the standards are stringent.
If a family member posts a sibling's suspension letter on Facebook, for instance, the document is clearly available to the public on that site, she said. But its presence doesn’t change the university’s responsibility.
“That doesn’t mean that we can now give out that suspension letter to any member of the public who asks for it,” Hammill said.
However, Justice Beth Baker said the Family Educational Rights and Privacy Act allows for exceptions, including for court orders. She wanted to know if Hammill acknowledged the courts applied a balancing test in those cases to determine the need for requested documents, and she asked if the test would apply in this instance.
“Would you advocate for such a balancing test in a case like this?” Baker said.
Hammill said she would not, and she asked the court to consider the subpoena process instead. In this case, she said, obeying the order of Judge Seeley would mean ignoring the express provisions of FERPA.
Here, she said, a subpoena was never issued, which would have provided for notice to the student. Around the country, courts consider harm to students in subpoenas, and she said in general student privacy laws require balancing in favor of their protection.
But the justices wanted to know Hammill’s position on how much protection the federal act affords student records. If a student is involved at all, does FERPA provide a blanket protection against all documents?
Policy reasons behind privacy statutes weigh in favor of never opening disciplinary records outside exceptions in federal and state law, Hammill said. She said the rationale is that students should be able to testify in university proceedings without peer pressure or fear of the public spotlight, and disclosure would create a chilling effect.
Justice James Shea, though, asked if redacting names would solve the problem.
In this case, no, Hammill said. She said Krakauer's "vast" request for an entire file of documents includes information about many people beyond the named party, such as student witnesses and university panel members.
Justice Laurie McKinnon questioned how the disclosure would be a violation of FERPA when the law makes exceptions for court orders and also prevents only systematic disclosures. In withholding records, she said, the commissioner's office actually would be imposing a new policy of not disclosing information rather than adhering to existing policy.
Hammill agreed a court order would give the commissioner's office "some cover." However, she did not see an overriding positive purpose in opening the files.
In her closing statement, she said the court's decision would help the university system handle future requests for student records.
"We need your guidance about what Montana student privacy statutes and student privacy laws mean as well as FERPA with respect to this particular situation and going forward with future records requests," Hammill said.
When Meloy took the podium, justices quizzed him on what exactly he wanted from the files and also why he opposed an "in camera review" by the district court judge. "In camera" is Latin for "in chambers" and refers to a hearing held in private in which the public is excluded from the courtroom.
Meloy said he generally doesn't like those private reviews by a judge because the requester doesn't know the contents being scrutinized so can't make arguments about them. However, he said he understands such reviews are part of the process.
He argued the people have a right to know the way the commissioner made his decision. In other words, why was Johnson allowed back at UM?
In his argument, Meloy said the case called for weighing state statutes protecting both privacy and the public right to know, ones developed in Montana since 1972, not weighing FERPA. He said Johnson was possibly the most public figure in Montana in the years he was a star quarterback and when the media covered the rape case.
However, Meloy also said Johnson's behavior wasn't at issue in this case.
"We care about the behavior of the commissioner of higher education and the dean of students who reinstated him," Meloy said.
Wheat asked Meloy if he only wanted to know the information delivered to the commissioner and what he did with it afterward.
Meloy said he also wanted to know what the University of Montana did as a result. If it imposed a different standard of review, it's possible it made decisions in violation of Title IX, he said.
In questioning Meloy, McKinnon wanted to know if he would impose extra protections for student records given the provisions of FERPA, and also if students had more privacy than public officials.
Meloy said he did not believe FERPA added anything to the process because it addressed university policies and patterns of disclosures in general, and the law could be "harmonized" with state statutes.
He doesn't believe students have more privacy expectations than taxpayers have, and he said the constitution doesn't differentiate between them. In this particular case, Meloy said, the details about Johnson's trouble at UM were broadcast across the nation, and as an athlete the football player agreed to subject himself to public scrutiny.
McKinnon also wanted to know if Krakauer had the right to the information given he is not a citizen of Montana, for whom the constitution was written.
Meloy said people out of state have an interest in Montana, and he also said he was surprised the commissioner's office raised the argument. He did not believe it could simultaneously argue it should protect the privacy of Johnson, who is from Oregon, given Montana law, and at the same time say it shouldn't grant records to Krakauer, of Colorado.
In this case, he said, Krakauer is just the messenger in a case that has implications far beyond Montana.
"The interest in the way the university deals with rape on campus is not just a local issue," Meloy said.
The argument about whether Krakauer should receive the information attempts to distinguish between a "person" and "citizen,” but Justice Shea asked if the test was "whether Mr. Krakauer has a pulse."
In the introduction to the case, UM associate law professor Anthony Johnstone said the justices will likely decide the case in two to eight months. He said they do not give hints about their rulings in advance, but he said their questions to the lawyers could be considered clues.
At least a couple times Wednesday, Wheat told Hammill she wasn't answering his questions. At one point, she requested to address one of Shea's questions later in the process.
Judge John Brown of Gallatin County sat in for Justice Patricia Cotter, who recused herself; she is married to Michael Cotter, U.S. Attorney for the District of Montana, who responded to reports of rape at UM.