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The Montana Supreme Court listens to oral arguments in Krakauer v. State of Montana and Commissioner Clay Christian on Wednesday in Bozeman.

CASEY PAGE, for the Missoulian

Former University of Montana Grizzlies quarterback Jordan Johnson will have the opportunity with his counsel to argue against the release of his disciplinary records, according to a retired Montana Supreme Court justice.

Investigative author Jon Krakauer and his attorney will have the chance to explain that the public has a legitimate interest in the records, and the Office of the Commissioner of Higher Education can argue its stance as the defendant in the case.

"Everybody that's got a dog in the fight has an opportunity to present evidence and their argument in court," said retired Montana Supreme Court Justice Jim Nelson last week.

Krakauer, a journalist whose most recent book, "Missoula: Rape and the Justice System in a College Town," was about the national problem of campus rape, seeks the release of documents related to Johnson's disciplinary record involving a rape allegation. The author believes the public should know how the commissioner's office handled the case.

Last week, the Montana Supreme Court ruled the District Court must perform an "in camera" – or confidential – review of the disciplinary records to determine which, if any, can be released to the public.

Here's how the case may unfold from here and some of the issues at stake.

"Really, in my opinion, they need to step away from the fact that this is about Jon Krakauer versus Jordan Johnson," said Lee Banville, an associate professor with the UM School of Journalism.

"We need to understand how the higher education judicial system works, who gets a say in it, and what are the standards that are applied in it so that we can understand how our system works."

***

In 2013, a Missoula County District Court jury found Johnson not guilty of sexual intercourse without consent.

However, multiple proceedings on campus found him guilty of rape, and according to court records, UM President Royce Engstrom agreed that an unidentified student accused of rape – at the same time, and with identical facts, as the case against Johnson – should be expelled from UM.

But the decision was reversed after the student appealed it, and Krakauer sued to find out how the commissioner of higher education dealt with the case.

In April, the Montana Supreme Court held oral arguments on the appeal of Krakauer's request for records. Anthony Johnstone, who teaches federal and state constitutional law at the University of Montana, attended the Bozeman hearing, and he remembers the absence of actual documents being a problem.

"The justices were visibly frustrated ... by not having the documents at issue to review," Johnstone said.

The documents themselves will dictate whether it's possible to publish anything without violating any student's right to privacy, he said. So far, though, even the discussion about the record and what it might contain is theoretical.

"Is the decision-making process documented? What is the decision-making process? Are there new documents created in the decision-making process?"

When the district court ruled that Krakauer should be allowed to inspect the documents after redaction, it did so through a summary judgment, Nelson said. That kind of ruling requires that no material facts are in dispute, for one.

Since it is unusual that material facts aren't in dispute, summary judgments in district court "are fraught with a lot of risk."

"The district court made a mistake in not reviewing the documents in camera in the first place," Nelson said.

In her order, Judge Kathy Seeley said "the merits of public disclosure outweigh the individual privacy rights of the student in this case." She ordered the commissioner's office to make the record, hard copies and digital, available to Krakauer, with redaction.

Had the Montana Supreme Court agreed with the district court, redaction would have been in the hands of the commissioner's office, Banville said. Now, he said, the court itself controls what gets released, which could ensure material that should be made public gets made public.

"It's now in the hands of the court, not in the hands of a university, or frankly, in the hands of Krakauer," Banville said.

And, he said, gone by the wayside is the commissioner's argument that it couldn't even acknowledge whether a record exists.

Nelson said that the commissioner's office made a mistake at the outset in not offering even a basic explanation about its decision, one that didn't violate a student's privacy right. He doesn't know if any rationale would have satisfied Krakauer, but he believes the commissioner could have given a brief one.

"It's a risk public officials take when they make decisions without being transparent," Nelson said.

***

After hearing arguments from the parties and reviewing the documents, the judge will issue an order that outlines what to release, and Nelson assumes any decision again will be appealed to the Montana Supreme Court. (Johnstone said any records the district court decides to release likely will be brought up to the Supreme Court under seal pending its review.)

However, federal law is at issue in the case – FERPA, the Family Educational Rights and Privacy Act – and Nelson said the case also may be appealed into the federal court system.

"If FERPA embodies a body of law that is in opposition to the Montana Constitution or Montana law, FERPA is probably going to trump it," Nelson said. "There are exceptions, but FERPA is generally going to control."

Congress has expanded privacy rights in FERPA, and a debate around the law is taking place around the country, Banville said. Again and again, universities and colleges cite FERPA in denying access to information that has been public in the past, and that most journalists believe should be public record.

"What this does is it interjects that conversation that's been happening all over the country into the framework of Montana law where there are both rights to privacy and rights to know outlined in the constitution," he said.

When the judge earlier weighed the privacy rights versus rights to know, she concluded the record should be open.

"... The entire incident, from the initial administrative investigation to the conclusion of the criminal trial, is a matter of public record," the judge wrote. "The only aspect of the lengthy process that is not a matter of public record is the action taken by the commissioner."

FERPA makes exceptions to preventing the opening of records in the case of a court order. However, Nelson said if a court eventually determines that FERPA controls the release of the information, the right to know is "going to go out the window. And that's just the way it is."

For now, the core question still on the table is this, Banville said: 

"How did a decision that went in the front door an expulsion of a student turn into a reinstatement when it comes out of the Office of the Commissioner of Higher Education?"

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Higher Education Reporter

Reporter for the Missoulian