SPLC challenges Montana commissioner to release court files surrounding quarterback’s rape case


Contact: Frank LoMonte, Executive Director, Student Press Law Center

202.872.1704 / director@splc.org

In a brief filed Wednesday, the Student Press Law Center challenges the University of Montana’s attempts to withhold the records of a student disciplinary appeal involving a high-profile athlete accused of sexual assault.

After having been denied records by the university, author Jon Krakauer filed suit under the Montana open records act and obtained a favorable ruling. Arguing that the release of these records would violate the federal student privacy statute, FERPA, the university is fighting back in the Montana Supreme Court.

Jordan Johnson, former quarterback for the University of Montana Grizzlies, was brought up on disciplinary charges after a fellow student accused him of sexual assault, but a campus disciplinary board’s decision was vacated by the state Higher Education Commissioner, Clayton Christian, for unexplained reasons. Johnson was allowed to remain on the football team and later acquitted in a criminal trial in Missoula County District Court.

Krakauer sought the records in connection with an upcoming book, “Missoula: Rape and the Justice System in a College Town,” focusing on the Johnson case and the larger issue of campus sexual assault. But the university system claims that the Family Educational Rights and Privacy Act forbids even acknowledging that the records exist.

SPLC is joined by the Montana Newspaper Association, Reporters Committee for Freedom of the Press and The Society of Professional Journalists in supporting Krakauer in an amicus brief, stating “access to public records from colleges and schools is essential for honest, accountable government” and calling the state’s understanding of FERPA “not legally permissible.”

“Public records are the backbone of investigative journalism,” the brief argues. “Access to records makes a decisive difference in whether the public learns of the shortcomings of government officials and programs in time to take action.”

The news media organizations are represented by one of Montana’s leading media attorneys, David K.W. Wilson, Jr., of the law firm of Morrison, Sherwood, Wilson & Deola, PLLP, in Helena, Mont., who volunteered his time as part of the SPLC’s Attorney Referral Network.

The brief argues that FERPA has become a catch-all when schools and colleges are confronted with a request for public records that may tarnish the school’s reputation, adding: “Whether colleges respond effectively to complaints of sexual assault is one of the highest-profile issues of public concern facing America today.”

In the brief, the media organizations argue that the Supreme Court’s 2013 decision in the “Obamacare” case, NFIB v. Sebelius, makes it impossible for colleges and the U.S. Department of Education to insist that FERPA disqualifies colleges from receiving federal funding if they honor requests for public records relating to students. In the Sebelius case, the Supreme Court found that Congress cannot use federal funding to force states to change their policies under threat of financial disaster.

Because the penalty for a FERPA violation is so catastrophic, the brief argues, Congress must have intended to penalize “only an institutional breakdown in recordkeeping, not a one-time decision to honor a records request in compliance with state law.”

“It’s essential for public accountability to clarify that FERPA does not override state open-records laws, especially not where there is an intense public interest in disclosure and no real privacy left to protect,” said attorney Frank D. LoMonte, executive director of the SPLC. “The public has a right to know how Commissioner Christian reached his decision, and that will be possible only if the Court affirms the trial court’s reasonable, common-sense understanding of this widely abused statute.”

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.