Open-government advocates urge Montana court to release athlete disciplinary appeal records to author Krakauer

In a nationally watched case implicating the constitutionality of the federal student privacy statute, the Student Press Law Center put together a coalition of press-rights groups supporting author Jon Krakauer’s request for access to public records of a high-profile college athlete’s disciplinary.

Attorney volunteer David “Kim” Wilson of Montana’s Morrison, Sherwood, Wilson & Deola, PLLP, filed a friend-of-the-court brief Nov. 25 supporting Krakauer’s case with the Montana Supreme Court. The SPLC and Wilson’s firm prepared the brief on behalf of the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and the Montana Newspaper Association.

The organizations are supporting a lower-court ruling that found Krakauer was entitled to the state higher-education commissioner’s files concerning former University of Montana quarterback Jordan Johnson’s successful disciplinary appeal.

According to Krakauer’s recently published book, Missoula, the student conduct board found Johnson responsible for sexual assault, but Christian overturned the ruling and restored Johnson’s eligibility to play for the Grizzlies.

Krakauer is seeking access to Christian’s files to find out the basis for that decision. But the state insists that release of the files is barred by the Family Educational Rights and Privacy Act (“FERPA”), which makes students’ education records confidential.

The SPLC argues in its brief that FERPA can no longer be interpreted as a “gun to the head” imposing ruinous financial consequences on a college for a single decision to release public records, because the Supreme Court’s 2012 ruling in the “Obamacare” case (NFIB v. Sebelius) found such federal financial compulsion unconstitutional.

FERPA was intended to penalize a “policy” or “practice” of failing to secure students’ confidential records. But at the urging of school and college attorneys, courts have greatly expanded the statute since its 1974 enactment and at times have applied it as an obstacle to journalists’ requests for otherwise-public records regardless of whether their contents are private.

In the Krakauer case, the author’s lawyers argue that Johnson had no protectable privacy interest in the commissioner’s files — both because he waived significant privacy rights when he enlisted to play intercollegiate football, and because his case was widely aired in the media when he was tried, and acquitted, on a criminal charge of sexual assault.

The SPLC brief explains two primary reasons that granting a journalist’s request for public records cannot, as the state of Montana argues, result in a punishable FERPA violation.

First, the FERPA statute and regulations make no reference to state public-records laws, and Congress cannot override state law without explicitly indicating an intent to do so — especially when Congress is legislating on a subject, education, over which states have primary jurisdiction and expertise.

Second, FERPA provides only one penalty — total disqualification for all state education funding — which in the case of the Montana university system would result in a loss of $263 million a year. When Congress intended to penalize a one-time misjudgment, as opposed to a total institutional breakdown, Congress provided lesser penalties; for example, the Clery Act crime disclosure statute carries fines of up to $35,000 for each misstated report. Congress can have intended FERPA’s “financial death penalty” to apply only to a flagrant, systematic disregard for student privacy that justifies entirely shutting down an institution.

The case puts at risk a pro-disclosure Montana Supreme Court ruling in a case brought by the Cut Bank Pioneer Press newspaper. In that 2007 ruling, the justices granted journalists access to the outcome of a school board’s disciplinary decision in the case of two students suspended for attacking classmates with BB guns. Lawyers for Commissioner Christian argue that the Pioneer Press decision is no longer valid and should be abandoned since the Department of Education decided that so-called “targeted requests” — requests for the files of known individual students, even with their names removed — should be denied on the grounds of FERPA confidentiality.

This is the second time that briefs have been filed in the case. The case was initially readied for the state Supreme Court’s consideration in February, but the Court sent the case back for consideration of Krakauer’s entitlement to attorney fees. The case is now ripe for consideration, with oral arguments expected before the justices in 2016.