The Montana University System challenged bestselling author Jon Krakauer in a state Supreme Court hearing Wednesday. In 2015, Krakauer released the book "Missoula: Rape and the Justice System in a College Town," examining how the University of Montana handled cases of alleged rape. One of those cases involved former UM student and quarterback Jordan Johnson.
Johnson was accused of rape in 2012. A university hearing found him guilty, and Johnson was set to be expelled.
But he was not expelled. Montana Commissioner of Higher Education Clay Christian may have reversed that decision. While researching his book, Krakauer requested Johnson’s educational records, looking for an explanation for the reversal of that decision.
"The documents I want are the documents that explain what happened in that process from the time that this was sent to the commissioner to the time that Johnson was reinstated," Krakauer says.
In 2014, a Helena district court judge ruled in favor of Krakauer’s records request, but the state appealed to the Supreme Court, and that’s why hundreds of people crowded into an auditorium at Montana State University Wednesday.
The attorney for the state’s higher education system, Viv Hammill, says releasing the records would be an infringement of students' privacy rights.
"We maintain in this case that the public’s right to know doesn’t outweigh the students' right to privacy. We don’t see any positive purpose in opening up those disciplinary records. And I’ve got to emphasize that the records that have been requested in this case are not just the named student’s records, those files contain quite a number of students' names, and those student names — as witnesses and panel members — are protected under FERPA."
FERPA is the federal Family Educational Rights and Privacy Act, which protects the privacy of student educational records.
The university system attorney said violating FERPA could result in a loss of federal education funding.
Hammill says a ruling in favor of the release of the records could prevent students' willingness to come forward as witnesses in the future.
University system spokesperson Kevin McRae said handing over the records to Krakauer would break the trust between students and their schools.
"There is an expectation of privacy that when you or a family member enroll in college, we will not be releasing your academic grade records, your health records, your conduct records, or any student records without your consent. Mr. Krakauer requested a particular student's records. He doesn’t have the student's permission. We don’t have the student’s permission. So we believe the law is clear."
Krakauer’s attorney Mike Meloy says in this situation the public’s right to know trumps arguments of individual privacy. He says the public has a right to know how universities process cases of alleged sexual assault.
"Really, we don’t care about the behavior of Jordan Johnson," Meloy says. "We care about the behavior of the commissioner of higher education, and the dean of students who reinstated him. How do I know he was reinstated? Because he was back throwing a football in the fall."
He says Jordan Johnson’s case of alleged sexual assault was very public, and his fame as a star university athlete allows for greater scrutiny of his records.
"He doesn’t have privacy anymore. His privacy vanished. You can’t enforce privacy that doesn’t exist."
Krakauer says he wants more transparency in how universities handle cases of sexual assault and rape, and he wants to remove the federal laws that he says universities use to keep some of that information private.
Krakauer says if he is given the records he will include them in future printings of his 2015 book, "Missoula: Rape and the Justice System in a College Town."
The Supreme Court justices' opinion on this issue was not released at the end of Wednesday's argument. It could be several months before a ruling is announced.
