Feds: Privacy Laws Protect Records of Student Athlete Accused of Rape

For months, reporter Jon Krakauer has been fighting with the University of Montana and the state’s Commissioner of Higher Education, arguing that he should be able to get access to the school disciplinary records of Jordan Johnson, the Montana Grizzlies quarterback who was accused of rape in 2012 and acquitted in 2013. As Inside Higher Education was first to report, the federal government wrote a brief in the case which is, essentially, a big early Christmas present for colleges who want to cover up how they handle sexual assault claims.

Johnson was accused of rape in 2012 by a female student who said he raped her while they were watching a movie at her house. A jury acquitted Johnson in March of 2013 after two hours of deliberation, siding with Johnson’s version of events that the sex was consensual and the woman enjoyed it. (An alternate juror told a local radio station that the woman had given “mixed messages” about the incident and “there was no evidence that Jordan Johnson knew that he had sex without consent.”)

Before Johnson was charged in state court, he went through campus disciplinary proceedings: he was found guilty in a university court and ordered expelled. But somehow, the expulsion never actually happened; instead, he was just temporarily suspended from the Grizzlies.

Krakauer, the author of Into Thin Air, is writing a book about the case, and he’d very much like to know how that expulsion order magically turned into a temporary suspension.

But the Montana Office of the Commissioner of Higher Education and UM said they couldn’t let Krakauer review any records about how the case was handled, citing FERPA, the federal privacy law governing student educational records. The question, essentially, is whether Johnson received any kind of preferential treatment for being a student athlete, and whether the public deserves to know about it: Krakauer argued that Johnson’s name is already known, that the names of other victims and witnesses would be redacted in the records he received, and the disclosure of the records was in the public interest. In September, a district judge sided with him, ordering UM and the education commissioner to produce the records.

Instead, the appealed to the state’s highest court, and now the feds are getting involved. On December 15, the U.S. Department of Education filed a notice indicating that they’ll submit an amicus brief in the case (literally, “friend of the court,” a document from someone who’s not a party in the case, but has a strong interest in its outcome). The United States, the brief says, “wishes to clarify that disciplinary records constitute protected “education records” under FERPA.”

Inside Higher Ed interviewed Frank LoMonte of the Student Press Law Center, who sees the brief as essentially giving UM and the state education board a quick and easy way out of answering questions about how this case or any other was handled.

“They’re intervening on the side of the university,” LoMonte told IHE. “And the result of that position being upheld will be the denial of Krakauer’s case. They can claim they’re not taking sides, but their position carries the weight of the federal government, and it’s not in favor of Krakauer.”