Two Years After I Sued to Unseal Records about a University Quarterback Accused of Rape, the Montana Supreme Court just Punted My Case Back to a Lower Court for Further Review
Here’s why the outcome of “Krakauer v. Montana” matters — a lot.
Five years ago, the United States Department of Education got serious about addressing campus rape. In a 19-page “Dear Colleague” letter that was sent to almost every American college and university, the department reminded institutions of their obligation, under the federal law known as Title IX, to protect students from sexual violence. Universities that failed to take “prompt and effective steps” to investigate and adjudicate allegations of sexual assault, the letter warned, risked losing millions of dollars in federal funding. Most institutions took heed and adopted the policies laid out by the department.
But the department’s efforts to stem the tide of campus rape by cracking down on Title IX violations have been undermined by another law that the agency is responsible for enforcing: the Federal Education Rights and Privacy Act, or FERPA, which prohibits universities from capriciously releasing “education records.” When universities want to deny public access to information that might blemish their reputations, they routinely claim that FERPA prevents them from disclosing such information — even when disclosure is plainly warranted. In many instances, the suppressed records concern sexual-assault complaints.
Policies and procedures for handling accusations of rape vary tremendously from university to university, and are often neither prompt nor effective. When institutions wield FERPA to shield themselves from prying eyes, it’s impossible to even evaluate such policies, let alone fix what’s broken — and that’s a problem whether you believe that university disciplinary proceedings are unfair to victims of campus rape or unfair to the men accused of raping them.
Examples abound of universities using FERPA to dodge scrutiny about campus rape. I encountered it firsthand in January 2014, when I asked for records about a disciplinary proceeding concerning a University of Montana football player — one of several alleged sexual assaults I was investigating for a book published in 2015, Missoula: Rape and the Justice System in a College Town. The state commissioner of higher education slammed the door on my request, even after I stipulated I was willing to accept documents with names and other “personally identifying information” redacted. The commissioner said that disclosing the records would violate both FERPA and Montana law.
Until that moment, I had never heard of FERPA, which was enacted in 1974 to protect the privacy of academic transcripts. Its primary author, Senator James L. Buckley of New York (brother of William F. Buckley Jr.), has since complained that the law has been applied too broadly, resulting in the perversion of its original intent. FERPA “needs to be revamped,” Buckley told The Columbus Dispatch. “Institutions are putting their own meaning into the law.” According to Frank LoMonte, the executive director of the Student Press Law Center, a nonprofit legal-services organization, Education Department functionaries “have hijacked a well-intentioned law about the confidentiality of academic records and, by their bizarre interpretations, transformed it into the Federal Rapists Protection Act.”
I’d been seeking information about a disciplinary action concerning Jordan Johnson, the star quarterback of the Montana Grizzlies football team. Self-possessed and hugely popular, Johnson was probably the most luminous celebrity in the state of Montana from 2011 through 2014, when he led the Griz to a string of breathtaking victories. In February 2012, however, a student (referred to as “Jane Doe” in court documents), reported to the University of Montana that Johnson raped her at an off-campus apartment. Seven weeks later, after investigating Doe’s complaint, the dean of students, Charles Couture, determined that the evidence indicated that Johnson had indeed raped Doe.
Johnson appealed Couture’s decision to the vice president of student affairs, who affirmed that Johnson should be held responsible for raping Doe. So Johnson appealed again, to an even higher authority, the University Court — a standing tribunal appointed by the university president that is composed of three undergraduate students, one graduate student, two faculty members and one member of the university staff.
On May 10, 2012, following a hearing that lasted several hours in which witnesses were interviewed and evidence was assessed in the presence of Johnson and his attorney, the University Court found by a vote of 5 to 2 that Johnson had violated the Student Conduct Code by committing rape; the Court then voted unanimously to expel him. After reviewing the decision, the university president, Royce Engstrom, sent a letter to Johnson upholding it. “I do not find any procedural errors that served to deny a fair hearing,” he wrote. “I am sorry that your career at the university must come to an end.”
Upon receiving this letter, Johnson petitioned the state commissioner of higher education, Clayton Christian, to overturn Engstrom’s ruling. On June 19, 2012, the commissioner’s office said Christian would “issue a written decision” and then disclosed nothing further about the case. When I inquired about the outcome of Johnson’s appeal, the commissioner refused to even acknowledge that there had been a disciplinary proceeding involving Johnson, contending that FERPA barred him from disclosing such information.
Eventually I would discover that Commissioner Christian overturned Johnson’s expulsion behind closed doors. Despite receiving what appeared to be preferential treatment, however, Johnson threatened to sue the university for being “unfair and biased.” According to a settlement filed in Montana District Court in February 2016, the university denied Johnson’s allegations, but nevertheless agreed to pay the star quarterback $245,000 in return for dropping his lawsuit. Even after this payoff was reported in the national media, however, the commissioner — hiding behind FERPA — refused to say anything about the disciplinary hearing that prompted the settlement.
Back when the commissioner initially denied my request for records about the Johnson case, I hired an attorney in Colorado, where I live, to ask more forcefully on my behalf. A week later, when the chief legal counsel for the Montana University System brusquely rejected this request, too, it became obvious that the commissioner intended to do everything in his power to keep his records sealed, and that I was going to have to sue him in to gain access to the information I sought.
So in February 2014 I retained an eminent Montana attorney, Michael Meloy, and filed a petition in Montana District Court, asking that the commissioner be ordered to release all documents related to the Johnson appeal.
Seven months later, Judge Kathy Seeley ruled in my favor. But instead of turning over the records, as ordered, Christian appealed to the Montana Supreme Court, asserting that Johnson’s right to privacy superseded the public’s right to know the outcome of his appeal or if such an appeal had even occurred.
The commissioner’s furtive response is not unique. Presently, more than 180 colleges and universities are under investigation by the Education Department for violating Title IX in their handling of sexual-assault complaints, a problem that has been exacerbated by the reflexive secrecy that veils the disciplinary proceedings at most institutions of higher education.
Few people would deny that laws protecting privacy serve an important purpose, and the Montana Constitution is especially clear in this regard, proclaiming that the right to privacy “shall not be infringed without the showing of a compelling state interest.”
But the Constitution also states: “No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” An individual’s right to privacy, in other words, must be weighed against the even more important right of the public to examine official documents. According to the University of Montana Student Conduct Code, disciplinary proceedings are confidential. As both Montana law and FERPA make clear, however, if certain conditions are met, the records from such proceedings should be made public, and such conditions seemed to be present in the Johnson case.
The public might never have been aware there were any university disciplinary proceedings against Johnson had he not filed a lawsuit in federal court in May 2012, two days before his University Court hearing. The suit requested a temporary injunction to halt the proceedings against him, and also asked that records related to the lawsuit be sealed from public scrutiny. Judge Dana Christensen denied the injunction but granted Johnson’s request to seal the case file.
When the University of Montana ordered his expulsion, his lawsuit to stop the proceedings became moot, prompting Christensen to dismiss it in June 2012, which all parties expected. Christensen surprised both Johnson and the university, however, by ordering the case file for the lawsuit to be unsealed.
Johnson’s federal lawsuit was little more than a sideshow to the university’s disciplinary proceedings against him, but the case file for the lawsuit included most documents from the disciplinary proceedings. Although information that might identify Johnson, Jane Doe, and other third-party witnesses had been carefully redacted, the records still provided a wealth of information about what had transpired between the accused party and his accuser, as well as what had transpired between the accused party and the university. Judge Christensen’s order made this information accessible to anyone who wished to view the case file.
Neither Johnson nor university officials were pleased with this development, and they objected vigorously. Johnson’s attorneys argued that the file should remain sealed because it could influence any potential law-enforcement investigation or criminal prosecution. In his order, however, Christensen wrote:
“Reduced to its essence, the joint request to keep this case file sealed reflects a determination by the parties, based on their respective individual interests, that they will mutually benefit from maintaining the secrecy of this federal proceeding…. But lost in all this is the valid and compelling interest of the people in knowing what the University of Montana is up to.”
Judge Dana Christensen’s reference to a potential criminal prosecution of Jordan Johnson wasn’t idle conjecture. In addition to filing the University of Montana sexual-assault complaint against Johnson, Jane Doe filed a report with the Missoula Police Department a month later, in March 2012, alleging that Johnson raped her, which set the wheels of the criminal-justice system in motion on an entirely separate track from the university’s investigation. The criminal proceedings potentially had much greater consequences for Johnson than expulsion, and they unfolded in the public eye.
Johnson’s trial at the Missoula County Courthouse began on Feb. 8, 2013, and concluded three weeks later. It was extensively covered by local and national news media, including The New York Times, The Wall Street Journal, and ESPN. Johnson and Doe testified in open court. On the trial’s final afternoon, after deliberating for less than two and a half hours, the jury found Johnson not guilty.
Despite the acquittal, one of the jurors told me after the trial that she believed “Doe could have been raped” by Johnson. Much of the evidence against him was convincing, she said, and Doe’s testimony struck her as “completely credible.” But according to Montana law, in order to establish that a rape has occurred, prosecutors must not only prove that the victim didn’t consent to sex, they must also prove beyond a reasonable doubt that the defendant knew the victim didn’t consent. During their deliberation, all twelve jurors agreed that the defense counsel had raised reasonable doubts about whether Johnson understood that Doe hadn’t given consent.
In any event, by the time the trial was over, a large number of people had learned a great deal about the alleged rape. There was no mistaking that the facts disclosed during the criminal trial matched the facts disclosed in the university records unsealed by Judge Christensen. Even though the university records were redacted, it was obvious after the public trial that the student found responsible for raping Doe by the University Court was Johnson. It also became clear that Engstrom, the university president, had ordered Johnson’s expulsion but that Johnson had not been expelled. Why he had not been expelled, however, remained a mystery.
Bear in mind that the burden of proof used by the University Court to find that Johnson had committed sexual intercourse without consent was significantly lower than the burden of proof used in Missoula District Court to find him not guilty. At the criminal trial, the jury was required to use “beyond a reasonable doubt,” which is sometimes defined as a 90 percent degree of certainty. For its disciplinary proceeding, the university relied on “a preponderance of evidence” as the burden of proof, which meant the individuals deciding Johnson’s fate only had to be 51 percent certain of his culpability in order to expel him.
A preponderance of the evidence is the standard of proof required in most civil litigation — even when the defendant is being sued for an act that violates criminal law. During the criminal trial of O.J. Simpson in 1995, for example, he was acquitted of the murders of Nicole Brown and Ron Goldman because the government failed to convince the jury that Simpson was guilty beyond a reasonable doubt. But in the civil lawsuit brought by Goldman’s father shortly thereafter, his attorneys persuaded the jury that a preponderance of the evidence indicated Simpson killed Goldman, and this was sufficient for the jury to find Simpson liable for Goldman’s wrongful death and award the Goldman family $33.5 million in damages.
A preponderance of the evidence was the standard of proof decreed by the Education Department in the April 2011 “Dear Colleague” letter for the adjudication of campus sexual-assault cases. Before that date, the university relied on a somewhat higher standard of proof known as “clear and convincing evidence,” which can be thought of as 70 to 80 percent certain. After receiving the letter, Montana, like most institutions, followed the Education Department’s guidance and adopted “a preponderance of the evidence” as the standard for its disciplinary proceedings. This lowering of the burden of proof became a fiercely contested issue in June 2012, when Johnson appealed his expulsion to the commissioner of higher education.
Because the records related to Jordan Johnson’s appeal are still sealed, the public knows little about it. But the United States Department of Justice began an investigation of the University of Montana, the Missoula Police Department, and the Missoula County Attorney’s Office in 2012 for failing to “adequately address sexual assault,” and during these investigations a handful of significant facts were disclosed by the DOJ. The summary of the investigation’s findings, written by Anurima Bhargava, the chief of the department’s Civil Rights Division, doesn’t mention Johnson, but there is a three-paragraph description of a case that is unambiguously Johnson’s, based on the details.
According to the report, Clayton Christian, the higher-education commissioner, apparently decided that the university was incorrect in using a “preponderance of evidence” standard to find that Johnson had committed rape, and should have used the more stringent “clear and convincing” evidentiary standard instead — contrary to the directive in the Dear Colleague letter. The commissioner therefore vacated the University Court’s finding, and remanded the case back to the University of Montana to be readjudicated with the higher burden of proof.
For this do-over, the university hired an independent expert to conduct an impartial reinvestigation of Jane Doe’s allegation. At the conclusion of this inquiry, according to Bhargava, the expert determined that Johnson’s testimony wasn’t credible and that the evidence proving he raped Doe was indeed clear and convincing.
One might assume that because this new, independent investigation had affirmed Johnson’s culpability with the higher burden of proof demanded by Commissioner Christian, the matter was now resolved, and Johnson would be expelled posthaste. But by the autumn of 2013, when the independent investigation had been completed, the dean of students who presided over the original adjudication of Johnson, Charles Couture, had retired, and the dean who replaced him, Rhondie Voorhees, unilaterally rejected the independent expert’s conclusion. Then Voorhees re-examined the case yet again with the “clear and convincing” evidentiary standard, and pronounced the evidence to be insufficent to find Johnson responsible.
In a sharp rebuke of this outcome, Bhargava declared that the convoluted, drawn-out re-adjudication of the Johnson case ordered by the commissioner “did not result in an equitable resolution.” Voorhees’s reinvestigation of the complaint was inept, Bhargava noted, highlighting a need for more training “on how to evaluate evidence and the appropriate evidentiary standard to assess it.”
Because of Bhargava’s report, we know the Departments of Justice and Education determined that the outcome of Johnson’s appeal was unfair to his alleged victim. But we are still in the dark about how the appeal was bungled. This is the question I hope will be answered by the emails, directives, transcripts, and other documents that Judge Kathy Seeley ordered the commissioner to disclose.
When Christian’s office announced in October 2014 that he was appealing Judge Seeley’s ruling to the Montana Supreme Court, a spokesman for the commissioner claimed that allowing me to view the records “could cost Montana students millions of dollars” in federal education grants. Because Johnson has not given written consent to the release of educational records, the commissioner insists, FERPA puts the Montana University System at risk of losing more than $263 million in annual federal assistance, including “student loan dollars that… enable the vast majority of Montana resident students to attend colleges in their home state.”
But the commissioner’s frightening assertion becomes considerably less frightening when one learns that in the 42 years since FERPA was enacted, no college or university has ever been fined a single dollar for releasing any kind of records — even though many institutions have complied with requests similar to mine. FERPA, it turns out, does not prohibit fulfilling an isolated records request made in the public interest. FERPA forbids only “a policy or practice of releasing education records,” and allows for exceptions.
What’s more, the penalty for violating FERPA is precisely the same as the penalty for violating Title IX, which brings up an obvious question: Why wasn’t the commissioner concerned about losing those hundreds of millions of federal dollars when he overturned Johnson’s expulsion and demanded that the university re-adjudicate his case with a higher burden of proof — a clear violation of Title IX?
The commissioner’s hypocrisy underscores the confused priorities at the Education Department, which has taken the unusual step of filing a supporting brief in defense of the commissioner’s self-serving interpretation of FERPA while doing nothing about his violation of Title IX.
The main thrust of the commissioner’s argument that FERPA doesn’t allow him to release the documents hinges on a supplemental regulation tacked onto the statute by the Education Department in 2008. Known as the “Targeted Request Rule,” it forbids the release of records if the requester “knows the identity of the student to whom the education record relates.” Based on this rule, Christian asserts in his opening brief to the Montana Supreme Court that because “Krakauer’s request shows that he knows the identity of the student to whom the requested education records relate … there are simply no set of circumstances under which the commissioner could release any records.”
The problem with this claim is that the Targeted Request Rule is an intractable Catch-22, and has been declared to be unreasonable in recent judicial rulings that weigh privacy against the need for government transparency. Indeed, as several press and legal groups emphasize in a supporting brief in favor of granting the records request, “It is extraordinarily dangerous to put government agencies in the position of deciding which requesters ‘know too much’ to be entitled to obtain public records.”
And in a bizarre twist, the commissioner’s argument — that he cannot give me records that pertain to Jordan Johnson because I know they pertain to Jordan Johnson — is accompanied by another contradictory assertion: that he cannot give me the records because it isn’t a legally established fact that the records pertain to Jordan Johnson. Given that all “personally identifiable information” was meticulously redacted from the evidence I’ve cited, the commissioner argues, “Krakauer cannot and does not know” that the records actually relate to Johnson, “and it is disingenuous to present as fact that he does.”
It was a simple matter for me to deduce Johnson’s identity from the case files unsealed by Judge Christensen and the 2013 Justice Department report. In February 2016, moreover, Johnson’s identity was confirmed by his $245,000 settlement agreement with the university. And of course the commissioner knows with absolute certainty that the records in question are about Johnson’s appeal, because the commissioner personally presided over that appeal.
By stating that I cannot and do not know whom the records are about, the commissioner and his lawyers are hanging their hats on a recondite procedural technicality: In order to prove to the Supreme Court that the information I seek relates to Johnson, they argue, such proof must exist in the legal record — and the only evidence that would meet the court’s definition of such proof is the very documents that the commissioner refuses to disclose.
The commissioner insists that his hands are tied — that even if he wanted to release the records I seek, FERPA absolutely forbids him to do so. And the Department of Education concurs, throwing the formidable clout of the federal government squarely behind the commissioner. In its supporting brief, filed jointly with the Department of Justice, the Education Department proclaims that because “the Montana University System agreed to FERPA’s conditions when it accepted federal funds, it is bound by those conditions” — game over, thanks for playing.
But in an opposing brief, the Student Press Law Center, the Montana Newspaper Association, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists point out that the Education Department, the Justice Department, and the commissioner seem to have deliberately overlooked a legal precedent set in 2012 by the outcome of a landmark case with striking parallels to my lawsuit. In National Federation of Independent Business v. Sebelius, the United States Supreme Court ruled that it was unconstitutional for the federal government to withhold Medicare funding from states that refused to participate in the Affordable Care Act, a.k.a. Obamacare. Writing for the majority, Chief Justice John Roberts declared that threatening states with financial ruin in order to coerce them to comply with a federal policy was a form of “economic dragooning” that amounted to “a gun to the head.”
Krakauer v. State of Montana, it turns out, is one of the first court cases in the nation to test the legitimacy of FERPA in the aftermath of the Sebelius ruling. And that ruling suggests that FERPA cannot take precedence over the Montana Constitution, which decrees that the public right to examine government records trumps an individual’s right to privacy, unless the privacy right clearly exceeds the benefits of public disclosure.
Because finding the proper balance between these competing rights is so important and so frequently comes up in legal disputes, the Montana Supreme Court long ago established a reliable test for weighing them against one another: Does the individual in question have an actual or subjective expectation of privacy, and if he does, is society willing to recognize that expectation as reasonable?
In the instance of Jordan Johnson, any reasonable expectation of privacy he possessed probably vanished long before I requested any records. In 2010, when he accepted a football scholarship to the University of Montana, Johnson signed an agreement to abide by the Student-Athlete Conduct Code, which required him to acknowledge that he was “subject to certain responsibilities and obligations which could include the acceptance of loss of some individual rights and privileges.”
Further eroding his expectations of privacy, Johnson’s achievements on the football field made him the most famous athlete in the state, and his subsequent prosecution and criminal trial generated a blizzard of unwelcome scrutiny from local and national news media. By the time I petitioned the court for records about the appeal of Johnson’s disciplinary proceedings, almost every aspect of the rape allegation against him was already a matter of public knowledge. The only substantive information that hasn’t been unsealed is the information I have requested.
Society has an interest in understanding how publicly funded universities deal with rape accusations. People are entitled to know why a state commissioner of higher education rejected the findings of a university tribunal, resulting in the apparent reinstatement of a star athlete who had been expelled by the university president — and why state officials then paid this athlete a quarter of a million dollars in the bargain. Records related to the Jordan Johnson scandal must be made public.
More than two years have passed since I first asked Commissioner Christian for his records. The Montana Supreme Court heard oral arguments in the latest round of litigation on April 27, 2016 — the Court’s final piece of business before ruling on Krakauer v. Montana.
On September 19, 2016, the Court finally issued a decision: By a vote of 6–1, the justices sent my petition back to the lower court “for further review.” In a synopsis of this tortuous ruling, the Court explained:
After conducting oral arguments on the case, the Montana Supreme Court reversed the District Court’s order and remanded the matter for further review. First, the Court held the District Court correctly determined that Krakauer may seek to enforce the right-to-know provision of the Montana Constitution, even though he is an out-of-state resident. Second, the Court determined that the student records in question are educational records that are given heightened privacy protection under the laws enacted by Congress and the Montana Legislature, and that these laws generally prohibit the release of such records. In light of Krakauer’s request for a specifically-named student’s records, the Commissioner could not have complied with the request without violating these laws. However, the Court recognized that federal and state privacy laws authorize Montana courts to order the release of student records after application of Montana constitutional principles that properly balance a student’s enhanced privacy rights in the records and the public’s right to know. The Court remanded the case to the District Court to conduct an “in camera,” or confidential, review of the records, and to apply the proper constitutional principles in order to decide what, if any, records should be released.
The in camera review will be conducted by District Court Judge Kathy Seeley, the same judge who ordered the commissioner to release the records to me back in 2014. According to Montana Public Radio, Judge Seeley must
complete a confidential review of each document in the request, and determine if it falls under the public’s right to know, or if the information would compromise privacy law.
It’s anyone’s guess how Seeley will rule this time around, or when, but as you can infer from the supporting briefs filed on each side of the case, much more is at stake than simply Jordan Johnson’s right to privacy, my request for documents, or the confidentiality of the commissioner’s emails. The outcome is likely to leave a deep imprint on right-to-know jurisprudence — and, by extension, the adjudication of campus rape — that stretches far beyond Montana.
The disciplinary proceedings and criminal trial of Jordan Johnson are reported at length in Missoula, my latest book, published by Anchor in April 2015.
This post is an updated version of a story that originally appeared in The New York Times Magazine. Copyright © 2015 Jon Krakauer.