The FERPA Smokescreen and the Commissioner of Higher Education

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I would have loved to have been able to attend the Supreme Court hearing today in Bozeman regarding Jon Krakauer’s request that the Commissioner of Higher Education turn over the records generated when Commission Clayton Christian inserted himself in the disciplinary process and reversed the decision to suspend Grizzly quarterback Jordan Johnson.

The Commissioner’s argument, as it has been from the outset, is that releasing Mr. Johnson’s records would violate FERPA (the Family Educational Rights and Privacy Act), an argument that seems to be little more than a smokescreen to give Mr. Christian cover. When she heard the case, District Court Judge Kathy Seeley ordered that the records should be released, and that there was little risk to the state’s federal funding for colleges and that Mr. Johnson’s privacy would not be violated, given his status as an athlete on campus. From the Independent Record:

Helena District Court Judge Kathy Seeley granted Krakauer’s motion on Thursday and denied the commissioner of higher education’s request to keep the documents sealed, saying “the student” doesn’t have a reasonable expectation of privacy regarding the redacted records. “The Court concludes that the merits of public disclosure outweigh the individual rights of the student in this case,” Seeley wrote, granting the commissioner’s office 21 days to make the documents available for inspection or copying.

While today’s stories about the trial do a solid of discussing the give and take in court today, they don’t do as well when it comes to providing important context. As much as the Commissioner’s Office might want to frame this story as one about student privacy, someone else is being protected here at state expense: Commissioner Clayton Christian, who unilaterally and seemingly without precedent overruled the findings of the UM disciplinary board and sent it back for another hearing, under a standard far more likely to benefit Mr. Johnson.

From Jon Krakauer’s Missoula Rape and the Justice System in a College Town:

Despite the wall of secrecy erected by the commissioner’s office around the Jordan Johnson case, public information released from other sources indicates that when Johnson appealed his expulsion to Commissioner Christian, David Paoli apparently persuaded Christian that the University Court incorrectly used “a preponderance of the evidence” as the burden of proof in finding Johnson guilty of raping Washburn, instead of holding to the more exacting “clear and convincing evidence” standard. Blatantly disregarding the Department of Education’s Dear Colleague Letter, which explicitly stated that “preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence,” Commissioner Christian vacated the University Court’s finding of guilt and sent the case back to the University of Montana to be readjudicated, this time using “clear and convincing evidence” as the burden of proof.

Hiding behind FERPA, the Commissioner’s office has never fully explained its role in the process, something I suspect Jon Krakauer is far more interested in than the details of the Johnson case at this point. Why did the Commissioner intervene? Why did he ignore Department of Education guidelines? Did his office treat all accusers and accused with the same level of personal attention? These are just some of the questions that need to be answered, and might be exposed by the release of the disciplinary records that the Commissioner’s office is fighting tooth and nail to protect.

There are a lot of reasons to be concerned about the performance of the current Commissioner, as the Logicosity blog recently pointed out, ranging from questions about his moonlighting, extravagant travel, and failure to stop the hemorrhaging at the University of Montana. Four years ago, some of us were wondering why the state would give a $300,000 job to someone without the academic credentials for the position and without even the illusion of a national search. It seems those fears are being borne out now, as yet another bad decision by the Commissioner has his office using taxpayer dollars to make dubious arguments in a dubious defense of his decision making in this case.

Let’s hope the Montana Supreme Court affirms Judge Seeley’s ruling, that the public has a right to know how the Commissioner’s office handled this case—and how it will likely handle those in the future.

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About the author

Don Pogreba

Don Pogreba is an eighteen-year teacher of English, former debate coach, and loyal, if often sad, fan of the San Diego Padres and Portland Timbers. He spends far too many hours of his life working at school and on his small business, Big Sky Debate.

His work has appeared in Politico and Rewire.

In the past few years, travel has become a priority, whether it's a road trip to some little town in Montana or a museum of culture in Ísafjörður, Iceland.

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