Protecting Whom?

The U.S. Department of Education is seeking to help block the release of records about how the University of Montana punished a student accused of sexual assault, citing student privacy laws -- at a time when the Obama administration is pressuring colleges to become more transparent about the issue. 

The federal government last week weighed in on a high-profile Montana Supreme Court case that would decide if the author and journalist Jon Krakauer should have access to records concerning a 2012 rape case against a University of Montana quarterback. On Friday, the department signaled its plan to file an amicus brief in the case to "clarify that disciplinary records constitute protected 'education records' under" the Family Educational Rights and Privacy Act of 1974. 

While the department stated that its brief was not in support of either party, Frank LoMonte, executive director of the Student Press Law Center, said by intervening in such a way, the administration is taking a clear side in the case, advocating that government officials can invoke student privacy concerns to cover up how they fail to respond to cases of sexual assault. 

"They're intervening on the side of the university," LoMonte said. "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."

In a letter sent to the department on Monday, LoMonte argues that the administration should not intervene in the case at all, and questions why the agency "believes that it is a valid discretionary use of the prestige and resources of the federal government to obscure the answer to a question of public importance -- whether the State of Montana affords preferential treatment to student athletes in sexual assault cases."

The idea that college athletes accused of sexual assault are treated differently from non-athletes received a boost in awareness earlier this year when a survey conducted by Sen. Claire McCaskill, a Missouri Democrat, found that more than 20 percent of colleges let their athletics departments handle cases of sexual assault against athletes. The finding prompted the NCAA to release new guidelines in August that made it clear that athletic departments should not have an oversight role in investigating sexual assault allegations.

Krakauer is planning on exploring the issue in a new book, and had sought an order requiring the Montana Commissioner of Higher Education to disclose records of disciplinary proceedings against a Montana football player found responsible of sexual assault by the university. The university court decided that the student's punishment would be expulsion, but, after appealing the decision to the commissioner, the quarterback was only suspended. Krakauer wants to use the records to determine if the commissioner made that decision and why, arguing that FERPA does not apply as the name of the accused student is already widely known, the names of the victims and witnesses would be redacted within the records, and the disclosure of the records is a matter of public interest and safety.

The commissioner argued that FERPA prevented the release of the records, and that the state could be fined millions of dollars if it did not protect them. A district court judge ruled in Krakauer's favor, saying that the entire incident was a matter of public record and that "the only aspect of the lengthy process that is not a matter of public record is the action taken by the commissioner," but the decision was appealed. In its amicus brief, the Education Department seeks to "guide the court's analysis of the FERPA issues" in the case, arguing that the Montana University System is bound to honor FERPA laws as it receives federal funding.

Steven McDonald, general counsel for the Rhode Island School of Design and an expert on FERPA, said the district court made the wrong call in originally granting Krakauer access to the records. FERPA was amended in 2008 to prohibit access to redacted records where the subject's name is known. 

"Krakauer is asking for a specific student file," McDonald said. "You can redact the names, but he knows the name, so you can't really redact information that's already known. District courts don't deal with something like this very often, and they tend to look for ways around it, so it's not inappropriate for the department to intervene like this."

But LoMonte said that the law allows for FERPA to not always be interpreted so literally, and that it is hypocritical for the administration to argue publicly for more transparency surrounding campus sexual assault, only to argue for the opposite when it comes to FERPA.

"When you have a high-profile case that’s already been fully aired in the news media, it just doesn't make sense to have a blanket of student privacy over the documents any longer," LoMonte said. "As a general matter, it's appropriate for minor disciplinary scrapes to be confidential under FERPA, but this is a qualitatively different case. It's a case of extremely high public interest. Whose privacy are you protecting?"