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Media groups get involved in author Jon Krakauer's public-records lawsuit in Montana


HELENA, Montana — A pending lawsuit by "Into the Wild" author will be the nation's first test following the U.S. Supreme Court's 2012 Obamacare ruling of whether state education officials can use the threat of lost federal funding to justify refusing public records requests.

Montana Commissioner of Higher Education Clay Christian is appealing a district judge's order to release records to Krakauer about a University of Montana quarterback who was accused of raping another student in 2012.

Attorneys for the state argued that the federal Family Educational Rights and Privacy Act prevents Christian from releasing the records, and that the state could lose more than $260 million a year in federal education funding if it does so without the student's consent.

The case is now before the Montana Supreme Court, which granted four media advocacy organizations permission to make their case for the release of the records.

Those organizations argue that the U.S. Supreme Court's Obamacare ruling requires a re-examination of laws such as FERPA that force states to comply with federal standards under threat of financial ruin. In the Obamacare decision, the lawsuit National Federation of Independent Business v. Sebelius, Chief Justice wrote that forcing states to expand Medicaid or risk losing their funding was a "gun to the head" to those states.

In the Krakauer case, Montana education officials' only choice is to comply with FERPA or face the destruction of its higher education system, said Student Press Law Center executive director Frank LoMonte.

"This will be the first time that a state court will squarely be asked to confront the constitutionality of FERPA since the Supreme Court decided the Sebelius case," LoMonte said Monday. "This is every bit as much a gun to the head as the withdrawal of Medicaid money in the Sebelius case."

When asked for comment, Kevin McRae, spokesman for the commissioner of higher education said, "We respect the process and will convey our legal positions in court documents."

Krakauer sought the information for a book about sexual assaults on college campuses, including accusations that former quarterback Jordan Johnson raped a female acquaintance in 2012. The book, "Missoula," has since been published.

Johnson was acquitted of rape in 2013. Before the case went to state court, a university court recommended expulsion of an unnamed student — later identified as Johnson — after concluding the rape had occurred.

The accused student appealed the university court's decision to Commissioner Clayton Christianson. Johnson was not expelled, and Krakauer is seeking records to determine whether Christian took any action to reverse the university court's decision.

Last year, Montana district court Judge Kathy Seeley ruled the state constitution allows anybody to examine public records, and she dismissed the state's arguments about the threat of lost federal funding.

She said in her order the funding would be jeopardized only if the school systematically disclosed personal student information without consent.

The state appealed the ruling, and the U.S. Attorney's Office has weighed in as the state Supreme Court considers the case.

Disciplinary records are considered education records under FERPA, and the federal law trumps state laws requiring disclosure of education records, Assistant U.S. Attorney Victoria Francis wrote.

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