Jon Krakauer’s Missoula: Rape and the Justice System in a College Town helped focus the nation’s attention on campus sexual violence when it was published last year. This year, a Montana Supreme Court case (Krakauer v. Comm. of Higher Ed.) stemming from the author’s request for information for the book about the outcome of disciplinary action taken against a member of the University of Montana football team accused of sexual assault may impact how colleges and universities in Montana and possibly the nation release these types of records.
Krakauer filed a public records request with the state commissioner of higher education, Clayton Christian, seeking information about the football player’s final disciplinary appeal, in part to determine whether it had been handled in a manner consistent with federal Title IX gender equity requirements. Christian denied the request, citing, among other things, the federal Family Educational Rights and Privacy Act (FERPA). Specifically because Krakauer had requested records about an individual student, Christian invoked the “targeted request” rule in his denial. The U.S. Department of Education (ED) added the targeted request rule to FERPA regulations in 2008, arguing that when a requester is asking for records about a specific student, redacting all personally identifying information is not sufficient to protect the student’s privacy.
The case, scheduled for oral arguments on April 27, raises several issues, but two of them in particular could impact how student disciplinary records are released nationally. The first is whether or not FERPA as “Spending Clause” legislation may supersede state law under the U.S. Constitution’s Supremacy Clause. The second is whether or not the targeted request rule was properly enacted after not being addressed in regulations for the law’s first 34 years. Recognizing the potential impact, ED and a coalition of media organizations including the Student Press Law Center have filed friend of the court briefs.
Under the U.S. Constitution, federal laws generally take precedence over state laws, a principal known as the Supremacy Clause. FERPA, however, like many federal laws, is not absolute and was enacted under the Spending Clause, which allows the federal government to condition receipt of federal funds in compliance with requirements related to the funding. If the Montana Supreme Court holds that its state requirements, which provide for a case-by-case balancing of public disclosure and privacy interests, are not superseded by FERPA, whether or not to release information would be left to state authorities and potentially could lead to a further review in federal court.
FERPA guidelines in existence since the 1970s had permitted institutions to release student records so long as personally identifiable information was redacted, and an earlier Montana Supreme Court affirmatively recognized this. Along with changes in the regulations to generally permit greater sharing of information about potential threats in the wake of the Virginia Tech mass shooting, ED said in 2008 that this practice was impermissible. If the court strikes this provision, then requests like Krakauer’s would again be permissible and, as with the Supremacy Clause question, could end up being resolved by a federal court.
However Krakauer v. Comm. of Higher Ed. is resolved, it signals increased public scrutiny of how higher education handles campus crime—and sexual violence specifically—with regard to the privacy of individual students.