HELENA, Montana — Attorneys for "Into the Wild" author Jon Krakauer and the Montana University System asked a Helena judge Wednesday to decide whether the state should release documents on how the commissioner of higher education handled a rape case against University of Montana quarterback Jordan Johnson.
Krakauer attorney Mike Meloy told District Judge Kathy Seeley on Wednesday the documents are for a book Krakauer is writing about sexual assaults at the university, but the university system denied the request.
Both sides are asking Seeley to make a ruling on the request without a trial. Seeley did not make a decision Wednesday.
Other records released in a federal court case detailed the proceedings against a student, later identified as Johnson. The University of Montana's dean of students, the vice president of student affairs and a university court all found the student had raped a female student and recommended expulsion, a decision upheld by the university president.
The accused student appealed to Commissioner Clayton Christianson, but the record ended there, Meloy said.
Johnson was not expelled from the school and he was acquitted last year in a state court on charges of raping a female acquaintance in 2012. Johnson led the Griz to a 10-3 record last year and he is now beginning his senior year.
But the missing piece in the proceedings is what action, if any, Christianson took to reverse the rulings of the university court. How the rape allegations were handled will not be fully known until the commissioner's actions are disclosed, Meloy said.
Christianson attorney Viv Hammill said the university system could lose its federal funding if it releases records without a student's consent. The federal Family Educational Rights and Privacy Act gives students the right to protect their personal information, and the commissioner cannot release any records without that consent, she said.
Hammill and Meloy disputed whether the federal law includes disciplinary proceedings. Hammill said the educational records prohibited from being released include disciplinary records, while Meloy said they do not and that courts from other states have all ruled they do not.
Meloy added the federal law calls for withholding funding only if the commissioner shows a pattern or practice of releasing records. This is just one time, and a court order would protect the commissioner from running afoul of the U.S. Department of Education, he said.
Krakauer is willing to accept documents with the student's name blacked out, Meloy said. The author would be able to find out why the commissioner did what he did without the student's name in the documents, Meloy said.
Hammill said redacting the documents won't fix the issue because Krakauer's request was made under the name of the student, and a response to the request would confirm whose name is under the blackened portions.
Hammill also argued that Krakauer cannot file a claim under the right-to-know provisions of the Montana Constitution because he is not a Montana resident. The right to know is meant for Montana citizens, not out-of-state residents "seeking to write a for-profit book," Hammill said.
Meloy responded the constitution says a "person" not a "citizen" has the right to know.
"It can be anybody," he said. "We're wasting our time with that argument."