BozAngelesGriz
Well-known member
This morning at MSU I attended the hearing before the Montana Supreme Court regarding Krakauer's request for records from the University about disciplinary actions taken towards Jordan Johnson.
In all there were probably 300 in attendance with standing room only in the front half of Strand Union Building Ballroom 'A'. Lots of students were present from middle school on up as this was a public event billed "Montana State Law Day," and students were encouraged to attend.
Proceedings were opened by Anthony Johnston from the University of Montana school of law, who first reaffirmed that he was "Proud to come from a family of Bobcats." Johnston provided an overview of the system of appeals regarding cases such as these, which do not face an appellate court but rather are directly handled by the Montana Supreme Court. He then delineated the differences between campus proceedings and official court proceedings in the state of Montana.
He further went on to explain the laws of federal preemption to student privacy law under the Federal Educational Rights and Privacy Act (FERPA). Krakaeur's side cites the Montana constitution in that "No person shall be deprived" of public records except when it clearly exceeds the merits of public disclosure. Christianson argues that there is "Little public benefit to disclosure" of the documents.
Krakaeur was represented by Mike Molloy, who sided with a Helena judge's stance to release the records in question. On the other side, the US Department of Education sides with Commissioner of Higher Education Clayton Christianson's decision not to release the documents on the basis of privacy. Christianson was represented by Viv Hammill.
Hammill was on her heels most of the morning, facing some harsh questioning particularly by Justice Mike Wheat. She argued that protecting student privacy is a "specific legal duty" of the Commissioner of Higher Ed and that the "vast request" by Krakaeur for information was protected by student privacy. Apparently his request document was in excess of 40 pages.
Most questions by the Justices regarded how much of an umbrella student privacy covers when there can be a case-by-case review of the release of private information. Some of the tools afforded to a party seeking the release of documents are an 'in camera review' of the material, a redaction of names of individuals on released material and to be granted a subpoena which would allow for the release of information to that specific case. However, the right to a subpoena can be contested, and this helps to establish a "balance" between what information can be released and what cannot.
The party seeking disclosure must show "genuine need that outweighs the student's need for privacy." Hammill argued that the Student Right to Know and Privacy Act protects students very broadly against anyone inquiring for records and that "legal prescient favors privacy."
Justice Wheat responded by saying that we are "not dealing with the privacy of the student." Further he asked Hammill, somewhat skeptically "if there is a student involved, then there is an umbrella that protects everything?" She responded, perhaps hesitantly, "Yes."
Next up was Molloy, who said he did not like the idea of in camera review of material and that it "puts the petitioner at a disadvantage" in that they don't know what they are missing. He argued that release of the documents with redaction of names would be the best alternative. To this, several Justices responded that regardless of the redactions it is still easy to discern which individuals are being referred to in the documents based on similarities with documents which have been released.
Molloy was much more verbose than Hammill, and the Chief Justice tried to simplify his argument asking "Walk me through this, what does he (Krakaeur) want?" Molloy responded saying that "we care about the processes of the Commissioner, and not the actions of Jordan Johnson."
When asked by the Justices about the higher level of student protection being emphasized by the Feds and which could trump decisions in a state court, Molloy responded "I don't think a student has a higher expectation of privacy than a tax payer."
Some levity was added to the conversation when the subject of public notoriety came up in regards to a student athlete's right to privacy. Molloy, brandishing a UM beanie in his hand, stated that notoriety mattered to a University of Montana quarterback because they are such high profile figures. In regards to what would establish a student athlete as "not notable," the following discussion took place:
Molloy: "if he were...a...uh..."
Justice: "careful, you're on thin ice"
Molloy: "if he were a Bobcat quarterback..."
(all laugh)
Molloy closed his argument saying that the release of the requested information was in the very motto of the University of Montana: "Lux et Veritas" meaning "Light and Truth."
Hammill had time for a brief rebuttal, which she emphasized that "athletes don't lose privacy by enrolling at a Montana school," and further citing that the scope of Krakauer's request was so broad that it violated other students' privacy, not just that of Johnson.
I am sure that I butchered some of the legal jargon and probably didn't get all of my attributions correct, but that's the gist of it.
In all there were probably 300 in attendance with standing room only in the front half of Strand Union Building Ballroom 'A'. Lots of students were present from middle school on up as this was a public event billed "Montana State Law Day," and students were encouraged to attend.
Proceedings were opened by Anthony Johnston from the University of Montana school of law, who first reaffirmed that he was "Proud to come from a family of Bobcats." Johnston provided an overview of the system of appeals regarding cases such as these, which do not face an appellate court but rather are directly handled by the Montana Supreme Court. He then delineated the differences between campus proceedings and official court proceedings in the state of Montana.
He further went on to explain the laws of federal preemption to student privacy law under the Federal Educational Rights and Privacy Act (FERPA). Krakaeur's side cites the Montana constitution in that "No person shall be deprived" of public records except when it clearly exceeds the merits of public disclosure. Christianson argues that there is "Little public benefit to disclosure" of the documents.
Krakaeur was represented by Mike Molloy, who sided with a Helena judge's stance to release the records in question. On the other side, the US Department of Education sides with Commissioner of Higher Education Clayton Christianson's decision not to release the documents on the basis of privacy. Christianson was represented by Viv Hammill.
Hammill was on her heels most of the morning, facing some harsh questioning particularly by Justice Mike Wheat. She argued that protecting student privacy is a "specific legal duty" of the Commissioner of Higher Ed and that the "vast request" by Krakaeur for information was protected by student privacy. Apparently his request document was in excess of 40 pages.
Most questions by the Justices regarded how much of an umbrella student privacy covers when there can be a case-by-case review of the release of private information. Some of the tools afforded to a party seeking the release of documents are an 'in camera review' of the material, a redaction of names of individuals on released material and to be granted a subpoena which would allow for the release of information to that specific case. However, the right to a subpoena can be contested, and this helps to establish a "balance" between what information can be released and what cannot.
The party seeking disclosure must show "genuine need that outweighs the student's need for privacy." Hammill argued that the Student Right to Know and Privacy Act protects students very broadly against anyone inquiring for records and that "legal prescient favors privacy."
Justice Wheat responded by saying that we are "not dealing with the privacy of the student." Further he asked Hammill, somewhat skeptically "if there is a student involved, then there is an umbrella that protects everything?" She responded, perhaps hesitantly, "Yes."
Next up was Molloy, who said he did not like the idea of in camera review of material and that it "puts the petitioner at a disadvantage" in that they don't know what they are missing. He argued that release of the documents with redaction of names would be the best alternative. To this, several Justices responded that regardless of the redactions it is still easy to discern which individuals are being referred to in the documents based on similarities with documents which have been released.
Molloy was much more verbose than Hammill, and the Chief Justice tried to simplify his argument asking "Walk me through this, what does he (Krakaeur) want?" Molloy responded saying that "we care about the processes of the Commissioner, and not the actions of Jordan Johnson."
When asked by the Justices about the higher level of student protection being emphasized by the Feds and which could trump decisions in a state court, Molloy responded "I don't think a student has a higher expectation of privacy than a tax payer."
Some levity was added to the conversation when the subject of public notoriety came up in regards to a student athlete's right to privacy. Molloy, brandishing a UM beanie in his hand, stated that notoriety mattered to a University of Montana quarterback because they are such high profile figures. In regards to what would establish a student athlete as "not notable," the following discussion took place:
Molloy: "if he were...a...uh..."
Justice: "careful, you're on thin ice"
Molloy: "if he were a Bobcat quarterback..."
(all laugh)
Molloy closed his argument saying that the release of the requested information was in the very motto of the University of Montana: "Lux et Veritas" meaning "Light and Truth."
Hammill had time for a brief rebuttal, which she emphasized that "athletes don't lose privacy by enrolling at a Montana school," and further citing that the scope of Krakauer's request was so broad that it violated other students' privacy, not just that of Johnson.
I am sure that I butchered some of the legal jargon and probably didn't get all of my attributions correct, but that's the gist of it.
