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Athletes' privacy rights questioned at Krakauer hearing

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Athletes' privacy rights questioned at Krakauer hearing

BOZEMAN — Should intercollegiate athletes have diminished expectations of privacy? Bestselling author Jon Krakauer and his attorney, Mike Meloy of Helena, say yes.

At the heart of Krakauer’s wide-ranging argument for the release of documents related to the decision to vacate former Montana Grizzlies quarterback Jordan Johnson's expulsion after university proceedings found him guilty of sexual assault in 2013 is the contention that student-athletes aren’t subject to privacy laws due to their status as public figures.

Krakauer and Meloy argued that case Wednesday to the Montana Supreme Court during a records request hearing in front of the Montana Supreme Court at the Strand Union Building at Montana State University.

“(Johnson) was the most famous person in Montana from 2011 to 2014,” Krakauer said after the hearing. “He became a public figure. Everything about this alleged sexual assault — except what happened after the Commissioner (of Higher Education) got it — is made public.

“Jordan Johnson’s alleged privacy is keeping us from knowing that. But he doesn’t have privacy anymore. His privacy vanished. You can’t enforce privacy that doesn’t exist.”

The argument is integral to Krakauer’s lawsuit against the Montana University System and Commissioner of Higher Education Clayton Christian to make public all documents pertaining to the reversal of Johnson’s expulsion after the football star was acquitted of sexual intercourse without consent in Missoula County District Court in 2013.

In 2014, Helena District Judge Kathy Seeley ordered Christian to allow Krakauer to inspect the documents. The Montana University System is appealing that decision to the Supreme Court citing FERPA, the Family Educational Rights and Privacy Act, which prohibits such disclosures.

Krakauer and Meloy argue that because Johnson signed a student-athlete code of conduct agreement at UM he waived his right to privacy.

“When a student-athlete signs (a) code of conduct, they acknowledge that because they participate in intercollegiate sports they’re subjected to pretty intense public scrutiny,” Meloy said, responding to a question posed by Justice Laurie McKinnon.

“That is, the press covers them. When they do a good job they get good publicity, when they do a bad job they get dissed. And they have to expect that that’s going to happen, and they have to acknowledge that they are losing some rights when they become a student-athlete because of that scrutiny.”

Attorney Vivian Hammill, representing the state, disagreed.

“(The law) specifically prohibits the university from entering into a contract that waives a student’s right to privacy,” Hammill told the court. “The athletic code is merely aspirational. That’s all it is. Athletes, no matter what sport they’re in, don’t lose their privacy rights by enrolling in the Montana University System. Laws do trump the right to know.”

Krakauer, the bestselling author of “Into the Wild,” “Where Men Win Glory” and “Into Thin Air,” released a book titled “Missoula: Rape and the Justice System in a College Town” last April. It chronicles the Johnson case, as well as other reports of sexual assault at UM.

Johnson, a native of Eugene, Ore., was accused of sexual assault in 2012 and was found guilty by a student conduct court at the University of Montana based on a preponderance of evidence. He was later found not guilty in a jury trial.

What happened next? No one knows, except that Johnson’s expulsion was reversed by Christian and rescinded by UM president Royce Engstrom. Johnson’s enrollment was reinstated in the fall and he returned to the football team in time for the 2013 season.

Krakauer wants to know the hows and whys of that process.

“This isn’t about Jordan Johnson,” Krakauer said. “We’re interested in what the commissioner did.”

In February of this year, Johnson reached an out-of-court settlement for $245,000 to drop his lawsuit against the State of Montana and the University System.

Edit - May be better here....

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