We wrote in July about writer Jonathan Krakauer‘s attempts to get the records related to the hearings and disciplinary actions against a University of Montana quarterback. He was initally granted access but the decision was appealed and the Department of Education is filing an amicus brief  with the Montana Supreme Court for the purpose of “clarify[ing] that disciplinary records constitute protected ‘education records’ under” FERPA. The department claims it is not taking a side in the case, though it certainly seems like they are saying, with this filing, that Krakauer should not get access to these records, which is one of the two sides.

Several legal experts have weighed in on the case with no clear indication about how the law should be interpreted. Does the fact the the student’s name is widely known matter? What about his status as a student athlete? How does public interest and protection weigh against the privacy of this student?

The legal wranglings, which are not my area of expertise, are actually manifesting the sociocultural concerns (more my speed) over how schools are handling sexual assault-specifically assaults committed by student athletes-and the balance between transparency and privacy.

We know that athletic departments have often tried to keep the punishment of crimes by student athletes “in-house.” The NCAA addressed this issue over the summer by clarifying that investigations and punishment of sexual assault needs to be handled by the appropriate university officials usng university policies and procedures just as they would for non student athletes. But looking around (perhaps looking a little south-toward Florida maybe?), some might wonder how much influence this edict has had.

Also, given that the discourse from the Department of Education and the Obama administration has centered around transparency-in how cases are reported, handled, and investigated, how discipline is enacted, how communication among all the parties occurs-some see this amicus brief as pulling the shade down a little.

How or whether these concerns will play out in the appeal remains unknown. Here is what I know: a high-profile student athlete was found guilty of sexual assault and expelled. That punishment was appealed to the state commissioner of higher education (i.e., to a pretty high level) who reduced the punishment to a suspension that allowed the player back on campus in time for football season. Eyebrows are rightly being raised. In the end, the court may decide that FERPA does not allow for these records to be released, but that does not mean that an explanation should not be provided. I think that the story will come out regardless, the question is whether it will be supported by official documentation or the testimony of anonymous insiders familiar with the case.