Legal Alert

Federal District Court Finds Public University Cannot Require Student to Permit Virtual Room Scan During Tests

by Brian D. Pedrow and Chris T. Cognato
August 30, 2022

Summary

Room scans, when required by a public university for students taking remote exams, have the potential to violate test-takers’ constitutional rights to privacy, a judge ruled.

The Upshot

  • Ogletree v. Cleveland State University arose in 2021 after a student participated remotely in a general chemistry exam, taking the test at home. Cleveland State policies permitted faculty to use room scans for a proctored remote exam but did not require them in all cases.
  • The student objected to the scan, citing confidential materials that would be present in his room, which he said was the only secure and private location available to him. The student complied but later filed a complaint alleging that the room scan was an unreasonable search.
  • The court agreed with the student. It reasoned that the Fourth Amendment, which applies to state actors such as the University through the 14th Amendment and prevents the government from conducting an unreasonable search without a warrant, applies to and bars these types of scans in certain circumstances.

The Bottom Line

As remote testing becomes more prevalent, all public entities should review the decision and their policies accordingly. Moreover, even private schools and testing administrators should consider whether the case affects private, common law rights to privacy that may exist in the jurisdictions in which they operate.

Well before the pandemic, many schools and private test administrators began to permit test-takers to participate in exams remotely, including from their homes. As a typical security measure, these entities would require students to show test administrators their surroundings virtually before beginning testing, a practice often referred to as a “room scan.” Since 2020, the practice of online testing, including a room scan, has become only more prevalent. However, according to the U.S. District Court for the Northern District of Ohio, room scans, when required by a public university, have the potential to violate test-takers’ constitutional rights. As remote testing becomes more prevalent, all public entities should review the decision and their policies accordingly. Moreover, even private schools and testing administrators should consider whether the case affects private, common law rights to privacy that may exist in the jurisdictions in which they operate. 

The case, Ogletree v. Cleveland State University, arose in 2021 when the student participated in a general chemistry exam. According to the decision, the student participated in the class entirely remotely because of the pandemic. University policies permitted faculty to use room scans for a proctored remote exam, but did not require them in all cases. However, prior to the test, a University test coordinator informed the student that a room scan would be performed at the beginning of the exam. The student objected, citing confidential materials that would be present in his room, which was the only secure and private location he claimed to have available to him. Nevertheless, when the coordinator requested that he permit the scan despite his objections, the student complied. According to the court, the scan lasted less than a minute, and possibly only ten seconds. 

Despite complying and taking the general chemistry exam, the student filed a claim in federal court alleging that the room scan violated his rights as an unreasonable search prohibited by the Fourth and 14th Amendments of the U.S. Constitution. The court agreed. It reasoned that the Fourth Amendment, which applies to actors like the University through the 14th Amendment, prevents the government from conducting a search, defined as any “violation of subjective expectation of privacy that society recognizes as reasonable,” according to U.S. Supreme Court precedent. The court agreed with the student that society recognizes his subjective expectation of privacy in his room as reasonable. It acknowledged that many students are subjected to room scans in various settings, but also found that such practice did not overcome the fact that a student’s room can still be considered particularly private. Thus, the court deemed the scan a search.

The court then turned to the search’s reasonableness. Noting that the University lacked any particular suspicion of the student that would have justified a warrant to search his room in the criminal context, the court looked to whether there were sufficient “special needs” justifying the intrusion. To do so, it considered several factors, including the character of the intrusion the student faced. Importantly, it noted that the pandemic and the student’s unique situation left him without any choices but to submit to the scan–he was unable to attend in-person classes or take in-person tests to complete the course. The court did not find that the short duration or the student’s own role in executing the scan–including controlling the camera of his computer–outweighed the search’s intrusiveness. Therefore, having deemed the scan a search and unreasonably intrusive, the court determined that the compulsory scan had violated his constitutional rights.

Interestingly, the court did not immediately fashion a remedy. Instead, it asked the parties to confer on an appropriate resolution. Whether and how such a resolution may permit the University to conduct room scans in the future in other circumstances, including when there are other viable options for remote students to test, is yet to be determined. Nevertheless, both public and private institutions, including exam administrators of all kinds, should take note of the decision and how the case ultimately resolves. While the Fourth and 14th Amendments only apply to state actors, private entities that conduct exams may face claims that room scans also impair common law rights to privacy. As society continues to adapt to a world more comfortable with remote interactions, including in higher education and high-stakes testing, claims of privacy rights under various legal rationales seem likely to be a concern that many will need to address.

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