“Mr. Ogletree’s privacy interest in his home outweighs Cleveland State’s interests in scanning his room.”
— Judge J. Philip Calabrese, U.S. District Court
“Ensuring academic integrity is essential to our mission.”
— David Kielmeyer, Cleveland State spokesman
Schools are back in session across the country with kindergarteners practicing their letters, high school marching bands perfecting their halftime shows, and college students moving back into their dorms from Oregon to Oklahoma and Idaho to Illinois. Two-and-a-half years after the start of a worldwide pandemic, nearly all of those schools are back to operating in a manner that looks a lot more like the fall of 2019 than it does like the fall of 2020.
But just as the pandemic opened the eyes of businesses as to how they can work remotely and reduce costs, it also forced colleges and universities to explore new methods of providing education, as well as way to administer tests and determine student performance. Some of those methods have persisted beyond the pandemic.
Among those procedures are remotely administered and proctored tests. And those tests have posed new challenges to colleges that are trying to ensure academic integrity. Preventing students from cheating on homework, term papers and in-person tests is hard enough, but doing so when a student is taking a test alone, in their bedroom poses an even bigger challenge.
To meet that challenge, several new companies appeared in the last few years, and a few established ones saw their workload grow exponentially. One of those companies, Honorlock, and one of its clients, Cleveland State University, recently found themselves on the receiving end of an accusation that they had broken the rules — not the testing rules, but rather the rules that govern us as a society.
As a little bit of background, it’s important to note that both state and federal courts have given public schools greater leeway when it comes to a variety of constitutional rights and personal freedoms than they have given to other governmental agencies. Most of these decisions cite the need for schools to maintain order and safety in their school buildings.
For example, school officials can generally search a student’s locker or even their book bag if they have reason to believe that the student has contraband or a weapon. Schools have been given leeway to control student activities and speech that might cause a disturbance in the school setting, and even to punish students for behavior that occurs off campus but affects the function of a school.
As such, Cleveland State probably felt that it was on pretty solid ground when it came to their use of Honorlock. But Aaron Ogletree, a Cleveland State student studying chemistry, disagreed and brought a lawsuit against the university and the testing company.
His complaint wasn’t with the fact that the school wanted to monitor his test-taking or prevent him from cheating. He wasn’t even upset about a requirement that he be monitored on camera while in his dorm room taking the test. What pushed him to sue was a requirement from the school and the testing company that he first submit to a “room scan.”
The room scan required him to take his camera and show the test proctor his entire bedroom. Not only did the proctor view it, but the scan of the room was also recorded, stored on the testing company’s server, and, he alleged, able to be viewed by other students who were taking the test.
The university claimed that the scan was not a search, for the purposes of the Fourth Amendment, because the student got to choose where they took the test, was in control of the camera during the scan, and the scan was not for the purposes of criminal investigation. The school also noted that the students could refuse to perform the scan, though they would then not be permitted to take the test for credit.
The judge was not convinced. In his decision, he noted that “room scans go where people otherwise would not, at least not without a warrant or an invitation.” Of course, the Fourth Amendment applies only to searches conducted by the government, and thus is applicable in this case involving a public university.
Hopefully, the 2022-2023 school year will be a smooth and relatively healthy one in which those college exams can all be taken in person, proctored by a real, live, eagle-eyed college professor.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.