Sunday, September 24, 2023

Aspects of remote exam proctoring unconstitutional


Certain procedures used by schools when students take exams at home have been found unconstitutional by a federal judge in northeast Ohio, according to court documents.

The Constitution’s Fourth Amendment, which crystallized the idea that “a man’s home is his castle,” says this: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In the case of Ogletree v. Cleveland State University, Judge J Philip Calabrese heard about a technology-enabled, pandemic-induced remote testing policy at the university. Under the policy, test administrators or professors can ask students taking tests at home to perform a “room scan” with their device’s camera, which allows the person administering the test to make sure no materials are in the room that the student can use to cheat on the test. Students can refuse to scan their surroundings, but the university has no clear policy about what to do in that case.

One day in early 2021, at the height of the coronavirus pandemic, Aaron Ogletree was scheduled to take a chemistry test at home. The proctor asked him to perform a room scan, but he had not had time to hide tax documents that he considered private. If the room scan was performed, the proctor would be able to see these private tax documents in the testing area—documents, we note, that would not be listed as prohibited materials for taking a chemistry test.

The university tried to argue that it wasn’t searching for any crime-related objects, just for objects that ensured Mr Ogletree wasn’t cheating on the test. But Judge Calabrese found that the room scans constituted an actual “search,” despite the university’s pleading, and that Mr Ogletree’s private home should fall under the protection of the Fourth Amendment.

Furthermore, the university tried to argue that the proctor didn’t actually see the tax documents during the brief room scan and that many, if not most, students submit to this practice all the time. That didn’t work either, as “it does not follow that [other students] might not object to the virtual intrusion into their homes or that the routine use of a practice such as room scans does not violate a privacy interest that society recognizes as reasonable, both factually and legally. Therefore, the Court determines that Mr. Ogletree’s subjective expectation of privacy at issue is one that society views as reasonable and that lies at the core of the Fourth Amendment’s protections against governmental intrusion.”

In his pleadings, Mr Ogletree also argued that the room scans were not an effective way to ensure students weren’t cheating. He pointed to several examples of how students could cheat, even when a room scan had been performed, including leaving the room to use a browser in another room, using a smartphone to look something up, and so on.

“Freedom from government intrusion into our homes is the very core of what the Fourth Amendment protects,” said Mr Ogletree’s lead counsel, Matthew D Besser. “If there is any place where students have a reasonable expectation of privacy, it’s inside their homes. CSU’s warrantless webcam searches of student homes tramples that fundamental privacy right. … It is an unnecessary and unreasonable intrusion on student privacy, and it violates the Fourth Amendment.”

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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