According to a recent report from the law firm Ballard Spahr LLP, the ruling from Ogletree v. Cleveland State University came after CSU student Aaron Ogletree was asked to comply with a virtual webcam scan of his room during a general chemistry exam in 2021 taken at home. Like several other universities amid the rise of remote learning during COVID-19, Cleveland State used virtual room scans to monitor for signs of academic dishonesty during proctored remote exams. The court agreed with the student’s complaints that the room scan violated his Fourth Amendment rights preventing government and public entities from conducting unreasonable searches without a warrant, which the court said applies to, and bars room scanning in, certain circumstances.
Cody Venzke, senior counsel for the Center for Democracy and Technology, called the decision out of Ohio “a major win for students and student privacy” that recognizes the protections that should go with using technology in students’ homes.
“Ultimately, as schools increasingly rely on technology, they have to be especially conscientious when online tools are being used in the home — even as technology has blurred some lines, the privacy of the home remains clearly protected,” he said in an email to Government Technology. “Because all of these technologies are unproven and invade student privacy, schools should consider strategies to mitigate their impacts in addition to room scanning.”
Jason Kelley, associate director of digital strategy for the international digital rights nonprofit Electronic Frontier Foundation, said that while the ruling isn’t binding on other courts, the precedent could have implications for how universities approach their test proctoring policies elsewhere, possibly adding to the list of schools that have discontinued the use of virtual scans and proctoring software due to students’ privacy concerns.
“Over the last few years, students have rarely had the option to opt out of using remote proctoring tools, and have been essentially coerced into allowing a third party, and their school, to collect and retain sensitive, private data about them if they want to pass a class,” Kelley said in an email to Government Technology. “Any student of a state school hoping to push back against room scans in particular could now cite (this opinion) as persuasive precedent.”
Noting that the ruling didn’t identify any specific remedies to ensure academic honesty during remote online testing, the report recommended that public universities review the decision and their digital learning policies as remote learning becomes more prevalent across higher education. It noted that even private schools and testing administrators should consider whether the case affects private, common-law rights to privacy that exist in their jurisdictions.
The ruling, according to the state and the report, acknowledged that while many students have been subjected to similar room scans in various settings during remote learning, a student’s room can be considered private, deeming the scan a “search.” The court also did not find that the short duration of the web camera scan outweighed its intrusiveness.
“This ruling raises important questions for other types of school technologies that are used in the home and the extent to which schools should be able to see into students’ personal lives,” Venzke also noted. “Schools have increasingly contracted with private companies to scan students’ messages, emails and documents, and record their browsing histories on devices provided by the school and on students’ personal devices. Moreover, these technologies can scan non-school related messages, raising similar questions about whether schools are conducting unwarranted searches.”
Cleveland State spokesman Dave Kielmeyer said in an email to Government Technology that university counsel would confer with Ogletree’s attorneys on appropriate next steps, as directed by the court.
“Ensuring academic integrity is essential to our mission and will guide us as we move forward,” the email read. “While this matter remains in active litigation, we are unable to comment further.”
