A federal district-court judge ruled on Monday that room scans — a component of many online-proctoring services — violate the Constitution.
Judge J. Philip Calabrese of the U.S. District Court for the Northern District of Ohio sided with the plaintiff in a ruling that’s been described by some legal observers as injecting a note of caution about the use of the controversial softwares, which exploded during the pandemic. The plaintiff, a Cleveland State University student, was asked to perform a brief scan of his bedroom in early 2021 before taking a remote test. That student argued that the request violated his Fourth Amendment rights, which include protections from “unreasonable searches.”
Many colleges and universities have asserted that online-proctoring software is necessary to safeguard academic integrity and curb cheating among students who are taking tests remotely. While acknowledging Cleveland State’s “legitimate purpose” in doing so, the judge maintained that the student’s “expectation of privacy [at home] is one that society views as reasonable and that lies at the core of the Fourth Amendment’s protections against governmental intrusion.”
The decision challenged the university’s arguments, which included statements that room scans are “standard industrywide practice,” and that students “frequently acquiesce in their use.”
Colleges nationwide should be paying close attention to this ruling, as it could be relevant to different learning modalities and ways of delivering instruction, said Joshua D. Nolan, a higher-education attorney and partner at Bricker & Eckler LLP.
“It’s maybe the first case that deals with proctoring software and this Fourth Amendment issue,” he said. And it relates to “both hybrid-learning environments and online-learning environments. It’s important for a lot of different audiences.”
What the decision itself means to colleges nationally, said lawyers contacted by The Chronicle, has less to do with regulations and more with the unspoken message it carries: “Slow down.” Institutions that use proctoring software, they said, should refer to this court ruling as an “instructional” tool as they evaluate their existing policies and approaches: How, and why, are they using online-proctoring tools and requiring certain functions?
“If your prior thinking was, ‘We think we need it and we think there’s a good reason for needing it, therefore we can do it’ — there is now at least one federal court that says, ‘Nuh uh, that’s not the standard,’” said Chad Marlow, senior policy counsel for the American Civil Liberties Union. “The big message from it is that just because a student is enrolled at your university does not mean that they have surrendered their privacy rights.”
This is especially the case, he added, in the absence of data proving proctoring measures such as room scans curtail cheating — something the judge addressed in his ruling. “The reasonableness of the intrusion is going to be sharply reduced if you cannot submit proof that the surveillance actually works,” Marlow said.
The judge also wrote that online proctoring wasn’t the only way for the university to protect academic integrity. “Without question, other procedural safeguards would advance the same purposes — indeed, Cleveland State employs some of them,” he wrote. They include alternatives to tests, like assigning a final project or paper, which “might minimize or eliminate the need for remote scans.” Privacy advocates have also suggested open-book exams and honor codes.
Another takeaway from the ruling is that it offers students more tangible support for their complaints.
While the use of online-proctoring companies like ProctorU, Honorlock, and Proctorio exploded during the pandemic, they’ve since come under fire for a host of reasons, including allegations of racial bias and cybersecurity risks. There are dozens of student-led petitions on Change.org that have called for their removal in the past, including those from the University of Tennessee at Chattanooga, the University of Wisconsin at Madison, and Washington State University.
“Does [the ruling] increase the risk that students who are concerned about this could point to this case? Absolutely,” Nolan said. “Does it create a circumstance where we now have some Fourth Amendment case law tied to this type of service? Yes.”
Still, lawyers noted that it’d be premature to make assumptions about any broad legal applications.
For one, any ruling drawing on the Constitution and Fourth Amendment applies only to public colleges, because they are considered part of the government. Nolan said the court decision is also very “fact specific” to the student’s particular case; for example, for health reasons, the student, Aaron Ogletree, was not able to test in person and therefore didn’t have alternative options available. Nolan did point out, though, that the judge’s focus on the home as a private place invites further discussion, as it’s become a more common learning environment for students.
Cleveland State has not signaled whether it will appeal the decision. According to Monday’s ruling, the parties have until September 12 to submit a “short joint status report” on the status of proposed remediation to the judge.
The university wrote in a statement that its counsel “will confer with [the plaintiff’s] counsel on appropriate next steps. Ensuring academic integrity is essential to our mission and will guide us as we move forward. While this matter remains in active litigation, we are unable to comment further.”