Federal Court deems university’s use of room scans within the home unconstitutional
I. Summary
A federal court recently ruled that a public university’s use of room-scanning technology during a remotely proctored exam violated a student’s Fourth Amendment right to privacy. The decision in Ogletree v. CSU is the clearest indication to date of how courts will treat Fourth Amendment challenges to public higher education institutions’ use of video room scans within students’ homes. Schools, test administrators, and professional licensure boards often use proctoring technologies in an effort to dissuade cheating by remote test takers. These technologies take a variety of forms and may involve live proctors observing test takers via webcam, eye-tracking technology, artificial intelligence, recording via webcam and microphone, plug-ins that disable a test taker’s computer from accessing third-party websites or stored materials, and room scans. At issue in this case was a room scan of a student’s bedroom workspace.
Since the start of the COVID-19 Pandemic, more schools have incorporated remote proctoring software into testing procedures. The increased use of such technology in both K-12 and higher education settings has led to widespread discussion about the resulting privacy implications, including whether remote proctoring practices violate students’ privacy rights. In August, the US District Court for the Northern District of Ohio offered some clarity–as well as new questions–when it granted summary judgment to college student Aaron Ogletree (“the student”), in his Fourth Amendment lawsuit against Cleveland State University (“CSU,” or “the university”). The Court determined that the room scan amounted to a Fourth Amendment search because: (1) CSU is a public institution and thus a state actor; (2) the student had an intuitive expectation of privacy within the bedroom of his home; and (3) the student’s expectation of privacy was reasonable and one generally accepted by society. The Court further found that CSU’s Fourth Amendment search was unreasonable by weighing four factors: (1) the student’s privacy interest; (2) the nature of the search; (3) the government concern; and (4) efficacy. Finding only one factor (the government concern) weighed in favor of CSU, the Court deemed the search unreasonable and thus unconstitutional.
While the Court’s decision is not dispositive of many interesting issues, it offers clarity on some and poses new questions about others. Some of the takeaways from the decision include:
- Going forward, courts are likely to be skeptical of public higher education institutions conducting room scans within a student’s home absent a warrant.
- Although nonpublic actors are not directly implicated, the Court’s decision may lead to broader critiques of room scans. These critiques may influence new norms for institutions such as private universities and nonpublic professional licensure boards.
- This decision calls into question the lawfulness of public institutions’ use of other proctoring features beyond room scans.
- Several important questions about what this decision will mean for remote proctoring and student privacy remain unanswered.
II. Analysis
The student in this case sued his university after he was asked to complete a room scan of his bedroom workspace before a remote exam, alleging that the practice violated his Fourth Amendment rights. The Fourth Amendment of the United States Constitution states:
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.
The Court’s opinion first determines that CSU’s room scan amounted to a Fourth Amendment search, and second, rules that the search was unreasonable. While Fourth Amendment decisions are highly fact-specific, the Court’s analyses of these two factors indicate how other courts may evaluate similar cases in the future.
The Room Scan was a Fourth Amendment Search
In the first stage of its analysis, the Court determined that the room scan did in fact amount to a Fourth Amendment search. Fourth Amendment searches involve government action that violates “a subjective expectation of privacy that society recognizes as reasonable.” Because CSU is a public institution, it is a government actor. As such, the Court had to determine whether the student possessed a subjective expectation of privacy when he took the remote test, and if so, whether his expectation of privacy was one reasonably recognized by society. The Court determined both of these elements were met.
Much of the Court’s analysis hinges on the location where the room scan took place: the student’s bedroom within his home. The Court acknowledged that privacy within the home is a cornerstone of the Fourth Amendment jurisprudence and that there is little question as to whether the student had a subjective expectation of privacy in his bedroom. The Court further found this expectation to be one reasonably understood by society as there is widespread agreement that privacy interests exist within one’s home.
In arriving at its conclusion that a Fourth Amendment search occurred, the Court rejected multiple arguments from CSU. For example, since proctoring services commonly include room scans and students routinely use them, the university argued that the student’s expectation of privacy was unreasonable. The Court was not persuaded by this argument, noting that a practice can be commonly used but still implicate a privacy interest. A lack of opposition from other students does not invalidate the inherent expectation of privacy that exists in the home. The Court explained:
Though schools may routinely employ remote technology to peer into houses without objection from some, most, or nearly all students, it does not follow that others 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.
CSU also cited case law regarding routineness and plain view. Here, the university attempted to equate room scans to activities that courts have declined to characterize as Fourth Amendment searches. Specifically, these precedents involve routine practices that employ modern technologies to observe what is openly visible. Once again, the Ogletree Court rejected the university’s arguments, holding: “[r]oom scans go where people otherwise would not, at least not without a warrant or invitation.” As such, the routine use of room scans for remote exams does not make the student’s expectation of privacy in his bedroom unreasonable.
The Court also rejected the notion that a room scan is not a Fourth Amendment search simply because the technology that room scans use is publicly available. Here, the opinion notes:
While cameras might be generally available and now commonly used, members of the public cannot use them to see into an office, house, or other place not publicly visible without the owner’s consent.
Moreover, the Court was not persuaded by the university’s invocation of Quon or Wyman – two Supreme Court cases that involved arguably similar searches. While the Ontario v. Quon decision involved similar facts and found a government search to be lawful, the case centered around employee monitoring software, not remote proctoring room scans. The Ogletree Court declined to apply Quon and subsequent case law beyond an employment context. The Court also engaged in a lengthy discussion about the precedent from Wyman v. James. Wyman is a Supreme Court case finding that mandatory home inspections to qualify for government benefits are not Fourth Amendment searches. The Court examined many factors in its analysis of Wyman’s applicability to the case at hand. Ultimately, however, the Court determined that the circumstances in the Wyman case were fundamentally different from the Ogletree facts and could not be equated to support the university’s argument.
The Fourth Amendment Search was Unreasonable
Having determined that the room scan was a Fourth Amendment search, the Court then moved to its second analysis, the reasonableness of the search. This analysis employs a balancing test whereby a court weighs the “intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”
The room scans at issue in this case can be characterized as suspicionless searches, in that they were not conducted because of specific suspicion of a single student. While suspicionless Fourth Amendment searches are generally unconstitutional, the Ogletree Court acknowledged the exception for searches in which the government has “special needs beyond the normal need for law enforcement.” The test for this exception–and the test the Ogletree Court used in its analysis–considers four factors:
- The nature of the privacy interest affected;
- The character of the intrusion;
- The nature and immediacy of the government concern; and
- The efficacy of this means of addressing the concern
Factor 1: The Privacy Interest
For the first factor, the Court reiterated the well-understood privacy interest that existed within the student’s bedroom. The high value that society and Fourth Amendment jurisprudence place on privacy within the home worked in favor of the Plaintiff in this case. CSU argued that students have different Fourth Amendment rights in a school setting given the unique custodial relationship that exists. Relying on case law involving public K-12 institutions, CSU suggested that the student had lesser privacy interests at the time of the room scan. The Court rejected this assertion, however, pointing out that CSU’s argument rested on precedent involving minor students whose school attendance is required. Here, the student was an adult who voluntarily enrolled in a higher education institution. The Court made this distinction and explained:
Mr. Ogletree was an adult at the time of the search at issue and enrolled at Cleveland State by choice. Although this setting might affect the nature of the privacy interest at stake to some degree, it is difficult to see how enrollment in a higher educational institution would limit the core protections of the home under the Fourth Amendment on the facts and circumstances of this case.
Factor 2: The Intrusion
For the “character of the intrusion” factor, the Court relied heavily on factors from the case record. The Court discussed the lack of alternatives the student had when taking the test given the COVID-19 Pandemic and his inability to take the exam anywhere other than his bedroom. The Court noted that even before the Pandemic, it would be difficult for students to weigh their privacy interests when deciding on a testing location given the university’s policy of leaving remote testing decisions to the discretion of individual instructors. Here, the Court acknowledged:
In normal times, a student might be able to choose another college or among classes with different options for tests and assessments. A student who valued privacy more might opt for courses with in-person tests, while another who prefers convenience might tolerate an intrusion of the sort at issue here. Cleveland State’s policies and practices make such choices and tradeoffs opaque, at best. Faculty members have discretion on how to implement remote testing.
The Court further pointed out that the student only had two hours of notice of the room scan because of policy changes.
The Court’s analysis for this part of the four-part test also included factors that favored CSU, including the fact that the room scan was minimally invasive in that it lasted less than a minute and was in the student’s control. Moreover, the Court acknowledged that some privacy interests might be traded away for the exchange of a good or service, such as an education or degree. However, the Court maintained that regardless of any tradeoffs, the student kept his constitutional rights. When weighing the factors that favored the student against the factors that favored the university, the Court ultimately concluded that “the core protection afforded to the home, the lack of options, inconsistency in the application of the policy, and short notice of the scan weighed in Plaintiff’s favor.”
Factor 3: The Government Concern
The third factor, “nature and immediacy of the government concern” weighed in the favor of CSU as the parties and the Court agreed that the university had a legitimate interest in preventing academic dishonesty. The room scans were ultimately employed to help meet this interest.
Factor 4: Efficacy
The Court then turned to the fourth and final prong of the test: the efficacy of the school’s means to address its concern. For this factor, in particular, it is important to remember that this case deals with one form of proctoring: room scans. Here, the Court considered the alternative options that existed to achieve the university’s goal of deterring academic dishonesty.
In his argument against the effectiveness of room scans, the student pointed out that the school has many proctoring methods at its disposal, including technology that prevents a test taker from accessing the internet or saved documents during an exam, hiring proctors to monitor students during the duration of a test, and AI detection for plagiarism. In support of his argument about the various alternatives that existed, the student pointed out that the university’s policy left proctoring methods to the discretion of individual educators. The student also argued against the efficacy of room scans by discussing different ways a student who is required to complete a room scan before an exam could still access prohibited materials during the testing period.
In contrast, the university argued that a room scan is an effective method to achieve the university’s interests in preventing academic dishonesty. To support its argument that other proctoring features do not offer the same detection and deterrent functions that room scans do, the university suggested that such programs “are not effective at achieving these functions and that sometimes they are inappropriate for students with disabilities.” Here, the university’s argument seemed to hinge on the ineffectiveness of other methods of remote proctoring.
The Court was ultimately persuaded by the student’s arguments against efficacy and concluded that “a record or sporadic and discretionary use of room scans does not permit a finding that room scans are truly, and uniquely, effective at preserving test integrity.” Not only did other safeguarding methods exist, but the Court also pointed out the existence of alternative evaluation methods–such as a final project or term paper–that do not require remote proctoring at all. This section of the Court’s analysis is especially interesting given the efficacy critiques that often arise in the public discourse surrounding remote proctoring technology.
As three of the four factors (nature of the privacy interest affected, character of the intrusion, and efficacy of means) weighed in favor of the student, and only one of the factors (nature and immediacy of the government concern) weighed in favor of the university, the Court concluded that the Fourth Amendment search was not reasonable.
Having determined that the room scan amounted to a Fourth Amendment search and that the search was unreasonable, the court found the Plaintiff’s Fourth Amendment rights had been violated.
Procedurally, it is notable that the District Court granted the student’s motion for summary judgment. Summary judgment requires a party to show that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Moreover, a grant of summary judgment requires a court to consider the evidence “in the light most favorable to the party opposing the motion.” That means the Court in Ogletree not only determined that the student was entitled to judgment as a matter of law, but it arrived at this determination by viewing the evidence in a light that favored the university.
Impact on Remote Proctoring
The Court’s decision to grant Ogletree’s motion for summary judgment is the clearest indication to date of how federal courts may treat Fourth Amendment cases involving the use of room scans in remote proctoring software. Nonetheless, it is too soon to tell whether other courts will follow suit or what this decision will mean for remote proctoring generally. Regardless, schools that use remote proctoring software, and more specifically, deploy room scan features, should be mindful of the decision in this case and the Court’s reasoning.
Fourth Amendment cases are especially fact dependent. As such, it is very possible that the case could have had a different result had the circumstances been even slightly different. For example, because of the unique relationship between schools and K-12 pupils, there remains ambiguity as to whether the Court would have arrived at the same result in a case about an elementary or high school student. Moreover, this case focused specifically on room scans; it is unclear whether other forms of remote proctoring, such as ongoing monitoring when a student takes a remote test in their home, would amount to a Fourth Amendment violation under this Court’s efficacy and reasonableness analyses. Nonetheless, this case is a win for student privacy and an indicator of how other courts may rule in future cases.
Regardless of the questions that still exist, interested parties–including schools, students, boards of licensure, and proctoring companies–should be aware of this decision. Entities that employ proctoring software should be mindful of the Court’s reasoning and consider potential legal risks and privacy implications before employing proctoring technologies or requiring room scans within the home.
