Federal Court Finds University Remote Exam Scan as Unreasonable Under Fourth Amendment (Ogletree v. Cleveland State University)
For many university students, the “new normal” often includes room scans during remote proctored exams. Despite the protocols obvious relation to the integrity of exams, this practice has now been ruled unconstitutional by a federal Judge in the Northern District of Ohio.A chemistry student filed suit against Cleveland State University, a public institution of higher education. The federal court granted summary judgment in favor of the plaintiff, the Cleveland State student. The plaintiff’s argument centered around the notion that the room scan was a search pursuant to the Fourth Amendment. And as such, it was an unreasonable search inconsistent with the Fourth Amendment to the United States Constitution.
In order for the state action to be considered a search, they found that the plaintiff must demonstrate a subjectively reasonable expectation of privacy, furthermore, society must provide for said expectation to be reasonable. Here, the plaintiff was in his home, which is subject to heightened scrutiny, but he was also in his bedroom.
While the university argued that this sort of room scan is “standard industry practice,” and while the record did not reflect that any other student objected to the practice, the court reasons that privacy in the bedroom is one of the bedrock places upon which society can agree that privacy should be expected.
The court also specifically analyzed the case under the Wyman v. James, 400 U.S. 309 (1971) framework. Wyman involved a welfare beneficiary who was denied benefits after refusing to allow a caseworker to enter into the home. In that case, the Supreme Court ruled in favor of the state, despite recognizing the heightened scrutiny as applied to searches of the home. The Court reasoned that the entrance was not a search, as refusal was not criminal and not compelled, rather monetary benefits were solely tied to the entry. The Plaintiff recognized that Wyman provides some strong authority to suggest that the national room scan. However, the Court accepted the argument, recognized Wyman’s lack of general recognition, and distinguished it from the case at bar.
It is interesting that the Court analogized this case more with some cases from the Appellate level which distinguished fact patters from Wyman, rather than to go with the binding Supreme Court precedent. It is fairly obvious that a room scan of items in plain view is far less intrusive than a government officer entering into one’s home. Likewise, the inability to remotely take a test from home, seems like a far lesser punishment than refusing entitlement benefits. Yet, the Court did elect to take the argument that is much stronger when it comes to policy, but perhaps not stronger when it comes to stare decisis.
After establishing that the investigation constitutes a search, the next question for the court to consider was whether the search was reasonable. The determination of whether a search is reasonable, requires the court to balance the intrusion on Fourth Amendment interests, with the promotion of government interest. Although the Constitution outlines a warrant requirement, a warrant is not absolutely required. The court reasons that if the search is reasonable absent a warrant, then the search is perfectly constitutional.
To determine whether the government has a special need, which therefore permits further intrusion, the court looks at several factors: (1.) the privacy interest; (2.) character of intrusion; (3.) extent of government concern; and (4.) efficacy of the means of concern. The court here found that the privacy interest of the bedroom and home was still a major privacy interest, notwithstanding the Plaintiff’s status as a student. The character of the intrusion weighs an interesting factor. Namely, that due to the pandemic, a student concerned with privacy did not in fact have an option to take online classes. This suggests that the court’s reasoning may not withstand a similar type of protocol for an online optional class. The court acknowledged that the government interest here, clearly weighs in favor of the Defendant, to support the integrity of the exam. Finally, the court recognizes that other safeguards would also advance the government’s interest, such as recording students during exams or employing remote proctors.
On balance, the court concluded Plaintiff’s privacy interests in his home, outweigh Cleveland State’s interests in scanning his room. In turn, the court found that Cleveland State’s procedures of room scans was unconstitutional.
As reference above, this decision may raise more questions than it answers. For example, are room scans unconstitutional in connection with remote-optional exams, rather when they were required during the pandemic? Despite the court’s reasoning on efficacy, would a remote proctor who is watching the bedroom, not also amount to an unconstitutional search and seizure. While the court’s reasoning is interesting, it would seem hard to believe that this decision will not be reversed on appeal.
The outcome of this case probably comes as a surprise to many. With the shift to remote learning during the pandemic, lawsuits were filed across the country over a plethora of alleged violations. In reality, very few cases even survived a motion to dismiss. It is nonetheless not that hard to see why this sort of invasion of privacy was found to be problematic, and that the public university’s interest does not justify this sort of room scan. It will be interesting to see if this goes anywhere on appeal.
Read the court opinion here.